Author: CB Soyapi REGULATING TRADITIONAL JUSTICE IN SOUTH AFRICA: A COMPARATIVE ANALYSIS OF SELECTED ASPECTS OF THE TRADITIONAL COURTS BILL

Traditional justice systems have been in place for a very long time in South Africa and in Africa in general. They are characterised by informal systems that are not beset by the normal technicalities prevalent in formal justice systems. In recent times South Africa has sought to do away with the Black Administration Act, which was the regulating legislation on traditional justice systems, by introducing the Traditional Courts Bill. Initially introduced in Parliament in 2008 and withdrawn for another tabling in 2012, the Bill has been met with much criticism. Instead of venturing on a clause by clause analysis of the provisions of the Bill this note considers selected aspects of it which are perceived to be significant and which have courted controversy. These are ascertainment, legal representation, jurisdiction, gender, and the hierarchy of courts. The essential arguments are that the Bill has not been properly aligned with the Traditional Leadership and Governance Framework Act 41 of 2003 (as amended in 2009) or the Constitution of the Republic of South Africa, 1996 and that the above issues have not been addressed adequately or are at times only vaguely addressed. The note also considers various provisions from other African countries with similar legislation and which also regulate on the same issues, for the purposes of identifying better ways of addressing the selected issues. In the final analysis, the recommendations are not that the South African legislature must transpose the provisions of other countries, but that the framers of the Bill must reconsider these issues along the lines in which they are addressed in the countries with which comparisons are drawn here. Without a reconsideration of the issues, the Bill will still be met with criticism even from those it is meant to regulate, and could potentially result in various constitutional challenges and litigations. KEYWORDS : Traditional Courts Bill; traditional justice systems; customary law; ascertainment; legal representation; hierarchy of courts; gender


CB SOYAPI
PER / PELJ 2014(17)4 adult male could cross-examine witnesses, as there were no strict rules on evidence.This goes to show that the proceedings were informal.However, this in no way meant that the justice delivered in such customary courts was not to the satisfaction of the parties. 6The colonisers allowed the courts to use any procedure as long as their proceedings did not disrupt public policy and justice. 7wever, with the advent of the Constitution of the Republic of South Africa, 1996   (hereafter the Constitution), South Africa has taken a new direction in the manner in which traditional leadership, women and customary courts are viewed.The legislature has enacted laws that are aimed at redressing the past and redefining traditional leadership and traditional courts. 8The Constitution itself recognises customary law and customary courts.The recognition necessitates legislative measures to integrate this form of justice into the mainstream.However, the same Constitution contains provisions that do not immediately lend themselves to the smooth accommodation of customary law.Therefore, with specific reference to traditional courts, the legislature has been trying to enact a Bill 9 that is going to regulate the traditional justice system.The Bill has, however, not been well received as it has attracted criticism from civil groups, 10 academics 11 and parliamentarians/politicians. 12Some of the reasons for this criticism are that the legislature has ignored the recommendations made by the South African Law Reform Commission 13 and the Bill also ignores fundamental issues that are central to 6 See Bennett Customary Law in South Africa 166.
13 SALC Report on Traditional Courts.For instance, the failure to recognise the hierarchy of courts, the failure to recognise councillors, the failure to provide for gender representation and the failure to provide for opting out of the jurisdiction of the court.
CB SOYAPI PER / PELJ 2014(17)4 traditional justice such as ascertainment, legal representation, jurisdiction, gender and the hierarchy of courts. 14Where it addresses these issues, the Bill does so inadequately.This is untenable considering the fact that the traditional courts are responsible for administering justice in the majority of cases involving the majority of South Africans, who cannot access the formal courts. 15e post-apartheid government of South Africa has the opportunity to legislate on the traditional justice system which has been regulated thus far through the Black Administration Act.With this opportunity the government has the task of bringing the traditional justice system in line with the Constitution, but it needs to tread carefully in order that the process does not destroy the institution of traditional leadership.
This note places the Bill into perspective and analyses it within the broader context of the myriad of challenges that legal plurality poses in the development of a justice system.In that regard, the principal aim of this note is to identify the flaws in the Bill which have caused opponents to label it as unconstitutional and to analyse the impact of such issues on the Bill.The ancillary aims are to draw comparisons between the Bill and similar provisions in other African countries which regulate traditional justice, and to formulate and recommend the best possible ways to address the flaws in the Bill.

Traditional courts and their functioning
Traditional justice affirms the values of customary law and is deeply rooted in the principles of restorative justice and reconciliation. 16As such, traditional courts are an indispensable part of the administration of justice in South Africa. 17Although they 14 The Bill has been met with criticism on other grounds as well.However, the note focuses on the above-mentioned aspects only.For other contentious issues relating to the Bill, see Weeks 2011a are not recognised as forming part of the formal courts, they occupy an important space in the administration of justice in rural areas, where a huge percentage of the population of South Africa is located. 18The African Human Security Initiative 19 has observed that traditional courts have the following strengths: (i) There is a sense of ownership by the people as the community is bound by its rules.The people are more comfortable because they are included in the process and are under a law that is indigenous and not foreign.
(ii) The processes are flexible, simple and familiar, with no rigid rules.The language is not foreign and people can easily follow the process.It has also been found that the informal procedures of customary courts have the advantage of leaving less room for technicalities and having the real substance dealt with. 20 (iii) The system is based on mediation and is more restorative than retributive. 21In this regard, the community is more important and relations are meant and expected to exist after the process.There is, thus, a measure of bringing unity and togetherness.
(iv) The courts are accessible, inexpensive and speedy.It is important that by virtue of their being geographically closer to the people there are often no travelling costs involved.
On the other hand, some major disadvantages of these courts are the following: (i) There is no presumption of innocence22 as the inquisitorial nature of the proceedings amounts to a presumption of guilt against the accused because he presiding within these courts derive their authority from customary law.(ii) The process is said to be patriarchal 24 because males are considered to be superior.Women are therefore thought to be inferior, and when it comes to the determination of issues that have to do with the household, the man is the head.Matavire notes that during court proceedings it is very common to hear the men saying that they do not "tolerate womanish talk" when discussing crucial matters and "if you don't have anything to say you can join the women in the kitchen". 25is kind of talk is indicative of the way women are viewed.It goes beyond looking down upon them to even considering them thoughtless and subordinate. 26As will be seen hereunder,27 the Bill does not provide guidance on how gender will be addressed and how these past practices can be avoided.
Boko28 is of the opinion that justice rushed is justice delayed.He takes the route that because the trials are speedy and because there is no legal representation, the kind of justice produced leaves much to be desired.Boko therefore seems to assume that the justice delivered by the traditional courts is not wholesome, because there is no legal representation.With respect, the argument fails to appreciate the fact that traditional courts existed long before the concept of legal representation came with colonialism.As a result, even though legal representation is a precept that is now widely accepted as the right of every accused person, the lack thereof in traditional justice cannot be a yardstick by which such justice is measured.

23
See Bennett Customary Law in South Africa 78.

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Matavire 2012 IJHSS 220.She further notes that having a woman as a chief in the name of human rights is considered taboo.Their superiority is important to the men, and the women are accustomed to being thought inferior to their husbands.

26
Matavire 2012 IJHSS 220.She also refers to a court case where a woman was refused a divorce after the man had moved to the city and begun to live with another woman, whilst the couple's child was being abused.The customary court found that the woman had no grounds for divorce as polygamy was allowed in the African custom and that if she decided to leave she would lose what the couple had accrued together.The legislative efforts to address traditional justice The starting point for any discussion on any legislation should be the Constitution. 29e Constitution sets the basis for any legislation, and the Traditional Courts Bill must therefore not be in conflict with the Constitution.When it comes to courts in general, the Constitution recognises the existence of higher courts and lower courts, The reason is that s 2 of the Constitution of the Republic of South Africa, 1996 asserts that the Constitution is the supreme law of the land.
PER / PELJ 2014(17)4 leaders are recognised subject to the Constitution 34 and also function subject to any applicable legislation. 35e Traditional Courts Bill has been a recent effort to regulate specifically on traditional justice.Its purpose is to create a uniform legislative framework regulating the role and functions of the institution of traditional leadership in the administration of justice in accordance with constitutional imperatives and values. 36It has been noted that the lack of regulation in customary procedures may well appear as a shortcoming, 37 as these systems come from a history that has not been kind to the manner in which women and authority were handled.This has prompted the legislature to attempt the regulation of traditional justice.
The following sections deal with the contentious issues mentioned above, and which require amendment before the Bill can be passed.

Ascertainment, legal representation and jurisdiction
Ascertainment can generally be referred to as the process of identifying a particular customary law.The ascertainment of customary law is important because it offers insight into the very essence of what customary law is.It is through ascertainment that a rule is found to be consistent or identifiable.As indicated hereunder, the Bill does not seem to pay adequate attention to ascertainment, thereby hampering its application in the fluid South African society.
The Bill prohibits legal representation in the traditional court.This is problematic as the traditional court is envisaged to have criminal jurisdiction.

Ascertainm ent
The Constitution notes that every individual has a right to participate in and practise a culture of his/her choice. 38This right extends to every individual of every race.As such, without clarity on ascertainment, it is inevitable that there will be disagreements in the process of determining a specific custom applicable to a particular case.The Traditional Courts Bill, surprisingly, does not have a section dedicated to explaining how ascertainment will be done, despite the fact that the country does not have a uniform system of customary law. 39The Bill does not contain guidelines as to how the traditional courts should settle disputes concerning the existence of a custom.It does, however, provide that the parties can agree to the use of a specific customary law in the courts where two or more customary laws apply. 40In the event where there is no agreement, the court is required to use the customary law applicable in its jurisdiction 41 or the customary law of the place where the issues or the persons have their closest connection. 42Although clear in their objectives, these provisions are inadequate.Given the multicultural society most South Africans find themselves in, there are bound to be differences in understanding and identifying customs. 43 way of comparison, other African states have promulgated more extensive provisions on ascertainment.They emphasise the need for clarity on ascertainment, its significance and the need for legislative guidelines in achieving it.Consequently, examples from these foreign jurisdictions seem valuable.
The Customary Law Act 44 of Botswana indicates that in the process of ascertainment, the court must first hear the customary law or rule that is in issue and that both parties are to submit their understanding on the rule.If the court is in doubt, it is obliged to consult reported cases, text books, opinions in writing or submitted orally, and any other source that might provide clarity. 45The section goes further by providing that when it comes to opinions consulted, the final decision lies with the court.It also provides that any material consulted by the court is to be 39 Bennett "Conflict of Laws" 25.  provided to the parties for their perusal. 46Arguably this is to enable the parties to understand how and why the court will arrive at a particular decision regarding ascertainment or the rejection of a particular rule or practice.
Across the border, the Zimbabwean provision on ascertainment has the same wording as that of the Customary Law Act of Botswana.This simply indicates the context in which Africans find themselves, as they have a shared and almost similar experience of history.The Customary Law and Local Courts Act 47 provides for the presiding officer to consult other sources in the event where there is a rule or practice in issue. 48e Namibian provision is also similar to the provisions of the Botswana and Zimbabwean legislation.The only difference is that there is no provision for the court to have a discretion in the acceptance or rejection of evidence received in the process of ascertainment. 49 is clear that certain African jurisdictions have dedicated an entire section to dealing with the issue of ascertainment.The omission of such in the South African Bill is a flaw which should be amended if the Bill is to be passed.Without that, it is unclear what guidelines are to be followed in ascertaining a custom for the purposes of adjudication.The legislature must also take the living customary law into account, as customary law is not stagnant but develops with time.The Constitutional Court put it correctly by concluding as follows: To sum up: where there is a dispute over the legal position under customary law, a court must consider both the traditions and the present practice of the community.
If development happens within the community, the court must strive to recognise and give effect to that development, to the extent consistent with adequately upholding the protection of rights. 50e above proves the importance of the recognition of living customary law in any ascertainment of law.A telling argument proffered is that the centralisation of power in one person, the presiding officer, is a travesty, as it would hamper the development of living customary law. 51This argument is true if regard is had to the fact that living customary law is adaptive to the socio-economic and political conditions of society as a whole. 52The Bill in its present form does not give due consideration to living customary law.In fact, it does not provide for its recognition at all.This is a flaw that is present not only in the Bill but also in the legislation of Zimbabwe, Botswana and Namibia cited above. 53

Legal representation
The Bill excludes legal representation in the traditional courts 54 despite the fact that legal representation is a right of an accused which is entrenched in the South African Constitution. 55Consequently, the main question is whether it is justified for the Traditional Courts Bill to limit the constitutionally entrenched right of an accused to legal representation.Before answering this question it is apposite to have a brief look at other jurisdictions which deal with legal representation in traditional justice.
In Botswana the rule is explicit that no legal representation is allowed in traditional courts, inclusive of cases where the matter goes on appeal to the Magistrates' Court. 56In Zimbabwe legal representation is not allowed at all and the presiding officer is supposed to conduct the proceedings in a loose and simple fashion. 57The position in Namibia is not particularly clear as the text reads that anyone can appear in person or may be represented by any person of his/her choice. 58 Locally, the South African legislature has always denied lawyers the right to appear in traditional courts.The Bill also contains a provision that denies an accused the right to legal representation. 61In view of that, the Legal Resource Centre concluded that it understood the need for informality for which legal representation is excluded, but submitted that the exclusion was still in contravention of the Constitution. 62Yet, in order to fully comprehend the implications of the limitation of the right to representation, one has to understand how the issue of jurisdiction is addressed in the Bill.

Jurisdiction
Jurisdiction is the power of a court to make judicial decisions and also the power to adjudicate over disputes. 63There are two types of cases that are handled by the courts, namely criminal and civil cases.The former are conducted by the state in mainstream courts while the latter are primarily between private individuals.In traditional justice systems before colonialism, traditional leaders presided over both without much difference, 64 as they never made a clear distinction between civil and criminal matters. 65In this note it is postulated that in order to fully appreciate the implications of the issues of jurisdiction, its analysis must be considered together with the issue of legal representation.In Namibia the Community Courts Act 66 appears to give jurisdiction to traditional courts in both civil and criminal matters.The provision states that community courts have jurisdiction to hear a claim relating to compensation, restitution and any other claim recognised by customary law.Moreover, although not explicit from the provision itself, Hinz 67 notes that these courts deal with attempted rape cases and that this amounts to criminal jurisdiction.However, in Zimbabwe the legislation is clear in that customary law is applicable only in civil cases. 68Customary courts have no criminal jurisdiction, irrespective of how trivial the criminal matter may be.
The Traditional Courts Bill extends jurisdiction to traditional courts in both civil and criminal cases 69 and also provides that an order of a traditional court is final, except when it is taken on appeal or review. 70The extension of civil and criminal jurisdiction is in accordance with the standing practice within the traditional courts.However, it is submitted that this position can no longer be legally justified.If the Bill is to adhere to its guiding principles, 71 then criminal jurisdiction should be removed from the traditional courts. 72No matter how small the matter is and no matter how trivial 66 Community Courts Act 10 of 2003. it might seem, if it counts as a previous conviction (autrefois convict), then indeed representation is necessary.If a person has to stand as an accused before the traditional courts and the outcome can be used against him/her as a previous conviction, there is no legal basis to justify the denial of legal representation. 73

Gender, hierarchy of courts and appeals
The Bill makes provision for gender representation and the structure of courts.
Although covered by the Bill, these issues are not thoroughly addressed.Gender remains an undeniably contentious attribute of traditional justice and the administration of justice in the traditional court.It is therefore not surprising that many detractors of the Bill premise their objections on gender. 74On the other hand, regarding the structure of the courts, a hierarchy is an integral part of any system of justice, in order that the finalisation of a decision may be left to a further and/or superior forum whenever a party is not satisfied with an outcome.In terms of the Black Administration Act, the Magistrates' Courts fulfil this function in respect of customary courts.

Legislative fram ew ork on gender
The Constitution provides that everyone is equal before the law.It entrenches the right to equality 75 and does not allow discrimination on various grounds, but for the purposes of this note, the issue is the prohibition of discrimination on the grounds of gender. 76It is a legal requirement that if any legislation includes provisions relating to the distinction between men and women, it has to observe and adhere to the requirement of equality.Furthermore, the Traditional Leadership and Governance Framework Act constitutes additional authority as to how the issue of gender is to be addressed.It is clear from the wording of section 2 of the Act that there should be an adaptation and transformation of customary law and customs in order to prevent unfair discrimination.Moreover, it promotes equality as well as a progressive advancement of gender representation. 77The Act further gives a statement of intention by establishing a mathematical breakdown of its gender requirements by requiring that a third of the members of a traditional council must be women. 78It is submitted that these are legal requirements which the framers of the Traditional Courts Bill cannot ignore.Moreover, given the gender related issues/problems in traditional systems, the legislature is compelled to frame the Bill in such a manner as to address the injustices that have been there or are likely to occur.

Gender as presented in the Traditional Courts Bill
Gender is a very sensitive issue when it comes to traditional systems, as such societies have always been patriarchal. 79The Bill has not done justice to this issue. 80e references to gender are in the guiding principles, where the following is provided for: • the achievement of equality and the advancement of human rights and freedoms; 81 See Weeks 2011a SA Crime Quarterly 6, where it is argued that this affects the development of living customary law itself, as women will not be able to contribute in these courts.• in the application of the act, there is a need to recognise the existence of systemic unfair discrimination and inequalities, particularly in respect of gender, age, race, as a result of past unfair discrimination, brought about by colonialism, apartheid and patriarchy; 83 and • during proceedings, women should be afforded full and equal participation in the proceedings in the same way as men are. 84thors such as Oomen 85 contend that in some courts women can only be witnesses or silent listeners whilst in other courts they can represent themselves.Much as this might be the case, it cannot be taken to be the general practice, but rather the exception in so far as the treatment of women is concerned.Women are generally regarded as inferior to men and the general opinion is that they belong in the kitchen. 86In some societies the treatment of women goes beyond discrimination. 87ainst such a background the framers of the Bill should have considered the representation of women more carefully.It would have been judicious to have a provision to the effect that the Minister can make regulations on representation.
However, this has not been done.The Constitutional Court has echoed the view that the legislature is in the best position to safeguard rights that are violated and impugned. 88Therefore, the legislature is in a position to remedy the previous injustices.Failure to remedy this is an abdication of its duties.
The issue of training also becomes important at this point as the presiding officers need to know the trend in so far as human rights have become an international Matavire holds that appointing a female to chieftainship in the name of human rights in cultures that view it as a taboo would not make the female a legitimate leader as a leader has to be accepted by the locals.This is indicative of the kind of polarity that exists in most societies.See Matavire 2012 IJHSS 220.

87
See Access to Justice Blog 2012 http://ma2j.wordpress.com/2012/03/26/traditional-courts-billsparks-controversies-in-south-africa/ for the following: "An example of the attitude that some traditional leaders might have towards women is a story from Prudhoe village, where an eightmonth pregnant woman tried to claim damages from the man who made her pregnant and then abandoned her.The tribal court decided that she was just speculating with the good name of the man.Also the court said that the man's father is rich and important and it is not desirable for the community to 'pull their family name in the mud.At the end, instead of being given relief, the pregnant woman was sentenced to corporal punishment."The legislature, deliberately or ignorantly, or both, decided not to include this recommendation, but to give the Minister a discretion in this regard.

The hierarchy of the courts
The Bill does not classify the traditional courts as part of the mainstream courts or as other courts in terms of the Constitution. 91Regardless of the foregoing, it is a constitutional requirement that courts should function in terms of national legislation and that their rules and procedures must be provided for in terms of national legislation. 92It is, therefore, necessary that the Bill has to be aligned with the above constitutional requirement.
The traditional court structure has always been hierarchical.Harper labels it a "hierarchy of problem-solving fora" which is organised and clear in structure. 93In African societies there have always been family courts where disputes usually arose first.Hierarchically, the court of the headmen is usually the court of first instance, 94 but the Bill as it stands does not recognise the courts of headmen. 95 headmen are closer to the rural people and that these courts would potentially relieve the court of the chief of smaller matters.It is argued that there is no legal basis for the disregard of the courts of headmen as they have always been functional and also serve to secure a chain of authority in providing an appeal system.
Other African countries with similar legislations that deal with traditional justice systems recognise a clear system of hierarchy.It is not simply assumed that there is a system of hierarchy -it is actually entrenched.For instance, Matavire notes that in Zimbabwe there are three levels of courts, namely the family court, the headmen's courts (where an appeal can lie from the family court) and also the chief's court, which is the highest traditional court. 96uth Africa should similarly recognise the classification of traditional courts as this structure brings more transparency and a formalised structure.If the Bill's intentions are to formalise these courts, then practices that are functional and necessary should not just be discarded without a legal basis to justify such an approach.This classification is functional and also promotes independence and accountability. 97

Appeals
Provision for appeal is important for any court structure.It goes without saying that a system of hierarchy of courts is necessary for appeals to be effective.The Bill provides that an appeal on a decision of the traditional court lies with the Magistrates' Court which has jurisdiction. 98As argued above, the absence of a provision to the effect that an appeal can lie from the headman/headwoman's court to the chief's court suggests that the courts of headmen/headwomen are not recognised in the Bill.It is submitted that this omission on the part of the legislature has the effect of destroying the institution of traditional leadership as it has been known.

97
SALC Report on Traditional Courts 5, where the Commission notes the following: "Thus, it is proposed that headmen's courts be recognised as a specific level of court at the bottom of the hierarchy of customary courts and given the same jurisdiction as chiefs' courts".appeal within the community courts, if they exist. 108The Magistrates' Court must be that of the province within which the traditional community is situated. 109The rationale for this is probably the fact that the Magistrates' Court is within the province where a certain customary law is practised.From the Magistrates' Court a further appeal lies at the High Court. 110om the discussion above it is apparent that a legally sound and organised structure of appeal is dependent on the existence of a structured hierarchy of courts.
In all the above foreign legislations there are at least two levels of court in the traditional justice systems that are specifically provided for.As a result, unless a case originates from the chief's court, it will go through one level of appeal before reaching the Magistrates' Court.It is submitted that the framers of the South African Bill did not show appreciation for a fundamental level of court in the form of headmen/headwomen's courts. 111This undoubtedly affects the structure of appeals as it has been known in traditional justice systems.

Concluding remarks
The drafting of the Traditional Courts Bill was supposed to be a hallmark when it comes to traditional justice regulation.the Bill might be discarded altogether. 114Nonetheless, whether now or in the near future, the obligation on the legislature to align traditional justice systems with the new constitutional dispensation will not be extinguished.
Below follow some of the issues that have been identified as in need of being revisited if the proposed legislation is to achieve its goals.They are ascertainment, legal representation, jurisdiction, gender, hierarchy of courts, and appeals.They are dealt with in turn and a specific recommendation is made in respect of each of them.
On ascertainment, the Bill only gives direction when there are two systems of customary law that are in existence.It does not guide as to how to settle a dispute regarding the system of customary law applicable or the customary law to which the persons have their closest connection.Without comprehensive and elaborate provisions on ascertainment, it is quite possible that parties can dispute the existence of a custom.As indicated earlier, the legislature could follow the wording of the Botswana and Zimbabwean legislations.This would ensure that the court first hears the customary law or rule that is in issue, after which parties are to submit their understanding on the rule.The court could also be required to consult reported cases, text books, opinions in writing or submitted orally and any other source that might shed light on a rule or custom that is in dispute.The court should also have the final say when it comes to any opinion consulted in the ascertainment of any rule or custom.The importance of the presiding officer's having discretion to decide on the opinions consulted is to guard against people frivolously arguing that they are not bound by a certain traditional or customary practice.It is also submitted that the legislature could include a clause that requires the traditional leaders also to consider living customary law.This can be done by way of representations by the parties, assessors from within the community, or senior community members, to ascertain the proof of any development in customary law.
Legal Resource Centre and the Lesbian and Gay Equality Project.11 See Claassens 2009 Agenda 11-20; Weeks 2011a SA Crime Quarterly 3-5; Gasa 2011 SA Crime Quarterly including any court established by an Act of Parliament.Consequently, the question is whether the traditional courts will be recognised as courts established by an Act of Parliament or as other courts not recognised as formal courts, as the former recognition would have legal implications.For example, issues like the role of legal representation and the effect of a conviction in such courts would have to be addressed.30However, before any discussion of the Traditional Courts Bill is undertaken, it is important to put the Traditional Leadership and Governance Framework Act 31 into context.This Act recognises the offices which have traditionally been involved in the facilitation of traditional justice systems.It recognises kings, queens, principal traditional leaders, senior traditional leaders, headmen and headwomen.32Section 19 of the Act specifically indicates that traditional leaders (listed in section 8) have the major functions as provided for in customary law and the customs of their respective communities.Once again it is acknowledged that the facilitation of justice is a core function of traditional leaders.What it boils down to is that the Traditional Leadership and Governance Framework Act is an enabling piece of legislation that recognises, affirms and legitimises the function of traditional leadership in communities.It is a positive step in the mandate of the government in terms of the Constitution, 33 which requires that the institution, status and role of traditional 29

40
See s 9(a) of the Traditional Courts Bill [B1-2012].41 See s 9(4)(a) of the Traditional Courts Bill [B1-2012].42 See s (9)(4)(b)(i)-(ii) of the /www.lrc.org.za/images/pdf_downloads/Law_Policy_Reform/200005pcsubmission080514lrc.pdf14.63 Blackwell Essential Law Dictionary 273.64 Olivier et al Indigenous Law 191-192.65 Koyana, Bekker and Mqeke "Traditional Authority Courts" 144.CB SOYAPI PER / PELJ 2014(17)4 Comparatively, section 12(4) of the Customary Law Act of Botswana provides that in a criminal trial the prosecutor can be the person bringing the matter, the Director of Public Prosecutions or a person authorised by him.The perplexing issue is why the Director of Public Prosecutions is allowed to prosecute when lawyers are denied the right to represent their clients?It is argued that this situation reflects badly on South Africa, because for all intents and purposes, prosecutors are lawyers.
(a) of the Customary Law and Local Courts Act 2 of 1990.69 See ss 5 and 6 of the Traditional Courts Bill [B1-2012].S 5 lists the civil issues which the traditional court may not try, whereas s 6 limits the crimes to those listed in the Schedule.These courts used to preside over both civil and criminal cases even before the Bill.See Olivier et al Indigenous Traditional Courts Bill [B1-2012] provides that "In the application of this Act, the following principles should apply: (a) The need to align the traditional justice system with the Constitution in order for the said system to embrace the values enshrined in the Constitution, including -(i) the right to human dignity; (ii) the achievement of equality and the advancement of human rights and freedoms".CB SOYAPI PER / PELJ 2014(17)4

•
non-racialism and non-sexism; 82 77 Traditional Leadership and Governance Framework Act 41 of 2003 s 2(3): "A traditional community must transform and adapt customary law and customs relevant to the application of this Act so as to comply with the relevant principles contained in the Bill of Rights in the Constitution, in particular by-(a) preventing unfair discrimination; (b) promoting equality; and (c) seeking to progressively advance gender representation in the succession to traditional leadership positions".78 Traditional Leadership and Governance Framework Act 41 of 2003 s 3(2)(b): "At least a third of the members of a traditional council must be women".79 Bennett Customary Law in South Africa 166.80
It does not clearly state whether legal practitioners are allowed or not.It is for that reason that Hinz 59 notes that it is interpreted to mean that a legal representative is allowed, as Nwamitwa 2009 2 SA 66 (CC) 46.The court says the following: "Where there is, however, a dispute over the law of a community, parties should strive to place evidence of the present practice of that community before the courts, and courts have a duty to examine the law in the context of a community and to acknowledge developments if they have occurred".theNamibian Constitution provides.This deduction is based on the wording of the provision itself.If the legislature had not envisaged the participation of legal representatives, it would have stated it expressly.However, Hinz notes that 53 Shilubana v 55 S 35(3)(h) of the Constitution.It is considered to be a requirement for a fair trial.56 See s 32 of the Customary Courts Act Proc 19 of 1961.57 See s 20 of the Customary Law and Local Courts Act 2 of 1990.58 See s 16 of the Community Courts Act 10 of 2003.59 Hinz Traditional Courts in Namibia 161 Khayelitsha Magistrate 2005 1 BCLR 1 (CC).The court went on to note that "The victims of the delays in rectifying the defects in the legal system are those who are among the most vulnerable of our society."Itissubmittedthat it is a potential travesty of justice that the Minister is given the discretion to decide who to assign for training and when to train these traditional leaders.89Kings,queens,chiefs, headmen and headwomen are leaders in society who do an essential job for the judicial system, which would otherwise have been too congested.It is submitted, therefore, that there is a need for training so that their activities are not marred by the issues of gender imbalance.It is interesting to note, though, that the Department of Justice and Constitutional Development actually made submissions that traditional leaders and all officers in the courts should undergo compulsory human rights and social context training.90 88Bhe v ) of theTraditional Courts Bill [B1-2012]provides only for the designation of a headman or headwoman to serve as an alternative presiding officer in the event the real presiding officer being unavailable, and only at the request of a king or queen or senior traditional leader.
The legislature had the monumental task of redefining and shaping traditional justice systems in line with the new constitutional dispensation.112Sadly,the Bill does not achieve this.The people who are supposed to be governed by the Bill reject it outright; 113 the framers of the Bill have also fallen short of addressing contentious issues such as gender representation, which is specially provided for in both the Constitution and the Traditional Leadership and Governance Framework Act.Its future is still uncertain, as there is speculation that 2011b SA Crime Quarterly 33, who argues that the Bill's recognition of only the chief's court is akin to the manner in which the Black Administration Act initially ignored the other levels of courts like the family, clan and headmen's court.
Bennett TW "The Conflict of Laws" in Bekker JC, Rautenbach C and Goolam NI (eds) Introduction to Legal Pluralism in South Africa 2 nd ed (LexisNexis