New courts bill gives traditional communities choice to opt out of customary law justice system

The Traditional Courts Bill made news earlier this year when it returned to parliament again, having been twice rejected.

A key change that is being greeted with celebration is a provision that gives members of traditional communities the choice to opt out of the customary law justice system.

But this provision might have the unintended consequence of creating notions of exceptionalism among those who opt out — and of ushering in a ghost from the past: the 19th-century Natal Exemption from Customary Native Law Act.    

In 1865, Law No28 was enacted to allow certain natives to be exempted from native law and become subject to the same laws as colonists in the Natal Colony.

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Exempted natives could conduct business, enter into contracts —  particularly those involving the purchase and sale of property — and bequeath their estates.

For Zulu natives to be exempted, they had to petition the authorities. They had to establish their fitness to be exempted by proving that they could read and write English, had an adequate level of education, and were Christian converts. They needed letters of reference from prominent white colonists, attesting their "exceptionalism".

Once exemption was granted, a letter of exemption — and, by 1890, an exemption medal engraved with the bearer's name —  was issued.

Professor Hlonipha Mokoena, in her 2011 book, Magema Fuze: The Making of a 'Kholwa' Intellectual , further complicates the issue of exempted natives by arguing that "the petitioner's rejection of colonial Native law is not synonymous with rejection of traditional culture".

Today, the question of gender plays a big role in joining customary law to our constitutional order, as some customary practices do not allow women a full say, even though section 9 of the constitution affords everyone the right to equal protection and benefit of the law.

Given our history, the well-intentioned opt-out provision in the 2017 Traditional Courts Bill is an aspect that clearly needs further attention.

While being free to make one's own autonomous choices is a vital pillar of democracy, it may create divides.

• Ngwane is an institutional researcher at the Gauteng Provincial Legislature.