Stop ignoring the African legal system

29 January 2018 - 06:29 By Mwelo Nonkonyana
Image: 123rf/ niroworld

South Africa is a country with two legal systems.

The African legal system is undermined and criticised because it has not been written down and commented upon by experts in this specialised field of the law. This means that the administration of justice on the basis of customary law continues to be subordinate to that dispensed by civil courts enforcing Roman-Dutch law.

Long before the colonialists came to Africa‚ Africans were governing themselves by rules based on their own ethical norms and values. The heads of families‚ together with elderly family members‚ were and continue to be responsible for instilling‚ promoting and enforcing these values‚ fundamental to which are respect for and obedience to elders.

It stands to reason that families under the leadership of their heads constitute the primary structures to dispense justice. In all matters that are referred to traditional courts‚ the head of the family has a right to request that the family first be given the opportunity to resolve a dispute before it is put before the court.

Long before the colonialists came to Africa‚ Africans were governing themselves.

Unlike the Roman-Dutch legal system‚ African law is based on the principle of reconciliation. But these unwritten values are vulnerable to distortion due to ignorance and influence by the entrenched colonial system.

Section 11 of the 1927 Native/Black Administration Act and its successors subjected the recognition of customary law to westernised norms and values. It is ironic that the Republic of South Africa‚ although granting equal status to African law and Roman Dutch law‚ retains the repugnant clause by providing that our laws must be subjected to a Bill of Rights based on Western norms.

African law continues to be suppressed despite the fact that some jurists and judicial officers‚ including judges‚ are alive to this challenge and determined to promote customary law — in the same way that some courts promoted justice within the unjust apartheid system. Certain rules and values have been developed and accepted as the basis of customary law.

Traditional courts are accessible (geographically and socially)‚ user-friendly and affordable. The application of customary law is known to the traditional leaders and the litigants. Procedures are simple and informal and conducted in a familiar local language.

The nature of traditional courts is not well understood. They are distinct from the Western courts presided over by magistrates‚ but they are courts of law and not dispute-resolution tribunals as some seem to think.

They are presided over by traditional leaders and community members‚ who should not be equated to a judge and lay assessors. The fact that the judgment is usually conveyed by the traditional leader does not mean it is the leader’s decision. Councillors deliberate on issues and decide the outcomes.

The traditional leader‚ as a unifying symbol in the community‚ will pronounce on the decision‚ which is (more often than not) accepted and respected by the parties involved in the dispute.

There is much debate on whether traditional courts should be recognised as courts of law and whether accused persons (if criminal jurisdiction is retained by traditional courts) are able to opt out and demand transfer of the case to a magistrate’s court. In my view‚ there is no basis for opting-out provisions.

This notion is against the principle of equality entrenched in the constitution and discriminates against traditional courts. There is no customary-law rule regulating legal representation and the constitutional right to legal representation‚ precisely because the matters most often involve family members‚ and outsiders cannot articulate family or even community issues.

Furthermore‚ most legal practitioners have no expertise in traditional law. I am certain that no lawyer outside of my area of jurisdiction understands Bhala law and its procedures.

Criticism of the traditional court system is often erroneous‚ based on a misunderstanding of traditional leadership.

  • Advocate Nonkonyana is Eastern Cape chairman of the Congress of Traditional Leaders of South Africa and chief of the AmaBhala clan

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