lu5 LO1 Compare the features of modern constitutionalism.docx

LO1 Compare the features of modern constitutionalism

and traditional government.

The constitution is the supreme law of a country and binds and directs all organs of state.

Sachs – there is no inherent conflict between the traditional and democratic government,

provided each operates in its own sphere.

Constitution

Separation of powers is one of the pillars of constitutionalism

Separation of powers is the idea that the executive the judiciary and legislature must all

function independently.

The rule of law implies government according to well defined and known rules provided in

broad terms in the Constitution.

Customary law leadership.

In traditional leadership there is no separation of power and rule of law.

The legitimacy of traditional leaders and their actions are not assessed by the rule of law.

A traditional rulers reign is directed by traditional rules based on legal, social and religious

ideas.

These norms were adaptable to changing circumstances, without specific legislative process

to bring about changes.

Notion of tradition.

Traditional government is grounded in the belief that the power of rule was, from time

immemorial, informed and maintained by the ancestors.

Legitimacy rule – is based on sacred traditions.

All tradition is a specific construction at a particular time for particular purposes, implying that

many traditions were “invented”.

Hinz – “traditional is legitimate because, and to the extent that, it can be traced back to the

ancestors who made the life of the people of today possible. Traditional authority is

legitimate because, and to the extent that, it can be related to the same tradition rooted in

the ancestors.”

LO2 Discuss the historical authority of traditional

leadership.

Precolonial phase of traditional leadership

In precolonial times the relationships between traditional leaders and their people are often

portrayed as a dynamic mediation process between the rulers and their people.

Where we saw various government forms ranging from empires to tribal states where power

was hierarchical and consultative.

The head of the kingdom or tribal state was the apex of the power hierarchy

ward heads - subordinate leaders who operate under the authority of the king.

Under ward heads are the family heads.

Traditional government under colonial influence

As a consequence of colonialism and capitalism Traditional authority was undermined.

Indirect rule – where the colonial governments governed traditional communities through

their kings and or tribal leaders. See LU1.

Indirect rule turned traditional rulers into government functionaries and their positions

became guaranteed by the state and no longer dependent on support of their followers.

In 1927 Indirect rule was implemented by the Black Administration act which transformed

traditional authorities and courts into government institutions.

With this traditional rulers were not appointed by indigenous laws and procedures.

The jurisdiction of traditional courts was also curtailed and subjected to appeal to and

revision by commissioners courts that were specially created for that purpose.

Democratic government

Bennet points out that with the advent of democracy we see that all the issues of apartheid

and colonialism have been transferred to the new dispensation.

Section 211(1) of the Constitution recognises institution, status and role of traditional

leadership subject to the constitution.The issue with this is that there is an anomaly in respect of the fact that democracy calls for

periodic and popular elections while traditional leadership is inherited.

Elections are not and were never a requirement for becoming a traditional leader and the

recognition of traditional leaders was strictly for men which is in conflict with the

Constitutions S9 which prohibits discrimination based on gender.

Traditional Leadership and Governance Framework Act which is now repealed did make

provision for queens to be appointed as well as headwomen.

Shilubana v Nwamitwa – the Constitutional Court acknowledged that a female might also

be recognised as a traditional leader in cases where the customary law of the community

concerned identifies a female as the new traditional leader.

LO3 Discuss the recognition of traditional leadership with

reference to Section 211 of the constitution.

See democratic government above

S211(1) of the Constitution refers specifically to the “institution, status and role of traditional

leadership, according to customary law” However the constitution does not define various

concepts and phrases.

Concise Oxford dictionary defines institution as – established law, custom or practice”

In social sciences and anthropology social institution –

Social institution – forms and standardised activities linked to a set of complex and

interdependent norms and roles. These activities are underpinned by the values and the

ideas of the people recognising the relevant institution.

Traditional leadership is described then as:

A standardised and persisting activities concerning the exercise of public authority over

people to ensure orderly co-existence.

Three status positions:

1. Rulers and leaders

2. Councillors

3. Followers(citizens)

Aspects of the institution of traditional leaders’ pre-colonialism:

• Status

• Procedures

• Scope of authority

• Values norms practices and rules

The institution in the south African context includes:

1. Identification of the ruler

2. 3. 4. Process of legitimising the ruler

System and conditions for consultation

Functions and various domains and levels of authority.

The Constitution qualifies the recognition of the institution of traditional leadership in

two ways.

1 Recognition must be under customary law

2 it must be subject to the constitution

S211(2) Constitution refers to

A system of customary law including amendments to , repeal of, legislation and customs.

This section refers to a version of customary law transformed by legislation and court

decisions. And also implies that the institution of traditional leaders according to customary

law includes provisions of the TKLA.

The Bill of rights is implied and according the following sections of the constitution

are relevant:

1. 2. 3. 4. 5. 6. 7. 8. Section 8(1) – makes the bill of rights applicable to all law including customary law

and binds all organs including traditional leaders.

Section 9 – forbids unfair discrimination by the state and private persons on various

grounds.

Section 39(2) – binds courts in the development of customary law to promote the

spirit purport and objects of the Bill of Rights.

Section 39(3) – recognises other rights and freedoms to the extent that they are

consistent with the bill of rights.

Section 40 and 41 – provides for cooperative governance on all levels particularly

between local municipalities and traditional authorities on a local level.

Section 151 – limits local sphere of government to municipalities.

Section 212 – allows for the possible enactment of national legislation to make

provision ”for a role for traditional leadership as an institution at a local level on

matters affecting local communities.

Schedule 4 Part A – determines functional areas in which both National Parliament

and the Provincial legislature are competent to enact legislation. Such matters

include “cultural matters”, “indigenous law and customary law, subject to Chapter 12

of the Constitution” and “traditional leadership, subject to Chapter 12 of the

Constitution.”LO4 Assess traditional leadership and issues of

discrimination.

In traditional customary law we see that it is extremely patriarchal where only men could rule

and lead and appointment to power positions was reserved for men.

The principal of male primogeniture meant that only the eldest son of the principal wife

could succeed a status position.

The factors determining succession:

1. The status of the principal wife

2. Gender (male)

3. First born son

4. Physical ability of the son

A successor is at the time seen as the closest link to the ancestral world.

Lovedu people from Limpopo – women could become traditional leaders and men were

excluded from that role except men could become ward heads.

In all other communities women could function as regents if the successor was too young.

The traditional Khoi-San leadership Act Section 2(1) – makes provision for traditional

leaders that are female = kingship queenship – headship headwomanship – Khoi-San

community must transform and adapt customary law and customs relevant to the application

of the TKLA to comply with the constitution.

Adaptation in particular involves:

1. Preventing unfair discrimination

2. Promoting equality

3. Seeking to progressively advance gender representation in succession to traditional

and Khoi-San leadership positions.

The act promotes gender equality and does not prohibit the appointment of female traditional

leaders.

Shilubana v Nwamitwa – the con court held that S2(3) of TKLA is not necessary and the

community may develop customary law to recognise traditional leaders that are female

following the constitutions norms.

LO5 Give an overview of the historical authority system.

The attainment of the position of authority:

In this case we are looking at Southeastern Bantu-speaking people.

Head of the community is usually the most senior member of the ruling lineage. Which must

be approved after consultation amongst senior members of the community.

The rules are that the traditional leaders successor should be the oldest son of the principal

wife. The most important condition is that the successor be born of the principal wife.

Principal wife –

Mother of the community - the principal wife is seen as the mother of the community and

should be specially designated as the principal wife.

It is customary that the principal wife should be of royal blood meaning that a traditional

leader should marry the daughter of another traditional leader.

However that is not absolute because where it is not possible to marry a traditional leaders

daughter then the principal wife must be chosen from the senior lines within the community

as the principal wife.

The senior members of the traditional leaders lineage must indicate the specific house or

specific ruling house where a wife must be chosen from. Not one specific woman must be

chosen but consultation and appointment rests with the senior leaders.

The royal family is duty-bound to provide marriage goods for the bride on behalf of the

community.

In other communities the community must provide marriage goods for the principal wife.

The principal wife does not attain her status through order of marriage but through

designation of the royal families seniors.

Rito ra mufi a ri tluriwi – wish of the deceased is not opposed. In this regard if the

traditional leader on his death bed wishes for his son to marry a certain woman or linage this

must be given due regard.

Adulthood –

Adulthood is a prerequisite for traditional leadership. Adulthood is acquired through

marriage.

In some communities the principal wife may be married by the successor to be leader after

the death of his father.

At the same time the rightful heir may marry his principal wife during the life of his father.

Tsonga – where the traditional leader lives very long he may wish not to delay his sons

marriage and will pay lobolo for his son and future heir.Replacement and regency:

Supplementary wife –

Where the principal wife is barren or only bears daughters a supplementary wife may be

chosen.

This practice ensures a male heir and successor which will be born in the principal house as

the supplementary wife is associated with the principal house.

Nhlantswa – this is the supplementary wife who bears the successor on behalf of the barren

principal wife. The supplementary wife shifts each wife lower in the women’s ranking.

When no heir.

Where neither the principal wife or supplementary wife give birth to a male heir then a heir

must be chosen form the second wife in the women’s hierarchy.

Levirate practice – this is where the successor dies before his father and then a son should

be procreated with the principal wife. The parties to procreate are either the younger brother

of the successor or the father(traditional leader).

The second option is that the younger brother of the late successor should be appointed

provided that the senior members approve him.

The second option is preferred because the younger brother is fathered by the late

traditional leader.

Women succeeding –

The main issue with women succeeding is that when a woman marries the traditional title will

divest from the correct royal family and vest in foreign hands bringing with it foreign rule.

Furthermore the issue is that customary law believes that when lobolo is paid and a man

marries a woman, her procreative being is transferred to the husbands family.

Regent –

A regent will be appointed if the successor does not comply with adulthood requirements

regarding succession.

A regent will operate as a traditional leader until the successor fulfils all the requirements

regarding succession and will be appointed by the family council of the royal family.

Usually the younger brother of the late traditional leader will be appointed as the regent.

If the late traditional leader has no younger brother then one of the successors half-brothers

will be appointed.

Women can be appointed as regents where the successor is under age or cannot succeed

immediately.

Performance of functions –

If the traditional leader fails to perform his functions, he will lose authority and prestige in the

eyes of the community.

In todays times several erstwhile functions of the traditional community leaders have

diminished due to – missionaries and legislation and administrative practices that provincial

and local government have taken over.

Bodies advising the traditional leaders –

Traditional leaders must consult these bodies in the exercise of their power being:

1. The private family council

2. Traditional council (community council)

3. Community court (judicial council)

4. Community assembly (public council)

Private family council

Composition

The council his no definite members but the most important members are:

1. Leaders’ fathers brothers

2. Leaders brothers

3. And several trusted confidants who have expertise in community affairs.

Functions

1. Policy making body

2. Political and judicial organisation

3. Leader cannot take decision affecting the community without consulting the

traditional leader.

4. 5. 6. Council discusses new community rules

Appointment and dismissal of ward heads and other officials

Discuss the utilisation of land.

Traditional council

Composition

Private council.

1. 2. 3. 4. 5. All ward heads are entitled a seat in the council.

All family council members because they represent the ruling family

1 ward heads councillors per ward head

If ward head cannot attend then two of his councillors must attend.

Other people appointed by the traditional leader approved by the council who offer

unique insight or expertise into the community.Functions

• Community matters laid before the council that the family council have already

formulated an opinion about.

• Members of the council can speak the chairman before the meeting to address

issues they wish to discuss.

• Important matters usually discussed:

1. Actions of the traditional leader

2. New community rules

3. The levying of taxes

4. Land utilisation

5. Control of cattle

6. Appointment and dismissal of ward heads

7. Administration of justice

8. Matters concerning general administration of the community.

Community court

Public assembly

Composition

These meetings used to take place in the dwelling of the traditional leader but today each

have a court room in the community offices.

1. 2. 3. 4. Traditional leader is the head of the judicial council.

Senior members of the patrilineage

All adult men in theory

Those that live near the royal village and older men who know customary law are

bound to come to these meetings

Functions

1. 2. 3. The traditional leaders court was the highest appeal court is the past.

Traditional leader is competent to pass judgement based on the findings of the

council hence it is a court of the community in fact.

The only traditional court recognised by legislation and can decide on civil and limited

criminal matters.

Community assembly

This is a public council

Composition

1. All the adult men are entitled to attend

Functions

1. To make a community announcement concerning decisions of the community

council.

2. Community rules

3. Levying taxes

4. Land utilisation

5. Control of cattle

6. Appointment and dismissal of ward heads

7. Administration of justice

8. Moving the community

9. When a person has been exiled that may be appealed by a ward head and three of

his ward councillors.

LO6 Analyse traditional institutions with reference to the

Black Administration Act of 1922 and the Traditional

leadership and Framework Act 41 of 2003 as amended.

The black administration act brought indirect rule to South Africa and made it that the

colonialists ruled over black people through traditional leaders.

The main features were:

a) b) c) d) Institution of the governor general – as a supreme chief with all powers that

traditional leaders hold under indigenous law.

Granting president edictal legislative powers over bantu speaking people

Special commissioners courts were established to adjudicate disputes between

African chiefs

Traditional leaders were appointed by the governor general.

Powers and functions of traditional leaders 1957 proclamation:

a) Further interests of community

b) c) d) Develop and improve the territory

Maintain law and order in territory

Further the exercise of all acts and regulations in his area in respect of:

• Public health

• Tax

• Registration of births and deaths

• Prevention of animal diseases

• Land use and land administration

Black authorities act apartheid era

Section 4

a) b) c) Managing affairs of traditional community

Assisting and guiding the traditional leader in the exercise of his duties

In general exercising powers and performing activities and duties that are within the

governor generals direction.\In 2003 The department of local government published a white paper that set out the

framework that would inform legislation intended to:

1. 2. 3. Define the place and role of the institution within the new system of democratic

governance

Transform the institution following constitutional imperatives

Restore the integrity and legitimacy of the institution of traditional leadership following

customary law practices

Traditional Leadership and Governance Framework Act 2003 S22

commission:

Members of commission

1. The minister appointed chairperson

2. Not more than four persons knowledgeable about customary law, customs and the

institution of traditional leadership.

Functions of the commission

The commission had to consider customary law and customs to the relevant traditional

community as they applied when events occurred.

It was further required that the commission must in respect of a:

• King or queen be guided by the criteria in section 2A(1) and 9(1)

• And principal traditional leadership senior traditional leadership or headsmen, be

guided by the customary law and customs and criteria relevant to establishing a

principal traditional leadership, senior traditional leadership or headsman ship as the

case may be.

LO7 Discuss the repeal of the Traditional Leadership and

Governance framework Act no. 41 of 2003 and the National

House of Traditional Leaders Act no.22 of 2009.

The book literally has no info and sir did not discuss this in his slides either so Chat my good

buddy ol pal has really just gone the extra mile. So proud .

Notes: Repeal of Acts Related to Traditional Leadership

1. Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA)

Purpose of the TLGFA:

• Established a framework for traditional leadership and governance structures.

• Recognised traditional councils and set rules for their composition and operation.

Intended to integrate traditional leadership into a democratic system of

governance.

Issues with the Act:

• Lacked proper consultation with traditional communities.

• Critics argued it entrenched colonial structures like tribal authorities imposed

during apartheid.

• Traditional councils were often not democratically elected (violating constitutional

norms).

• Did not reflect the living customary law of many communities.

Repeal:

• Repealed by the Traditional and Khoi-San Leadership Act 3 of 2019 (TKLA).

• TKLA aimed to provide a more inclusive, constitutional, and culturally sensitive

framework.

• Included Khoi-San communities for the first time in legislation.

• Required traditional institutions to operate in accordance with constitutional values.

2. National House of Traditional Leaders Act 22 of 2009

Purpose of the Act:

• Provided for the establishment, composition, and functions of the National

House of Traditional Leaders.

• Served as a consultative body on traditional and customary issues to Parliament

and government.

Problems Leading to Repeal:

• The structure was seen as inefficient and under-representative.

• Did not provide for Khoi-San representation.

• Limited in its power—often symbolic, with little real influence on lawmaking.

Repeal:

• Also repealed by the Traditional and Khoi-San Leadership Act 3 of 2019.

• TKLA created the National House of Traditional and Khoi-San Leaders,

expanding representation.

• Ensured that the institution:

o Promotes constitutional values.

o Operates under a democratic, accountable framework.o Includes minority indigenous groups like the Khoi-San.

Summary of the Repeal:

Repealed Act Repealed

By Key Changes

TLGFA (2003) TKLA

(2019)

Modernised framework, democratic oversight, included Khoi-

San, aligned with Constitution

NHTL Act

(2009)

TKLA

(2019)

Broader representation, created National House of Traditional &

Khoi-San Leaders

LO8 Briefly discuss the aims and objectives of Traditional

and Khoi-San Leadership Act (TKLA) 3 of 2019.

The Act commenced on 1 April 2021 and distinguishes between traditional communities,

leadership and related concepts on one hand, and Khoi-San communities, leadership and

related concepts.

Khoi-San is defined in Section 1 “any person who lives in accordance with the customs and

customary law of the Cape-Khoi, Griqua, Koranna, Nama or San people, or any subgroup

thereof, and is consequentially a member of a particular Khoi-San community as

contemplated in Section 5.”

The acts main departure point is that traditional and Khoi-San communities must transform

and adapt customary law and customs relevant to the prevent unfair discrimination, promote

equality, and advance gender representation in succession leadership positions.

LO9 Apply the Principals of the following sections of the

TKLA.

Section 1(5) – the previsions of the act recognise traditional leaders but does not bestow

any special indigenous, first nation or any other similar status.

Section 3 – sets out the circumstances under which traditional communities must apply the

President for recognition as a king- or queenship.

The section also prescribes when a community can be deemed as a traditional community

and that they must apply to the premiere for recognition as a traditional community.

Section 4 – deals with the withdrawal of recognition of the structures set out in Section 3.

Section 5 - Provides for the recognition of Khoi-San communities and branches, while;

Section 6 – deals with the withdrawal of recognition of the structures set out in section 3.

Section 7 – deals with the recognition of traditional leadership positions namely kings or

queens, principal traditional leaders, senior traditional leaders, and headmen or -women, as

well as Khoi-San leadership positions, namely senior Khoi-San leaders, and branch heads.

Section 8* – deals with identifying and recognising traditional leaders, including a king,

queen, principal traditional leader, senior traditional leader, headman and headwoman, and:

Section 9 – with the withdrawal of such recognition.

Section 15 – deals with the functions and resources of traditional and Khoi-San leaders.

Section 16 – King- and queenship councils, principal traditional councils and traditional

councils must be established according to S16.

Section 19 – sets out the functions of the king- or queenship councils and principal

traditional councils.

Section 25 – Empowers national or provincial government departments to allocate roles

regarding any functional area of such departments to specific traditional and Khoi-San

leaders.

Section 59 – deals with disputes about traditional disputes.

Recognition of traditional communities –

They may be recognised if:

1. 2. 3. 4. 5. 6. Has a system of traditional leadership at a senior traditional leadership level

recognised by other traditional communities.

Observes a system of customary law

Recognises itself as a distinct traditional community with proven history of existence,

from a particular point in time up to the present; distinct, and separate from other

traditional communities.

Occupies a specific geographical area.

Has an existence of distinctive cultural heritage manifestations

Where applicable, has several headmen- or headwomen.

Recognition of a king or queenship –

A group of traditional communities may be recognised as kingship or queenship.

1. 2. 3. 4. Each group must a recognised senior traditional leader and traditional council.

There must also be a senior traditional leader with a higher status like a king or

queen.

The group must recognise itself as a distinct group of traditional communities with a

proven history of existence.

Formal recognition must be done by the president after consultation with the minister

which must be Gazetted.Recognition of principal traditional courts –

The TKLA does not make provision for the recognition of new principal traditional

communities.

Establishment and recognition of king- or queenship council,

principal traditional council; or traditional councils –

A council is to be established at all three levels of a traditional community.

1. Traditional community

2. King/queenship

3. Principal traditional community

The members of the council must consist of:

1. 2. 60% traditional leaders and members of the traditional community selected subject to

the compliance of the working of the forum.

40% members elected in terms of S16(2)(f) in the case of kingship council or

principal traditional council, or elected in terms of S21 in the case traditional council.

Functions of Kingship councils or Principal traditional councils –

The TKLA provides for the following functions of Kingship councils or principal traditional

councils:

a) b) c) d) e) f) Administering the affairs of the kingship or queenship or principal traditional

community in accordance with customary law and customs.

Assisting, supporting, and guiding senior traditional leaders and traditional councils

falling within the jurisdiction of the kingship or queenship or principal traditional

community concerned in the performance of their functions.

Assisting the king or queen, or principal traditional leader in performing customary

functions in relation to the recognition of senior traditional leaders, where applicable.

Assisting the king or queen or principal traditional leader in mediating disputes

between senior traditional leaders falling within the jurisdiction of the kingship or

queenship or principal traditional community.

Promoting unity between traditional communities falling under the jurisdiction of the

kingship or queenship or principal traditional community.

Assisting the king or queen, or principal traditional leader in performing his or her

roles and functions conferred upon him or her in terms of regulations made in

accordance with the provisions of section 60.

Kingship councils and principal traditional councils are furthermore directed to:

a) Keep proper records

b) Have their financial statements audited by a registered auditor as contemplated in

the Auditing profession act and submit those audits to the premiere within two

months.

c) d) e) Disclose gifts received that are above a certain monetary threshold.

Adhere to code of conduct

Advise and support all traditional councils under its authority.

Recognition of traditional leadership positions –

Traditional leadership positions recognised

a) King or queen

b) Principal traditional leader

c) Senior traditional leader

d) Headman or headwoman

e) Senior Khoi-San leader

f) Branch head

g) Regents

h) Acting Khoi-San leaders

i) Deputy traditional and Khoi-San leaders

Disputes –

Section 59 of the TKLA applies to traditional leadership disputes that were not dealt with in

the former commission on Traditional Leadership Disputes and Claims.

Provincial legislation may provide for the resolution of traditional leadership disputes,

excluding any dispute relating to a king or a queen, or a kingship.

Where a dispute arising relates to a king or a queenship the president must:

a) b) Cause an investigation to be conducted by an investigation committee designated by

him or her which committee must include at least one member of the National House

to provide a report as well as recommendations on the matter in dispute within 60

days form the date of designation of the investigative committee.

Refer the report to the relevant royal family or relevant traditional council for its

written comments, which must be submitted to the president within 60 days from the

date of such referral.

Where the dispute relates to any other traditional leader the Premiere is

responsible for:

a) b) Ensuring in the investigation by the committee designated by him or her, that the

committee must include at least one member of the relevant provincial house.

Referring the report to the relevant traditional council for its written comments.LO10 Discuss the effect and consequences of the

Judgement that declared the Traditional and Khoi-San

Leadership Act Unconstitutional.

Mogale and Others v Speaker of the National Assembly and Others [2023] ZACC 14

(Constitutional Court)

Main Finding:

The Traditional and Khoi-San Leadership Act 3 of 2019 (TKLA) was declared

unconstitutional because Parliament and the provincial legislatures failed to ensure

adequate public participation when the law was passed.

Reasons for the Judgment

• Section 59(1)(a) and section 72(1)(a) of the Constitution require Parliament and the

NCOP to facilitate public involvement in legislative processes.

• The Court found that rural and affected communities were not properly

consulted.

• This was a procedural flaw, not based on the content of the TKLA itself.

Consequences and Effects of the Judgment

1. Declaration of Invalidity (but Suspended)

• The Constitutional Court declared the entire TKLA invalid, but suspended the

invalidity for 24 months (from June 2023).

• This allows Parliament time to correct the process by conducting meaningful

public consultation.

2. TKLA Still Temporarily in Force

• The Act remains in force during the suspension period.

• All functions of traditional councils and Khoi-San leadership structures

continue for now.

3. Impact on Rural Communities

• The judgment reinforces the right of rural people to be heard, especially in laws

affecting traditional governance and land rights.

• It empowers affected communities by affirming that customary law cannot be

imposed without proper input from the people it governs.

4. Redrafting or Re-enactment Needed

Parliament must reintroduce the TKLA (or a revised version) and ensure genuine,

accessible, and widespread consultation, particularly with Khoi-San groups and

rural dwellers.

• A draft Traditional and Khoi-San Leadership Bill (TKLB) was already published in

November 2024 to start this process.

5. Sets a Legal Precedent

• Reinforces the importance of public participation in all future legislation—

especially customary law, land rights, and governance laws.

• Shows that even if a law's content is constitutional, flawed processes can lead to

invalidation.

Summary

Aspect Impact

Judgment Effect Consequences Importance Future

Implication

Declared TKLA unconstitutional due to lack of public participation

Declaration of invalidity suspended for 24 months

Parliament must redo the process, ensuring proper consultation

Upholds democratic rights of rural and indigenous communities

Laws must comply with both content and process under the

Constitution

LO11 Discuss the constitutional and legislative status of

traditional courts in South Africa.

Section 166 of the Constitution sets out the hierarchy of Courts as follows:

• The constitutional court

• Supreme Court of Appeal

• The Hogh Courts, including any high court of appeal that may be established by an

act of parliament to hear appeals from High Court.

• The magistrates courts

• Any other court established or recognised in terms of an act of parliament, including

any court of a similar status to the High Court or Magistrates Court.

The expression traditional courts is absent from the constitution however there is an act of

parliament which recognises traditional courts being the Black Administration Act.S211(1) and (2) recognise traditional leadership and say:

1. 2. The institution, status and role of traditional leadership, according to customary law,

are recognised, subject to the constitution.

A traditional authority that observes a system of customary law may function subject

to any applicable legislation and customs, which includes amendments to, or repeal

of, that legislation or those customs.

Section 12 and 20 confer civil and criminal jurisdiction upon traditional leaders. Item 2 of

Schedule 6 of the Constitution says:

1. All law that was in force when the new Constitution took effect, continues in force,

2. subject to –

a) Any amendment or repeal

b) Consistency with the new Constitution

Old order legislation that continues in force in terms of sub-item (1) –

a) Does not have a wider application, territorially or otherwise, than it had before

the previous constitution took effect unless subsequently amended to have a

wider application

b) Continues to be administered by the authorities that administered it when the

new constitution took effect, subject to the new constitution.

Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the

constitution of South Africa, 1996 – the con court held that words “any other court

established or recognised in terms of an act of parliament” in Section 166(e) read with

section 16(1) Schedule 6 are broad enough to include traditional courts established in terms

of the BAA.

We know that the Courts allowed by the BAA are Community Courts/chief court that are

headed by the Traditional leader.

Section 30 also provides for Traditional Courts saying - you have a right to participate in the

cultural life of ones choice.

Section 31 – the right to enjoy ones culture with other members of the community.

Legal framework for traditional courts.

There are many acts on page 266. The important part is as follows:

The status of most these acts is shrouded in uncertainty.

Finally, the customary law rules (living law) of the various communities are also relevant.

These rules are, in general, not widely publicised, and would be difficult, if not impossible, for

an outsider to know what they entail.

LO12 Explain the official criminal and civil traditional

courts with reference to Sections 20 and 12 of the Black

Administration Act 38 of 1927.

Section 20 deals with traditional courts and criminal prosecution and S12 deals with civil

procedure.

Criminal traditional courts

a) Enabling law

S20 of the Black administration act – confers powers on chiefs and headsmen to try

certain offences or crimes committed within their geographical area.

Africans are however subject to ordinary courts and are tried in the same way as anyone

else.

Section 20(1) and (4) – regulate the appointment of traditional leaders to try certain

offences

Section 20(2) – describes the procedure to be followed in traditional courts

Section 20(5) – describes the consequences of failure to comply with the sentence imposed

by a traditional leader

Section 20 (6) – allows for the appeal against the conviction of a traditional leader by

approaching the Magistrates court.

Jurisdiction

Jurisdiction regarding the person where only Africans can be tried by traditional courts and

only where the issue has occurred between two black persons.

Section 35 – defines a black person as any person who is a member of any aboriginal race

or tribe in Africa.

Territorial jurisdiction – in the area under the control of such chief.

Jurisdiction for offences – any common law, statutory or customary law offence except:

public violence, sedition, murder, culpable homicide, rape, robbery, indecent assault, arson

bigamy, abortion the list is exhaustive and almost rules out everything.

Jurisdiction regarding a sentence – the court may not inflict any punishment involving death,

mutilation, grievous bodily harm or imprisonment, impose a fine of more than R100 or two

head of large live stock or ten head of small stock or impose corporal punishment.

King Dalindyebo – was convicted of crimes in relation to punishing members of his

community. He later received a presidential pardon from the president and was warned not

to use violence to enforce his rulings.Execution of judgements – Section 20(2) provides for the execution of judgements according

to the community’s recognised customs and laws.

Where a traditional leader fails to recover a fine from a convicted person he may arrest that

person and bring him before the magistrates court within 48 hours.

The magistrate may force the person to pay and failure to comply may result in

imprisonment for a period not exceeding 3 months.

Civil traditional courts

Enabling law

Section 12 of the BAA - does not create civil courts in the strict sense but confers powers

to settle civil disputes between community members.

Section 12(1) and (2) – regulate traditional leaders appointment with authority to settle

disputes between Africans.

Section 12(3) – regulates the procedure for execution of judgements which is regulated by

(6).

Section 12(4) – prescribes the procedure where a party to a civil suit wants to appeal

against the judgement of a traditional court.

Section 12(6) – empowers the minister to make regulations prescribing procedure to be

followed to execute judgements and appeals.

Jurisdiction

Jurisdiction of persons – the court may only hear and settle disputes between black

people.

Jurisdiction of territory – the traditional court can only hear matters of residents of the area

and the residents cant opt out and ask for a referral to the magistrates court.

Jurisdiction regarding claims – traditional courts can hear matters involving customary law

and common law disputes must be taken to the magistrate court or the high court depending

on the quantum.

Jurisdiction regarding judgements – the judgement of the court must be in accordance

with customary law. Section 8 of the Natal code says that a fine of R50 may be imposed for

contempt of court.

R v Vass – the court held that a traditional court could punish for contempt of court even if

offender was not a resident in the traditional leaders area of jurisdiction.

Execution of judgement –

Traditional courts judgments are binding on the parties and will be given effect by the highest

courts in the country. If the judgement is not followed an application to the clerk of the court

must be followed in the magistrates court where the traditional leader must prepare a written

record of the proceedings and register it with the magistrates court.

LO13 Summarise the informal dispute settlement forums.

Courts of the ward heads

In terms of S12 and 20 of BAA recognition of a customary law court requires that there be a

traditional leader. Which means that the courts of the ward head do not have official

recognition.

In rural areas Courts of the ward head are usually the court of the first instance and a large

amount of disputes are settled in these courts.

Ward head owe their position to the fact that communal areas are divided into wards.

The ward head has no jurisdiction to levy a fine or impose corporal punishment or other

forms of punishment. He can issue a fine for contempt.

In terms of criminal matters the ward head will investigate with his council and will refer the

matter to the traditional leaders court.

Makgotla

Where informal or formal settlements were established in the apartheid era black people

were frustrated by crime and the lack of policing and resorted to forming there own informal

dispute settlement courts “community courts”.

These courts are notoriously unstructured and given to arbitrary sometimes criminal

shenanigans by using corporal punishment.

For example if a man rapes a woman he will be whipped and ordered to pay compensation

to the woman’s father.

The South African Law commission among others recommended that these courts should be

recognised and supported by legislation.

Peoples court

These courts unlike the Makgotla were politically motivated and did not purport to be an

extension of the courts and the police.

They organised protest marches, detained and punished opponents and virtually whipped in

the people to tow the line.

They also attempted to perform government functions at the level of wards in townships.

However it is doubtful that they will be recognised for fear of jungle justice.LO14 Examine the courts that may apply customary law.

The first point of departure is S211(3) of the constitution which says that courts must apply

customary law meaning the constitution makes provision for the applying customary law in

ordinary courts.

Small claims courts

Small claims courts were created to increase accessibility to legal relief in that they are free

and no lawyers are allowed.

The courts use inquisitorial procedure to reconcile the litigating parties so that they can

reconcile the parties in a similar way to traditional authority courts.

Magistrates court

Magistrates’ courts as a court of first instance

As a court of first instance a magistrates court can hear any civil dispute arising from

customary law that is within their jurisdiction.

Section 1 of the Law of Evidence amendment Act is still in force and prescribes these

rules:

1. 2. 3. 4. 5. 6. Any court may take judicial notice of customary law insofar as it can be readily

ascertained with sufficient evidence

Relevant customary law should not be against public policy

Lobolo or bogadi cannot be declared repugnant.

Any party may adduce evidence pertaining to customary law itself

Customary law to be chosen should be the defendants area

Defendants customary law should be chosen where two laws operate in the same

area.

S211(3) of the constitution makes elements of the Law of Evidence amendment act

redundant because it says:

1. 2. 4. The court must apply customary law

When the law is applicable

3. Subject to the constitution

Subject to any law that specifically deals with customary law

Magistrate court as an appeal court.

Section 12(4) of the BAA makes provision for appeals but also limits appeals to matters

that are above R10.

The issue with the limitation is that although not a large sum it goes against the purpose of

traditional leaders courts in that the purpose is to settle disputes.

Zwane v Myeni – the court held that when appealing a judgement they must help the lower

courts with what is lacking and consider: a claim in the lower court, judgement based on that

claim, traditional leaders reason for the judgment and the evidence recorded by the court of

appeal.

Court of appeal in criminal matters

Section 20(6) of the BAA – any person convicted by a traditional leader may appeal against

the conviction or sentence to the court of the magistrate in whose area the trial had taken

place.

The rules are that any person who wants to appeal a judgment must do so within 30 days

from the date of the pronouncement of the judgement. Upon appeal the court does not

convict or acquit the appellant instead the court either confirms, quashes, or varies the

conviction and sentence.

Family courts

The Administration amendment act was made to provide for divorce of Africans through

proclamation by the president and to repeal sections of the BAA.

Issues that may arise

1. 2. 3. 4. The very existence of customary marriage. Although specific requirements are laid

down in Section 3 of the act “the marriage must be negotiated and entered into or

celebrated in accordance with customary law”

In dividing assets, a distinction will have to be drawn between family property and

house property.

In awarding custody of children the matter is not straight forward. The paragraph

makes no sense but something about movement within or without a kinship group to

be placed, temporarily.

In traditional communities best interest of the child also refers to ancestral bondage.

High Courts

High courts have inherent jurisdiction on civil and criminal matters and in terms of S211(3) of

the constitution High courts are limited in their application of customary law.

Constitutional Court

The Con Court is entitled to apply customary law and as time goes on it will play a vital role

in determining what aspects of customary law unconstitutional.

In cases arising from Recognition of Customary Marriages Act it will have to apply customary

law. Thus for example, if the brides father is cited in a divorce case and an appropriate

collateral claim for the return of lobolo is instituted, the High Court would naturally have

jurisdiction