PRESENTATION BY THE DEPARTMENT OF JUSTICE TO THE PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE: WORKSHOP AND PUBLIC HEARINGS ON TRADITIONAL LEADERSHIP AND INSTITUTIONS
1. BACKGROUND
1.1 The procedure which relates to the election of a chief or headman is governed by tradition and customary law. In terms of tradition the rank of a person in a community would be determined by the person's status. The status of the person would be influenced by his or her membership of a particular tribe, whether he or she is a member of the royalty or a commoner, his or her sex, age, marital status and whether he or she has been born in or out of wedlock.
1.2 Only after the tribe has chosen a chief according to their tradition, the statutory provisions relating to each territory would be relevant. The tribe would approach the relevant authority for confirmation that they have chosen a particular person as chief or headman of their tribe, whereafter the relevant legislation would apply to the appointment and conferment of civil and criminal jurisdiction upon such chief or headman.
2. HISTORICAL PERSPECTIVE 2.1 In a legal opinion by the State Law Advisers of 22 February 1995, the State Law Advisers gave the following exposition of the historical development of Customary Law in South Africa:
"Bekker, Seymour's Customary Law in Southern Africa, 5th ed., p.1 points out that the history of the administration of civil law as applied to Black people deals mainly with the Cape Province (Cape Colony) because in the legal history of [that) province is found the sequence of events and legislation leading up to the system of administration that became uniformly applicable throughout the Republic of South Africa. The learned author also points out that the Roman-Dutch Law, modified by
legislation, governed the persons living in the Colony whilecustomary law, as such, received no recognition whatsoever. In defining customary law (OD cit p.11) the learned author says that "during the existence of the pre-colonial sovereign Black 'states', customary law was an established system of immemorial rules which had evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his counsellors, their sons and their sons' sons, until forgotten, or until they became part of the immemorial rules". The customarycourse of Black litigation is described by Bekker, op cit, p.28 et seq. The ratio thereof is in the fact, according to Bekker, op cit, pp. 12-13, that the chief was the ruler of his tribe and the father of his people and each and every member of the tribe was his subject under his protection. Consequently every criminal wrong affected the chief in his capacity as "father" of the tribe and he had the responsibility to deal with it. As far as the pre-colonial customary law is concerned, it must be concluded that it inclined what may now be termed as the administration of justice, part of which was the competency of a chief to hear and adjudicate both civil and criminal matters. As pointed out earlier, customary law was not recognised at all in the Cape Colony. However, through the years the need arose to recognise and control the customary law of Black people (or at least part of it). Statutory measures were then taken to address certain issues - see e.g. Act No.18 of 1864 of the Cape of Good Hope which dealt with the inheritance of Black people and Law No. 4 of 1885 of the Transvaal which dealt with, inter alia, the better administration of justice among the Black population of that Republic. The effect of the institution of statutory measures was that jurisdiction was bestowed upon certain chiefs, headmen etc. to adjudicate certain civil and criminal matters. Thus certain chiefs, headmen, etc., became part of the institutionalised administration of justice. That being the case, the administration of justice, including the exercise of civil and criminal justice by certain functionaries or official adjudicators and court structures in accordance with the law and customs of the various indigenous communities has long since been institutionalised and excisedfrom indigenous law and customary law.
2.2 Section 211 of the Constitution recognises the status and role of traditional leadership, subject to the Constitution and provides that a traditional authority that observes a system of customary law may function subject to applicable legislation and customs. Furthermore, the courts must apply customary law when that law is applicable, subject to the Constitution.
3. LEGISLATION RELATING TO THE APPOINTMENT AND CONFERMENT OF CIVIL AND CRIMINAL JURISDICTION
3.1 The Black Administration Act, 1927 The appointment of and conferment of civil and criminal jurisdiction upon chiefs and headmen in the territories of the former RSA and self-governing territories which did not have their own legislation in this regard, are governed by the Black Administration Act, 1927 (Act 38 of 1927) (hereinafter referred to as the RSA Act). The former self-governing territories where the RSA Act is still applicable are Lebowa, GaZankulu and KaNgwane.
3.2 Legislation of the former TBVC-States The appointment of and conferment of civil and criminal jurisdiction upon chiefs and headmen in the former TBVC-States and other self-governing territories are governed by the following legislation:
- Bophuthatswana [Bophuthatswana Traditional Authorities Act, 1978 (Act 23 of 1978)]
Venda [Venda Traditional Leaders Administration Proclamation of 1991]
Ciskei [Ciskei Administrative Authorities Act, 1984 (Act 37 of 1984))
- KwaZulu [KwaZulu Amokhosi and Iziphakanyiswa Act, 1990 (Act 9 of 1990))
KwaNdebele [kwaNdebele Traditional Authorities Act, 1984 (Act 8 of 1984)
QwaQwa [QwaQwa Administration of Authorities Act, 1983 (Act 6 of 1983)]
3.3 Exposition of legislative provisions 3.3.1 Former RSA, Lebowa, GaZankulu and KaNgwane (a) Section 2(7) and (8) of the RSA Act provides for the appointment or recognition of chiefs and headmen. These powers have been assigned, in terms of Proclamation No. 139 of 1994, to the provincial governments. A chief whose tribe therefore resides in the former RSA, Lebowa, GaZankulu or KaNgwane will be appointed in terms of section 2(7) and (8) of the RSA Act.
(b) Sections 12(1) and 20(1) of the RSA Act provide for the conferment of civil and criminal jurisdiction upon a chief or headman by the Minister of Regional and Land Affairs. These powers have, however, in terms of Government Notice No.961 of 1992, been assigned to the Minister of Justice.
(c) A chief or headman could therefore be vested with either civil jurisdiction or civil and criminal jurisdiction, depending on whether a chief or headman has a prescribed area of jurisdiction. The practise had been followed in the past that if a chief or headman is without land, he is vested with civil jurisdiction only. If a chief or headman has a prescribed land over which he has jurisdiction, he is vested with both civil and criminal jurisdiction.
(d) A chief or headman vested with civil jurisdiction is empowered to hear and determine civil claims according to traditional law and custom, brought before him by Black people against Black people resident within his area of jurisdiction. A chief or headman does not have jurisdiction to determine any question of nullity, divorce or separation arising out of marriage.
(e) A chief or headman vested with criminal jurisdiction is empowered to try and punish any Black person who has, in the area of his control, committed any statutory offence, common law offence or an offence under traditional law and custom, except for the offences specified in the Third Schedule to the Act.
(f) With reference to penalties which can be imposed, the following applies:
(i) A chief or headman may not impose a fine in excess of twenty pounds (R50 in accordance with section 281 of the Criminal Procedure Act) or two head of large stock or ten head of small stock.
(ii) A chief or headman may not inflict any punishment involving death, mutilation, grievous bodily harm or imprisonment.
(iii) A chief or headman may not impose corporal punishment except in the case of unmarried males below the apparent age of thirty years. In the light of a decision by the Constitutional Court in the case of S V Williams and Others 1995(3) SA 632 (CC), delivered on 9 June 1995, it seems as if any form of corporal punishment will be unconstitutional.
3.3.2 Legislation relating to the former TBVC-States, kwaZulu, KwaNdebele and QwaQwa
3.3.2.1 Former Transkei
(a) Sections 3 and 41 of the Transkei Authorities Act, 1965 (Act 4 of 1965), provide for the appointment or recognition of a chief or headman in the region of the former Transkei.
(b) Section 2(1) of the Chiefs Courts Act, 1983 (Act6 of 1983) provides for the conferment of civil and criminal jurisdiction upon chiefs and headmen by the Minister of Justice.
(c) The nature and extent of the jurisdiction of a chief or headman are governed by section 3 of the above-mentioned Act and when vested with civil and criminal jurisdiction, are the same as under the RSA Act as discussed above, except for the following:
(aa) No chief or headman shall preside over any matter in which he or she is pecuniarily or personally interested.
(bb) A chief may not impose a fine in excess of -
(i) four head of large stock with an alternative fine
calculated at a rate not exceeding one hundred rand per head,
(ii) twenty head of small stock with an alternative fine calculated at a rate not exceeding twenty rand per head, or
(iii) four hundred rand.
3.3.2.2 Former Bophuthatswana
(a) Section 36 of the Bophuthatswana Traditional Authorities Act, 1978 (Act 23 of 1978) provides for the appointment of chiefs in the region of the former Bophuthatswana. Section 36 also provides that a chief may appoint a headman.
(b) Sections 3 and 6 of the Bophuthatswana Traditional Courts Act, 1979 (Act 29 of 1979), provide for the conferment of civil and criminal jurisdiction upon a tribal authority by the "President".
(c) It appears that the Premier's office (North-West Province) is conferring civil and criminal jurisdiction upon chiefs and headmen.
(d) In terms of section 2 of the Bophuthatswana Traditional Courts Act, 1979, the civil and criminal jurisdiction would vest in a tribal authority and not in a chief or headman as in the case of the other regions. For each tribal authority there shall be a tribal court consisting of the chief, the headman, or the chairman of the community authority, as the case may be, and those members of the tribe or community, who, in accordance with the law and customs applicable in the said tribe or community, are recognised to be members of the court.
(e) The nature and extent of the jurisdiction of civil matters in a tribal court are governed by section 5(1) and (2) of the above-mentioned Act and could be briefly discussed as follows:
(i) Section 5(1) stipulates that a tribal court shall have original and exclusive jurisdiction to hear and determine all civil cases and matters which are indicated in (a)-(f) of section 5(1).
(ii) Section 5(2) stipulates that a tribal court shall have no jurisdiction to hear and determine any civil action not arising out of, and is foreign to, tribal law and shall have no jurisdiction in matters indicated in (a) - (e) of section 5(2).
(f) The nature and extent of the jurisdiction of a tribal authority when vested with criminal jurisdiction are regulated by sections 6 and 7 of the above-mentioned Act.
(g) In terms of section 6 the President may authorise any tribal authority to try and sentence any person who has committed, within its area of jurisdiction, any offence under tribal law, common law or any statutory offence specified by the Minister, other than the offences specified in the Schedule to the Act. The specified offences differ slightly from the offences specified by the RSA Act.
(h) The following penalties can be imposed in terms of section 7 of the above-mentioned Act:
(i) A tribal court may impose a fine not exceeding two hundred rand or two head of large stock or ten head of small stock.
(ii) Provision is made for corporal punishment under certain circumstances but in the light of the decision by the Constitutional Court referred to above, it seems as if any form of corporal punishment would be unconstitutional.
(iii) A tribal court may impose a sentence of compulsory labour to be performed periodically, or continuously for a period not exceeding one hundred-and-eighty hours at the place designated by the court and under the control of the tribal authority or its delegate.
(iv) A tribal court shall not impose any sentence involving death, mutilation, grievous bodily harm or imprisonment. 3.3.2.3 Former Venda
(a) Sections 3(2) and 11 of the Venda Traditional Leaders Administration Proclamation No. 29 of 1991, provide for the recognition and appointment of chiefs and headmen in the region of the former Venda.
(b) Sections 24(1) and 25(1) of the above-mentioned proclamation provide for the conferment of civil and criminal jurisdiction upon a chief or headman respectively by the "Chairman of the Council for National Unity".
(c) It was confirmed that chiefs and headmen in the region of the former Venda are conferred with civil and criminal jurisdiction by the provincial government itself. The reason, so it is argued, is that the above-mentioned proclamation refers to the functionary who may confer jurisdiction as the "Chairman of the Council for National Unity" and not to the Minister of Justice as in other regions' Acts, and Schedule 6 to the Constitution assigns indigenous and customary law to the provinces.
(d) The nature and extent of the jurisdiction of a chief and headman when vested with civil and criminal jurisdiction, are the same as under the RSA Act as discussed above, except that a chief or headman may not impose a fine in excess of two hundred rand or one head of large stock or five head of small stock.
3.3.2.4 Former Ciskei
(a) Sections 22 and 24 of the Ciskei Administrative Authorities Act, 1984 (Act 37 of 1984), provide for the appointment of chiefs and headmen in the region of the former Ciskei.
(b) Sections 39 and 40 of the above-mentioned Act provide for the automatic conferment of civil and criminal jurisdiction upon chiefs and headmen on the ground of their mere chieftainship and headmanshiprespectively. There is no conferment of civil or criminal jurisdiction by an authority as in the case of some other regions.
(c) When a chief is appointed as discussed above, the nature and extent of his civil jurisdiction in terms of section 39, are the same as in terms of the RSA Act as discussed above, except that a chief or headman is not allowed to hear or determine any case in which he is pecuniary or personally interested.
(d) The nature and extent of criminal jurisdiction of a chief or headman differ from the position under the RSA Act. Section 40 of the Ciskei Administrative Authorities Act, 1984, empowers a chief or headman to try and punish
(i) any offence at common law or under tribal law and custom other than an offence specified in the Schedule to the Act; and
(ii) any statutory offence specified by the Minister other than offences specified in the Schedule to the Act.
(e) A chief or headman may impose the following sentences in terms of section 40:
(aa) The appropriation of fines shall be in accordance with tribal law and custom as may be otherwise prescribed by regulation.
(bb) A chief or headman may not -
(i) inflict any punishment involving death, mutilation, grievous bodily harm or imprisonment;
(ii) impose a fine in excess of one hundred rand or alternatively two head of large stock or ten head of small stock; or
(iii) impose corporal punishment.
3.3.2.5 Former KwaZulu
(a) Section 12 of the KwaZulu Amakhosi and Iziphakanyiswa Act, 1990 (Act 9 of 1990), provides for the appointment of a chief or headman in the region of the former KwaZulu.
(b) Sections 28(1) and 29(1) of the above-mentioned Act provide for the conferment of civil and criminal jurisdiction upon a chief or headman by the Minister of Justice
(c) The nature and extent of a chief's jurisdiction/powers when vested with civil jurisdiction are the same as under the RSA Act.
(d) The nature and extent of the jurisdictions of a chief or headman when vested with criminal jurisdiction differ from the RSA Act. Section 29 of the KwaZulu Amakhosi and Iziphakanyiswa Act, 1990, empowers a chief to try and punish any citizen who has committed, in the area under the control of such chief or headman, any offence in terms of the Zulu Law and custom other than an offence specified in the Schedule to the Act.
(e) In terms of section 2, a chief or headman may not -
(i) impose any punishment involving death, mutilation, grievous bodily harm or imprisonment; or
(ii) impose a fine exceeding R1 000 or one head of large stock or R600 or six head of small stock.
3.3.2.6 Former KwaNdebele
(a) Sections 8 and 11 of the KwaNdebele Traditional Authorities Act, 1984 (Act 8 of 1984), provide for the appointment of a chief or headman in the region of the former kwaNdebele.
(b) Sections 2 and 5 of the KwaNdebele Traditional Hearings of Civil and Criminal Cases Act, 1984 (Act 3 of 1984), provide for the conferment of civil and criminal jurisdiction upon chiefs and headmen by the Minister of Justice.
(c) The nature and extent of the jurisdiction of a chief and headman when vested with civil and criminal jurisdiction are the same as in terms of the RSA Act as discussed above, except for the following:
(i) A chief or headman may not hear and determine any civil claim in which he is pecuniarily or personally involved.
(ii) The penalty imposed by a chief or headman shall be in accordance with the law and custom, provided that a fine in excess of two hundred rand or two head of large stock or ten head of small stock may not be imposed.
(iii) A chief or headman may impose a penalty of compulsory community service, and when imposed it shall not exceed a period of one hundred and eighty hours.
3.3.2.7 Former QwaQwa
(a) Section 2 of the QwaQwa Administration of Authorities Act, 1983 (Act 6 of 1983), provides for the appointment or recognition of a chief or headman in the region of the former QwaQwa.
(b) The above-mentioned Act repeals sections 2(7), (8), (8)bis, (8) ter, (9) and 5(1)(a) for the RSA Act in terms of the Schedule to the Act. Those sections of the RSA Act dealing with the conferment of civil and criminal jurisdiction and the nature and extent of the jurisdiction were however left intact and therefore still apply to the region of the former QwaQwa.
4. CONFERMENT OF CIVIL AND CRIMINAL JURISDICTION UPON TRADITIONAL LEADERS Sections 12 and 20 of the Black Administration Act, 1927, provide that the Minister for Justice and Constitutional Development may confer Civil and Criminal Jurisdiction upon Traditional Leaders to settle civil disputes and hear criminal matters.
- An embargo was placed on the conferment of Civil and Criminal Jurisdiction on Traditional Leaders by the previous Minister of Justice.
This embargo was however lifted and several recommendations in respect of the conferment of Civil and Criminal Jurisdiction on Traditional Leaders have thus far been submitted to the Minister for ratification. At conferment of jurisdiction the attention of traditional leaders is drawn to the minimum standards required by the Constitution.
5. INVESTIGATION BY THE SOUTH AFRICAN LAW COMMISSION 5.1 The SA Law Commission has also embarked on an investigation into Traditional Courts and the judicial function of traditional leaders.
5.2 The investigation was placed on the agenda of the South African Law Commission as early as 1996, together with the investigation into the recognition of customary marriages. At that stage there was a lot of pressure on the previous Minister of Justice to do something about the conferment of civil and criminal jurisdiction upon traditional leaders. Advice to the Minister from various task teams and workshops was inconclusive partly because of disagreements about the effects of the Constitution on the operation of the courts of traditional leaders. The Minister himself preferred a holistic solution rather than piecemeal reform and he encouraged the South African Law Commission to continue with the research, but find ways of speeding it up. The discussion paper on Traditional Courts and the judicial function of traditional leaders was therefore a result of that research.
5.3 Traditional courts refer to the courts that pertain in the rural areas that are manned by the traditional leaders in those areas. These courts administer customary law in resolving matters before them. They were established under the Black Administration Act, 1927. Under the constitutional order the debate arose whether they should still exist and if so what should their powers be. The incidental question to be answered is that of the judicial functions of traditional leaders in these courts. Chapter 12, sections 15(3), 30 and 31 of the Constitution give guidelines about the need for the establishment and status of traditional courts and the judicial functions of traditional leaders. 5.4 Traditional courts should be seen in context, as providing an indispensable service to rural people. They are a useful and desirable mechanism for the speedy resolution of disputes given their nature as an easily accessible, inexpensive and simple system of justice.
5.5 A discussion paper on Traditional Courts and the judicial function of traditional leaders was published on 6 May 1999. The initial closing date for comments was 31 August 1999 but was later left flexible to accommodate other stake holders who could not meet the deadline.
5.6 The process of consultation kicked of with a presentation of the discussion paper to the National House of Traditional leaders. Country wide workshops were held during the period starting from 9 June to 13 July 1999. These were held in the six provinces that have traditional leadership and excluded Gauteng, Northern Cape and Western Cape. The participants were traditional leaders of all ranks (the traditional leaders, so called headmen and sub headmen). Regional representatives from the Department of Justice, prosecutors and magistrates also attended. The only community that was not represented was the San Community because it was difficult to establish the traditional leadership in this group.
5.7 A concern was raised by other stake holders, namely the Commission on Gender Equality, Centre for Applied Legal Studies and the National Land Committee that the workshops had not targeted rural women who are, so it was argued, prejudiced by their position under the subjection of traditional leaders. There was consensus that a further series of workshops facilitated by these three stake holders should be held to give rural women a change to put forward their views on the subject. These workshops were held during the period starting from September to November 1999. Due to time and financial constraints these workshops were held in only three provinces, namely the Northern Province, Eastern Cape and KwaZulu Natal. These workshops targeted mainly service providers that work with rural women, although in KwaZulu Natal the participants were rural women themselves from all over the province.
5.8 An academic workshop was also held in conjunction with UNISA's Centre for Indigenous Studies. The participants at this workshop were legal academics, practitioners, non governmental organisations and again representatives of the National House of Traditional Leaders.
5.9 The Law Commission is of the view that the consultative process was sufficiently wide and all encompassing. The Commission was able to gather views from all sides -from the traditional leaders and from women's groups and representatives. The Commission is of the view that this process left participants with the opinion that they own the process and have been involved at every stage of the consultative process.
5.10 The project is now at report stage. The drafting of a report and a draft bill on Traditional Courts and the judicial function of traditional leaders are now receiving attention. The final report and draft bill were scheduled for the end of May 2000, but due to other priorities this could not be achieved. It is anticipated that the report and bill will be finalised within the next 6 weeks. The Law Commission envisage another round of consultations on the report itself because of the complex nature of the debates regarding this matter. The Commission would like to give all stake holders a chance to comment on the report and the draft bill before it is presented to the Minister. The plan of action is to present the report and the draft bill to the National House of Traditional Leaders to give them a change to air their views. The Commission would then present the report to representatives of women's groups to give them a change to evaluate the report.