A further draft of The Traditional Courts Bill has been tabled for comment. It has undergone several changes and if accepted in the present format will impact on existing Traditional Courts. Global mining partner, Lucas Moalusi outlines a number of important issues below.
Traditional court proceedings
- Consent of parties is required and no party may be assisted by a legal practitioner acting in that capacity.
- The traditional leader must say the prescribed pledge that they will promote and protect Constitutional values before commencing any session.
- Review by the High Court may be undertaken in certain circumstances.
- The Code of Conduct must be adhered to.
A traditional court may only deal with:
- Theft not exceeding R5 000-00 and malicious damage to property not exceeding R5 000-00.
- Assault where grievous bodily harm is not inflicted.
- Breaking or entering with intent to commit an offence either at common law or in contravention of any statute where the amount does not exceed R5 000-00.
- Receiving stolen property knowing it to be stolen with the amount does not exceed R5 000-00.
- Crimen injuria.
- Advice relating to customary law practices of ukuThwala, initiation, customary law marriages, custody and guardianship of minor or dependent children, succession and inheritance and customary law benefits.
- Any matter where the claim does not exceed the amount determined by the Minister in the Gazette.
- Altercations between community members.
- A traditional court may not hear or determine a dispute being investigated by SAPS, pending before another court or finalized by another court.
Prohibited discrimination
- Conduct which infringes on the dignity, equality and freedom of persons is prohibited and includes discrimination against women, the LGBTI community, elderly persons, mentally or physically disabled persons, persons with albinism and unmarried persons.
Opt-out provision
A person may elect not to have the dispute heard by the traditional court and must inform the clerk within 14 days (or longer if necessary). The clerk must facilitate transfer of the dispute if applicable. A person may not intimidate or threaten a person electing to opt-out of the traditional court proceedings.
- Role of the clerk
- Every traditional court must have a clerk appointed in accordance with laws governing public service and has the powers contained in this Act.
- A clerk’s role includes issuing summons, keeping an attendance register of sessions, keeping records of proceedings, keeping record of all cases reported to traditional courts, filing traditional court decisions with the Provincial Registrar, advising traditional courts on cases which should be referred to other forums, dealing with, recording and filing information in the prescribed manner and submitting prescribed reports at the end of each quarter of the financial year to the Provincial Registrar.
- If a person fails to appear after being summoned, the traditional court clerk must refer the matter to a justice of peace appointed by the Minister – the justice of peace must facilitate compliance or refer the matter to the Magistrate’s Court.
- A party may notify the clerk if an order is not satisfied. If the clerk finds that non-compliance is not the party’s fault, the clerk must assist the party to comply. If the clerk finds that non-compliance is the fault of the party, the clerk must refer the matter to the justice of peace designated by the minister. The justice of peace must negotiate with the party to ensure compliance or refer the matter to the Magistrate’s Court.
Supervision of traditional courts
- Provincial Traditional Court Registrars are appointed by the Minister and must maintain a prescribed register of traditional courts, report cases of public interest to the High Court, assist parties to take matters on review and inform the MEC about the traditional courts. The Registrar shall have access to any traditional court and its records.
- Representation of women and vulnerable persons must be protected. The relevant Cabinet member and Commission for Gender Equality will submit information to Parliament annually and make recommendations to this effect.
In Summary:
- Members of the community may “opt out” of proceedings before a Traditional Court;
- The jurisdiction of the Court will curtailed;
- It must appoint a Clerk or Registrar who needs to fulfill job specifications laid down by the State;
- Provincial supervision via Provincial Court Registrar will occur;
- All proceedings are subject to High Court review.
Fasken Martineau