CQ No. 25


SA Crime Quarterly no 35 • March 2011 31

Problems exist with some of South Africa's
customary courts. As the first port of call in the
pursuit of justice for approximately 17 million
South Africans, there is a need to fix them and to
ensure that all customary courts operate in line
with the Constitution. In the TCB, government
has failed to arrive at a suitable framework to
regulate customary courts. How do we regulate
customary courts in ways that respect both living
customary law and the Constitution?

In this article, I summarise what we know about
the way customary courts actually function, and
how people use them. I then discuss the
implications of what we know for the regulatory
framework that the Traditional Courts Bill adopts.

Finally, I suggest the necessary aspects of a
framework for regulating customary courts. I do
not purport to present here anything beyond
basic guiding principles, which I argue to be
essential to facilitating the successful regulation of
customary courts in order to bring them in line
with the Constitution, while respecting
fundamental and progressive elements of how
they operate in practice.

There is a wealth of knowledge about customary
courts – the way they operate and how they are
used – from which we can draw useful principles
for regulation. This knowledge is found, firstly, in
a survey of 20th century ethnographies;1 secondly,
in 20th century contestations brought to the civil
courts to challenge traditional authority
misconduct as well as state misinterpretations,
distortions and impositions;2 and, thirdly, recent
research and consultations conducted by the

Beyond the
Traditional Courts
Bill
Regulating customary courts
in line with living customary
law and the Constitution

sindiso.mnisi@uct.ac.za

This article discusses flaws in the Traditional Courts Bill in light of research that shows customary courts
to operate in accordance with a model that is very different from that adopted by the Bill. Customary
courts are not professional institutions but community-based discussion forums, thus participation in
them is inclusive of the broad community membership, and their accountability is partly dependent on
people's ability to choose to use them, or other forums, when their own courts are unjust. The article
therefore develops a framework for regulating customary courts that gives recognition to their essential
elements as understood through prior study of diverse courts. The framework advanced is also one that
gives greater expression to rights (to democracy, gender equality and freedom of association, or choice)
articulated in the Constitution.

Sindiso Mnisi Weeks*

* Senior Researcher, Law, Race and Gender Research Unit 
and Senior Lecturer in African Customary Law, Faculty
of Law, University of Cape Town.



South African Law Reform Commission
(SALRC) from 1998 to 2003.3 The findings in
these sources have also been recently
corroborated by studies conducted by researchers
at the Law, Race and Gender Research Unit
(LRG) at the University of Cape Town.4 These
multiple sources agree on key features of
customary courts that the TCB is shown to have
disregarded. Indeed, studies of the statutes
formerly regulating this area of law and practice
(such as the Black Administration Act 38 of 1927
and the Black Authorities Act 68 of 1951)
confirm that the TCB borrows a faulty approach,
used by the apartheid government and strongly
contested by affected communities, to regulating
customary courts. (See the introductory article by
the same author in this edition of SACQ.) 

I propose legislation that is democratic,
emphasises traditional institutions' accountability
to the community and is, hence, consistent with
both the Constitution and customary practices.
The underlying basis for the regulatory
framework is the notion that individual choice is
the means by which government might protect
group identity and culture. Recognition of both
customary and state laws and authorities, whilst
simultaneously allowing individuals to determine
for themselves when they wish to appeal to these
laws and authorities, gives necessary weight to the
individual's right to withdraw from the
community and its culture. It is argued that for
group identities and arrangements to remain a
viable choice, customary courts must be
supported and improved in ways that make them
an attractive option. Yet it recognises that people
must concurrently have the necessary
information and means to give effect to their
choices, whether in favour of or away from the
group and its social and institutional
arrangements.

Put differently, the state must give effect to the
individual agency of rural people. Yet, the state
does not, by placing the burden of agency on the
individual, rid itself of its responsibility to assist
in regulating and supporting traditional forums
for positive ends. And, by the same token, the
state retains the duty to equip individuals with the

tools to choose effectively. This duty includes the
need to reconceptualise formal laws and
institutions so as to make them more
accommodating of alternative contexts and
realities, and thereby also to make formal laws
and institutions a more viable option for rural
people who wish to use them. The law should do
this in the following ways: 

• being minimalist in assigning power to 
traditional institutions;

• it should be weighted towards assigning 
responsibility to these institutions (tempered
by an emphasis on the limitations of the
powers assigned to them during colonialism
and apartheid); and 

• it should ensure that accountability is due 
primarily to the community the court serves
and only secondarily to government (while
government should bear more of the
responsibility of financing the courts than the
community does).

THE FUNCTIONS AND USE OF
CUSTOMARY COURTS

What do we know about the way customary
courts function and how people use them? 

Firstly, customary courts are non-professional
institutions. They are community forums in
which mature members of the community
participate.5 Community members are therefore
able to participate freely in their functioning,
although women were traditionally excluded from
participating in customary courts.6 The notion of
a presiding officer who acts as a judge and is the
single decision-maker has no real place in these
forums, as they are shared consultative spaces in
which all present can participate in the hearing,
questioning, deliberation and decision-making. 

Dutton observes:

Anyone can ask questions and there is no
unseemly hurry; … Then the smaller fry
among the men of the lekhotla give their
opinion, the more important people next, and
finally the headman gives his decision, which is

32 Institute for Security Studies

 



SA Crime Quarterly no 35 • March 2011 33

generally the summing up of the views of the
majority. In theory, he can give any decision he
likes, but in practice, … the final verdict is
really the general opinion of all present.7

The inconsistency between different communities
(even within a single cultural group or locality)
with regard to the extent of the chief 's
participation in the court – ranging from non-
participation to active participation – makes the
idea of a 'presiding officer', taken from western
court systems, an untenable notion to adopt and
impose on all communities.8 We know that even
if a figure akin to a presiding officer exists in
some communities, when it comes to formulating
and pronouncing decisions, he is generally bound
by what the council and/or the community has
found in hearing that case.9

Secondly, customary courts do not, and have
never, existed only at the chief 's court level.
Historically, colonial and apartheid governments
have tried to ignore and thus do away with the
lower courts (family, clan and headmen's
courts),10 but failed. These courts are embedded
in the communities; they are often formed by
members of the local communities meeting to, as
they might say, 'resolve problems'.11 They do the
bulk of the work of dispute resolution. Most cases
do not even reach the chief 's court, which can be
located far away from most community
members.12

As a result, lower courts are almost impossible to
do away with and should not be ignored, but
should instead form the core of any model of
customary courts recognised by government.
Although the Black Administration Act initially
ignored these courts, they continued to exist
outside of the law. Due to necessity, the Act was
amended so as to include specific recognition of
certain such courts, albeit inadequately.13

Thirdly, the possibility of electing to use state
courts to avoid unjust customary courts has
served an important function. This has often
been the case, particularly for women, because
they were subject to patriarchy that the colonial
and apartheid governments had supported and

entrenched in traditional communities.14

Attendance at a particular customary court was
always elective;15 it just so happened that people
tended to prefer their local forum as a first option
for conflict resolution.16

Thus the choice to recognise a particular court
served the function of defining the customary
court's jurisdiction and authority.17 It reflected
recognition of the legitimacy of a leader and
served as an important check on the leader's
authority. This also held leaders to account and
caused them to lead well; they knew that if they
did not rule justly, or make fair decisions, their
people would defect.18

This dynamic was partly disrupted by apartheid
legislation that forced limiting boundaries on
people. Yet, even with the existence of imposed
jurisdictional boundaries for customary courts,
the alternative system of courts made available to
them (that is, the state court system) served as an
important alternate accountability mechanism.19

In other words, people would turn to the state
courts to defend them against, or simply to
avoid,20 their unjust rulers' actions, laws and
judgments.21 In a modest but important way, this
meant that customary courts were dependent on
their use by citizens and had to remain
accountable in order to retain their legitimacy
and continue to exist. To deny rural people the
ability to choose whether or not to attend
customary courts is to undermine a significant
aspect of their ability to secure justice and hold
their institutions accountable.

IMPLICATIONS FOR TCB
REGULATORY FRAMEWORK

By acknowledging and empowering a single actor
as constituting the traditional court, and having
power to make law and decisions in traditional
courts,22 the TCB centralises and professionalises
customary courts. It achieves this by assigning the
senior traditional leader a role equivalent to that
of a judge in a civil court, which is referred to in
the Bill as 'presiding officer' and by excluding
other participants from the court. Put differently,
by adopting the Black Administration Act's

 



34 Institute for Security Studies

invention of the role of the presiding officer as the
central constitutive figure in the customary court23

and imposing it on all communities, the TCB
violates the proven nature of customary courts,
that is, broad community involvement. In
addition, by failing to specifically provide for
women in the constitution and operation of
customary courts (except as litigants, and even
then without the protections they need), the TCB
reinforces the problem that women were and are
excluded from involvement in the decision-
making of customary courts.24

The TCB again entrenches the power of the chief
and excludes lower courts in a way that is
fundamentally inconsistent with customary
practices. It thereby effectively does away with
what I have shown to be an indispensable
segment of the customary justice system – and
the last century and a half has proved that this is
doomed to failure. Perhaps, more importantly,
these lower courts play a key role in mediating
power and abuse in centralised official courts,
because rural people can opt to deal with their
matters through lower level structures instead.25

Historical evidence shows that clan and village
level structures simply do not refer matters
'upwards' to courts dominated by unaccountable
traditional leaders.26

By refusing people the right to opt out, s20(c) of
the TCB strips rural people of several rights and
benefits, and then refuses them one of their
instruments for seeking and securing alternative
justice, and for simultaneously holding their
traditional justice institutions accountable. It
deprives them of their right to freely choose their
culture27 and to freely (dis)associate with their
traditional authorities.28 It also denies them an
escape from illegitimate and/or dysfunctional and
unjust customary courts (where these are the
conditions of their local courts). 

National courts exist in terms of section 166 of
the Constitution. Section 166(e) provides for the
establishment of 'any other courts established or
recognised in terms of an Act of Parliament…'
The Department of Justice and Constitutional
Development has argued that customary courts

will not be established under s166, but are, instead,
given recognition under section 34 of the Bill of
Rights as an 'independent and impartial tribunal
or forum'. This sleight of hand will allow the right
to legal representation as provided for in section
35(3)(f ) of the Constitution, to be excluded from
customary courts.29

However, section 34 and the forums it provides for
are subject to the Bill of Rights and the
Constitution, including the right to legal
representation in criminal cases. Section 34
establishes the right to have one's case heard in a
court as established in terms of section 166(e).30

Moreover, in terms of section 34, if it is established
that it is appropriate that the matter be heard in an
alternative tribunal or forum, the alternative to the
court must be independent and impartial in the
way in which state courts are required to be.31

Customary courts are generally not independent
and impartial;32 in that case, they must exist
outside of section 34. Thus, if people are to use
customary courts, they must use them as people
use professional negotiators and arbitrators: by
opting into them. Put differently, if they are to
make use of customary courts, people have to
choose to abandon the forums required by
sections 166(e) and 34. They cannot be forced to
use forums other than the state courts or
comparable tribunals and forums. The choice to
abandon the state courts is the only way in which
the denial of the right to legal representation
articulated in section 35(3)(f ) in the practice of
these courts can be constitutionally justified.

COMPONENTS OF A REGULATORY
SYSTEM FOR CUSTOMARY COURTS

As socially embedded and non-professional
forums of dispute resolution, customary courts are
constructed from the ground up. Therefore, a
system for their regulation should not only
recognise chief-level courts, or even begin from
the chief 's court's level and devolve authority
downwards. Rather, it should start at intra-
community level and rely on community members
to assign authority upwards.33 These courts are
elective structures, the shape of which should not

 



SA Crime Quarterly no 35 • March 2011 35

be imposed by the state. People should be able to
choose to support and perpetuate the courts, or to
discontinue them.   

To start with, lower level courts should be
recognised first, before recognising higher-level
courts within communities. The former courts
should include family/clan courts, ward/village
courts and any other (even typically non-
customary) courts that communities form to meet
their dispute resolution needs at local level.
Following on from that, provision should be made
for communities to refer cases up to higher-level
courts within their communities, if they wish.
Provision must similarly be made for people to
refer cases to courts outside their communities, if
they wish. In other words, if they elect to do so,
community members should be able to take their
cases from the headmen's courts (rather than
chiefs' courts) directly to a magistrate's court.

People should be able to choose which customary
court to patronise. Although they might mostly
choose their local court, it is possible that they
might choose a customary or other informal
court outside the geographical jurisdictional
boundaries established by apartheid. They should
not be confined to using their local chief 's (or
headman's)34 court.  Similarly, rural people should
also be able to institute proceedings in state courts
and avoid customary courts entirely.35 This is
most important in the case of criminal matters. 

As illustrated above, the only way that the denial
of the constitutional right to legal representation36

can be justified in criminal matters is if an
accused person chooses to attend a customary
court in which they are not permitted to have
professional legal representation, and thus
voluntarily abandons this right. Finally,
discrimination by customary courts against any
member of the community (whether on the basis
of gender, culture, class, religion, legitimacy, age,
sexual orientation, or even on the basis of non-
payment of tribal levies and fees) should be
excluded by law.

Community participation in cases should be
recognised, whether it takes the form of a council

or whether through the general participation of the
community. The precise balance between the two
(the council and the community) could be left for
each community to determine, according to its
own practice. Particularly, however, women's
involvement in courts must not be confined to
their role as litigants; they must also form part of
the court. Women must be integral to the
composition of the courts, and thus part of the
decision-making on what customary law is and
how it is to be applied. Support must therefore be
given to the progressive development of customary
law in those areas where women are increasingly
playing a role in the courts.

When a woman is a litigant in a legal matter, she
must be given the right to represent herself in a
customary court. Matters concerning the rights and
interests of women must not be heard in the
absence of the litigant. Thus, they must be present
or give voluntary, written consent for another to
represent them in their absence. Even where
women wish to be assisted by family or friends,
they must take primary responsibility for their
cases, especially their defence. 

Those matters affecting women most adversely
should largely be excluded from customary courts'
jurisdiction. These include matters pertaining to
violence against women and children: rape,
attempted rape, indecent/sexual assault, domestic
violence and child abuse. Also included are civil
matters determining one's status, namely,
marriage/divorce,37 custody, guardianship,
maintenance, determination of paternity, and
succession38 (validity, effect or interpretation of
wills).39 Given that discussion of differences within
the community is a significant aspect of customary
dispute resolution for many rural people (including
women),40 mediation of matters without the
issuance of a final 'judgment' should be permitted,
particularly at lower levels of social organisation. 

Regarding sanctions – all of which should be
appealable to the magistrates' courts – the
following restrictions should be established:

• Community Service Orders should be 
prohibited from being imposed on people not

 



36 Institute for Security Studies

party to the proceedings. These kinds of orders
should not be interpreted to mean service in
the chief or headman's homestead, or for the
chief or headman's benefit. 

• Banishment, or denial of land rights or 
community membership, and deprivation of
other customary rights should be outlawed as
punishments in both criminal and civil cases. 

• Corporal punishment and other forms of 
humiliating punishment should continue to be
prohibited. 

• Orders of a monetary value must be 
restricted to modest sums that are in 
reasonable proportion with income levels in 
rural areas.42

Because of the importance of victim compensation
in the case of a wrong – even a criminal wrong –
two courses should be pursued adjacently. Firstly,
compensation orders in criminal matters (under
sections 297 and 300 of the Criminal Procedure
Act 51 of 1977) should be publicised in the rural
areas. Compensation orders should also be made
available to rural claimants via both the civil and
customary courts. These should be subject to
appropriate financial limits. 

Secondly, customary courts should have
jurisdiction as an alternative forum for civil claims
in connection with minor criminal cases within
their jurisdiction, where the criminal courts have
not granted compensation orders. Again, this
capacity should be subject to appropriate
jurisdictional monetary limits. This approach
acknowledges the void that customary courts
often end up filling by hearing 'criminal matters'
essentially as civil claims. However, recognition
should be given to the fact that civil/criminal
boundaries are often blurred (or non-existent) in
customary courts and thus, as a case progresses,
the aim of the hearing might change from
restorative to retributive justice (and vice versa).
Consequently, the provision should also allow for
referral of cases from the customary court to the
magistrate's court, should a restorative matter
become retributive.

Ultimately, rights, resources and oversight are
essential to ensuring that, where necessary,

customary courts are developed into functional
and constitutionally just institutions that truly
serve the justice needs of their patrons. This does
not entail trying to turn customary courts into
magistrate's courts. Rather, it permits them to
operate in their contexts as they are inclined to,
while subjecting them firmly to the requirements
of the Constitution.

To achieve this, the state must exercise its own
responsibilities towards the courts and the people
they serve. I list a few of these institutional
responsibilities here. 

Firstly, government should provide the courts
with the financial support to enable them to
operate well.43 Certainly, poor people should not
be required to pay (excessive sums) in order to
ensure that the courts are operational because of
government's failure to secure this. For example,
in places court fees and fines have crept up to
prohibitive levels and are even accompanied by
unconventional gifts (a form of bribery) on the
side,44 which makes it difficult for poor people to
access the courts, and creates an obstacle to
justice. Rural people should not have to pay for
access to these forums of justice. But if proved
necessary that they do, these fees should be
nominal and consistent, and court finances
should be formally accounted for.

The state should have information on how
customary courts operate. This will help ensure
that customary courts recognise the
constitutional rights of individuals and act in
accordance with constitutional values. It may
require a dedicated department within the
Department of Justice and Constitutional
Development, with trained officers to evaluate the
customary courts and their reports. (Only basic
reporting is necessary or even possible at this
stage, but it must definitely include accurate
financial reporting.) Such a department should
conduct site visits as a form of oversight,
assessment, modification of practice and training
that would allow for course corrections to be
made specifically and timeously. The department
should also receive, investigate and deal as
promptly as possible with complaints pertaining

 



SA Crime Quarterly no 35 • March 2011 37

to violations in specific courts, even where these
are anonymous.45

A third and crucial element of government's
responsibility is that sanctions must exist for
customary courts that refuse to conform. These
should be over and above the sanction presumed
above (that people would cease to patronise a
dysfunctional and unjust customary court and
would report it for investigation). Removal,
banning, prosecution, fining and imprisonment of
recalcitrant customary court staff and regular
participants should also be available sanctions
against the institution and its servants. 

Where problems with a customary court are
systemic and irreparable, the withdrawal of
recognition (i.e. official disbandment) should be
possible. However, this too should ultimately be
guided by the will of the community that the
court serves and be supported by the active use of
alternatives by the community; otherwise it will
be ineffectual. These sanctions must be enforced
to prevent disillusionment with government's
preparedness to hold traditional institutions
accountable.

A final institutional element to complement the
others is that, in the magistrate's court, dedicated
officers should be installed to deal with
customary law concerns (original applications
and appeals). They should be trained to deal with
these matters and develop a real understanding of
local systems so that they may give effect to (or,
where necessary, develop in line with the
Constitution) living customary law. In other
words, for the effective integration of customary
courts with the state court system, mutual
understanding and ongoing communication
between the respective institutions is required, as
is a willingness to accommodate and learn from
one another.

CONCLUSION

In summary, regulation of customary courts
should emphasise the responsibilities these courts
owe to their patrons. The law should also make
traditional institutions directly accountable to the

communities they serve, and to the state.
Furthermore, regulation should give priority to
individual choice as the means by which both
group identity and culture can be protected. That
means recognising group identity and culture,
while allowing the individual to choose it or reject
it. Finally, for group identities and customary
legal arrangements to remain a viable choice, the
state is required to give customary institutions
support and facilitate their improvement so that
they will be an attractive option for local conflict
resolution. This includes ensuring that users of
customary courts have the information necessary
to realise their choices and rights.

Most importantly, whatever legislation is
ultimately promulgated to replace the Traditional
Courts Bill must be informed by direct
consultations with ordinary rural users of the
courts and the needs they articulate, as required
by the Constitutional Court's injunction.46

To comment on this article visit
http://www.issafrica.org/sacq.php

NOTES

1. J Comaroff and S Roberts, Rules and Processes: The 
Cultural Logic of Dispute in an African Context,
Chicago and London, University of Chicago, 1981; 
P Cook, Social Organisation and Ceremonial
Institutions of the Bomvana, Cape Town and
Johannesburg, Juta & Co. Ltd, 1931; Major E Dutton,
The Basuto of Basutoland, London, Jonathan Cape,
1923; W Hammond-Tooke, Command or Consensus:
The Development of Transkeian Local Government,
Cape Town, David Philip, 1975; H Kuper, An African
aristocracy: rank among the Swazi of Bechuanaland,
London, New York, International African Institute,
Oxford University Press, 1947; H Mönnig, The Pedi,
Pretoria, Van Schaik, 1967; D Reader, Zulu tribe in
transition: the Makhanya of Southern Natal,
Manchester, Manchester University Press, 1966; 
I Schapera, Tribal innovators: Tswana chiefs and social
change, 1795-1940, London School of Economics
Monographs on Social Anthropology no 43, London,
Athlone Press, 1970;  M Wilson, S Kaplan, T Maki et
al, Keiskammahoek rural survey vol 3: social structure,
Pietermaritzburg: Shuter and Shooter, 1952.

2. On the nature of the chief 's power and its source: 
Hermannsburg Mission Society v The Commissioner for
Native Affairs and Darius Mogalie 1906 TS 135, Mogale
v Engelbrecht and Others 1907 TS 836, Rex v Magano
and Madumo 1924 TPD 129, Mathibe v Tsoke 1927 AD
74, Mathura v Du Toit 1926 TPD 126, Rathibe v Reid
1927 AD 74, Mandhlakayise Ngcobo v Chief Native



38 Institute for Security Studies

Commissioner for Natal 1936 NPD 94, Moepi v
Minister for Bantu Administration and Development
1965 (1) SA 533 (T). On the role of the chief (and
headmen) in customary courts, and scope of his
power: Makapan v Khope 1923 AD 551, Mokhatle &
Others v Union Government (Minister of Native Affairs)
1926 AD 74, Modisane v Makgotho 1928 TPD 487,
Morake v Dubedube 1928 TPD 625, Rex v Kumalo and
Others 1952 (1) SA 381 (A), Rex v Ntwana 1961 (3) SA
123 (E), State v Mngadi [1971] 2 All SA 394 (N).  

3. South African Law Reform Commission Discussion 
Paper 82 (Project 90), May 1999, South African Law
Reform Commission Report on Traditional Courts
and the Judicial Function of Traditional Leaders
(Project 90), January 2003 and Draft Submission for
Comment: Traditional Courts and the Judicial
Function of Chiefs – CALS, CGE and NLC, November
1999.

4. See, for example, 'The Traditional Courts Bill of 2008: 
documents to broaden the discussion to rural areas'. A
publication of the Legal Resources Centre and the
Law, Race and Gender Unit, Faculty of Law, University
of Cape Town, November 2009 at section 4(3); A
Claassens and S Ngubane, Women, land and power:
the impact of the Communal Land Rights Act, in A
Claassens and B Cousins (eds.), Land, power &
custom: controversies generated by South Africa's
Communal Land Rights Act, Cape Town, UCT Press,
2008, 154-183; A Claassens and S Mnisi, Rural women
redefining land rights in the context of living
customary law, South African Journal on Human Rights
25 (2009), 491; S Mnisi, The interface between living
customary law(s) of succession and South African
state law, Unpublished DPhil thesis, University of
Oxford, 2010.

5. Mönnig, The Pedi, 309; Dutton, The Basuto of 
Basutoland, 59-60.

6. Except in cultural systems where they had their own 
systems of courts (as in Pedi culture) or, as in the case
of the Swazi, where the Queen would hear appeals in
the court immediately beneath that of the King who
was her son or where, as in the Lovhedu, a woman was
the figurehead in the court, as chief. See Mönnig, The
Pedi; Kuper, An African aristocracy.

7. Dutton, The Basuto of Basutoland, 59-60. Even in the 
case of the more presiding officer-like role of the
Tswana judge, according to Comaroff and Roberts,
Rules and Processes, 80-83,180, as with legislative
pronouncements, the legitimacy and efficacy of the
chief 's decisions or rules that are developed in cases
depend on (i) their reflection of public opinion, (ii)
their being delivered by an authority considered
legitimate and (iii) their utility to individuals in the
circumstances in which the rule might later be raised.
The first criterion introduces the dimension of
community participation to the process because, as
Comaroff and Roberts observe, the chief must usually
consult widely. It is also important to observe that the
second of these conditions is often lacking where the
apartheid government imposed the existing traditional
authorities and institutions. Also see Cook, Social
Organisation and ceremonial institutions of the
Bomvana, 146 and Reader, Zulu tribe in transition,
259-60.

8. Ibid.  Also see Mnisi, The interface between living 
customary law(s) of succession and South African state
law.

9. See note 7. With regard to the Xhosa, Hammond-
Tooke, Command or Consensus, 68, 74 fn 13 notes that
decisions are made by the 'community-in-council'.
Indeed, he writes (at 67) that '“[a] chief who dared to
go against the wishes of his people ran the risk of
losing their support, and perhaps his chieftainship.” …
Consensus was all important.'  Also see the following
cases for the claims made to them, more than for the
findings of the courts: in Morake v Dubedube 1928
TPD 625 at 630 the court describes the chief as 'sitting
in that capacity, advised by his counselors' and wrongly
rejects the contention that the chief (and his council)
does not possess in him the customary law; Rex v
Kumalo and Others 1952 (1) SA 381 (A) speaks of the
chief and members of his council as deciding upon the
proper punishment for a man for contempt of court;
Rex v Ntwana 1961 (3) SA 123 (E) also notes the
council and headmen's role in the traditional dispute
resolution process; State v Mngadi [1971] 2 All SA 394
(N) similarly notes the headmen's involvement in the
processes of dispute resolution. 

10. Mönnig, The Pedi, 308; Wilson et al, Keiskammahoek 
rural survey vol 3, Schapera, Tribal Innovators, 92.

11. Kuper, An African aristocracy, 65.
12. Hammond-Tooke, Command or Consensus, 64.
13. See the Black Administration Act sections 12 and 20, 

which regulated traditional courts under the respective
titles, 'Settlement of civil disputes by native chiefs' and
'Powers of chiefs to try certain offences'. See the
amended titles, pursuant to the Native Administration
Amendment Act 1929 (9 of 1929) and the Native
Administration Amendment Act 1943 (21 of 1943) –
respectively, 'Settlement of civil disputes by Black
chiefs, headmen and chiefs' deputies' and 'Powers of
chiefs, headmen and chiefs' deputies to try certain
offences'.

14. M Chanock, The making of South African legal 
culture, 1902-1936: fear, favour and prejudice,
Cambridge, Cambridge University Press, 2001, 262,
267; A Claassens, Women, customary law and
discrimination: the impact of the Communal Land
Rights Act, Acta Juridica 42 (2005), 50; M Mamdani,
Citizen and subject: contemporary Africa and the legacy
of late colonialism, Princeton, Princeton University
Press, 1996, 81; T Nhlapo, The African customary law
of marriage and the rights conundrum, in M Mamdani
(ed), Beyond rights-talk and culture-talk : comparative
essays on the politics of rights and culture. Cape Town,
David Philip Publishers, 2000, 136-48 at 161-3; 
R Roberts, Litigants and households: African disputes
and colonial courts in the French Soudan, 1895-1912,
Portsmouth, NH, Heinemann, 2005, 18-20.

15. See Makapan v Khope, 555 where the court correctly 
recognises the headman's court on grounds that it was
'recognized by members of the tribe as having
authority to hear and decide disputes'.

16. Wilson et al, Keiskammahoek rural survey vol 3.
17. Kuper, An African aristocracy, 65.
18. Hammond-Tooke, Command or Consensus, 67, 68.
19. Reader, Zulu tribe in transition, 259-60.  His fieldwork 

having been done pre-1951, Reader observes that 'in no

 



SA Crime Quarterly no 35 • March 2011 39

aspect of Makhanya life has the South African
Administration intervened more decisively than in the
judicial sphere'.  He says that the legal system there is
a complex of European and tribal judicial institutions
which have gradually come together over a period of
more than 100 years.

20. Hammond-Tooke, Command or Consensus, 78.
21. Roberts, Litigants and households. Some of the cases 

cited above, note 2, are examples of these appeals to
the state to defend them against abuse of power by
traditional authorities. These include Hermannsburg
Mission Society v The Commissioner for Native Affairs
and Darius Mogalie 1906 TS 135 and Rathibe v Reid
1927 AD 74 on whether the chief must consult with
the community or act in accordance with the advice of
the council, respectively, in his execution of his
'trustreeship' role vis-à-vis the land of the tribe;
Mandhlakayise Ngcobo v Chief Native Commissioner for
Natal 1936 NPD 94, where the court addresses the
tribe's dissatisfaction with its leader, one component of
which is the chief 's appointment of a principal induna
without consulting the tribe; Rex v Magano and
Madumo, 1924 TPD 129 on a similar matter of the
chief 's need to consult the community; Moepi v
Minister for Bantu Administration and Development
1965 (1) SA 533 (T), in which a tribal community, led
by the chief 's councilmen, brought a chief before the
Bantu Commissioner for his failure to consult the
headmen on matters which required their approval;
Mathibe v Tsoke 1925 AD 105 at 116 concerning the
opportunity for the community to object on whether a
new levy should be imposed on them.

22. Sections 1 and 4 of the TCB.
23. See Makapan v Khope, 555 where the court finds that, 

in terms of section 4 of Law 4 of 1885, 'a chief
appointed by the government [is constituted] to be a
court of justice'.

24. Claasens and Ngubane, Women, land and power, 173-
5; Claassens and Mnisi, Rural women redefining land
rights in the context of living customary law; E Curren
and E Bonthuys, Customary law and domestic violence
in rural South African communities, South African
Journal on Human Rights 21 (2005), 607, 633; 
T Higgins, J Fenrich and Z Tanzer, Gender equality
and customary marriage: bargaining in the shadow of
post-apartheid legal pluralism 30(6) (2007), 1653,
1700-01; B Oomen, Chiefs in South Africa: Law, Power
and Culture in the Post-Apartheid Era, James Currey
Ltd, 2005, 140.

25. Again, see Hammond-Tooke, Command or Consensus, 
64, where he observes that, although in theory appeals
from lower courts could go to chief 's courts in the
Transkei, 'it seems this was rare in practice.'  He also
quotes a regent named Isaac Matiwane as saying that:
Subjects of the isiduna were allowed to take their cases
on appeal to the chief 's court if they were not satisfied
with the isiduna's verdict. But such cases were very
rare. In fact this was not encouraged.

26. Ibid. Mönnig, The Pedi, 313 also reflects that few 
people took cases to the Native Commissioner in
terms of the Black Administration Act of their own
accord, and only chiefs appointed by the central
government actually referred cases to them.

27. Section 30 of the Constitution says 'everyone has the 

right to … participate in the cultural life of their
choice'. (Emphasis added)

28. Section 18 of the Constitution permits 'everyone … 
the right to freedom of association'.

29. See PMG report, http://www.pmg.org.za/report/ 
20090901-department-justice-constitutional-
development-traditional-courts-bill (accessed
November 2010).

30. See Barkhuizen v Napier 2007 (5) SA 323 (CC) at 
paras 31-35; Giddey NO v JC Barnard and Partners
2007 (5) SA 525 (CC) at para 15; Engelbrecht v Road
Accident Fund and Another 2007 (6) SA 96 (CC) at
paras 30 and 40.

31. Ibid.
32. This argument is based on the fact that customary 

courts do not purport to be independent and impartial
in the way that state courts are. In fact, it is sometimes
the very fact that they are distinct in this way that
attracts the people who choose to use them. (See
Mnisi, The interface between living customary law(s)
of succession and South African state law, 282-83)
However, it is sometimes also the extent of this fact
that is responsible for complaints by community
members who express the concern that this prevents
them from obtaining the objective justice that they
would wish. (See Mnisi, The interface between living
customary law(s) of succession and South African state
law, 222 and 'The Traditional Courts Bill of 2008:
documents to broaden the discussion to rural areas').

33. See observations made, in this regard, by K Von 
Benda-Beckmann, Forum shopping and shopping
forums: Dispute processing in a Minangkabau village
in West Sumatra, Journal of Legal Pluralism 19 (1981),
117-160, 137-38.

34. With choice, the question arises as to who gets to 
make it: the plaintiff or defendant.  Legislation should
possibly provide that, in civil cases, the plaintiff makes
the choice by where they initiate proceedings
(reserving room and a mechanism for the defendant to
object), whilst in criminal cases, the accused should be
permitted to make the choice, and move their case
after its institution, if necessary.

35. A further justification for people's being able to 
choose to use the Magistrate's Court as against the
customary court is that this would do away with the
difficulty created by the TCB, for women especially, in
requiring them to challenge the chief as presiding
officer directly if they feel that his judgment is unfair.
People can, instead, just avoid the chief entirely, which
subtly says that they think him and his court
incompetent/dysfunctional or biased/malicious, but
this means does not require direct confrontation
between people of unequal power, influence and
means.

36. Section 35(3)(f ) gives people the right to legal 
representation where accused of an offence, and
sections 7, 8 and 36 all make the Bill of Rights central
to our democracy, subject all laws to it and make it
only limitable for constitutionally-compelling reasons.
Notably, section 35(3)(f ) is a non-derogable right even
in a state of emergency.

37. I would not interpret this to exclude the possibility of 
customary courts hearing and deciding matters
pertaining to the transactional elements surrounding

 



40 Institute for Security Studies

marriage, e.g. a woman and her family suing the
husband's family for outstanding lobolo.

38. I would not interpret this to exclude the possibility of 
customary courts hearing and deciding matters
relating to the cultural aspects of succession, e.g. a
woman's having been 'illegally' (in terms of living
customary law) made to wear mourning clothes while
her husband's family had not officially taken her
through the marriage process by virtue of their owing
her and her family lobolo, and the monetary/livestock
compensation to the woman and her family that might
follow such an infraction.

39. This list reflects a comprehensive list combining 
section 3.4 of the CALS, CGE and NLC 1999 report
and clause 8 (1) of the SALRC draft Bill.

40. Wilson et al, Keiskammahoek rural survey vol 3.
41. According to section 10(2)(i) of the TCB: 'benefits that 

accrue in terms of customary law and custom' may be
taken away from the person as a sanction.

42. According to Statistics South Africa, Income and 
Expenditure Survey, 2008, 156, in 2005/06, the average
annual income of rural households was R30 859 as
opposed to R98 011 in urban areas – less than a third
of the urban average.  Of this, salaried income formed
an average of R14 250 in rural households relative to
the R66 310 of urban households.

43. Because customary courts are typically non-
professional institutions, their financial needs would
be different from those of state courts. For instance,
government should ideally provide a meal at the end
to those who have participated in a day's court
proceedings, as this is one of the costs toward which
people's fines are often attributed.  In some areas,
government already provides modest stipends to
headmen, councillors and secretaries, as the people
who administratively staff the courts – but only at the
chief 's court level. (This is in terms of section 5 of the
Public Office Bearers Act 1998 (Act 20 of 1998) as
amended by section 29 of the Traditional Leadership
and Governance Framework Act 2003 (Act 41 of
2003), and section 26 of the Traditional Leadership
and Governance Amendment Act (Act 23 of 2009)). As
a consequence, many other servants of these courts are
often left out e.g. the 'traditional police' (somewhat
comparable to the 'sheriff of the court') who, in some
instances, does the bulk of the running around for
summoning people to the court and enforcing
judgments, as well as sometimes even hearing cases
and intervening in physical/violent disputes.  

44. Examples of these are given in the Substantive Report 
on National Community Workshop on Traditional
Courts Bill, 11-12 November 2009.

45. While the adoption of such accountability mechanisms 
as those proposed here might appear entirely
improbable, the establishment of the Department of
Traditional Affairs makes them a little less so. Its
mandate (according to its concept document for the
project titled 'Assessment of the State of Governance
within the Institution of Traditional Affairs') is partly
to 'assist the institution of traditional … leadership to
transform themselves to be strategic partners with
Government in the development of their communities
but also to coordinate the traditional affairs activities
of the Department and those of other departments at

national, provincial and local government levels.  This
is meant to ensure that their needs in terms of
development, service delivery, governance, access to
indigenous knowledge systems, traditional courts and
indigenous law, traditional healing and medicine, etc
are adequately met.' (point 2.10 at 4; emphasis added).
The document envisages that this department will play
an oversight role described as including, as the second
one of its four focus areas: 'To develop, review, monitor
and implement legislation and policies relevant to
traditional leadership nationally and to coordinate and
monitor the review and implementation of legislation
and policies relevant to traditional affairs by national
and provincial government departments' (point 2.11 at
4; emphasis added). This is indeed an ambitious
project. But, were the Traditional Courts Bill to be
replaced by progressive legislation, it at least seems
feasible that this legislation could exploit the expressed
will of government to provide some degree of
oversight, and thus secure the kind of oversight
necessary to see the implementation of the
replacement legislation.

46. Tongoane and Others v National Minister for 
Agriculture and Land Affairs and Others at para 106;
also see Doctors for Life International v Speaker of the
National Assembly and Others 2006 (6) SA 416 (CC) at
para 211.