CULTURAL ISSUES AND THE UTILISATION OF THERAPEUTIC JURISPRUDENCE IN THE CUSTOMARY COURTS OF SOUTH AFRICA
Christa Rautenbach 1
1. INTRODUCTION
A few months ago I stumbled upon the words "therapeutic jurisprudence". The words were unfamiliar to me and, upon enquiry, none of my colleagues could shed any light on their meaning either. I turned to the Oxford Dictionary2 for help and there I discovered that "therapeutic" means, inter alia, "the art of healing" and "jurisprudence" means, inter alia, the "knowledge of or skill in law." The word "jurisprudence" can also refer to the practical application of law, for example the decision of a court and a body or system of law.3
The International Network on Therapeutic Jurisprudence4 provided further assistance and there I ascertained that therapeutic jurisprudence refers to the "study of the role of the law as a therapeutic agent."5 So far I have also learned that therapeutic jurisprudence uses an interdisciplinary approach and that there is a definite paradigm shift from law as a punitive agent to law as a healing agent. It recognises the social responsibilities of law and is therefore an alternative way to effect law reform.6 Against this background, therapeutic jurisprudence can also be referred to as restorative or remedial justice.7
Thus I turned to the South African scenario in order to assess whether examples of therapeutic jurisprudence exist in our legal order. Not unexpectedly we have quite a few illustrations that conform to a greater or lesser extent to the features of therapeutic jurisprudence. One such an example is the appointment of assessors by a presiding officer in order to assist him or her during the trial.8 When an assessor is appointed, the presiding officer must take cognisance of factors such as the cultural, social and educational background of the offender, the interest of the community and the nature and seriousness of the offence committed by the offender. Although the presiding officer is ultimately responsible for the legal aspects and sentence, the mere presence of a person from the same background as the offender can be quite reassuring to the latter.
Another example is the imposition of correctional supervision as a form of sentence.9 It is imperative that a report from a probation or correctional service officer be obtained in order to implement correctional supervision. The sentence may make provision for various measures with the objective of reforming the criminal outside a prison cell, such as drug or alcohol rehabilitation programmes and life skill programmes. This type of sentence seeks to deal with the offender's offence, while at the same time addressing the underlying problems of the offender. Correctional supervision has been described as an inventive form of sentence that, if used in suitable cases and if applied to those who are likely to respond positively to its regimen, can serve to protect society without the negative impact that confinement can have on the innocent family members of a convicted criminal.10
Other examples are the use of specialised courts such as the maintenance courts, family courts, children's courts and customary courts.11 Although most of these courts apply the principles of therapeutic jurisprudence to a greater or lesser extent, this paper will focus on only the latter form of specialised courts, namely customary courts.
In the subsequent discussion I will, firstly, give a general overview of the South African court system. The importance of such an overview will become evident when I discuss the rationale for the existence of customary courts in South Africa. The second part of my paper will deal with the various forms of customary courts and the utilisation of therapeutic jurisprudence within these courts and, finally, I will formulate some concluding remarks on the future of customary courts in South Africa.
2. GENERAL OVERVIEW OF THE COURT SYSTEM
It is no secret that colonialism had a large impact on the development of law in South Africa. In 1652 the Dutch East India Company12 established a refreshment station in the Cape. As a natural result of the Dutch colonisation of the Cape the law applicable to the settlers was Roman-Dutch law, which was the official law of the Netherlands at that stage. The Dutch government was confronted with the existence of indigenous people on Cape soil whose customs and usages were totally different from those it was accustomed to. At first no account was taken of these customs and usages, because they were seen as "uncivilised".
It was only after the second British occupation in 1806 that customary law13 received some form of recognition. The British followed a policy of non-interference with the customs and usages of indigenous people, provided that these customs and usages were not repugnant to public policy and the principles of natural justice. During this time the various territories14 regulated the application of customary law by means of their own legislation.15 In 1927 the various territorial laws were finally consolidated in the controversial Black Administration Act,16 which use to provide and to some extent still provides for the management of the affairs of certain black persons. Although subject to severe criticism large portions of this Act, including the section dealing with customary courts,17 are still in operation today.
For reasons that are not peculiar to South Africa only, the official state law today consists of two components, which can best be described as a Western and an African component. The Western component comprises the Roman-Dutch law as influenced by English law and adapted and developed through judicial decisions and legislation that were introduced since the colonial period. The African component comprises the written and unwritten law of the traditional communities, which is referred to as customary law. The recognition and application of customary law used to be a contentious issue in South Africa, but since customary law received constitutional recognition18 most of the pressing issues have been resolved or are in the process of being resolved. Today it is generally accepted that customary law must be applied in all the courts if and when applicable.19
The Constitution makes provision for three kinds of courts, namely the constitutional court,20 ordinary courts21 and special courts.22 This court system recognises both the Western and African components of South African law and the application of constitutional law as law of the land by the application of customary law in these courts is subject to the Constitution and other legislation dealing with customary law. The Constitution also makes provision for all courts to develop the customary law in accordance with the spirit, purport and objects of the South African Bill of Rights.23 The compulsory application of customary law in the courts leads to a fascinating interaction between the Western and African components unique to some post-colonial countries. However, although the "Western" courts are compelled to apply customary law under certain circumstances, they normally follow the normal court proceedings and not the customary court procedures in doing so. Customary court procedures are typical to customary courts and in the subsequent discussion it will become evident that they contain some features of therapeutic jurisprudence.
3. CUSTOMARY COURTS
The African component of our law becomes particularly visible in the doings of the customary courts where customary law is applied at two levels best described as a formal and an informal level.24
The formal customary courts are the special courts25 of the chiefs and headmen.26 Although we speak of formal customary courts for the sake of convenience, the Black Administration Act does not create such courts but makes provision for the Minister to confer civil and criminal jurisdiction on traditional leaders (chiefs or headmen). Express provision was made in the Constitution for retention of the approximately 1 500 customary courts in South Africa.27 The law relating to formal customary courts has been under investigation since 1999. In January 2002 the South African Law Commission issued a report on customary courts and the judicial functions of traditional leaders28 and as a result the Application of Customary Courts Bill saw the light. However, to date no legislation has been enacted in this regard. Since the Bill proposes the application of customary law by established customary courts, which is the current situation anyway,29 the contents of the Bill are of minor consequence for our discussion today.
On another level we also find the informal customary courts, which are the courts of the family councils, sub-headmen and the so-called "community courts".30 These courts operate within the sphere of non-state law.31 In many communities it is practice that claims or complaints start at the level of the family council. If the matter is not resolved at this level, it is taken to the sub-headmen who, together with their advisers,32 try to dispose of the matter.33 The primary focus of the courts of the sub-headmen is mediation and reconciliation between the members in their areas. For example, it has been reported that a resident has been charged by a sub-headman for not having a toilet at home. He asked for pardon and indicated that he had already started making one. The sub-headman accepted his excuse and no further action was taken in the matter.34 If the sub-headman cannot dispose of the matter, or if a party is not satisfied with the sub-headman's decision, the matter is referred to the formal customary court of the area.35 The South African Law Commission recognised the existence and importance of these informal court structures and proposed that they receive official recognition as courts in the near future.36
The courts of the family councils and sub-headmen discussed above are normally associated with rural areas and traditional leaders. As a result of migration and industrialisation, increasingly large numbers of indigenous people were drawn into urban areas, where the growth in population led to a corresponding increase in the need to resolve disputes and to combat crime. For many, a foreign, dominant, Western legal system is seen to be forced on an intuitive customary legal system. The ever-increasing crime rate, high legal costs and the inability of the Western courts to deal with the increasing legal and social problems gave rise to informal forms of community courts. These courts grew out of a realisation that the existing judicial approaches had failed, at least in specific areas such as crime prevention, accessibility and legal costs. The community courts apply a mixture of customary law, common law and self-made law. In addition to fulfilling judicial functions, these structures also perform social functions such as welfare, child care and support, burial support and saving clubs.37 The South African Law Commission recommended that these structures be formally recognised, but suggested that they should not be called "courts", but community forums that provide "first-aid" justice for local communities. The Law Commission argued that the term "courts" confuses the issue because it pre-empts many questions including those relating to jurisdiction, training of personnel, binding nature of decisions and the voluntariness of participation.38 Others are of the opinion that these forums are so unstructured and undisciplined that it is hard to justify their existence.39
I shall next assess the utilisation of therapeutic jurisprudence in the customary courts. The emphasis will be on the formal customary courts, i.e. the courts of the headmen and/or chiefs appointed for a particular area. Unfortunately it will be impossible to paint a full picture simply because the scenery is too vast.40
4. THERAPEUTIC JURISPRUDENCE AND CUSTOMARY COURTS
So far most of the literature that I have read claims that therapeutic jurisprudence is a relatively modern development of the law with its roots firmly in mental health law. However, during my analysis of the relevant literature I came across a comment made by professors Winick and Wexler,41 namely that the roots of therapeutic jurisprudence can be "traced back to indigenous and tribal justice systems". This statement is indeed spot-on when one assesses the utilisation of therapeutic jurisprudence in the customary courts of South Africa.
It is interesting to note that the principles of therapeutic jurisprudence are not only utilised during the trial period of a case, but also at the so-called pre-trial period. To explain: The cases are normally reported to the headman of an area. He sifts the cases and decides which cases fall within the jurisdiction of the tribal authority. During the sifting process, he or she may decide to follow a reconciliation or restorative process rather than referring the case to the court. The purpose of this procedure is to reconcile the parties without undergoing a lengthy and costly hearing in the Western courts where the parties are often unhappy with the outcome of the case.42 Two of our distinguished legal academics attended one such procedure in December 1999 and reported as follows:43
... We visited a headman and found him listening to a complaint in a rape case. Accompanied by his male relatives, the accused admitted the rape and asked for pardon. The relatives requested that the matter should not be taken to the police, because their son would go to goal (sic) for two years and the complainant and her relatives would get nothing out of it at all. The headman asked the two groups to go and talk the matter over and come back to him the following day as it appeared to him that they did not want to go and "fight" in the magistrate's court, being related to each other by marriage and being friends of long standing. On the following day the male representatives of the two sides came back to report the offender's side was paying three head of cattle to the offended girl's father, and that this had been accepted, that way the end of the matter.
If a party is dissatisfied with the judgement of the headman or if the headman is of the opinion that the case is too complicated to be settled, he or she refers the case to the formal customary court to be heard. Although the procedure to be followed in formal customary courts (irrespective whether it is a civil or criminal matter) is in accordance with customary law,44 the procedures are more formal than in the informal courts and modelled to some degree on those of Western courts. The customary courts do not use the common law classification of delicts and crimes and the hearing revolves mainly around compensation rather than a penalty for the transgression committed. No legal representation is allowed in the customary courts. Such representation would make the costs unnecessarily high and the traditional leaders are normally not trained judicial officers. It is also important to note that the procedures observed in the customary courts may differ from place to place, depending on the rules and customs of a particular community. Nevertheless, regardless of the variance in procedures, reconciliation between the parties is an ethos common to the various customary courts. The following outline, which is based on assessments of Bennett,45 is representative of a typical hearing.
Hearings take place in a building that serves as a courthouse. The presiding officer (usually the chief or someone appointed by him or her), secretary and rest of the councillors sit at a table which is placed at the head of the room. The parties, their family members and interested members of the public sit on benches in the room. The physical proximity and participation of all the interested parties make sense if one bears in mind the importance placed on the principle of ubuntu. "Ubuntu" is a concept of customary law that refers to the key values of group solidarity, namely compassion, respect, human dignity and conformity to the basic norms of the collectivity.46
The questions are usually asked by the chief, the secretary (who keeps a written record of the proceedings) or members of the council. The normal rules of evidence do not apply and the parties and witnesses are free to present whatever information they think is relevant. The customary procedure is inquisitorial, in the sense that the questions may be framed on the belief that a party is lying in order to test his or her credibility. Furthermore, customary courts do not require a strict separation between fact and law and liability could be determined on the basis of a person's good or bad character. All this is understandable if one keeps in mind that mediation, reconciliation and restoration are all key components of the court proceedings, which are flexible, informal, simple and free from technicality.47
A written report must be prepared by the chief immediately after judgement has been given. A copy of this report must be forwarded to the relevant magistrate's office in order to be registered. If the judgement is not registered within two months, it results in the lapse of the judgement concerned.48 This procedure ensures that a record is kept of all the judgements of the formal customary courts, especially if there is an appeal to the magistrate's court that might follow.
During their investigation of the judicial process in the customary courts of South Africa, Koyana and Bekker49 attended various court proceedings. The process during one of these cases typically progressed as follows.50 The presiding officer was the headman, who was assisted by six other members of the community. The members of the community were also present during the proceedings. One of the complaints was that the offender's cattle had damaged the complainant's crops by grazing in the latter's maize field. The offender replied to this complaint by apologising. One of the members of the court (who acted as prosecutor) put questions pertaining to the alleged damage caused by the cattle to the complainant. The offender was then called and questioned by a member of the court concerning his accountability regarding the damage sustained by the complainant. Further questions were then put to the complainant by other members of the court. These included questions regarding the extent of the damage and the availability of other witnesses. After this the offender was called back and asked by the prosecutor whether he admitted guilt. He pleaded guilty and was sentenced to pay R10 for costs and R75 to the complainant, alternatively his cattle would be confiscated on a certain date.
Sentences by the customary courts can take the form of banishment from the community, confiscation of the property of the offender or a fine in the form of money or livestock. The idea of imprisonment is unknown in customary law. The main object of the sentence is to restore the imbalance in the community caused by the wrongful conduct of the offender. It is also possible that a case could end with a penalty as well as an award. This is so, because the customary courts do not make a clear distinction between criminal and civil matters - the end result should always satisfy the offender, the aggrieved party and the community.51 A person who fails to comply with the judgement of the court may be brought before a Western magistrate's court for execution of the judgement. An aggrieved party also has a right of appeal to the relevant magistrate's court.
In view of the recommendations by the South African Law Commission,52 the continued existence of customary courts is a certainty. In fact, the proposed changes seem to confirm rather than negate the survival of these courts in South Africa.
5. CONCLUDING REMARKS
The phenomenon of customary courts and its utilisation of therapeutic jurisprudence are not without shortcomings. But then, what legal system is problem free?
One deficiency that comes to mind is the condition that the parties in a civil case and the offender in a criminal case must be black. Section 35 of the Black Administration Act defines a black person as "any person who is a member of any aboriginal race or tribe in Africa." If, for example, a white person seduces a black girl in a rural area, the relevant traditional authorities would have no jurisdiction to mediate or try such a case. It may be argued that the limitation of access to a court on the grounds of racial factors is an infringement of the constitutional guarantee of equal treatment before the law and should not be tolerated.53
Another problem that has been identified54 is the fact that the members of a customary court are not qualified to litigate on human rights issues as represented in the South African Bill of Rights.55 At this moment this area is very technical and specialised, which usually requires expert jurists who are properly skilled within the field of human rights.
With one aspect I did not deal, namely whether, especially in a community with a human-rights culture at its infancy, it is at all allowable to compromise human-rights values in order to give effect to what members of that community may experience as therapeutic justice. Take the example of the daughter who was raped. From a rights-sensitive, feminist perspective it may well be argued that the process resulting in the reconciliation of the two families was, from the daughter's point of view, not therapeutic or just at all.
A rapist got away unpunished because his family paid a penalty. Moreover, it is the daughter's father who received the money and not the daughter herself who was raped. The end result may be acceptable to the families (and the community), but is it acceptable to the daughter (the individual) too? She was not consulted in the whole affair and we will therefore never really know the answer to this question.
In spite the problems posed by customary courts, South Africa has accepted their continued existence as courts of law. This approach is commendable in view of the various advantages of customary courts, for example:56
- Most members of a traditional community are acquainted with their customs and traditions. The Western legal system is an unknown and expensive system that is viewed with hostility and contempt. By making use of the customary court structure, the people experience a sense of belonging.
- The customary courts embrace the community principle or ubuntu and the legitimacy of customary courts rests on the acceptance of the community whose affairs it regulates.57 In general the approach followed by the customary courts involves resolving legal and social problems with the aim of improving the lives of traditional communities in South Africa. This approach, which shows similarities to some of the principles of therapeutic jurisprudence, is commendable and should serve as an example to the Western courts that operate, to a certain extent, in a strictly restrictive fashion.
- Litigants and offenders are served in their own language by people from their own community. The difficulties currently encountered by the use of court interpreters, who might be from a different community, are prevented to a great extent.
- The maintenance of customary courts is relatively inexpensive and does not impose a heavy burden on the state.
- The utilisation of some of the features of therapeutic jurisprudence in customary courts is on par with developments in other jurisdictions and should be encouraged in other courts as well.
To conclude: Customary courts are of considerable importance, especially in the rural areas of South Africa. If one considers the fact that almost 50% of South Africa's indigenous population of about 34 million is considered to live in the rural areas and thus falls under the authority of traditional authorities, the continued existence of customary courts is a reality that cannot be ignored. By studying indigenous judicial systems and their application of the law, we might all learn more about the value of law as a healing agent.
NOTES
1 B Iur LLB LLM LLD. Associate Professor of Law at the Potchefstroom University for Christian Higher Education, Potchefstroom, South Africa; advocate of the High Court of South Africa, Commissioner of the Small Claims Court of Potchefstroom and the executive editor of Potchefstroom Electronic Law Journal (found at http://www.puk.ac.za/law/per/per.htm).
2 The Oxford English Dictionary (Oxford Clarendon Press 1978).
3 The Shorter Oxford Dictionary (CD Rom version).
4 Found at http://www.law.arizona.edu/depts/upr-intj/intj-welcome.html.
5 Wexler D "Therapeutic Jurisprudence: An Overview" at http://www.law.arizona.edu/depts/upr-intj/intj-o.html on 3 March 2004 at 1.
6 For more information on the meaning and application of therapeutic evidence, see the essays on therapeutic jurisprudence contained in Winick BJ and Wexler DB Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts (Durham Carolina Academic Press 2003).
7 The Oxford English Dictionary (Oxford Clarendon Press 1978).
8 Section 34 of the Magistrates' Courts Act 32 of 1944 and section 145 of the Criminal Procedure Act 51 of 1977.
9 Sections 1, 276, 286B, 287 and 297 of the Criminal Procedure Act 51 of 1977 and sections 63, 84 and 84A-E of the Correctional Services Act 8 of 1959.
10 S v Schutte 1995 SASV 344 (K) 350.
11 See par 2 for an overview of the South African court system.
12 Known as the VOC.
13 Also referred to as indigenous law. In terms of the Recognition of Customary Marriages Act 120 of 1998 "customary law" is defined as the "customs and usages traditionally observed amongst the indigenous African peoples of South Africa and which form part of the culture of those peoples." The definition is wide and it is submitted that it includes both the written and unwritten customs and usages of indigenous African people.
14 For example, the British Colonies (former Cape and Natal), the Boer Republics (former Transvaal and Orange Free State) and various indigenous Kingdoms (inter alia, the Zulu and Basuto).
15 For a discussion of the earlier position of customary law in South Africa, see inter alia, Whitfield GMB South African Native Law 2nd ed (Cape Town Juta 1948) 1-39; Van Niekerk GJ in Bekker JC, Labuschagne JMT and Vorster LP (eds) Introduction to Legal Pluralism in South Africa: Customary Law (part I) 7-8 and Kleyn D and Viljoen F Beginners Guide for law Students 3rd ed (Kenwyn Juta 2002) 47 et seq.
16 38 of 1927 (hereafter referred to as the Black Administration Act). See Sachs J's condemnation of the Act in Moseneke v The Master 2001 2 SA 18 (CC) paras [20-21].
17 Cf. sections 12, 20 and 21A.
18 Cf. section 211(1) of the Constitution of the Republic of South Africa 108 of 1996 (hereinafter referred to as the Constitution). For some comments on the application of the Constitution on customary law in South Africa, see Rautenbach C "A Commentary on the Application of the Bill of Rights to Customary Law" 1999 Obiter 113-132.
19 Section 211(3) of the Constitution. It is of course not always easy to determine whether customary law applies to a certain situation or not, but this is a totally different matter to be discussed at another time.
20 Section 166(a). The constitutional court is the highest court with respect to constitutional matters and its decisions are binding on all other courts (including the supreme court of appeal).
21 Section 166(b)-(d): the supreme court of appeal, high courts and magistrate's courts.
22 Section 166(e). Specialised courts have been instituted for the purpose of specialised litigation and may also be divided into higher or lower courts.
23 Section 39(2).
24 Mqeke RB Customary Law and the New Millennium (Lovedale Press Alice 2003) 53.
25 These courts are also recognised in terms of section 166(e) of the Constitution. See par 2.
26 The chiefs' and headmen's courts are established in terms of sections 12, 20 and 21A of the Black Administration Act.
27 See section 16(1) of Schedule 6 to the Constitution.
28 South African Law Commission Report on Traditional Courts and the Judicial Functions of Traditional Leaders (Project 90) (Pretoria 21 January 2003).
29 The civil practice and procedure to be followed in the customary courts are contained in regulations made in terms of section 12(6) of the Black Administration Act. Regulation 1 lay down that a civil dispute between blacks must be dissolved in terms of customary law. In the case of criminal matters, section 20(2) of the Black Administration Act also lay down that customary law must be applied.
30 "Community courts" has become the contemporary term used when referring to informal justice structures, such as street committees, people's courts, makgotla (meaning customary court) and area committees.
31 The emergence of non-state law or, as it is often referred to, "the other law" can be attributed to the deep divide between the different racial groups in South Africa during the apartheid era. See Nina D and Sch�rf W "Introduction: The Other law?" in Nina D and Sch�rf W (eds) The Other Law: Non-State Ordering in South Africa (Kenwyn Juta 2001) 1-4.
32 The sub-headman is assisted by an informal group of advisers, which consists of his senior relatives and heads of other family communities in the area.
33 South African Law Commission Report on Traditional Courts and the Judicial Functions of Traditional Leaders 5.
34 Koyana DS and Bekker JC The Judicial Process in the Customary Courts of Southern Africa (University of Transkei 1998) 37-38.
35 See par 4.
36 South African Law Commission Report on Traditional Courts and the Judicial Functions of Traditional Leaders 6.
37 For more information on the existence of community courts in South Africa, see Bennett TW Customary Law in South Africa (Kenwyn Juta 2004) 151-160; Sch�rf "Policy Options on Community Justice" in Sch�rf W and Nina D (eds) The Other Law: Non-State Ordering in South Africa (Kenwyn Juta) 39-70; Koyana DS and Bekker JC "The Courts" in Bekker JC, Labuschagne JMT and Vorster LP (eds) Introduction to Legal Pluralism in South Africa: Customary Law (Durban Juta 2002) 151-153; Van Niekerk GJ "People's Courts and People's Justice in South Africa - New Developments in Community Dispute Resolution" 1994 De Jure 19-30; Nel S "Community Courts: Official Recognition and Criminal Jurisdiction - A Comparative Analysis" 2001 CILSA 87-108; South African Law Commission Discussion Paper 87 on Community Dispute Resolution Structures (Project 94) (Pretoria 1999) 1 et seq.
38 South African Law Commission Discussion Paper 87 63-64.
39 Koyana and Bekker The Courts 152.
40 To explain: South African is made up of 9 provinces. Each province is divided into districts. Each district has various official and unofficial customary courts. Although there are certain similarities, the process in these courts may vary substantially.
41 Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts 3.
42 Koyana and Bekker The Judicial Process in the Customary Courts of Southern Africa 11.
43 Koyana and Bekker The Judicial Process in the Customary Courts of Southern Africa 35-36.
44 Rule 1 of the Chiefs' and Headmen's Courts: Rules (GN R2028) contained in Government Gazette 1929 of 29/12/1967. See also Olivier NJJ et al Indigenous Law (Durban Butterworths 1995) 192-193.
45 Customary Law in South Africa 166-177.
46 For a further discussion of the concept "ubuntu" see S v Makwanyane 1995 3 SA 391 (CC) paras [307-308, 313]; Devenish GE A Commentary on the South African Constitution (1998 Durban)12; Du Plessis LM "Just Legal Institutions in an Optimally just South Africa under the 1996 Constitution" 1998 Stell LR 253-254; Barrie GN "Ubuntu Ungamntu Ngabanye Bantu: The Recognition of Minority Rights in the South African Constitution" 2000 TSAR 271-278; Lemmer E and Olivier M "The South African Constitution as a Post-Colonial Document: A Long Walk to Freedom" 2000 De Jure 143.
47 See Rautenbach C "Customary Law: Judicial Functions" in Traditional Authorities Research Group (eds) Report on the Administrative and Legal Position of Traditional Authorities in South Africa and their Contribution to the Implementation of the Reconstruction and Development Programme (vol V) (1996) 32.
48 See rules 6 and 7 of the Chiefs' and Headmen's Courts: Rules (GN R2028) contained in Government Gazette 1929 of 29/12/1967.
49 Recorded in Koyana and Bekker The Judicial Process in the Customary Courts of Southern Africa 117 et seq.
50 Koyana and Bekker The Judicial Process in the Customary Courts of Southern Africa 124-128. The Mtawetange customary court in Qokolweni, Umtata, was visited.
51 Rautenbach Customary Law: Judicial Functions 33-34; Van Wyk GP "Enkele Probleme Rondom die Toeganklikheid van die Howe in die Lig van die Inheemse Reg" March 1996 The Magistrate 7.
52 Report on Traditional Courts and the Judicial Functions of Traditional Leaders xi-xiv.
53 See section 9 of the Constitution.
54 See Jobodwana ZN "Customary Courts and Human Rights: Comparative African Perspective" 2000 SAPL 31 for a detailed discussion of the application of human rights and customary courts.
55 Contained in chapter 2 of the Constitution.
56 See also Jobodwana 2000 SAPL 47-49.
57 Jobodwana 2000 SAPL 26-49.
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