“Here we promote restorative justice, unlike the magistrate courts where they promote punishment,” explained the Qadi chief, who presides over a tribunal in the village of Mzinyathi, north of Durban.

“Here people arrive as enemies and leave as friends.” 

From his office, Ngcobo hears cases ranging from petty theft, domestic violence, and sexual assault to inter-tribal conflicts.

'Serious' crimes like murder are handled by conventional courts.

As villagers shift uncomfortably in their seats, the imposing chief sits behind a large wooden desk listening intently to complainants’ and defendants’ testimonies one-by-one, often interrupting to ask for clarity.

One typical complainant, Mama Cele, 60, wanted the chief to stop her male neighbour from driving her off the land she inherited from her father.

No dockets or recordings are made — exposing the process to misunderstandings — yet under a law put forward by the African National Congress, her fate would be in Ngcobo’s hands.

First submitted in 2008, the Traditional Courts Bill empowers chiefs to act as judge, prosecutor and mediator, with no legal representation and no appeals allowed.

According to government, the bill is aimed at providing “speedier, less formal and less expensive resolution of disputes and promotes and preserve traditions, customs and cultural practices”.

The powers proposed by the bill will affect some 19 million rural people who live in tribal lands ruled by chiefs.

Traditional courts, often situated in remote areas where people do not have formal schooling, are conducted in only local dialects.

Ngcobo insists they play a fundamental role in dispute resolution and maintaining harmony.

In a sense a change in the law would only formalise South Africa’s hybrid legal system, which already combines conventional legislation with customary laws.

Yet the law has proven controversial.

The 2008 draft was withdrawn to align it with the constitution.

Three years later it was brought back — with no changes.

Legal experts and rural activists argue the proposed law creates a separate second class justice system for rural communities, where women have fewer rights.

In some tribal lands women are not allowed to stand up when addressing men or sit in the same space as them during court proceedings.

Sindiso Mnisi, an African customary law researcher at the University of Cape Town, likened the bill to apartheid-era legislation, which forced people into self-governing rural homelands to live under separate laws.

“This bill entrenches separate categories of citizenship and disenfranchises rural people,” she said.

“Separate laws determined by geographic location can’t exist in harmony with the democratic values.” 

Its ignorance of legal representation and appeals processes renders it unconstitutional, she added.

The KwaZulu-Natal Rural Women’s Movement complains women’s rights activists were not consulted during the drafting of the bill.

While meant to “affirm the values of the traditional justice system” it would deprive rural women equal access to justice, said the organisation’s director Sizani Ngubane.

Action group the Alliance for Rural Democracy also wants the bill scrapped.

“We wish for the ANC to reassert the principle of one law for one nation which represents a fundamental departure from colonialist and apartheid attempts to 'ghettoise' some sections of our nation merely on the basis of their race and location,” the alliance said.

The bill is currently under consideration in parliament, but critics accuse the ANC of trying to use it to retain support of the traditional leaders ahead of a year-end crucial ANC elective meeting. At the December meeting, President Jacob Zuma hopes to be re-elected as leader of the ruling party, virtually guaranteeing another five year-term as president of the country.

Sapa-AFP

Comments

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Wed Jun 19 17:44:36 SAST 2013 ::

Nov 2, 2012

RobinX

This is utter BULL. We are supposed to be trying to get this country INTO the 21st Century, NOT back to the 17th C!!! Scrap this nonsensical suggestion!
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Nov 2, 2012

warry

Those courts use nepotism like he'll. Imagine the chief brother or sister stealing your partner or property like cattle do u think he will be found guilty. No, rural people will be screwed and will marry for the chiefs by fire by force. Siya solota maswati.
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Nov 2, 2012

RobinX

Warry. I totally agree.
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Nov 2, 2012

Pointman

Ignoramuses should not be dispensing justice even if it is traditional. Look at India where these courts are tolerated in rural areas. They are not even-handed like @warry says - the punishment they prescribe range from parading the "guilty" naked, gang rape of guilty women and flogging.

And the worrying thing - what restorative justice is handed down for sexual assualt - R500 for the victim or is the victims family browbeaten into accepting lobola - I know of an actual case.
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Nov 2, 2012

Right-Back-Khumalo

Well, I support the idea. This is not something new, in my area for example, this has taking place for years. People always ask here, what is the job of the King Zwelithini and his Chiefs? Here is your answer. Here is some of his duties...
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Nov 2, 2012

Pheli-Marabi

This is good .Why did it take ANC so long .
Criminals will be dealt with accordingly.
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Nov 2, 2012

warry

@Pheli, se ya bogosi gaseboele morago. Corruption only.
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Nov 2, 2012

Pheli-Marabi

@Warry
Moya kgotla ga a sekisuwe .Anglo-Dutch law e hloleile kgale kwana .Kgosi ene o go leba ka mahlong a mpa a bona gore yenwa ena o molato.Anto ho lahlela dilemolemo,a o neya ntho ya gago.
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Nov 2, 2012

Ramatlhale1

Sounds like a good idea but with the practice of corruption fast becoming a norm in our country....I dont know!!!! Because the very same corrupt individuals in power will be indrectly controlling these courts to serve their own selfish ambitions which will work well for them because most of the time the cases heard there are not in the space of the general public media.....But I guess if the very same people whom this system is intended to serve approve of it then it must be working for them.....But if not then it shouldn't be imposed!!!
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Nov 2, 2012

MommaC

I'm all for encouraging mediation but to elevate that above our constitution is just WRONG. This stupid, stupid, stupid bill is just another nail in the coffins of the rural women and any other person who is not 'accepted'. Can you just imagine a gay guy trying to find justice in this backwards system?

Time machine back to Feudal times.
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