MZINYATHI - Chief Mqoqi Ngcobo is already a powerful man, but if the ANC is successful in its bid to give tribal courts more power, he may soon be recognised as prosecutor, judge and jury under the law.

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The 2008 draft was withdrawn to align it with the constitution.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