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VOLUME
2:2
December 2015
326-559
  • Legal Reform of Traditional Courts in
    South Africa: Exploring the Links Between Ubuntu,
    Restorative Justice and Therapeutic Jurisprudence

    Christa Rautenbach
Abstract

Traditional justice in the rural areas of South Africa is dispensed by offi cial traditional courts, where they are presided over by traditional leaders. The Black Administration Act 38 of 1927 currently makes provision for two types of courts depending on the
nature of the facts before the court,viz criminal or civil. The relevant provisions in the Act stand to be repealed when the Traditional Courts Bill, currently being debated in parliament, is transformed into law, but traditional courts’ civil and criminal jurisdiction will continue in future, albeit with a few additional guarantees in accordance with natural law and the constitutional law. The ideals of justice expressed in the Bill and the parallels between ubuntu, an African concept, and other contemporary ideas such as restorative justice and therapeutic jurisprudence are recognisable. This contribution investigates the links between ubuntu,restorative justice and therapeutic jurisprudence in the context of formal traditional courts. Firstly, an overview of the legal position of traditional courts in South Africa — the past, the present and the future — is given.This is followed by a discussion of the scope and application of the notions of ubuntu, restorative justice and therapeutic jurisprudence and, fi nally, the plausible links between these three notions in the context of formal traditional courts in South Africa are discussed. In contrast to the punitive character of a conventional justice
system that focuses on retaliation, ubuntu, restorative justice and therapeutic jurisprudence call for a more holistic approach that promotes reconciliation of everyone caught up in the justice system. All of them have one thing in common — the well-being of all individuals and communities touched by injustice in some form or other.

Keywords
traditional courts; customary courts; ubuntu; restorative justice;therapeutic jurisprudence; traditional justice; customary law; traditional leaders; legal pluralism

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Introduction

The relationship between two or more legal systems in a pluralistic legal order remains a highly topical theme, especially in a postcolonial setting where transplanted and indigenous laws exist side by side. South Africa’s legal system consists of two distinct legal traditions: transplanted uncodifi ed European laws (referred to as the common law)1 and inherited indigenous laws (referred to as African customary law).2 For man y years, customary law often had to take a back seat if its rules were deemed to be contrary to common law values.3 Since 1 994, however, customary law has been regarded as a parallel legal system on a par with the common law.
The main catalyst for this development has been the two successive postapartheid South African Constitutions, which placed the customary law on an equal footing with the common law. 4 In Alexkor Ltd v Richtersveld Community 5 it was stated: 6

“While in the past indigenous law was seen through the common-law lens,it must now be seen as an integral part of our law. Likeall law it depends for its ultimate force and validity on the Constitution. Its valid ity must now be determined by reference not to common law, but to the Constitution”.

South Africa’s justice system also refl ects this plurality of legal systems. On the one hand we have the mainstream justice system based on Western values and principles,which include “procedural justice, retribution, incarceration and revenge”, and on the other a traditional system with African values and principles based on the“search for truth, reconciliation, compensation and rehabilitation”. 7 One of the cor evalues of the African system is ubuntu, an equity principle which has seeped into the legal landscape and continues to play a major role in the reasoning of the South African judiciary. 8

Keywords

The judicial authority of South Africa is vested in the courts, 9 which are creatures of statute. In terms of s.166 of the Constitution the courts are the Constitutional Court, the Supreme Court of Appeal, the High Courts, the Magistrates’ Courts,and any other court established or recognised in terms of an Act. In addition, the Constitution confi rms the continuation of traditional courts by providing that“[e]very court, including courts of traditional leaders, existing when the new Constitution took effect, continues to function and to exercise jurisdiction in terms of the legislation applicable to it”. 10
The South African Constitution thus endorses the continuance of a pluralistic justice system. The plurality exists not only between the mainstream and traditional court structures but also among the structures of the various traditional communities.
Depending on how one conceptualises legal pluralism, customary courts can be divided into different categories. The most prevalent
distinction is between formal (offi cial) and informal (unoffi cial) traditional courts. The offi cial ones are those established in terms of legislation as stipulated in s.166(e) and para.16(1) of sch.6 of the Constitution. Currently, they are the traditional courts
established in accordance with the Black Administration Act. 11 Although they are creatures of statute they operate on the basis of living customary law. 12 Although the parallels between the notions of ubuntu, restorative justice and therapeutic jurisprudence are relevant to formal and informal traditional courts, this contribution focuses on the formal ones only — in other words, those recognised in terms of legislation. 13
The administration of justice within formal traditional courts is multi-layered,complex and fl exible, varying from area to area and the type of law applicable in a given situation. The reason for this is that existing legislation allows the procedure observed in connection with the hearing of matters in the traditional courts to be in accordance with the laws and customs of the traditional community in question. 14 In general, the proceedings take place in an open court and are informal. The primary aim of the proceedings is to obtain reconciliation between the parties. All the parties involved must be present and the proceedings are normally attended by a large number of community members who may all participate in the process, led by the traditional leader. Legal representation is not allowed and female members of the community are usually excluded from the proceedings but may partake through a male member of the family. 15
It has been said that the punitive character of the western courts has had little effect on the crime rate in South Africa thusfar and that indigenous responses to crime needed to be experimented with. 16 In the High Court case of S v Maluleke, 17 Bertelsmann J noted that countries such as New Zealand and Canada have drawn on their indigenous cultures to improve their criminal justice systems. The advantages of African justice have also been recognised by the South African Constitutional Court on a few occasions, especially with reference to the notion of ubuntu. 18 One such case is Dikoko v Mokhatla, 19 during which Mokgoro J said: “In our constitutional democracy the basic constitutional value of human dignity relates closely to ubuntu or botho, an idea based on deep respect for the humanity of another. Traditional law and culture have long considered one of the principal objectives of the law to be the restoration of harmonious human and social relationships where they have been ruptured by an infraction of community norms. It should be a goal of our law to emphasise,in cases of compensation for defamation, the re-establishment of harmony in the relationship between the parties, rather than to enlarge the hole in the defendant’s pocket, something more likely to increase acrimony, push the parties apart and even cause the defendant fi nancial ruin. The primary purpose of a compensatory measure, after all, is to restore the dignity of a plaintiff who has suffered the damage and not to punish a defendant. A remedy based on the idea of ubuntu or botho could go much further in restoring human dignity than an imposed monetary award in which the size of the victory is measured by the quantum ordered and the parties are further estranged rather than brought together by the legal process. It could indeed give better appreciation and sensitise a defendant as to the hurtful impact of his or her unlawful actions, similar to the emerging idea of restorative justice in our sentencing laws”. 20
Her reasoning brings a few things to the fore in the context of traditional justice.First of all, she refers to the idea of ubuntu, which is based on “deep respect for the humanity of another”. Secondly, she refers to the “emerging idea of restorative justice”, which is also based on the idea of ubuntu. The interconnectedness of these two ideas, ubuntu and restorative justice, is more or less settled. There is enough evidence in the legal literature which points in this direction. Less obvious is the link between ubuntu and restorative justice on the one hand and therapeutic jurisprudence on the other, but it is my contention that there are indeed parallels,andthey will be explored in this contribution.
In order to investigate the links between ubuntu, restorative justice and therapeutic jurisprudence in the context of formal traditional courts, this contribution commences with an overview of the legal position of these courts in South Africa — the past, the present and the future. 21 This is followed by a discussion of the scope and application of the notions of ubuntu, 22 restorative justice23 and therapeutic jurisprudence. 24 Finally, a conclusion will be drawn concerning the plausible links between these three notions in the context of formal traditional courts in South Africa. 25