TRC Final Report

Volume 5

Chapter 8

Subsection 16

Courts of chiefs and headmen

59 Many civil legal matters in South Africa are decided by bodies outside the formal court structure, namely tribunals administered by chiefs in the former homeland areas, under laws dating from the colonial period. The Commission thus recommends that:

AN URGENT AUDIT OF THESE COURTS AND THEIR PERSONNEL BE UNDERTAKEN BY THE DEPARTMENT OF JUSTICE IN CO-OPERATION WITH THE PROVINCIAL MINISTRIES OF TRADITIONAL AFFAIRS.

DESPITE THE FACT THAT SUCH COURTS DO NOT HAVE CRIMINAL JURISDICTION, THE DE FACTO POSITION IS THAT, IN MANY AREAS, THIS RIGHT HAS BEEN ASSUMED AND CORPORAL PUNISHMENT AND OTHER ILLEGAL SANCTIONS ARE ROUTINELY IMPOSED. THIS PRACTICE MUST BE ENDED AS A MATTER OF URGENCY.

THE DEPARTMENT OF JUSTICE CAREFULLY MONITOR THE ADMINISTRATION OF JUSTICE AT THIS LEVEL.

IT BE ENSURED THAT THESE TRIBUNALS RESPECT THE RIGHTS ESTABLISHED BY THE CONSTITUTION, INCLUDING THE RIGHT TO DUE PROCESS. CODES OF PRACTICE, INCLUDING RULES PERTAINING TO WRITTEN RECORDS, MUST BE IMPLEMENTED.

Informal courts

60 Informal courts or “people’s courts” were established in many townships, especially during the 1980s, partly in response to the perceived illegitimacy of the state-sanctioned court system. In general they were repressive and did not comply with the basic requirements of the rules of natural justice. There is ample evidence of a reversion to alternative structures for exacting “justice” as delays in the criminal justice and policing systems increase. The Commission thus recommends that:

STEPS BE TAKEN TO INHIBIT THE REAPPEARANCE OF THE “PEOPLE’S COURT” PHENOMENON, AND THAT THE DEPARTMENT OF JUSTICE SHOULD, AS A MATTER OF URGENCY, ESTABLISH CONFLICT RESOLUTION AND MEDIATION STRUCTURES AT COMMUNITY LEVEL.

61 Responsibility for developing and implementing these recommendations, and for monitoring the implementation thereof, rests primarily with:

a The Ministry and Department of Justice;

b The Ministry and Department of Safety and Security;

c The Law Society of South Africa; d Tertiary academic institutions;

e NGOs involved in the law;

f Professional organisations representing the legal profession.