An analysis of judicial functions of traditional leaders in South Africa

Abstract

Traditional leadership has played a vital role in establishing social cohesion, peace, and harmony in communities for a long time. Traditional leaders resolve disputes through traditional courts (makgotla or inkundla), as is the case in the sphere of administration of justice. However, the adoption of the Constitution of the Republic of South Africa, 1996 recognised the institution, status, and role of traditional leadership according to customary law but subject to the Constitution. It also recognises that, subject to any applicable legislation and customs, a traditional authority following a system of customary law may function. The Constitution, which is based on the grounds of human dignity, the achievement of equality, and the advancement of human rights and freedoms, non racialism and non-sexism. This constitutional dispensation repealed and amended discriminatory laws and practices. The South African legislative framework is constructed in such a way that it mitigates historical injustices by promoting constitutional principles such as human dignity and equality. However, there are still legislative provisions that appear to be ineffective regarding the mechanisms to hold traditional leaders accountable for misconduct when exercising judicial authority. This dissertation examines the judicial functions of traditional leaders in South Africa. In doing so, it analyses the historical background of the judicial functions of traditional leaders in South Africa, and the legal framework regulating the traditional justice system in South Africa. It analyses traditional leadership and traditional courts operating under customary law and constitutional recognition. Traditional leaders have jurisdiction to hear both civil and criminal cases in traditional communities. Furthermore, the study proposes measures that can be employed to ensure that traditional leaders who exercise judicial authority can be held accountable for judicial misconduct.