The significance of South Africa's Traditional Courts Bill1 to the challenge of promoting African traditional justice systems

Abstract

ABSTRACT The tabling of the Traditional Courts Bill before South Africa's Parliament is part of a larger collective effort of the legislature to enhance the essential role of traditional leadership and customary law (intertwined principles) in the advancement and consolidation of democracy and justice. The Bill is set against a continental imperative to undo the distortions effected on African traditional justice systems by decades of colonialism and apartheid, and offer a path of renewed growth and development. This article explores the extent to which the Bill succeeds, and more generally, the extent to which the enactment of legislation, without more, is sufficient to weave traditional leadership and customary law into the fabric of South Africa's new democracy. The article also questions whether limiting the Bill's application to communities historically subject to the jurisdiction of traditional leaders under apartheid serves today's constitutional objectives. Or is it a post-apartheid endorsement of separate development? It is argued that this limited and racialised application of customary law entrenches the legal separateness characteristic of colonial/apartheid rule. If passed in its present form, the legislation will not adequately contribute to the development of customary law and will undermine the constitutional mandate that all courts apply customary law where applicable, and that customary law be afforded equal respect.