oa Comparative and International Law Journal of Southern Africa - The status of traditional courts under the final constitution

Volume 30, Issue 2
  • ISSN : 0010-4051



This article addresses the status of traditional courts under the 1996 Constitution which received scant attention from those objectors to the new constitutional text (the NT) who concerned themselves with traditional leadership and customary law. One of those objectors, the Congress of Traditional Leaders of South Africa (CONTRALESA), argued that the text did not adequately protect traditional courts. This article attempts to provide some background to the status of traditional courts before the commencement of the interim Constitution. First, the author reviews the status of traditional courts during the pre-colonial and apartheid eras, focusing on the position in Bophuthatswana and KwaZulu-Natal. Secondly, the author addresses informal courts which came to be known as makgotIa or 'peoples' courts. Thirdly, the author notes that the idea of integrating traditional courts as part of a community court system is currently under investigation by the South African Law Commission. Finally, it is suggested that as traditional courts enjoy a certain measure of legitimacy, there bodies can be empowered while being integrated into the system of formal courts. Further, it is incumbent upon judicial officers who hear appeals from traditional courts to take cognisance of law reform mechanisms contemplated by the Constitution.

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