SA Crime Quarterly - Volume 2011, Issue 35, 2011
Volumes & issues
Volume 2011, Issue 35, 2011
Source: SA Crime Quarterly 2011, pp 1 –2 (2011)More Less
Any discussion about crime and criminal justice in South Africa is incomplete without reference to the place of customary justice and the chiefs who administer it, particularly in rural areas. Yet, precisely because this issue almost exclusively affects rural dwellers whose voices are seldom heard, it fails to attract much attention. This edition of SACQ considers the flawed processes that led to the Traditional Courts Bill (TCB), and its controversial take on how customary justice should be dispensed.
Source: SA Crime Quarterly 2011, pp 3 –10 (2011)More Less
This article introduces the Traditional Courts Bill (B15-2008). The Bill has caused controversy, and drawn criticism from rural communities and civil society. Key to the concerns raised was the flawed consultative process that the Department of Justice and Constitutional Development followed in bringing the Bill before parliament. In addition, substantive concerns raised about the Bill relate to the implications its provisions will likely have for rural citizens. The article discusses a number of major concerns that have been raised against the Bill and concludes with a brief assessment of the Bill in light of the Constitutional Court's decision in Tongoane and Others v National Minister for Agriculture and Land Affairs and Others.
Author Aninka ClaassensSource: SA Crime Quarterly 2011, pp 11 –16 (2011)More Less
People in the former homelands waged a successful battle against the imposition of 'tribal levies' during the anti-apartheid struggle. Recently, however, there has been a resurgence of traditional authorities demanding annual levies. Those who refuse to pay cannot access government grants and identity books. This article argues that recent laws bolstering the powers of traditional leaders have contributed to this resurgence. It argues that the laws undermine the citizenship rights of the poorest South Africans as well as their ability to hold traditional leaders to account. It suggests that the laws have been ambiguously worded in an attempt to disguise the fact that they are inconsistent with the Constitution. It rebuts the argument that annual tribal levies are consistent with and justified by customary law, by describing their colonial and apartheid genesis.
Author Phathekile HolomisaSource: SA Crime Quarterly 2011, pp 17 –22 (2011)More Less
The African system of justice administration, as epitomised by traditional courts, is inclusive, democratic, open and welcoming to those who seek justice. In contrast to western value-inspired courts, which are intimidating, alienating, complicated, retributive, incarcerating and expensive, traditional courts seek to foster harmony, reconciliation, compensation to the aggrieved, easy and inexpensive access to justice, and the rehabilitation of the offender. It fosters a spirit of communalism, where the individual exists for the benefit of the greater community. Justice is fostered within the family, the clan, the neighbourhood, the village, the tribe and the nation. Traditional leadership is central to the organisation and governance of the community, from the lowest level to the highest. The Traditional Courts Bill, currently before the South African Parliament, needs to be redrafted to ensure that the African system of justice administration encapsulates all the values and features underpinning it. The jurisdiction of these courts will have to be extended to cover the whole of South Africa and be applicable to all citizens; in the same way as tenets of Roman Dutch law and English law are applied without discrimination.
Author Nomboniso GasaSource: SA Crime Quarterly 2011, pp 23 –29 (2011)More Less
This article calls into question the representation of traditional governance and customary law that underpins the Traditional Courts Bill (B15-2008)(TCB). It argues that the Bill presents a flawed view of traditional custom and practice by, amongst other things, failing to recognise the changing nature of custom and cultural practice. In so doing the Bill provides a legal basis upon which prejudice and discriminatory practices may be entrenched. The article argues that African cultures have always valued individual rights and choices, and affirmed these as integral to each individual being part of a community. This is in no way represented in the Bill. The author argues that the TCB has not only disregarded five years of work of the SALRC, funded by tax-payers, but also proposes a system that contradicts the Constitution.
Beyond the Traditional Courts Bill : regulating customary courts in line with living customary law and the ConstitutionSource: SA Crime Quarterly 2011, pp 31 –40 (2011)More Less
This article discusses flaws in the Traditional Courts Bill in light of research that shows customary courts to operate in accordance with a model that is very different from that adopted by the Bill. Customary courts are not professional institutions but community-based discussion forums, thus participation in them is inclusive of the broad community membership, and their accountability is partly dependent on people's ability to choose to use them, or other forums, when their own courts are unjust. The article therefore develops a framework for regulating customary courts that gives recognition to their essential elements as understood through prior study of diverse courts. The framework advanced is also one that gives greater expression to rights (to democracy, gender equality and freedom of association, or choice) articulated in the Constitution.
On the record... interview with the Deputy Minister of Cooperative Governance and Traditional Affairs, Yunus CarrimSource: SA Crime Quarterly 2011, pp 41 –47 (2011)More Less