Chapter 14 - Customary courts and general principles of court procedure

Question 1

Which of the courts are legally empowered to apply customary law?

Answer 1

1. The Constitutional Court
2. The Supreme Court of Appeal
3. The High Court
4. The magistrates’ court
5. Any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Court or the magistrate’s court.

Question 2

What is the provision of the Constitution regarding the courts of traditional authorities?

Answer 2

1. The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.
2. A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which include amendments to or repeals of that legislation or customs.

Question 3

When are civil actions instituted in tribal law?

Answer 3

Civil actions are instituted where an agnatic group’s rights and powers have been infringed. These actions could, for example, involve claims for seduction, adultery, the dissolution of marriage, damage to property and contractual debts. In such cases, the court may order the reparation of damage.

Question 4

When are criminal actions instituted in tribal law?

Answer 4

Criminal actions are instituted against an offender by the traditional authority. If the offender is found guilty, he or she is punished. Punishment may take the form of a fine, previously, it could also have taken the form of corporal punishment. Criminal actions are instituted for offences such as murder, contempt of the ruler, and contempt of court.

Question 5

Explain the lodgement procedure of a civil case.

Answer 5

The plaintiff’s agnatic group would first try to negotiate with the defendant’s
agnatic group. If the negotiations do not lead to an agreement, the plaintiff’s group
reports the matter to their headman. If the defendant and the plaintiff live in the same ward, their headman sets a date for the hearing and notifies the defendant. If they do not live in the same ward, the plaintiff’s headman sends the plaintiff’s group, together with a representative of the ward, to the headman of the defendant in order to report the matter to the headman. The headman of the defendant then sets a date. The general principle is that a case is heard in the court of the defendant’s headman.

On the day of the hearing, both parties and their witnesses must be present. The case may not be heard in the absence of one of the parties. If one of the parties cannot be present and has tendered apologies prior to the proceedings, the case is postponed. If a party is absent without an excuse, the case is postponed, and the absent party is warned to be present when the case is heard again. If a party is absent without an excuse for a second time, he or she is generally brought to court by messengers. Such a party may be punished for contempt of court.

If one of the parties is not satisfied with the decision of the headman’s court, the dissatisfied party may ask that the case be referred to the chief’s court. The dissatisfied party and a representative of the headman’s court then report the case to the chief’s court. A headman’s court may also refer a case to the chief’s court if it is complicated. At the chief’s court, there is usually a person who “receives” these cases and who sets a date for the trial on the chief’s behalf. The procedure in the chief’s court is the same as that in the headman’s court.

Question 6

Explain the lodgement procedure of a criminal case.

Answer 6

The general procedure is that the agnatic group of the injured person
reports the case to the local headman. In exceptional cases, the complaint may be
lodged directly with the chief’s court. The headman investigates the matter and reports to the chief. If the complaint is well founded, the chief sets a date for the trial. The parties concerned are notified accordingly. Each party must see to it that its witnesses are present on the day of the trial. In criminal cases, the customary procedure applies where it is not in conflict with public policy or natural justice.

Question 7

Explain the trial procedure of the African customary law.

Answer 7

1. The general principle is that the onus is on the accused to prove his/her innocence in court.
2. The sessions of the customary courts are held in public.
3. All court sessions are open to members of the public and may be attended by any adult person, even strangers.
4. It is a general rule that all parties must be present during the trial.
5. Legal representation was also unknown in the past. However, nobody appeared in court without assistance, every person, no matter what his age or sex, was assisted by relatives. Witnesses could not be related to parties concerned, therefore, neighbors were often the main witnesses in a case.
6. All proceedings were conducted orally , and no written records of cases were kept. Today, however, all chief’s courts keep a record in which basic information regarding a case must be recorded.
7. The chief is the judge-in-council.
8. The court proceedings are fairly informal.
9. Nobody is judge in his or her own case
10. During a hearing of a civil case, the defendant may not institute a counterclaim against the plaintiff and ask that his/her liability towards the plaintiff be removed.
11. In former times, the concept of asylum existed.
12. Mendacity is not punishable
13. The prescription for debt is unknown.
14. The court proceedings are inquisitorial in nature.