The constitutional divide of post-apartheid South Africa in the jurisdiction of the traditional justice system : Centre for Indigenous Law

• Author: Nomthandazo Ntlama
• DOI: 10.10520/EJC-79781c6f8
• Published date: 01 January 2014
• Date: 01 January 2014
• Record Number: sapr1_v29_n2_a3
• Pages: 282-293

B. Juris, LLB, (Univers ity of Fort H are); Certif icate in Com parative Hum an Rights, LL M: Public Law,

*

(University of Stellenbosch); LLD, (University of South Africa). Associate Professor and Dean of

Research, College of Law and Management Studies: University of KwaZulu-Natal.

The constitutional divide of post-

apartheid South Africa in the

jurisdiction of the traditional justice

system

Nomthandazo Ntlama·

*

Abstract

The exclusive jurisdiction of the traditional justice system – which in effect

is based on racial classification – h as been the sub ject of debate in So uth

Africa since the attainment of democracy in 1994. The debate is drawn

from the Constitution, which recognises the general system of custom ary

law, an d limits its ap plication to th e people w ho observ e it. The deb ate is

further fuelled by the non-explicit recognition of the customary court

system within the judicial structure of the Republic. These courts are

inferred from the concept of ‘any other courts’ in the Constitution. The

inference of customary courts from ‘any other courts’, compromises the

legitimate status of these courts in the resolution of disputes that arise

from the system of customary law – in line with the ideals of the new

constitutional dispensation. This considered, this article critically reviews

the constitutional status of the customary court system in South Africa.

The objective is to examine the effect of its exclusive jurisdiction in the

application of the principles of traditional justice. It is also limited to the

review of South Africa’s constitutional perspective on the protection of

customary law relating to the advancement of the traditional justice

system. It is argued, therefore, that the exclusive jurisdiction of the

traditional justice system is a direct racial classification under the guise

of the foun dation al valu es o f the n ew d emo cratic dispe nsatio n. Eq ually,

the status g iven to customa ry courts – which is inferre d from the con cepts

of ‘any other’ – constitutes a manifestation of the historic divide that

compromises the legitimacy of these courts in the application of traditional

justice. The extent, to which the exclusive jurisdiction can move towards