Monday, June 18, 2012

Where Courts Meet Custom

Yesterday’s New York Times contained a fascinating article about the recognition of tribal courts in South Africa. These traditional village councils were commonplace during the apartheid era, and have remained an influential force in many areas nearly two decades after the country’s democratic reforms. As the Times piece illustrates, village residents who resist the unofficial but powerful local courts do so at their own peril: one widowed resident of Candu ignored the call of a traditional court following an insult to the village headman, and found herself shunned by neighbors until she appeared before the council to apologize and pay a fine (which included one live sheep and several cases of beer). Ironically, the affront to the local court was actually the woman’s adherence to the formal legal system: "She had broken customary law by calling the police to investigate a burglary at her house without informing the village headman."

A bill pending before Parliament would provide official recognition for these traditional courts, and also outline the scope of their powers (view PDF). If enacted, the Traditional Courts Bill would also give the country’s magistrate court system the power of appellate review over traditional court judgments. This isn’t the first effort to provide official recognition for such courts – an earlier version of this bill was introduced in 2008 and withdrawn in 2011. The Times describes this version as “unlikely to pass Parliament but unlikely to be completely snuffed out either.”

Whatever ultimately happens to the Traditional Courts Bill, the story is a good introduction to this unique aspect of the South African legal system. To learn more about this topic, start with a subject search of the Goodson Law Library’s catalog for "Customary Law – South Africa" to discover titles like Chiefs in South Africa: Law, Power & Culture in the Post-Apartheid Era or Customary Law in South Africa (whose entire fifth chapter is dedicated to courts: read Google Books preview). To find additional material about South Africa’s legal system, be sure to Ask a Librarian.