Kubayi sets rules for traditional courts dispensation

To this end, justice & constitutional development minister Mmamoloko Kubayi has published the draft traditional courts regulations and draft code of conduct— a major step in making the Traditional Courts Act, signed into law in 2023, operational. The act seeks to affirm customary law values, strengthen the role of traditional courts, and expand access to justice. Under the regulations, a traditional leader may designate any person to preside over a session of a traditional court, with provincial traditional court registrars set to be appointed.

For one to qualify to hold the position of a provincial traditional court registrar, a candidate has to have a national senior certificate or equivalent certificate, or a law degree with a minimum of five years’ experience and knowledge in traditional affairs. Proceedings of the courts will also be recorded, with the record of the proceedings expected to be kept for a minimum period of seven years from the date of finalisation of the matter in question. Parties who are dissatisfied with the outcome can approach the magistrate or the high court for recourse.

The traditional courts will be empowered to adjudicate on matters including theft if the amount involved does not exceed R15,000, assault if grievous bodily harm is not inflicted, and crimen injuria. The courts will also proffer advice regarding customary law practices in respect of ukuThwala (forced marriage), initiation, customary law marriages, custody and guardianship of minor or dependent children, and succession and inheritance. According to the act, a traditional court may not hear and determine a dispute that is being investigated by the police, or pending before another court, or has already been finalised by a court. These would include the propensity of precluding meaningful participation in traditional court proceedings by any person or group of persons, particularly regarding gender, sex (including intersex), gender identity, sexual orientation, age, disability, religion and language.