Balancing law and tradition:The TCB and its relation to African systems of justice administration

Abstract

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.