Traditional Courts

The theoretical focal point of the thesis, is to extensively examine all the observable factors, extending beyond negative political influence at the rural-community level, which stimulates mob justice, retribution and lynching in West Africa region. The author's case-study reference is established from the Republic of Liberia and Sierra Leone, with an in-depth enquiry to the alarming rate of the community mob justice at the blind spot of the Police Institution, thou, advocate for Traditional Court Institution for Justice delivery, as a procedural approach to curb the menace at the rural level.

The Traditional Courts Bill seeks to regulate the structure and functioning of traditional courts in a uniform way. It also sets out to transform the traditional justice system to conform with constitutional values. But how traditional is the Bill? Its judicial procedure gives little room for indigenous laws to thrive. Every significant aspect of the Bill is subjected to “constitutional values.” These regulatory values are successors of the colonial era requirement that customary laws must not be repugnant to natural justice, equity and good conscience. The Bill demonstrates the successful cultural onslaught that European colonisers unleashed on Africans.

The Traditional Courts Bill (TCB) was introduced first in 2008, and then again in 2012, to provide post-apartheid recognition and regulation of "traditional" forums of dispute resolution. Under apartheid, these forums were governed by the Black Administration Act 38 of 1927 (BAA). 1 This statute provided government officials with the power to group people into "tribes" and appoint "chiefs" as leaders in a separate system of governance for the black majority. 2 Those sections of the BAA dealing with so-called "tribal courts" have not yet been repealed. 3 The TCB was developed to replace this illegitimate regulatory framework and incorporate constitutional values such as equality and accountability in the hopes of facilitating access to justice for the rural poor. 4 To this end, the bill sought to provide "traditional courts," presided over by senior traditional leaders, with the jurisdiction to adjudicate certain civil and criminal matters and impose sanctions on people within specific geographical areas. 5 Despite its admirable stated objectives, the TCB was met with fierce opposition while it was before Parliament from members of the public, civil society, and academics. 6 Opponents critiqued the bill's perpetuation of a separate governance system for black people, 7 lack of protections for women, 8 enforcement of unaccountable and undemocratic powers for traditional leaders, 9 and failure to use living customary law as a regulatory starting point for customary courts. 10 The TCB was attacked for perpetuating, and in some cases intensifying, colonial and apartheid distortions of customary law. 11 These arguments focused on ways that the bill failed to meaningfully ref lect and respond to the needs and vulnerabilities that arise from the diverse

The incidence of stock theft has been high in Botswana, as it is elsewhere in the Southern African Development Community (SADC). In 1996, the problem compelled the country's parliament to intervene and enact the Stock Theft Act. After 22 years of its being in operation, however, there is little evidence to suggest that the Act's harsh penalties have led to a reduction in cattle theft. A more serious problem with the law is that its penalties are imposed by customary courts with scarcely any safeguards in place to ensure that justice is done. Arguably, justice is sacrificed at the altar of expediency in response to widespread popular revulsion against cattle thieves. This paper engages with the problem of cattle theft, examining what motivated the adoption of such a harsh law and what the implications are of granting customary courts the jurisdiction to deal with these matters. While there is an urgent need to repeal the Act, in the meantime it should be applied strictly, with all presiding officers of customary courts being required, at the beginning of every stock-theft proceeding, to inform the accused that he or she has a right to opt for a trial before a Magistrates' court. This is one of the few safeguards provided for by the Act, but because it is ignored so often, many people end up in prison when they might have been acquitted had they been tried by the better-equipped Magistrates' courts.

In February 2014, following years of resistance, the Traditional Courts Bill (TCB), was allowed to lapse in Parliament. This followed intense opposition by citizens in rural areas, the South African Human Rights Commission (SAHRC), the Department of Women, Children and People with Disabilities (DWCPD) and other institutions in the public consultations held by Parliament on the Bill. Despite significant structural and procedural obstacles to participation in these consultations, including the fact that the state assisted only traditional leaders to attend public hearings, many people in rural areas gave eloquent inputs on the Bill. Even though the official word is that the Bill simply lapsed, this is a direct consequence of this national resistance. It is a victory for the thousands of people who opposed the Bill, for the millions of people who will not be forced to live under the separate legal system that the Bill had proposed, and for South Africa's democratic structures which...

The Traditional Courts Bill (TCB) has drawn national attention since its introduction to the National Assembly (NA) in 2008, much of which influenced the Bill’s withdrawal in 2011 and re-emerged with the Bill’s reintroduction to the National Council of Provinces (NCOP) in December 2011. Strong criticism of the TCB has come from civil society groups, which have argued that the Bill is unconstitutional because it would violate the rights of millions of people and fundamentally challenge the basic tenets of common citizenship in South Africa. Proponents of the TCB have mostly argued that the Bill is necessary to preserve, restore and legislate customary law, often characterising opponents to the TCB as opposed to customary law and traditional leadership. This report examines the submissions on the TCB made to Parliament in 2008 and 2012. This examination reflects on the dominant themes and reactions to the TCB communicated through the submissions, analysing responses to both the conten...

The study of customary law benefits from a focus on both the formal rules and mechanisms as well as the informal aspect. The complexity of 'living law' is best captured by attention to process and context. The working of the three-leveled formal traditional courts of the Nkuna Tribal Authority near Tzaneen in the Limpopo Province is complemented by informal mechanisms and processes for adjudication and intervention in conflicts. The civic association, relatives, the police and other organized groups or networks play a significant role inside and outside the formal traditional courts. Case material shows the strategic use of these various mechanisms by the poor rural population, depending on their social and economic position. "To study rule-orders in action, it is necessary to deal simultaneously with the explicit rules, the occasions on which they are communicated and involved, and with actual behaviour addressed by the rules, the contexts in which it takes place, and the ideas and assumptions that accompany it" (Moore 1978:3).

The continued relevance of customary law for the regulation of the daily lives of Africa's citizens poses serious governance challenges to sovereign states, such as how best to regulate customary dispute settlement. While identifying largely similar problems and naming access to justice as key goal for legislative change, South Africa proposed to enhance and regulate the position of its traditional courts, whereas Malawi opted for the creation of hybrid local courts that combine characteristics of regular state courts and customary fora to be the main avenue of customary law cases. This paper analyzes the strengths and weaknesses of both approaches and displays how the two countries' historical and political contexts enable and constrain their regulatory choices in the field of customary dispute settlement, as well as influence the risk and benefits of the various options. In this respect, the political power of the traditional leaders is a significant determinant. 1 This paper has been published in Law & Society Review 51, 4 (2017), 825-858. 2 Janine Ubink is an adjunct professor at UCI Law School and the President of the international Commission on Legal Pluralism. Her research focuses on legal pluralism, customary law and its relation with state law, traditional authorities, transitional justice, rule of law reforms, gender, and land management, with a regional focus on Africa. 3 Sindiso Mnisi Weeks is an assistant professor in the School for Global Inclusion and Social Development at the University of Massachusetts Boston. Her areas of research include the relationship between customary law and state law and policy in South Africa, women's rights, the right to culture, traditional authorities and courts, property, and succession.

Zama 3 grew up in Msinga, a deep rural area in the easternmost province of South Africa, KwaZulu-Natal. 4 Zama married Nkani under customary law when they were both just out of high school. They lived with Nkani's family and never registered their marriage. After a few years of marriage, ignoring Zama's strong objections to polygamy, Nkani took another wife. 5 Nkani and Zama's marriage was already on the rocks because he did not treat her well, but with the arrival of the second wife, it fell apart completely. Zama says that Nkani did not provide for her or their children and emotionally and verbally abused her, and they fought often; she was treated, she says, like the family's workhorse or slave. Feeling neglected, rejected, and no longer like Nkani's wife, Zama decided to take her children and leave. At the time of our interviews, Zama had been living with her children in Newcastle, 141 kilometers away, for approximately seven years. She worked as a nurse at a nearby hospital and was raising their children on her own. A few months before our first interview, however, Nkani had initiated a claim with the headman 6 of their families' ward 7 to obtain custody of Zama's four children. The three eldest 1. 10. They argued that the fourth child was also technically Nkani's child because Nkani had paid lobolo, or bridewealth, for Zama in full. For more information on lobolo in Msinga, see Living Law of Land in Msinga, supra note 6, at 59-60. 11. See id. at 32.

This article introduces the Traditional Courts Bill (B15-2008). The Bill has caused controversy, and drawn criticism from rural communities and civil society. Key to the concerns raised was the flawed consultative process that the Department of Justice and Constitutional Development followed in bringing the Bill before parliament. In addition, substantive concerns raised about the Bill relate to the implications its provisions will likely have for rural citizens. The article discusses a number of major concerns that have been raised against the Bill and concludes with a brief assessment of the Bill in light of the Constitutional Court's decision in Tongoane and Others v National Minister for Agriculture and Land Affairs and Others.

This article discusses flaws in the Traditional Courts Bill in light of research that shows customary courts to operate in accordance with a model that is very different from that adopted by the Bill. Customary courts are not professional institutions but community-based discussion forums, thus participation in them is inclusive of the broad community membership, and their accountability is partly dependent on people's ability to choose to use them, or other forums, when their own courts are unjust. The article therefore develops a framework for regulating customary courts that gives recognition to their essential elements as understood through prior study of diverse courts. The framework advanced is also one that gives greater expression to rights (to democracy, gender equality and freedom of association, or choice) articulated in the Constitution.

This article introduces the Traditional Courts Bill (B15-2008). The Bill has caused controversy, and drawn criticism from rural communities and civil society. Key to the concerns raised was the flawed consultative process that the Department of Justice and Constitutional Development followed in bringing the Bill before parliament. In addition, substantive concerns raised about the Bill relate to the implications its provisions will likely have for rural citizens. The article discusses a number of major concerns that have been raised against the Bill and concludes with a brief assessment of the Bill in light of the Constitutional Court's decision in Tongoane and Others v National Minister for Agriculture and Land Affairs and Others.

Traditional leaders in South Africa are self-sufficient to enhance the lives of their communities. The aim of the study was to highlight the work that traditional leaders have been performing before colonization, apartheid and in the new democracy. The collection of data was secondary using desktop research and literature from South African government legislation and academic journals. The key finding of the study was that government need traditional leaders to perform certain functions were public sector is unable execute. Traditional Leaders in South Africa are capable of uplifting lives of ordinary rural communities this was demonstrated clearly in the study

Traditional leaders in South Africa are self-sufficient to enhance the lives of their communities. The aim of the study was to highlight the work that traditional leaders have been performing before colonization, apartheid and in the new democracy. The collection of data was secondary using desktop research and literature from South African government legislation and academic journals. The key finding of the study was that government need traditional leaders to perform certain functions were public sector is unable execute. Traditional Leaders in South Africa are capable of uplifting lives of ordinary rural communities this was demonstrated clearly in the study

The issue of admission of evidence obtained through human rights violations is central to a criminal justice system as a mechanism through which to prevent overzealous prosecution by the state and ensure protection of human rights. As such, any court that deals with criminal cases has to evaluate evidence before it is admitted. This article argues that the Traditional Courts Bill (TCB)1 does not provide for a mode of dealing with evidence obtained as a result of human rights violations. To substantiate this argument, the article reviews the current Bill, and reflects on the challenges that arise with regard to evidence obtained in this way. The article contextualises section 35(5) of the Constitution of the Republic of South Africa, and discusses the practical difficulties of applying it under the current Bill. The article concludes with recommendations for measures that can ensure that accused persons are not prejudiced when appearing before the court.

The parliament and courts are major law makers in South Africa. The constitution also gives them the powers to develop customary law while promoting the spirit and principles of the constitution.  This dissertation points to give an assessment of these developments that these law makers, both the legislature and the judiciary; have made and the impact of these developments on the native or the living (pure) customary law. It also serves to donate an evaluation based on African context that only addresses issues that concerns Africans alone and gives an African view. The title of this research is a broad one that is not only limited to the law alone, but this dissertation will only focus on the doctrinal methods to utilise legal documents and principles of law to reach a conclusion. At the end this dissertation aims to point and conclude that the lawmakers instead of developing, they interfere with the law of the African traditional societies in the pursuit of “justice for all”.

The Traditional Courts Bill has been introduced in the South African Parliament twice since 2008 and it has also been withdrawn twice for apparently infringing certain constitutional rights, including the right to fair hearing and legal representation. There are plans to reintroduce the Bill in Parliament soon. I argue in this article that traditional justice system should be understood within the customary law paradigm in which it operates. If this is done, it would be found that the exclusion of legal representation in traditional courts does not necessarily imply absence of fair hearing in such proceedings. I make some proposals for reconciling the apparent conflict between the constitutional right to fair hearing and the procedures in traditional courts by drawing on the analogy of the procedure of the Commission for Conciliation, Mediation and Arbitration. I conclude by making policy proposals that I think policy-makers should address as part of the reform of traditional justice system prior to reintroducing the Traditional Courts Bill to Parliament.

The continued relevance of customary law for the regulation of the daily lives of Africa's citizens poses serious governance challenges to sovereign states, such as how best to regulate customary dispute settlement. While identifying largely similar problems and naming access to justice as key goal for legislative change, South Africa proposed to enhance and regulate the position of its traditional courts, whereas Malawi opted for the creation of hybrid local courts that combine characteristics of regular state courts and customary fora to be the main avenue of customary law cases. This paper analyzes the strengths and weaknesses of both approaches and displays how the two countries' historical and political contexts enable and constrain their regulatory choices in the field of customary dispute settlement, as well as influence the risk and benefits of the various options. In this respect, the political power of the traditional leaders is a significant determinant. 1 This paper has been published in Law & Society Review 51, 4 (2017), 825-858. 2 Janine Ubink is an adjunct professor at UCI Law School and the President of the international Commission on Legal Pluralism. Her research focuses on legal pluralism, customary law and its relation with state law, traditional authorities, transitional justice, rule of law reforms, gender, and land management, with a regional focus on Africa. 3 Sindiso Mnisi Weeks is an assistant professor in the School for Global Inclusion and Social Development at the University of Massachusetts Boston. Her areas of research include the relationship between customary law and state law and policy in South Africa, women's rights, the right to culture, traditional authorities and courts, property, and succession.

The legal framework for South Africa’s democracy is provided by the widely lauded Constitution of the Republic of South Africa, 1996 (‘the Constitution’), which was adopted in the context of deep racial inequality and injustice that were the legacy of half a century of apartheid and several centuries of colonialism. One of the core elements of that legacy was the racial dispossession of land.

III.9. Christa Rautenbach, Traditional Courts as Alternative Dispute Resolution (ADR)-Mechanisms in South Africa tional norms and values. One such example is traditional courts, the main focus of this chapter. Although they have been called "courts" it is debatable that they are indeed courts in a conventional sense, 362 because they do not allow for legal representation, the court procedures are not conducted in a legalistic way, the parties involved in the proceedings do not follow standard procedural rules, they are generally not courts of record, 363 and some of them do not allow women to participate in the proceedings. The "court" officials do not undergo legal training and are more often than not members of the community whose objectivity might be questioned. On the other hand, these courts play an important role in dispute resolution within many traditional communities, especially in rural areas, where they are popular because they are in general speedy, more accessible and less expensive than Western style courts. Seeing that ADR "offers those most directly involved in conflict an immediate and direct decision-making role in resolution processes which are free from legalese", 364 it may be argued that traditional courts resemble ADR mechanisms more closely than the conven-362 Conventional courts are those established in terms of legislation. In terms of section 166 of the Constitution of the Republic of South Africa, 1996 (the Constitution) three kinds of courts are distinguished: the Constitutional Court, ordinary courts (the Supreme Court of Appeal, the High Courts, and the Magistrates' Courts) and special courts. See also the discussion at 2.1 below. 363 South African legislation makes provision for keeping records under certain circumstances, see 2.2.1 & 2.2.2 below.

В статье рассматривается термин «вера» в суннитском вероучении, а также точка зрения мурджиитов и хариджитов по данному вопросу. Краеугольный вопрос суннитского вероучения связан с тем, что входит в понятие «вера» из деяний сердца, слов и практических действий, связанных с ней. Исходя из содержания теологического понятия веры, анализируются вопросы изменения степени веры и положение верующего, совершающего большие грехи.

In 2008, the Traditional Courts Bill (TCB) was introduced in South Africa's Parliament to regulate customary courts in place of the apartheid-era Black Administration Act. The TCB has come under wide ranging attack from civil society across the country, including from people based in the former homelands where the Bill would have effect, for its perpetuation of colonial and apartheid distortions of customary law, and its continuation of the oppressions justified through these distortions. In this article, I examine some of the major epistemic developments in customary law in South Africa, from colonialism to the present, to highlight key logics and genealogies of power that form the foundation and framework for 'official customary law'. This examination provides the context for analysing the epistemological de-linking from colonial frameworks represented in women's claims to land, and reveals how changes in women's access to land over the years allows for a reading of epistemological shifts and contestations in customary law. I read these developments alongside the content of the TCB to examine different references for custom represented in both colonially rooted knowledges and de-colonial knowledges that challenge the premises of the former.

In 2008, the Traditional Courts Bill (TCB) was introduced in South Africa's Parliament to regulate customary courts in place of the apartheid-era Black Administration Act. The TCB has come under wide ranging attack from civil society across the country, including from people based in the former homelands where the Bill would have effect, for its perpetuation of colonial and apartheid distortions of customary law, and its continuation of the oppressions justified through these distortions. In this article, I examine some of the major epistemic developments in customary law in South Africa, from colonialism to the present, to highlight key logics and genealogies of power that form the foundation and framework for 'official customary law'. This examination provides the context for analysing the epistemological de-linking from colonial frameworks represented in women's claims to land, and reveals how changes in women's access to land over the years allows for a reading of epistemological shifts and contestations in customary law. I read these developments alongside the content of the TCB to examine different references for custom represented in both colonially rooted knowledges and de-colonial knowledges that challenge the premises of the former.

In this article the authors consider the early complaints lodged at the pilot equality courts. Since their inception the equality courts have been underutilised. These early complaints are considered against three themes relating to effective legislation: (1) the legislature must be realistic; (2) different groups of people will be influenced in different ways by a new law; and (3) Parliament should see to it that its laws are popularised. In conclusion the authors offer recommendations on how the utilisation of the equality courts may be improved, among others that equality court personnel should be adequately trained; one forum should be created where any discrimination-related complaint may be lodged; plain language promotional materials should be developed; the parts of the Act that relate to the promotion of equality must come into force; and the workings of the equality courts should be included in the Life Orientation curriculum in schools.

The history of the abaThembu chieftainship in the twentieth century has been very little studied. This thesis is the first attempt to examine the chieftainship in detail. It shows how the chieftainship was deeply divided, yet survived socio-political assaults from both within and without. It focuses on the individuals who were successive paramount chiefs of the abaThembu, exploring how they helped shape the chieftainship over time, and on the impact on the chieftainship of state policy in the eras of segregation and then apartheid.

The issue of admission of evidence obtained through human rights violations is central to a criminal justice system as a mechanism through which to prevent overzealous prosecution by the state and ensure protection of human rights. As such, any court that deals with criminal cases has to evaluate evidence before it is admitted. This article argues that the Traditional Courts Bill (TCB) 1 does not provide for a mode of dealing with evidence obtained as a result of human rights violations. To substantiate this argument, the article reviews the current Bill, and reflects on the challenges that arise with regard to evidence obtained in this way. The article contextualises section 35(5) of the Constitution of the Republic of South Africa, and discusses the practical difficulties of applying it under the current Bill. The article concludes with recommendations for measures that can ensure that accused persons are not prejudiced when appearing before the court.

Women's rights and customary law are often understood as being in opposition to one another. This article challenges the usefulness of the prevailing custom/rights dichotomy, arguing that it obscures the way in which struggles to claim resources such as land combine 'human rights' equality claims with claims to customary entitlements. The article focuses on contestation over who has the power to define custom, rights and customary entitlements. It discusses the democratic potential inherent in Constitutional Court judgments that define customary law as 'living law' reflecting changing practice, and the dangers posed by national legislation that reinforces the power of traditional leaders to unilaterally define custom. It argues for legal strategies that engage with, and support, the struggles for change taking place at the interface between custom and rights in the former reserves. We draw on insights about the nature of rights and rights struggles in the work of Nedelsky, Nyamu Musembi and Merry to argue for an approach to rights that focuses on the relationships and power relations that rights mediate, rather than solely on rights as 'boundaries of autonomy.' Moreover, engaging with processes of women claiming, redefining and 'vernacularising' rights within their communities relates directly to the project of engendering socio-economic rights, given the primacy of claims of need, and of access to material resources, within indigenous constructs of relative rights.

The interface between customary law and the formal legal system in South Africa has been the subject of much recent litigation in the South African Constitutional Court. This contribution describes and reflects on the opportunities created by the emerging jurisprudence of 'living customary law' for asserting and protecting customary entitlements to land in the face of controversial new laws that bolster the authority of traditional leaders within fixed jurisdictional boundaries coinciding with the former 'homelands'. I examine the exclusionary effect of these boundaries (which determine both land and identity) on the more flexible and inclusive nature of the 'nested' boundaries typical of customary systems of law. I argue that the new laws attempt to outsource the governance of the poorest South Africans and, in so doing, undermine not only their citizenship rights but also indigenous accountability mechanisms which are inherent in living customary law. I contrast the contextual and purposive approach to issues of inequality and power adopted by the Court in pursuit of its stated transformative agenda with the bounded top-down view of customary law that informs the new traditional leadership laws. I argue that the 'living law' jurisprudence emerging from the Court is deeply embedded in its broader commitment to situate rights in the real-world context of unequal power relations. In addition I suggest that the Court's approach is fundamentally reshaping customary law, such that the new laws are bound to fall short of standards established in living customary law and the broader contextual and purposive approach advocated by the Court.

Women's rights and customary law are often understood as being in opposition to one another. This article challenges the usefulness of the prevailing custom/rights dichotomy, arguing that it obscures the way in which struggles to claim resources such as land combine 'human rights' equality claims with claims to customary entitlements. The article focuses on contestation over who has the power to define custom, rights and customary entitlements. It discusses the democratic potential inherent in Constitutional Court judgments that define customary law as 'living law' reflecting changing practice, and the dangers posed by national legislation that reinforces the power of traditional leaders to unilaterally define custom. It argues for legal strategies that engage with, and support, the struggles for change taking place at the interface between custom and rights in the former reserves. We draw on insights about the nature of rights and rights struggles in the work of Nedelsky, Nyamu Musembi and Merry to argue for an approach to rights that focuses on the relationships and power relations that rights mediate, rather than solely on rights as 'boundaries of autonomy'. Moreover, engaging with processes of women claiming, redefining and 'vernacularising' rights within their communities relates directly to the project of engendering socioeconomic rights, given the primacy of claims of need, and of access to material resources, within indigenous constructs of relative rights.

АННОТАЦИЯ:

В статье рассматриваются актуальные проблемы реализации на территории Российской Федерации и Республики Абхазия принципа осуществления правосудия только судом. Анализируются законы в части запрета осуществления правосудия иными органами, кроме судов. Рассматривается деятельность квазисудебных органов (Суда старейшин, Шариатского суда) по осуществлению правосудия.

КЛЮЧЕВЫЕ СЛОВА:

РОССИЙСКАЯ ФЕДЕРАЦИЯ, РЕСПУБЛИКА АБХАЗИЯ, СУДЕБНАЯ СИСТЕМА, АПСУАРА, КВАЗИСУДЕБНЫЕ ОРГАНЫ ПРАВОСУДИЯ, ТРЕТЕЙСКИЙ СУД, ТРАДИЦИОННЫЙ СУД, ОБЫЧНОЕ ПРАВО, СУД ШАРИАТА, МУСУЛЬМАНСКОЕ ПРАВО, КРИЗИС ОФИЦИАЛЬНОЙ СУДЕБНОЙ СИСТЕМЫ, ОСУЩЕСТВЛЕНИЕ ПРАВОСУДИЯ ТОЛЬКО СУДОМ, RUSSIAN FEDERATION, REPUBLIC OF ABKHAZIA, JUDICIAL SYSTEM, APSUARA, QUASI-JUDICIAL COURTS OF JUSTICE, ARBITRATION COURT, TRADITIONAL COURT, CUSTOMARY LAW, SHARIAT COURT, MUSLIM LAW, CRISIS OF THE OFFICIAL JUDICIAL SYSTEM, IMPLEMENTATION OF JUSTICE ONLY BY THE COURT

This article examines the so-called ’cultural defence’ in South African criminal law. The expression ’cultural defence’ refers to the phenomenon where indigenous customs are taken into account in the processes of a criminal trial and may have an effect on the outcome. In South Africa they may play such a role in two respects: first during the process of inquiry to ascertain if the requirements for a particular crime have been met; and secondly when a suitable punishment for a convicted accused must be determined. By making use of case law, illuminated by some comparisons with the role of Aboriginal customs in criminal trials in Australia, it is shown that culture played a definite role in South African cases prior to 1994, albeit not strictly in the sense of a true cultural defence.

The paper then examines whether the South African Constitution and, in particular, its human rights provisions, brought about a new approach to be taken in matters where custom has been an element in the motivation for an act which would normally be a crime. Making particular reference to the examples of the twala custom (a form of abduction, with or without the consent of the girl or her parents, as a preliminary to a customary marriage) and belief in tokoloshe spirits, it is shown that South African courts have sometimes, although often reluctantly, given attention to these customs, although sometimes showing little understanding of them. The major question which emerges today is whether the constitutional provisions demand a formalisation of the cultural defence or whether the existing principles used in the evaluation and punishment of crimes could continue to be applied.

The article discusses the Traditional Courts Bill of 2008 and its likely impact on the balance of power in rural areas. It describes improvements women have managed to win over the last 15 years, and argues that they are the outcome of vigorous processes of debate and contestation over the content of custom involving a wide cross-section of people in rural areas. These processes of debate and contestation are put at risk by the top-down construct of chiefly power embodied in the Traditional Courts Bill and other recent legislation reinforcing the powers of traditional leaders to unilaterally define the content of custom within ethnically delineated tribal boundaries. The Article discusses the laws as the outcome of the successful efforts of the traditional leader lobby to bolster their contested authority with statutory power. It argues that what is at stake is which voices are allowed to participate in the definition of custom, and on what terms. It discusses the impact of national law on contested power dynamics at the local level, and the privileging of chiefly voices in the legislative process. It begins with the views put forward by rural women in a series of consultation meetings about the Bill. Notwithstanding the problems associated with such courts they are often the only accessible source of justice in rural areas and many women argue that they should be reformed, rather than abolished. The Article argues that the Bill fails to address many of the problems raised by rural women, and would instead exacerbate them.

The Traditional Courts Bill cannot be understood in isolation from the package of other laws dealing with the powers of traditional leaders. The fist of these laws is the Traditional Leadership and Governance Framework Act of 2003. The Framework Act has since been complemented by provincial laws dealing with traditional leadership enacted in the different provinces.

The interface between customary law and the formal legal system in South
Africa has been the subject of much recent litigation in the South African
Constitutional Court. This contribution describes and reflects on the opportunities
created by the emerging jurisprudence of ‘living customary law’ for
asserting and protecting customary entitlements to land in the face of controversial
new laws that bolster the authority of traditional leaders within fixed
jurisdictional boundaries coinciding with the former ‘homelands’. I examine
the exclusionary effect of these boundaries (which determine both land and
identity) on the more flexible and inclusive nature of the ‘nested’ boundaries
typical of customary systems of law. I argue that the new laws attempt to
outsource the governance of the poorest South Africans and, in so doing,
undermine not only their citizenship rights but also indigenous accountability
mechanisms which are inherent in living customary law. I contrast the
contextual and purposive approach to issues of inequality and power adopted
by the Court in pursuit of its stated transformative agenda with the bounded
top-down view of customary law that informs the new traditional leadership
laws. I argue that the ‘living law’ jurisprudence emerging from the Court is
deeply embedded in its broader commitment to situate rights in the real-world
context of unequal power relations. In addition I suggest that the Court’s
approach is fundamentally reshaping customary law, such that the new laws
are bound to fall short of standards established in living customary law and the
broader contextual and purposive approach advocated by the Court.

This paper discusses the phenomenon of single women claiming, and acquiring, residential sites in the former homelands since the end of apartheid in 1994, against the backdrop of steadily declining marriage rates. It argues that the transition to democracy changed the balance of power within which 'living customary law' is negotiated at the local level, and emboldened women.The changes are put at risk by controversial traditional leadership laws enacted since 2003.These restore the power of definition to chiefs, and reassert constructs of customary law that obscure the dynamics of the changes under way. I suggest that the 'changes' may, in part, reflect the re-emergence of pre-existing repertoires that were suppressed by official customary law. The paper contrasts the Constitutional Court's inclusive approach to 'living customary law' and the legislative process, with the autocratic approach of the new laws, one of which has already been struck down by the Court.

This article presents an analysis of the recently published Draft Traditional Affairs Bill, 2013 and, in particular, clause 25 thereof. Clause 25 (‘[a]llocation of roles…’) contemplates something akin to the delegation of legislative power – in an unguided and unfettered manner – to ‘departments’ in the national and provincial spheres of government and the concomitant subdelegation of ‘roles’ in respect of the functional areas of these spheres to unelected traditional councils and leaders. This provision threatens not only the rule of law, but also the delicate twofold constitutional division of power: the horizontal separation of powers between the three branches of state and the vertical division of government into three spheres (national, provincial and local). Against the backdrop of the constitutional framework governing traditional leaders, this article unpacks the elements of clause 25 of the Draft Bill by addressing several specific questions which illustrate how and why clause 25 will fail to pass constitutional muster. Amongst other things, the notion of a ‘role’ is considered and compared with that of a ‘function’ and ‘power’ respectively. Similarly, the meaning of ‘allocation’ is considered and insofar as it amounts to delegation, the limits to the delegation of legislative and discretionary powers – as carved out by the Constitutional Court – are applied to the provisions of clause 25. Finally, it is determined that although customary law may be a source of administrative power for traditional leaders, these leaders may not exercise quintessential governmental power and insofar as clause 25 purports to confer such governmental powers on traditional leaders and councils, the Draft Bill impermissibly seeks to render traditional leaders a fourth sphere of government in breach of the twofold separation of powers and in violation of the explicit provisions of section 212(1) of the Constitution.

In 2008, the Traditional Courts Bill (TCB) was introduced in South Africa's Parliament to regulate customary courts in place of the apartheid-era Black Administration Act. The TCB has come under wide ranging attack from civil society across the country, including from people based in the former homelands where the Bill would have effect, for its perpetuation of colonial and apartheid distortions of customary law, and its continuation of the oppressions justified through these distortions. In this article, I examine some of the major epistemic developments in customary law in South Africa, from colonialism to the present, to highlight key logics and genealogies of power that form the foundation and framework for 'official customary law'. This examination provides the context for analysing the epistemological de-linking from colonial frameworks represented in women's claims to land, and reveals how changes in women's access to land over the years allows for a reading of epistemological shifts and contestations in customary law. I read these developments alongside the content of the TCB to examine different references for custom represented in both colonially rooted knowledges and de-colonial knowledges that challenge the premises of the former.

1. Introduction
Ethiopia has numerous customary laws developed and practiced since time immemorial. Since recent years, these customary institutions of dispute and conflict handling mechanisms received growing attention as evidenced by an increase in research activities, publications, and policy interest. In 2008, the French Center for Ethiopian Studies published an edited volume titled 'Grassroots Justice in Ethiopia'.  Two years later, the Ethiopian Arbitration and Conciliation Center published two edited volumes and one annotated bibliography on 'Customary Dispute Resolution Mechanisms in Ethiopia'.  In 2013, the Justice and Legal Systems Research Institute published an edited volume titled 'Law and Development, And Legal Pluralism'.  Of the many research projects of masters and doctoral programs at Addis Ababa University, some focused on customary laws in Ethiopia.  Why is there so much interest now on a theme that seems to have been overlooked for so long?
The rise of interest in customary laws may be explained in terms of several factors....
It can be argued that these golden opportunities for research and publication on customary laws apparently lacked conceptual clarity; common understanding of the core values and issues worth exploring; common recognition of the challenges and limitations of using customary laws; and clear picture of their potentials and prospects....
This paper is written with firm conviction that research on customary laws in Ethiopia and beyond could be systematized to produce results that are amenable to comparative analysis, scientific generalization, and practical application. The idea of knowledge systematization (with latitude for deviation and adaptation) can be accomplished though clarity of concepts that have been used interchangeably and confusingly; identification of the values and virtues that enhance the legitimacy and enduring popularity of customary laws; and promotion of comparative research to pave the way for comprehensive understanding of customary laws….