In Bisho on the 17 of January 2018

DOES AFRICA HAVE ITS OWN COURTS?

Before the Colonialist came in Africa, Africans were leaving and governing themselves by sets of rules that was based on ethical norms and values. Fundamental to the rules was respect and obedience under heads of the families who had responsibility to instil discipline in the family and resolved disputes in line with family norms and values. These values were and unfortunately continue to be unwritten and vulnerable to be distorted,

All disputes were and continue to be resolved and unlike the foreign Roman –Dutch legal system which was imposed by our Colonisers, is based on the principle of reconciliation of parties whereas the foreign system which is based European norms and values that erroneously regarded our customary practices as repugnant to their idea of public policy.

In African justice if you cause damage to anybody you must fairly compensate the victim and not a governor and most importantly he/she you must apologise.so as to leave peacefully together.

Our rules have developed and are accepted as the basis of a well-entrenched customary values that are basis of our customary law.

The customary law like labour law is and must continue to be enforced by the customary courts that are presided over by traditional leaders. Many people think that a traditional leader is in the same position as the Magistrate or a Judge who must interprete legislation on the basis of a law degree or certificate from a University or College the majority of whom have not studied African Law. I am certain non of lawyers have studied Bhala Law or Laws of AmaMpondo for instance and as such none qualify to appear before my Court.This erroneous notion is based on the misunderstanding of the institution of traditional leadership. In terms of the institution a traditional leader is a traditional leader in council. Infact in practice councillors are the people who actually deliberate on issues and they decide the issue and traditional leader as a unifying symbol in the community pronounce on the decision that more often than not is accepted and respected by the parties involved in the dispute. The criticism often expressed about the socalled independence of the judiciary is with respect propagated by those intoxicated by foreign system of governance.

The Constitution of the Republic of South Africa recognises our customary law and accord it equal status with the Roman- Dutch law that is sometimes erroneously called common law of South Africa. It is strange that amongst the Courts mentioned in the Constitution Customary Courts are not mentioned and when we complained about this serious omission, the Constitutional Court told us that our courts are recognised within the expression ”other Courts”. I believe we could not persuade the court as at the time it was composed by the Roman Dutch jurists.

I believe that South Africa is one country and it is strange that it has two legal systems and as thing stand African legal system is undermined because it has not been written and commented upon by experts in this special field of the law.

This article is an attempt to stimulate the needed debate and I will continue to write on this page to deal with interesting issues which will enlighted readers about the value of African legal system

Dated in Bisho on this the 17th Day of January 2018

 

Nkosi M. Nonkonyana (Zanemvula!)