Legal history of the reform of traditional courts in South Africa: insights from Botswana and the Kingdom of eSwatini

Abstract

This study examines the historical development of traditional courts in South Africa, Botswana and the Kingdom of eSwatini in the pre-colonial, colonial and post-colonial eras. The thesis ascertains how South Africa can reform traditional courts to enhance the administration of justice and access to justice by gleaning some lessons from Botswana and Kingdom of eSwatini. The thesis is motivated by the need for the continued existence of traditional courts in South Africa and the critical role which traditional courts play in the delivery of justice in rural areas. The thesis is founded on the view that the traditional institution of justice can legitimately claim a place in a constitutional and democratic South Africa only when legislatively reformed to conform to the prescripts of transformative constitutionalism, social justice and access to justice. It is the view of the candidate that abolishing traditional courts will feed into the regrettable narrative that traditional African institutions of leadership and justice are not only archaic but also repugnant to the modern constitutionalist era. Given that the Constitution of the Republic of South Africa, 1996, recognises both traditional leadership and traditional courts, the candidate argues that there is a duty on the government, particularly Parliament, to ensure that the traditional courts system is nurtured and reformed in a constitutionally compliant manner. However, Parliament has so far failed to reform traditional courts through legislation. The timing of the thesis is particularly important since the thesis completes at a time when Parliament is grappling with competing constitutional interests and the cultural desires of traditional leaders to retain traditional courts in their current state. Notwithstanding, the candidate does not intend to imply, and should not be understood, to suggest that this thesis provides all the answers to South Africa's problems on traditional courts. The thesis should be taken as one of many contributions to the reform of traditional courts, although it distinguishes itself from other studies as it does not only trace the history of traditional courts in South Africa but also examines the historical development of traditional courts in Botswana and the Kingdom of eSwatini with a view to ascertain some learning points from these two jurisdictions.