An exploration of the roles of traditional courts in combating crime: a study of the Maphumulo traditional tribe, Stanger.
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Date
2020
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Abstract
The restorative justice system has existed among nations across the world for centuries. It is
argued that this form of justice draws on the wisdom of indigenous cultures for restorative and
not punitive justice. To recognise and promote restorative forms of justice, many countries
have developed protocols, standards, and ethical procedures for practitioners of restorative
justice. One such tool is indigenous or tribal courts. South Africa is amongst those countries
that acknowledge restorative justice as its indigenous people have been using traditional
systems as a tool to manage crime for a very long time. African restorative justice is embedded
in African norms, values and beliefs that provide society with normative but often unwritten
outlines for maintaining social peace, resolve conflict, and combat crime. However, the arrival
of colonialism and apartheid in South Africa disrupted most Africans’ political, economic,
cultural, and social lives. Fortunately, the traditional justice system has survived as it still
exists and thrives in resolving disputes and managing crime in some parts of South Africa,
especially in rural areas.
However, because South Africa is a democratic country that has been steered by a human
rights-based Constitution for more than two decades, this study was conducted to address the
question whether rural communities have unrestricted access to the formal justice system, or
whether they are effectively served by a tribal justice system. This was done against
background evidence that the formal justice system has been unable to reach and serve all the
inhabitants of this country, and that rural people in particular would then seek legal support
and restitution by approaching the traditional justice system. The overarching aim of the study
was thus to investigate the role of alternative justice measures in combating crime in a rural
area. The study objectives were to: (i) explore the laws and procedures applied by a traditional
court to address crime; (ii) to determine whether these laws and procedures were in line with
the South African Constitution; and (iii) to ascertain the effectiveness of the traditional court
to combat crime in the area under study. The study adopted an exploratory and descriptive
research design, and the qualitative research approach was used to obtain the required
information. The study findings revealed that, more than two decades into democracy, many
residents in this rural area experienced frustrating challenges when they wished to access the
formal justice system. It was mainly for this reason that the participants admitted that they
relied almost exclusively on the traditional justice system as their only effective and available
channel to seek restitution for legal matters and injustices. This study concluded that the role
played by the traditional justice system in the rural area under study bridged the gap between rural residents and the formal justice system. Therefore, although this informal justice system
was undeniably plagued by shortcomings such a gender-based approach that seemed to favour
the voice of men and marginalise that of women, it was concluded that this traditional court
was effective in combating acts of crime that might otherwise have escalated into serious
threats against justice and the peaceful coexistence of the affected community.
Description
Masters Degree. University of KwaZulu-Natal, Durban.