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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:The significance of South Africa's Traditional Courts Bill to the challenge of promoting African traditional justice systems
Authors:Ntlama, NomthandazoISNI
Ndima, Dial DayanaISNI
Year:2009
Periodical:International Journal of African Renaissance Studies
Volume:4
Issue:1
Pages:6-30
Language:English
Geographic term:South Africa
Subjects:customary law
customary courts
traditional rulers
legislation
bill drafting
legal systems
External link:https://www.tandfonline.com/doi/pdf/10.1080/18186870903101974
Abstract:The tabling of the Traditional Courts Bill before South Africa's Parliament is part of a larger collective effort of the legislature to enhance the essential role of traditional leadership and customary law (intertwined principles) in the advancement and consolidation of democracy and justice. The Bill is set against a continental imperative to undo the distortions effected on African traditional justice systems by decades of colonialism and apartheid, and offer a path of renewed growth and development. This article explores the extent to which the Bill succeeds, and more generally, the extent to which the enactment of legislation, without more, is sufficient to weave traditional leadership and customary law into the fabric of South Africa's new democracy. The article also questions whether limiting the Bill's application to communities historically subject to the jurisdiction of traditional leaders under apartheid serves today's constitutional objectives. Or is it a postapartheid endorsement of separate development? It is argued that this limited and racialized application of customary law entrenches the legal separateness characteristic of colonial/apartheid rule. If passed in its present form, the legislation will not adequately contribute to the development of customary law and will undermine the constitutional mandate that all courts apply customary law where applicable, and that customary law be afforded equal respect. Bibliogr., notes, ref., sum. [Journal abstract]
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