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  • Regulating traditional just...
    Soyapi, C.B.

    Potchefstroom electronic law journal, 01/2015, Volume: 17, Issue: 4
    Journal Article

    Customary law is without doubt the oldest system of law in most African societies. These societies were communal, with their headmen, chiefs and kings as the leaders. The administration of justice within these societies lay in the hands of the traditional leaders. Within such a structure, a feature which was predominant in customary practices was patriarchy. In other words, traditional leadership was male dominated and in the traditional justice administration the difference between men and women was apparent. With the arrival of colonialism in South Africa the nature of traditional court structures was changed. On the one hand there was the African customary law practised among black South Africans, and on the other the Western justice system which was applicable to all races. In order to formalise and regulate the interaction between the two systems, the Black Administration Act was introduced in 1927. This Act, among other things, legitimised the application of customary law among black South Africans and enabled the country's courts to give recognition to it. The Act brought a system of control over the manner in which the customary courts functioned. The courts were divided into courts of chiefs and courts of headmen, with the result that there was a system of hierarchy put in place specifically for Africans. Khumalo posits that during the administration of traditional justice any adult male could cross-examine witnesses, as there were no strict rules on evidence. This goes to show that the proceedings were informal. However, this in no way meant that the justice delivered in such customary courts was not to the satisfaction of the parties. The colonisers allowed the courts to use any procedure as long as their proceedings did not disrupt public policy and justice.