Faculty of Commerce, Administration and Law

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Browsing Faculty of Commerce, Administration and Law by Subject "Administrative law."

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    The role of chiefs in the administration of justice in KwaZulu
    (1988) Dlamini, Charles Robinson Mandlenkosi; Labuschagne, J.M.T.
    Although justice, the indispensable attribute whereby law facilitates social stability, is difficult to define precisely, every society has a certain conception of justice based on the values of that society. The most popular idea has been that of equality of treatment which in the administration of justice involves treating like cases alike. This concept of justice is based on the Gesellschaft ideals and values. The idea of justice in traditional black society was modelled on Gemeinschaft ideas which emphasize more the peacekeeping function of law rather than due process and the creation of a general rule of precedent. Various societies have developed certain procedural safeguards and principles to ensure the doing of minimum justice by judicial tribunals. These vary from society to society as a result of sociological and political developments in each society. The chiefs' courts in KwaZulu represent the traditional judicial machinery. Although they have been influenced by western ideas and procedures, their mode of operation remains substantially unaltered. Most of the procedural guarantees evolved in the west, largely do not apply to these courts owing mainly to the nature of the society from which they developed. Chiefs generally do not act as individuals in the administration of justice, but are assisted by their councilors on whose wisdom and opinions they rely for judgment. These councilors have the liberty not only to cross-examine witnesses but also to ensure that the parties are fairly treated. restraints irregularities do occur. Despite these traditional Notwithstanding the irregularities chiefs' courts remain largely popular in Zulu society ,because they provide inexpensive, informal, flexible and expeditious access to justice. The procedural and evidentiary approaches emphasize reconciliation and finding a mutually acceptable solution to the dispute, desirable goals even in modern society. Regulations have been introduced which have modified the traditional procedural approach. It is nonetheless stipulated that the procedure should accord with the customary law of the tribe concerned. Some of these rules modify customary law and others are contrary to it. In a number of cases chiefs do not comply with these regulations. Although for some chiefs' courts and their method of operation are unacceptable as they compare unfavorably with western courts, these are in the minority in KwaZulu. Chief's courts therefore still enjoy a measure of legitimacy so that abolishing them without providing a viable substitute would be premature. Similar attempts elsewhere in Africa were unsuccessful. Small claims courts are not yet available in KwaZulu and their functions are limited.
University of Zululand