The role of chiefs in the administration of justice in KwaZulu
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Date
1988
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Abstract
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.
Description
A thesis submitted to the Faculty of Law in partial fulfillment of the requirements of the degree of Doctor Legum in the Department of Criminal and Procedural Law at the University of Zululand, 1988.
Keywords
Administrative law., Law, Primitive., Chiefs -- KwaZulu Natal