Critique on Traditional Courts, Community Courts and Conflict Management.

Source: (2007) Acta Criminologica. 20(1): 144-155.

This study examined traditional and community courts in South Africa and their ways of managing conflict, with attention to the factors that have drawn the most criticism. Among South Africa’s traditional courts, the tribal court is the highest court in the tribe. The chief is the only person who is authorized to pass judgment. Adult men in the tribe play a central role in assisting the chief in his judicial duties. Adult men attend court sessions and may participate in the cross-examination of the parties to lawsuits as well as witnesses. Traditional courts settle disputes that involve two parties, for example, a victim and an offender. In criminal cases, the traditional court attempts to reconcile the victim and offender. Civil and criminal cases stemming from the same event are often heard simultaneously. An offender may be sentenced to some punishment and to the payment of compensation. The accused person must prove his/her innocence. There is no legal representation. Community courts are created by communities in order to deal with disputes locally. These courts tend to be formed in communities where the police have failed to address crime over a long period of time. Critics view these courts as vigilante courts based on cases in which alleged offenders were killed or severely injured only to be subsequently found innocent. Case studies are presented to show instances of brutality without determining the merits of the case, bias by the courts against defendants, mob influence in court decisions, bias against women, and lack of training for court officials. The South African Law Commission (1999) has recommended that traditional courts continue to be recognized where they are already established, but with the assistance of paralegals appointed by the Ministry of Justice. (Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov)