The Judicial Function of Traditional Leaders: A Contribution to Restorative Justice?

Source: (2005) Paper presented at the conference of the Association of Law Reform Agencies of Eastern and Southern Africa (ALRAESA), Vineyard Hotel, Cape Town, 14-17 March. Downloaded 12 August 2005.

In 1994 South Africa held a historic election as a key part of the transition from apartheid to a post-apartheid government and society. As Thandabantu Nhlapo comments, much progress has been made since then in building a more democratic and stable South Africa. This included the negotiation and adoption of a new constitution. At the same time, it is also true that much remains to be done after ten years, and many of the tensions and challenges present in the mid 1990s persist. Nhlapo points in particular to the issue of customary or traditional law in relation to more formal, written, constitutional law. The constitution recognized the validity of customary law, yet a certain tension exists between the two in the administration of justice. Nhlapo characterizes this as a tension between the Western notion of retributive justice and the traditional African concept of restorative justice. In this framework, Nhlapo examines restorative justice in relation to African culture, the administration of justice in South Africa, and the role of traditional leaders in the administration of justice.