Legal Reform of Traditional Courts in South Africa: Exploring the Links between Ubuntu, Restorative Justice and Therapeutic Jurisprudence

Abstract

Traditional justice in the rural areas of South Africa is dispensed by official traditional courts, where they are presided over by traditional leaders. The Black administration Act 38 of 1927 currently makes provision for two types of courts depending on the nature of the facts before the court, viz criminal or civil. The relevant provisions in the Act stand to be repealed when the Traditional Courts Bill, currently being debated in parliament, is transformed into law, but traditional courts' civil and criminal jurisdiction will continue in future, albeit with a few additional guarantees in accordance with natural law and the constitutional law. The ideals of justice expressed in the Bill and the parallels between ubuntu, an African concept, and other contemporary ideas such as restorative justice and therapeutic jurisprudence are recognizable. This contribution investigates the links between ubuntu, restorative justice and therapeutic jurisprudence in the context of formal traditional courts. Firstly, an overview of the legal position of traditional courts in South Africa — the past, the present and the future — is given. This is followed by a discussion of the scope and application of the notions of ubuntu, restorative justice and therapeutic jurisprudence and, finally, the plausible links between these three notions in the context of formal traditional courts in South Africa are discussed. In contrast to the punitive character of a conventional justice system that focuses on retaliation, ubuntu, restorative justice and therapeutic jurisprudence call for a more holistic approach that promotes reconciliation of everyone caught up in the justice system. All of them have one thing in common — the well-being of all individuals and communities touched by injustice in some form or other.

Keywords: customary law, therapeutic jurisprudence, restorative justice, ubuntu, traditional courts

JEL Classification: K10, K14, K41