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4 Cards in this Set

  • Front
  • Back

Customary court

the lodgement procedure- civil cases

1st negotiations between the 2 agnatic groups

No agreement- Plaintiff reports matter to the headman

Headman sets a date

Day of the hearing both parties and witnesses must be present

civil cases may be heard in the chiefs court in the absence of the parties and sentenced

may apply to the chiefs court if not satisfied

Customary court lodgement procedure- criminal cases

case reported to local headsman

complaint may be lodged directly to the chiefs court

headman investigate the matter and reports to the chiefs

chief sets a date for trial

customary procedure applies

The trial procedure

Main principles of the court

1) Onus is on the accused to prove his innocence in court. Often the accused pleads guilty when asked to plead, and then wishes to lead evidence to prove his innocence

2) The sessions of indigenous courts are held in public

3) All court sessions are open to members of the public. Any person present may participate in the court procedure by posing questions to the parties and by submitting information to the court about the case

4) All parties must be present during the trial – Judgement by default was unknown. Parties are given full opportunity to state their side of the matter without interruption

5) Legal representation was unknown. Nobody appeared in court without assistance; every person, regardless of age or sex was assisted by relatives. Each party had to see to it that its witnesses were present. Witnesses may not be related to the parties concerned. Neighbors were often the main witnesses in a case.

6. All proceedings were conducted orally

• no written record of cases is kept• Today all chief’s courts keep a court record in which basic information regarding a case must be recorded.

• Legislation (Rules 6 and 7, GN R2082 of 1967) also requires that the judgment of a chief’s court be registered.

• This case must be reported in quadruplicate straight after judgment.

• This report must contain, inter alia,

• the names of the parties,

• the particulars of the case, and

• the judgment. • The report must be signed by or on behalf of the chief and two members of the court.

• The original report must be handed in at the local magistrate’s court for registration and each party is given a copy of the report

• Today a chief’s court judgment must be registered in order to be valid

• The judgment must be registered with the magistrate within two months, or else it lapses• In Mhengu v Mpungose (1972) BAC 124 (NO)) it was decided that the Court Rules place an administrative duty on a chief to submit the written judgment for registration. Failure to do so may lead to liability for the costs incurred to implement judgment, or for any damage suffered by a third party because of the chief’s failure to register the judgment

7) The chief is judge-in-council. The chief or ward headman delivers the judgment. Judgment usually is a synopsis of the consensus opinion of those present

main principles continue

8. The court proceedings are fairly formal (i.e. few formalities)

• The proceedings follow a specific pattern

(a) First the plaintiff or complainant states his side of the matter,

(b) Then follows the reply of the defendant or accused

(c) Usually a few questions are asked by the council members and others to clear up obscurities

(d) Then follows the evidence of the witnesses of the plaintiff/complainant

(e) The witnesses are questions by those present(f) Next the evidence of the witnesses of the defendant/accused is heard and questioned, and the plaintiff/complainant and the defendant or accused may give further explanations or question each other(g) The matter is then discussed by those present, followed by the views on the facts and the matter of the council members present(h) Thereafter judgment is given(i) A consensus judgment is considered ideal (the matter is discussed until the council members have reached consensus(j) Persons who misbehave may be removed from the courtroom and may even be fired

9) Nobody is judge in his own case. This principle is expressed by the Sotho people in the maxim selepe ga se itheme (an axe does not chop itself)

10) During the hearing of a civil case, the defendant may not institute a counterclaim against the plaintiff and ask that his liability towards the plaintiff be removed.The applicable maxims are : • Molato ga o rere mongwe (one debt is not heard by another)• Molato ga o lefiwe ka o mongwe (one debt is not settled by another)It is also said that a person cannot pay attention to two matters at the same time maebana mabedi ga a rakwe ( two doves cannot be followed at the same time)

11) In former times, asylum was known – a person affected by a court order could escape punishment by fleeing to a certain place

12) Mendacity (i.e. telling lies) is not punishable. No oath is taken by either the parties or their witnesses. Perjury (willfully giving false evidence under oath), is unknown and not punishable.

13) Prescription of a debt or a claim is unknown. A plaintiff is compelled to submit his claim without delay. Two reasons for this :(a) a delay may make it more difficult for the Plaintiff to prove the facts because witnesses may move or die. The plaintiff may lose the action if he dies before the action is instituted. If action has already been instituted and he dies, the action passes to his successor. (b) He may harm the other party through his delay. The other party may for instance be denied the opportunity to examine the facts in good time. An important witness may die or leave the area. If a plaintiff waits too long to institute an action, the court may refuse to hear the case. The reason is not prescription but the damage or the facts can no longer be established with certainty.Once a case has been instituted, it may be postponed indefinitely

14) • The court proceedings are inquisitorial in nature. • This means that it is the court’s duty to try to establish the truth through questioning and cross-examination. • In principle, no evidence is excluded. • Witnesses are given ample opportunity to submit evidence to the court. • The court is also competent to hold in situ (i.e. where the offence took place) investigations. • The court may even make use of extra-judicial methods of proof, such as pointing out by a diviner (isangoma) to establish the truth. • It therefore is said that time cannot stand in the place of truth.