The omission of the opt-out clause: The revised (and improved?) Traditional Courts Bill 2017

Abstract

The Traditional Courts Bill B1B-2017 omits the opt-out clause and the notion that engagement with traditional courts is on a voluntary and consensual basis – a long-standing sticky point with traditional leaders. Under the Bill, individuals are bound to attend a traditional court when summoned and cannot opt-out of the system, which conflicts starkly with the notion of customary law as a voluntary and consensual system of law. This article argues that compelling individuals to attend a traditional court may be unconstitutional for unjustifiably infringing the rights to culture, a fair trial and equality.