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Newsletter: From Evidence to Action

Child rights concerns and the Traditional Courts Bill

There has been much controversy surrounding the impending Traditional Courts Bill. Many feel that it does not adequately provide for the protection of vulnerable groups. Indeed, upon inspection, provisions ensuring adequate protection and participation of children are woefully absent. As it stands, the Bill mentions children on two occasions. In the first of these, it indicates the need for them to be protected, but fails to indicate what measures will be taken to ensure this. The second excludes jurisdiction of the traditional courts from adjudicating over matters pertaining to custody and guardianship of children. The Children’s Act and the Child Justice Act provide a comprehensive legal framework for how children are to be protected within civil and criminal courts system. The cardinal aim is to protect the best interests of the child and to ensure that their rights are not violated. Examples of this include that proceedings where children testify must be conducted in camera or that in certain instances, children must testify through intermediaries. The rules regarding when a child is to be prosecuted and the sentencing of children are also a significant departure from how adults are treated. When children are brought before traditional courts, it would appear that there is no such protection to be seen. Given the difficulty experienced by government in penetrating into certain of the areas of rural South Africa, it is questionable whether it is at all possible to regulate the protection of children’s rights in the traditional courts. The question thus arises as to whether children should ever be brought before a traditional court, or whether matters involving those under the age of 18 should be referred to the criminal or civil courts.