Boitumelo Makhubu

1.1 INTRODUCTION 

In the intricate tapestry of legal jurisprudence, two landmark cases—Bangindawo v Nyanda  Regional Authority (1998) and Mhlekwa/Feni v Western Tembuland Regional Authority (2000)— stand as pivotal moments in South African legal history. These cases grapple with fundamental  legal issues, and their resolution shapes the contours of justice within regional authority courts. As  we delve into their intricacies, we shall explore the legal questions raised, the court’s approach to  resolving them, and ultimately, discern which decision resonates most profoundly with the  principles of justice and constitutional imperatives. Through a meticulous examination  of Bangindawo and Mhlekwa/Feni, this assignment contends that while both cases address critical  issues related to regional authority courts, the latter decision—Mhlekwa/Feni—better aligns with  contemporary legal norms, safeguarding individual rights and promoting equitable access to  justice. We shall substantiate this assertion by drawing upon recent judicial precedents, shedding  light on the evolving landscape of South African jurisprudence. 

1.2 Bangindawo v Nyanda Regional Authority (1998)  

1.2.1 Facts 

In the first applicant, individuals convicted under the Stock Theft Act1in the Nyanda Regional  Authority Court sought to challenge certain provisions of the Regional Authority Courts Act. They argued that these provisions were inconsistent with the interim Constitution because they only  applied to “Transkei citizens,” a category no longer relevant under the new Constitution.  Additionally, they claimed that these provisions violated the right to a fair trial and compromised  judicial independence. 

The second applicant involved a defendant in a civil trial before the Western Tembuland Regional  Authority Court. This applicant also challenged provisions of the Regional Authority Courts Act,  asserting that they were inconsistent with the interim Constitution. Specifically, they argued that  these provisions denied litigants in civil cases the right to legal representation, contrary to section  22 of the interim Constitution.2 

Because of the similarities in the bases of constitutional attack in both applications, it was arranged  that they be argued together. The Minister of Justice is not opposing both applications. I must  mention here that in the second application the Nyanda, the Qaukeni, the Dalindyebo and the  Gcaleka regional authorities applied to be and were joined as fourth to seventh respondents  respectively 

1.2.2 Issues  

1. The applicants challenge the constitutionality of specific provisions within the Regional  Authority Courts Act.3 These provisions (sections 2(1), 3(1), 7(1), 2(2), 5, and 10) are alleged to be inconsistent with the interim Constitution. The central issue is whether these  sections, which catered specifically to “Transkei citizens,” remain valid given the  dissolution of Transkei as a separate entity under the new Constitution.4 
2. The applicants argue that the challenged provisions violate section 96(2)5of the interim  Constitution, which requires an independent and impartial judiciary. By limiting  jurisdiction based on outdated criteria (Transkei citizenship), the provisions may  compromise the judiciary’s independence. 
3. The applicants contend that the provisions create a system of unequal justice. Section 8 of  the interim Constitution guarantees equal protection under the law, and the alleged  discriminatory effect of these provisions raises constitutional concerns.6
4. In the first application, the applicants assert that the provisions violate the right to a fair  trial (section 25(3) of the interim Constitution). In the second application, the defendant  argues that the provisions deny litigants in civil cases the right to legal representation  (section 22 of the interim Constitution).7

1.2.3 What court held 

First issue Jurisdiction and Constitutional Consistency 

The regional authorities mentioned in section 2(1) were originally established under the Transkei  Authorities Act of 1965.8 According to section 10, the head of a regional authority is either the  “paramount chief” (if one exists in the region) or a chief nominated by the regional authority’s  councilors through a majority vote, subject to the Minister’s approval. Notably, since the  proceedings in the two cases were already underway when the Constitution of the Republic of  South Africa Act (108 of 1996) took effect, these cases will be handled based on the interim  Constitution, as specified in section 17 of schedule 6 of the 1996 Constitution.9 

The second issue Violation of Judicial Independence 

The Court determined that considering various sections of the interim Constitution, the intention  was for regional authority courts to persist. Although the interim Constitution didn’t explicitly  prohibit these courts, they needed individuals to exert jurisdiction over them. Thus, even if it meant  interpreting “Transkei citizenship” restrictively, the concept had to retain some within the  constitutional framework.10 

Third issue Unequal Justice and Section 8 of the Interim Constitution 

The court held Section 7(1) of the Act, which prohibited legal representation in regional authority  courts, was deemed unconstitutional. The Court based this decision on the right to equality (section  8 of the Constitution). Unlike parties in magistrates’ courts, litigants in regional authority courts  were denied legal representation, creating an inequality.11 

Fourth issue Right to Fair Trial and Legal Representation 

The court held that Section 7(1) of the Regional Authority Courts Act, which prohibited legal  representation, was unconstitutional because it infringed upon the right to a fair trial, as guaranteed  under Section 25(3) of the interim Constitution. The convictions and sentences of the applicants  in the first case were overturned. The Court also ordered that if the second case continued, the first  respondent must give the applicant the right to legal representation.12 

1.3 Mhlekwa/Feni v Western Tembuland Regional Authority (2000) 

1.3.1 Facts 

Two related applications were jointly argued before a Full Bench of the Transkei Court. In both  cases, applicants had been convicted by a Regional Authority Court for contempt of court due to  their failure to appear in response to a summons. The applicants sought to have these convictions  and sentences reviewed and set aside. Additionally, they challenged the constitutionality of specific  sections (2(1), 2(2), 3(1), 7(1), and 7(2)) of the Regional Authority Courts Act of 1982 (Transkei),  alleging inconsistency with the Constitution. The Regional Authority Court’s procedural  irregularities led to a failure of justice, necessitating the setting aside of convictions and sentences.  Furthermore, the sentences imposed exceeded the court’s penal jurisdiction. 

Regarding the constitutional challenge, the applicants argued that the impugned provisions  violated various constitutional principles catered exclusively to “Transkei citizens,” a category no  longer relevant under the new constitutional order, they contradicted the requirement of an  independent and impartial judiciary (section 165(2) of the Constitution). They infringed upon the  right to a fair trial (section 35(3) of the Constitution) and created unequal justice (section 9 of the  Constitution). Respondents pointed to provisions in Schedule 6 of the Final Constitution, which  aimed to continue the existing court system until rationalization occurred. They emphasized that  traditional courts, including Regional Authority Courts, had been expressly recognized by the  Constitutional Court. Thus, they argued that dismissing the constitutional challenge aligned with  the framers’ intent. Additionally, reliance was placed on section 211(2) of the Constitution, which  addresses traditional authorities observing customary law.13 

1.3.2 Issues  

1. The applicants seek to set aside their convictions and sentences, arguing that the procedure  followed by the Regional Authority Court was irregular and resulted in a failure of justice.  Additionally, the sentences imposed exceeded the penal jurisdiction of a Regional  Authority Court.14
2. The applicants challenge the constitutionality of specific sections (2(1), 2(2), 3(1), 7(1),  and 7(2)) of the Regional Authority Courts Act.15 They contend that these provisions are  inconsistent with the Constitution and therefore invalid. The grounds for invalidity include  Catering exclusively to “Transkei citizens,” a category no longer relevant under the new  constitutional order, Violating the requirement of an independent and impartial judiciary  (section 165(2) of the Constitution), Violating the right of every accused to a fair trial  (section 35(3) of the Constitution), Creating a system of unequal justice (section 9 of the  Constitution).16
3. Respondents argue that the continuation of traditional courts, including the Regional  Authority Courts, was expressly recognized by the Constitutional Court in the first  Certification judgment. They relied on provisions in Schedule 6 of the Final Constitution,  which aimed to maintain the existing court system until rationalization occurred. Section  211(2) of the Constitution, which addresses traditional authorities observing customary  law, is also invoked.17

1.3.3 What court held  

First issue Convictions and Sentences: 

Section 2(2) of the Act was declared constitutionally invalid because it allowed the appointment  of presiding officers who did not meet the requirements specified in the Final Constitution. These  requirements relate to the independence and qualities expected of such officers. Section 3(1) of  the Act was also found to be constitutionally invalid. It granted Regional Authority Courts  jurisdiction in criminal cases over “citizens of Transkei” and concurrently with Magistrates’ Courts  within their regional authority area. This was deemed inconsistent with the right to equality before  the law and equal protection and benefit of the law for accused individuals. The entire Section 7(1)  of the Regional Authority Courts Act was declared constitutionally invalid.18 

Second issue Constitutionality of Impugned Provisions 

Section 35(3)(f) of the Final Constitution grants every accused person the right to choose and be  represented by a legal practitioner. Prompt notification of this right is essential. State-Provided  Section 35(3)(g) of the Final Constitution ensures that an accused person has the right to have a 18Mhlekwa v Head of the Western Tembuland Regional Authority and Another; Feni v Head of the Western  Tembuland Regional Authority and Another 2000 (9) BCLR 979 (Tk) legal practitioner assigned by the State (at State expense) if substantial injustice would otherwise  occur. Again, prompt notification of this right is crucial. Section 7(1) of the Regional Authority  Courts Act (Transkei) prohibits an accused person from being represented by a legal representative  during any proceedings in a Regional Authority Court. However, this provision has been declared  constitutionally invalid in its entirety.19 

Third issue Continuation of Traditional Courts 

The respondents relied on specific provisions (items 16(1) and 16(6)) in Schedule 6 of the Final  Constitution. These provisions aimed to continue the existing court system as it existed before the  Interim Constitution, pending the process of rationalization. They argued that traditional courts,  including the Regional Authority Courts, had been expressly recognized by the Constitutional  Court in the first Certification judgment. Dismissing the constitutional challenge would align with  the framers’ intention to maintain courts like the Regional Authority Courts (despite any  shortcomings) until rationalization was complete. Additionally, reliance was placed on section  211(2) of the Constitution, which addresses traditional authorities observing customary law.20 

1.4 Similarities 

In both the Bangindawo v Nyanda Regional Authority (1998) case and the Mhlekwa/Feni v  Western Tembuland Regional Authority (2000) case, common legal issues emerged. These cases  challenged the constitutionality of specific provisions within the Regional Authority Courts Act.21 The issues at hand included questions related to land rights, jurisdiction, and the authority’s  decisions. In both instances, the courts grappled with interpreting and applying constitutional  principles. 

One significant point of contention was the appointment of presiding officers within the Regional  Authority Courts. Section 2(2) of the Act was declared constitutionally invalid because it allowed  appointments that did not meet the requirements specified in the Final Constitution—requirements  related to independence and the qualities expected of such officers. 

Additionally, both cases dealt with the jurisdiction of Regional Authority Courts in criminal  proceedings. The courts considered whether granting jurisdiction over “citizens of Transkei” and  concurrent jurisdiction with Magistrates’ Courts violated the right to equality before the law.  Ultimately, the courts found that these provisions were inconsistent with constitutional rights. 

Furthermore, Section 7(1) of the Regional Authority Courts Act faced scrutiny in both cases. This  section, which prohibited accused persons from being represented by legal representatives during  proceedings in Regional Authority Courts, was declared constitutionally invalid. 

Respondents argued for the continuation of traditional courts, including Regional Authority  Courts. They relied on provisions in Schedule 6 of the Final Constitution, emphasizing the need to  maintain these courts until rationalization was completed.22 

In summary, both cases share common themes related to constitutional challenges, presiding  officer appointments, jurisdiction, and the role of traditional courts. However, the courts arrived at  different decisions, and the nuances of each case highlight the complexities of balancing legal  principles and practical considerations. 

1.5 Which decision do you prefer and what are your reasons 

The Bangindawo v Nyanda Regional Authority (1998) because it centers around the Regional  Authority Court Act and its decision to individuals. It provides insights into how traditional justice  systems operate, especially within African societies. Understanding the dynamics of customary  practices is crucial for legal scholars and policymakers. The case touches on critical issues such as  judicial independence, legal representation, jurisdiction, and the interim constitution. These  aspects have courted controversy and are essential for anyone interested in the intersection of  traditional and formal legal systems.23 

As we know South Africa’s multicultural society recognizes various legal systems. While certain  institutions within Hindu and Muslim communities receive legal recognition, customary law  remains the original legal system in the country. Apart from the dominant Western legal system,  customary law is officially recognized to some extent. This legal pluralism arises from the cultural  diversity prevalent in South Africa.24 Therefore, we say the Bangindawo v Nyanda Regional  Authority (1998) holds a strong emphasis on customary law interpretation in South Africa, one that  can be seen in precedent and legal articles  

The heart of the matter lies in constitutional validity. Sections 22 and 25(3) of the Constitution  clash with the Regional Authority Courts Act, particularly Section 7(1), which denies litigants the  right to legal representation. Recent judgments may offer fresh perspectives on the tension between  constitutional rights and traditional legal structures. An example is the case of S v Luwani and  Another which uses the case of Bangindawo to offer fresh perspectives on the tension between  constitutional rights and traditional legal structures. This can be seen in S v Luwani paragraph 8  which states the right to legal representation means that the State is required not only to refrain  from interfering with the right but also to make available the means to exercise the right (through  a properly functioning legal aid system) and to ‘assist individuals in realizing their rights’. This is  the reason why presiding officers are required to ensure that accused persons are aware of their  rights in this regard and make informed decisions as to whether they want to be legally represented  or not.25 

This is seen in other cases like S v Zuma and Others (1995) where the case was the first decided  by the Constitutional Court of South Africa after its establishment in 1995. The case dealt with a  provision in the Criminal Procedure Act that required the defence in criminal cases to prove that a  confession made before a magistrate was coerced. This provision placed a reverse onus on the  defence, rather than requiring the state to prove that the confession was not coerced. The court  held that this reverse onus provision was unconstitutional because it violated the right to a fair trial  under section 25 of the Interim constitution 26 

Similarly, Bangindawo v Nyanda Regional Authority (1998): This case centered around the regional authority’s act and decision that evict individuals The court examined a provision in the  Regional Authority Courts Act that denied accused persons the right to legal representation during  proceedings in regional authority courts. The court declared this provision unconstitutional,  emphasizing the importance of fair trial rights and access to justice.27 

Therefore, both cases touch on constitutional rights, fairness, and access to justice. While Zuma deals with the burden of proof in confessions, Bangindawo focuses on legal  representation and the right to a fair trial. Together, they balance tradition and modern legal  principles. 

I prefer this case as it gives effect to Chapter 12 of the Constitution deals with traditional leadership  and customary law and Section 211(3) emphasizes that courts are obliged to apply customary law  when applicable, subject to the Constitution and any relevant legislation This prohibits the struck  down of regional authority court and allows the continuation of customary law as this is in the  final constitution 28 

In conclusion these cases provide valuable insights into South Africa’s legal system, constitutional  interpretation, and the protection of individual rights. By examining them together, we gain a  deeper understanding of the complexities faced by the judiciary in a multicultural society 

Conclusion  

In conclusion, the assignment first elaborates on the issues of case law and what the court held  Secondly, it expresses the similarities of the two cases and how they link. Finally, it critically  explains which judgment I choose and elaborates why. 

BIBLIOGRAPHY 

Constitution 

The Constitution of South Africa, 1996 

The Constitution of South Africa 1994 

Act of parliament 

Authorities Act of 1965 

Regional Authority Courts Act 13 of 1982 

Stock Theft Act 25 of 1977 

Cases  

S v Zuma and others 1995 (4) BCLR 401 (CC) 

S v Luwani and Another (CA&R 693/02) [2003] ZAECHC 11 (13 March 2003 

Bangindawo & others v Head of the Nyanda Regional Authority; Hlantlalala v Head of the Western Tembuland  Regional Authority & others [1998] 2 All SA 85 (Tk) 

Mhlekwa v Head of the Western Tembuland Regional Authority and Another; Feni v Head of the Western  Tembuland Regional Authority and Another 2000 (9) BCLR 979 (Tk) 

Textbooks 

C Rauterbach, JC Bekker, & NMI Goolam “Introduction to legal pluralism” 3 ed (2010) pg 3

1 Stock Theft Act 25 of 1977 

2 The Constitution of South Africa, 1994 

3 Regional Authority Courts Act 13 of 1982

4 The Constitution of South Africa, 1994 

5Ibid 

6Ibid 

7 Bangindawo & others v Head of the Nyanda Regional Authority; Hlantlalala v Head of the Western  Tembuland Regional Authority & others [1998] 2 All SA 85 (Tk) 

8 Authorities Act of 1965 

9Ibid 

10 Bangindawo & others v Head of the Nyanda Regional Authority; Hlantlalala v Head of the Western  Tembuland Regional Authority & others [1998] 2 All SA 85 (Tk)

11 Ibid 

12 The Constitution of South Africa, 1994 

13 Mhlekwa v Head of the Western Tembuland Regional Authority and Another; Feni v Head of the Western  Tembuland Regional Authority and Another 2000 (9) BCLR 979 (Tk)

14 Mhlekwa v Head of the Western Tembuland Regional Authority and Another; Feni v Head of the Western  Tembuland Regional Authority and Another 2000 (9) BCLR 979 (Tk) 

15 Regional Authority Courts Act 13 of 1982 

16 The Constitution of South Africa, 1996 

17 The Constitution of South Africa, 1996 

19 Mhlekwa v Head of the Western Tembuland Regional Authority and Another; Feni v Head of the Western  Tembuland Regional Authority and Another 2000 (9) BCLR 979 (Tk) 

20 Mhlekwa v Head of the Western Tembuland Regional Authority and Another; Feni v Head of the Western  Tembuland Regional Authority and Another 2000 (9) BCLR 979 (Tk) 

21 Regional Authority Courts Act 13 of 1982

22 The Constitution of South Africa, 1996 

23 Bangindawo & others v Head of the Nyanda Regional Authority; Hlantlalala v Head of the Western  Tembuland Regional Authority & others [1998] 2 All SA 85 (Tk) 

24 C Rauterbach, JC Bekker, & NMI Goolam “Introduction to legal pluralism” 3 ed (2010) pg 3

25 S v Luwani and Another (CA&R 693/02) [2003] ZAECHC 11 (13 March 2003)

26S v Zuma and others 1995 (4) BCLR 401 (CC) 

27 The Constitution of South Africa, 1996 

28 The Constitution of South Africa, 1996