An Analysis of the Draft Regulations and Code of Conduct for the Traditional Courts Act, 2022

Let’s return to our traditions and examine the recently drafted Traditional Courts Regulations and Code of Conduct, which have been released for public comment. These documents are set to govern the operations and functions of Traditional Courts. It is essential that we remember our position and existence in society as "sons and daughters of the soil." We must never forget our heritage; therefore, it is vital that we actively participate in the legislative processes regarding any laws placed for comment that involve our traditions.

This is a deep-dive analysis of the draft regulations and code of conduct currently open for public consultation. Please note that all comments must be submitted before February 13, 2026.

Initial Observations

The draft documents present both significant benefits and notable drawbacks:

• The Positives: The regulations create a formal framework that provides certainty in dispute resolution, particularly within rural communities. Furthermore, they advance the constitutional right of access to justice and the courts for those living in remote areas.

• The Negatives: There is an over-reliance on standardized forms. Tradition has always been an evolving, living practice. The strict and rigid formalization of how disputes must be resolved by Traditional Courts has the potential to create a complex administrative system. This could lead to bureaucratic bottlenecks, causing more delays rather than the efficient resolution of disputes in Emakhaya

Lets get in

1.0 Introduction and Legal Context

The Department of Justice and Constitutional Development has released for public comment a set of draft regulations and a supporting code of conduct designed to operationalize the Traditional Courts Act, 2022 (Act No. 9 of 2022). These instruments are of strategic importance, marking a pivotal step in the formal integration of South Africa's traditional justice system into the national legal framework. By standardizing court procedures, defining the roles and qualifications of court personnel, and establishing clear ethical guidelines, the documents aim to align the functioning of traditional courts with the principles of the Constitution, thereby enhancing their legitimacy, transparency, and accountability.

The draft regulations and code of conduct were published for public comment in the Government Gazette of 19 December 2025, under Notice 3706 of 2025. The Department invites interested parties to submit written comments on these documents by no later than Friday, 13 February 2026.

For further information, stakeholders may contact:

• Mr D Mangena: 012 406 4763

• Adv Takalani Nnanduleni: 012 406 4775

This policy briefing provides an analysis of the key provisions within these draft documents, beginning with the new administrative and personnel structure established by the regulations.

2.0 A New Framework for Court Personnel: Roles and Responsibilities

A core component of the new framework is the formal definition of roles, qualifications, and responsibilities for all individuals involved in the functioning of a traditional court. This formalization is a critical strategic move away from ad-hoc administration towards a professionalized system. By establishing clear lines of accountability and ensuring that specific duties are assigned to appropriately qualified individuals, this structure creates the administrative backbone necessary for a credible and constitutionally-aligned justice system.

2.1 Presiding Officers (Traditional Leaders and Designated Persons)

• A traditional leader is empowered to designate a person to preside over a court session. This designation must be formalized using Form 1 of the Annexure.

• Before commencing any session, the traditional leader or the designated presiding person is required to say a mandatory pledge, which reinforces their commitment to constitutional values:

• The reverse side of Form 1 details the process for a traditional leader to formally revoke a designation.

2.2 The Clerk of the Traditional Court

• In addition to the duties outlined in section 5(4)(b) of the Act, the clerk's responsibilities are expanded to include the management and supervision of paralegals and interns assigned to the court. A key function is to ensure that the presiding officer makes the required pledge before every session.

2.3 The Provincial Traditional Court Registrar

• This high-level position requires significant qualifications, including a National Senior Certificate, a law degree, and a minimum of five years of experience in traditional affairs or court management.

• The registrar serves as the primary oversight and administrative authority at the provincial level, with functions that are crucial for system integrity:

  • Managing and supervising all clerks of the traditional courts within the province.

  • Taking administrative and remedial steps to address courts that are not functioning in accordance with the Act.

  • Compiling and analyzing comprehensive statistics on court matters, including decisions, referrals, reviews, and breaches of the code of conduct.

  • Assessing the impact of training programs provided to court personnel.

  • Making recommendations to the provincial Member of the Executive Council (MEC) for traditional affairs and to the Minister.

  • Overseeing the overall management and safekeeping of all traditional court records in the province.

These functions represent a paradigm shift in governance, establishing for the first time a centralized provincial oversight mechanism. The registrar's role in compiling statistics and assessing training creates an essential feedback loop, enabling systemic improvements and providing the Minister with empirical data for future evidence-based policy amendments.

2.4 Support Staff: Paralegals and Interns

Paralegals

• Provide information to parties regarding the functioning of the traditional court.

• Offer assistance to parties on procedural matters, including the process for transferring a dispute to a Magistrate's Court or small claims court.

• Provide advice to the parties to a dispute in terms of the Act.

• Perform duties assigned by the clerk of the traditional court or traditional leader to give effect to the Act.

Interns

• Interview parties to determine the nature of their complaints.

• Assist parties in completing the necessary court forms.

• Compile written summaries of complaints.

• Serve documents and summonses to parties where possible.

The defined roles of these personnel are intrinsically linked to the standardized procedures they are now required to follow.

3.0 Standardized Court Procedures and Processes

The strategic use of prescribed forms and defined processes is a cornerstone of the new regulations, moving the system towards greater legal certainty. This standardization is not merely an administrative exercise; it is an instrument for embedding the constitutional principle of procedural fairness (audi alteram partem). By mandating specific forms for reviews, referrals, and record-keeping, the regulations ensure that all litigants have a clear understanding of the process and a guaranteed opportunity to be heard, thereby enhancing consistency, transparency, and access to justice.

3.1 Record Keeping and Access

• All court proceedings must be recorded on a form substantially similar to Form 3. Where possible, proceedings should also be recorded electronically.

• Records must be retained for a minimum period of seven years, and their disposal must be conducted in accordance with the National Archives and Records Service of South Africa Act, 1996.

• A formal process is established for parties or other persons to request access to court records. A traditional leader may grant the request or refuse it if, for example, the disclosure would endanger the safety of an individual or infringe on a party's privacy. Reasons must be provided for any refusal.

3.2 Pathways for Review, Referral, and Transfer

The regulations establish clear and distinct legal pathways for matters to move from traditional courts into the formal justice system, ensuring avenues for appeal and oversight.

3.2.1 Review by the High Court An aggrieved party can take a traditional court's decision on review to the High Court within 15 working days using Form 4. The clerk and the Provincial Traditional Court Registrar are responsible for transmitting the necessary documents to the High Court. The grounds for review, as explicitly listed in Section 11(1) of the Act and on Form 4, include:

• The court was not competent to deal with the matter.

• The court was not properly constituted.

• The mandatory pledge was not made.

• Provisions ensuring full and equal participation for women or protecting vulnerable persons were not complied with.

• A party was not allowed to be represented by a person of their choice.

• The proceedings were not conducted in the presence of both parties.

• An order was made contrary to the provisions of section 8 of the Act.

• Any other procedural shortcoming relating to the conduct of the court.

3.2.2 Referral to the Magistrate's Court After exhausting all customary appeal procedures, a party may initiate a referral of a matter to the Magistrate's Court within 15 working days by informing the clerk of their intention. The clerk must then complete Form 5 to formalize the referral to the relevant Magistrate's Court.

3.2.3 Transfer of Disputes A traditional court itself must transfer a dispute to a Magistrate's Court or small claims court using Form 6 under specific conditions. These include matters where the court is not competent to preside, that involve complex questions of law or fact, or are otherwise contemplated in the Act.

3.3 Management of Public Interest Cases

• The Provincial Traditional Court Registrar is granted the specific power to refer or report cases of public interest to the High Court. This applies particularly to cases concerning matters listed under item (g) of Schedule 2 of the Act.

These procedural rules are complemented by the ethical standards that must govern the conduct of those who implement them.

4.0 The Code of Conduct: Framework for Ethical Governance

The Code of Conduct serves as a critical instrument for embedding constitutional values, ensuring integrity, and building public trust within the traditional justice system. Its purpose extends beyond mere compliance; it aims to cultivate a culture of judicial accountability by providing all persons involved in the functioning of a traditional court with a clear and unambiguous framework for ethical behaviour, thereby enhancing the credibility and legitimacy of these institutions.

4.1 General Conduct for Traditional Leaders and Presiding Officers

The code establishes overarching duties for those in leadership roles, requiring them to:

• Adhere to the code of conduct contained in Schedule 1 of the Traditional Khoi-San Leadership Act, 2019.

• Execute all duties in a professional and competent manner.

• Undergo regular training to improve their knowledge and skills.

• Avoid any conflicts of interest and desist from any conduct that could bring the traditional court into disrepute.

4.2 Performance of Judicial Duties

When facilitating court sessions, presiding officers must adhere to specific judicial standards, including the obligation to:

• Uphold the independence and integrity of the traditional court.

• Comply with all laws of the Republic.

• Avoid any conduct that is discriminatory, racist, or sexist.

• Act courteously and respect the dignity of all persons.

• Recuse themselves from any matter where a conflict of interest exists or if they are related to any party.

4.3 Prohibitions on Rewards, Gifts, and Favours

The code is unequivocal in its prohibition of corruption. A traditional leader or designated presiding officer may not request, solicit, or accept any reward, gift, or favour, nor may they use their position for private gain.

4.4 Breach of the Code of Conduct

A formal procedure is established to address misconduct. Any person may report an alleged breach of the code to the relevant Provincial Traditional Court Registrar using Form 7, in accordance with Regulation 16. The code stipulates that any subsequent investigation must be conducted in accordance with the rules of natural justice, as required by section 16(5)(b) of the Act.

These ethical standards are supported by mechanisms for oversight and continuous improvement of the system.

5.0 Oversight, Reporting, and Professional Development

The new framework establishes robust mechanisms for oversight, data collection, and continuous professional development, which are strategically vital for ensuring accountability and legitimacy. By creating a clear chain of accountability, these regulations ensure that data gathered by Clerks and aggregated by the Provincial Traditional Court Registrars directly feeds into mandatory provincial and national reports. This data-driven approach allows for the monitoring of performance, the identification of systemic challenges, and the continuous enhancement of the traditional court system through evidence-based policy and targeted capacity building.

5.1 Mandatory Reporting Structures

The regulations institute two key reporting streams to ensure data flows from the local court level to provincial and national bodies. The information required differs to serve distinct oversight functions:

Report to Parliament	Report to Provincial Traditional Court Registrar
Measures to ensure fair representation of women.	Number and nature of disputes dealt with.
Measures to promote and protect vulnerable persons.	Number of matters referred to Magistrate's or small claims courts.
Statistics on women's representation in courts.	Number of matters taken to the High Court for review.
Data on disputes involving vulnerable persons.	Number and nature of disputes referred to other traditional courts.
Information on how interests of vulnerable persons are protected.	Data on disputes involving vulnerable persons.
	Types of decisions and orders made.
	Information on how interests of vulnerable persons are protected.
	Number of courts with women's representation.
	Number and nature of matters referred to a justice of the peace.
	Advice given in matters not heard by the court.
	Number of reports on allegations of code of conduct breaches.
	Challenges experienced in relation to service of summonses.

5.2 Compulsory Training and Capacity Building

• The regulations mandate training for all court personnel to ensure they have the necessary skills and knowledge.

• Training for traditional leaders and designated persons on judicial matters such as independence and impartiality will be conducted by the South African Judicial Education Institute. Administrative training will be identified by the Director-General of the Department.

• Training for paralegals and interns will cover a comprehensive list of essential topics, including:

  • Principles of customary law, including dispute resolution mechanisms.

  • Jurisdiction of traditional courts and Magistrate's Courts.

  • Steps in a litigation process in a traditional court.

  • Service of court process.

  • The process of transferring disputes.

  • Equality and gender sensitivity training.

  • Interpersonal and customer service skills.

  • Report writing skills.

6.0 Conclusion: Implications for Justice System Stakeholders

The draft regulations and code of conduct represent a significant and comprehensive step toward the formal integration, professionalization, and constitutional alignment of South Africa's traditional justice system. By establishing clear rules, roles, and responsibilities, these legal instruments aim to create a more effective, transparent, and accountable system of local justice. The primary implications for key stakeholders are substantial:

• For Traditional Leaders: An increase in administrative responsibility and a requirement to operate within a formalized, transparent, and constitutionally compliant procedural framework, supported by mandatory training and ethical guidelines.

• For Legal Practitioners and the Formal Courts: The creation of clear, structured pathways for review, referral, and transfer. This will enable greater interaction and legal oversight, fostering a jurisprudential dialogue that helps develop a more integrated national jurisprudence that recognizes and reconciles customary and common law principles.

• For Communities and Litigants: Enhanced access to a more predictable and accountable local justice system, with explicit protections for vulnerable persons, standardized procedures, and defined rights for appeal and review, thereby strengthening the rule of law at the community level.

Disclaimer: The views and analyses expressed on this blog are for informational and educational purposes only. This site serves as a self-guiding diary intended to facilitate my personal understanding of specific subjects and does not serve as an authoritative reference. Information is provided "as is" without any guarantees of completeness or accuracy. Please consult a local, professionally trained individual in the subject matter or you can conduct your own research for any formal inquiries or professional advice

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