Legal capacity of parties with intellectual, psycho-social and communication disabilities in traditional courts in Kwazulu-Natal

2.1 Traditional courts and dispute resolution

In traditional communities dispute resolution usually starts at family level, and if this fails to be resolved satisfactorily, the headman or woman will attempt to resolve the dispute (at ward level - isigodi). Should the parties be dissatisfied with the outcome, the matter is referred to the traditional court (enkantolo Enkosi) where the chief will ‘preside’ and come to a decision, in consultation with the headmen and women and councillors of the traditional council.28 Any appeals or reviews of the traditional court’s order is referred to the magistrate’s courts according to its geographical jurisdiction, with appeals being heard de novo.29 The rehearing is done simply because ‘no adequate record of proceedings is kept due to lack of resources and the fact that members of chiefs’ courts are not legally trained’.30

When it comes to proceedings in the traditional courts, the customary law applicable in the specific area31 applies, as well as the rules of courts of chiefs and headmen in civil matters32 relating to evidence and procedure. Under the Constitution, customary law is placed on parity with the common law, but it has been argued that the reality is an ‘indirect’ entrenchment of the subordinate status of customary law compared to common law. 33

The jurisdiction of the traditional courts generally excludes ‘blood crimes’ such as sexual assault and rape, as well as assault and murder, and land disputes.34 By and large, neighbourly disputes may be heard around nuisances caused by livestock, petty disputes and defamatory conduct by community members and, in some instances, petty crimes. Civil cases require customary law to be applied (common law is excluded) while criminal cases require customary law to be applied, but also includes some common law and statutory offences.35 It should be noted that land disputes are in fact heard by the traditional courts and have been cited as the main types of dispute occurring in KwaZulu-Natal 36 despite their ostensibly ‘administrative’ nature. The jurisdiction of the traditional courts is highly contentious, and has yet to be aligned with constitutional norms: It is still regulated by the offensive Black Administration Act 38 of 1927 until such time as the law reform process under the Traditional Courts Bill has been completed.

The traditional courts utilise restorative justice principles 37 in resolving disputes and are (in theory at least) open to all black (African) community members born of or affiliated with the ward38 of a particular headman or woman and traditional council (of the ‘presiding’ chief). Restorative justice in the African traditional justice processes shares three key values with modern restorative justice processes, namely, an aim for reconciliation and restoration of peace and harmony between the parties and in the community (social equilibrium); the promotion of a normative system that regards recognition of both rights and duties as vital aspects; and dignity and respect.39 The restoration of relationships, whether within the community or a particular group in an effort to keep the peace and promote harmony, takes precedence over the personal interests of the parties to the dispute.40

Nhlapo explains that the modern idea of ‘accountability’ being linked to justice drives the state (through elected representatives) to maintain order among people who are most likely strangers, whereas smaller societies prioritise the restoration of relationships (people who know each other and are likely kin) over the abstract notion of justice.41 Broadly, African indigenous justice is considered a victim-centred process, where his or her needs are recognised to include ‘information, validation, social support and vindication’.42 For persons with disabilities these needs are self-evidently of great import in showing respect and upholding their dignity and equality.

2.2 Legal capacity in customary law

The idea of what ‘constitutes the self’ correlates with how disability is perceived. Some anthropological studies have shown that in many African contexts, disruption to a person’s physical or mental capacity is attributed to ‘wronged relationships’ with other people, nature, ancestors or God,43 and that ‘competence’ is part of social relations within the community, and not attributed to individuals (as in Western law or understanding).44 This means that Western ideas on competence and autonomy are conceived differently by indigenous communities.45

How to reconcile these differences in order to promote access to justice is an important consideration, particularly since importing Western models of thinking into African contexts may not be the best fit.46 McKenzie, for example, has argued that self-representation is not as relevant in African philosophies of care and community since Western ideals of autonomy and independence of persons with disabilities from their family are not supported. In fact, self-representation (speaking for your own needs) may go against ubuntu.47 Yet, ubuntu also includes aspects such as interdependence and responsibility, not only the notion of solidarity.48 A relationship of dependency (for self-care or perhaps support in decision making), in the words of Kittay, need not be seen as a ‘limitation’ but as a ‘resource’.49 However, such a positive view also necessitates the concession that dependence can be socially constructed in such a way that it is ‘unnecessary and stultifying’ particularly through oppressive institutions and practices. Interdependence between a person with a disability and a family member or caregiver can be positive, but where there are negative ramifications, the individual with the disability should be entitled to redress in a traditional court.

Further to notions of ‘competence’ is the historical perspective which remains relevant in South Africa as the insidious effects of colonialism and apartheid50 continue to plague traditional communities. For example, Swartz points out the essentialist argument that black persons did not need to have ‘equal access to mental health care’ as their cultural beliefs made it irrelevant.51 Those in power decided for persons with disabilities what they did or did not ‘believe and want’. 52 Also, at a particular time in the apartheid history black persons could not be considered ‘mentally retarded’, consequently with no protections granted to black persons with intellectual disabilities.53

In both the formal and informal legal systems, the ‘perceived attributes or consequences that people associate with the disability (which vary across disability type) ... influence acceptance’.54 If perceived attributes of a psycho-social disability includes ‘peril’55 or dangerousness, for example, then the person will be avoided and their legal capacity questioned, depriving them of personhood. Where formal legal systems and, to a degree, informal legal systems give credence to ‘unsound mind’ stereotypes, persons with psycho-social disabilities continue to be discriminated against.56 Similarly, if persons with intellectual disabilities are not believed to be credible, and barriers to effective communication with persons with communication disabilities are encountered by traditional court personnel, then equal recognition of their legal capacity hangs in the balance.

The legal test for mental and legal capacity in formal courts is not applied in traditional courts, nor are any other practices or rules developed to deal with the competency to provide evidence by complainants, defendants, perpetrators or other witnesses with disabilities in the traditional courts. That being said, liability for delicts and criminal conduct in customary law, generally speaking, do not only lie with the person who is considered to be ‘insane’, but is also shared by the head of the family as accessory liability. 57 What this means is that the head of the family can sue or be sued (defend the action) on behalf of the family (of which the individual is a part) as a proxy so to speak. With regard to contractual liability, ‘mental illness’ may be considered a ground for legal incapacity in customary law.58

The denial of legal capacity can result in restrictions on decision making in the community. This is effectively based on the paternalistic assumption that some persons with disabilities do not have the capacity to exercise their rights responsibly and to make their own choices.59 Where persons with disabilities may wish to obtain a resolution to disputes, even on the European continent, ‘ many did not know about their rights, did not know how or with whom to file complaints or feared that complaints would worsen their situation’.60

3.1 Barriers to access to justice

Barriers to accessing justice include pervasive beliefs, stereotypes and stigma faced and resultant discrimination experienced by persons with disabilities, particularly where communication is difficult and/or cognitive capacity is questioned by families and caregivers, community members and traditional council members.72 These barriers translate into a situation of low reporting to the traditional courts of disputes by persons with these disabilities73 and, where reporting does occur, the dispute resolution process is marred by a lack of appreciation of the need to recognise the right to self-representation, self-determination, as well as the need for reasonable accommodation measures to ensure equal participation in the dispute resolution process. 74

Barriers such as inaccessible transport and public buildings and a lack of assistive devices, as well as low employment and unequal access to education and inadequate sanitation restrict the opportunities for persons with disabilities to exercise legal capacity in legal proceedings,75 including in traditional courts.

Persons with intellectual disabilities suffer stigma and self-stigma76 that in one South African study was found to correlate with ethnicity. 77 Black participants with intellectual disabilities reported higher incidences of physical attacks and ‘being stared at’ by community members, yet they also were more likely to report their feelings of being ‘the same as other people’. Meer and Combrinck found that the stigmatisation of persons with intellectual disabilities includes perceptions that they are ‘less valuable’ and lack credibility.78 This study examined what barriers women with psycho-social and intellectual disabilities who experienced gender-based violence faced when interacting with the criminal justice system. One important factor is the association of intellectual disability with the supernatural - witchcraft, curses, ancestral or demon possession.79 A KwaZulu-Natal participant explained that ‘ in Zulu mythology intellectual disabilities are seen as the result of not having followed customs and being cursed by ancestors, and as portending bad luck’.80 The authors recommended inter alia that service providers in criminal justice ‘dispel stigma and react to the vulnerability of women with intellectual disabilities’ to gender based violence.81 In Traditional courts there is at times a reticence to hear matters where a person with an intellectual disability is a party to a dispute.

Persons with communication disabilities have experienced many barriers in the formal court system, which have been well documented by researchers. 82 For example, Deaf persons or persons who are hard of hearing (accused or complainants) in the criminal justice system are often unable to provide statements or provide accurate statements because of the absence of a skilled interpreter. Simply having a skilled court interpreter available to translate for a sign language user may not be sufficient. Without the existence of adequate norms and standards of practice to guide court interpreters in formal courts, Lebese argues, access to justice and linguistic rights are violated.83 CREATE’s research findings indicate that bar one instance, the traditional council members did not know how to obtain the services of a sign language interpreter and, furthermore, funding for such services, were they to be obtained, generally was not available.84

In another study, White et al85 cite recent research revealing that persons with little to no functional speech (LNFS) are particularly vulnerable to being victims of crime, and their rights are infringed during the legal justice system due to restricted communication skills that are aggravated by little understanding of what to do to help a person with LNFS86. The controversial legal test for competency to testify (discussed below)87 can also violate their rights. White et al recommend that for persons with LNFS, an ‘Alternative and Augmentative Communication Resource Tool Kit’ should be developed to assist professionals in the justice system to enable full participation by persons with LNFS in providing testimony.88

Research around the experiences of persons with psycho-social disabilities in formal courts in South Africa is limited. It abounds on the legal aspects of fitness to stand trial,89 insanity defences90 and involuntary confinement for criminal accused,91 but little has been written on the barriers they may experience in accessing the criminal and civil legal system. This cohort has limited access to legal services and they may have a high dependence on others (carers or family members) to assist them to report a crime or bring a civil claim.92

It can therefore be said that persons with disabilities, particularly those with intellectual, psycho-social and communication disabilities, often face insurmountable obstacles to equal participation in the criminal93 and civil justice systems.

3.2 Legal capacity in formal courts

Legal capacity comprises a capacity to have rights on an equal basis with others (known as passive capacity), and a capacity to act and have one’s actions recognised by the law (known as active capacity). 94 In a common law legal system such as ours, these two aspects are conflated into the notion of ‘competency’ referring to the capacity to stand before a court of law and to make one’s own decisions.95 Mental capacity has in practice been considered a precondition to the recognition of ‘legal’ capacity.

Broadly speaking, legal capacity refers to the ability to represent oneself in a legal dispute; to obtain legal representation; to enter into contracts; to attract liability (delictually and criminally); to be considered fit to stand trial in a criminal matter; and to be competent to provide testimony in civil and criminal courts. The basic understanding is that ‘‘ the accused must be present both in mind and body’ for him or her to participate meaningfully in criminal proceedings’.96 Accordingly,

if it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness or intellectual disability not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of section 79 of the Criminal Procedure Act.97

This refers to the trialability of the case.

Criminal capacity (or responsibility or liability) instead deals with the person’s ‘mental’ capacity at the time of the commission of the alleged offence.98 This provision entails the following:99

A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or intellectual disability which makes him or her incapable (a) of appreciating the wrongfulness of his or her act or omission; or (b) of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, shall not be criminally responsible for such act or omission.

Where an allegation of either being unfit to stand trial or not being criminally responsible is made due to ‘mental illness or intellectual disability’, an inquiry procedure is followed.100 This procedure requires a panel to be appointed, which includes medical professionals such as psychiatrists and clinical psychologists, in varying circumstances.101

As a starting point, ‘[e]very person is presumed not to suffer from a mental illness or intellectual disability so as not to be criminally responsible in terms of section 78(1), until the contrary is proved on a balance of probabilities’.102 It is crucial that an accused person should be provided with legal representation (with legal aid) where the court ‘is of the opinion that substantial injustice would otherwise result’. 103

In civil proceedings, legal capacity has been linked to the question as to whether or not the person has a ‘consenting mind’. Holness has explained that this means that ‘legal capacity cannot be acquired by a person if, due to that person’s mental condition, he or she does not understand or appreciate the nature and consequences of the juristic act’, which in turn means that

legal transactions entered into by persons with impaired capacity are void ab initio (and therefore cannot be ratified whether the other party was aware of the mental incapacity or not). 104

The default position is that everyone has full legal capacity, but ‘insane or mentally disordered persons have limited legal capacity’.105 Where a declaration of unsoundness of mind is made, a rebuttable presumption of incapacity is created.106

The common law curatorship as well as the legislative process for administratorship under the Mental Health Care Act 17 of 2002 both serve to substitute decision making and self-representation of the person who is declared as ‘lacking’ legal capacity with that of a professional (whether a curator bonis, ad litem, personae or an administrator, depending on the context). Holness has considered the legal reform initiatives on supported decision making, but noted that the status quo of curatorship and administratorship is likely to continue even if and when new legislation for ‘supported’ decision making is enacted.107

In formal civil and criminal courts, a witness is competent, qualified and able 108 to provide evidence if he or she can do so lawfully. Some witnesses are excluded as such.109 Persons with psycho-social disabilities (referred to in legislation as ‘mental illness’ or ‘lunacy or insanity’) or intellectual disabilities (referred to in some legislation as ‘mental illness’ or ‘idiocy’) are generally considered incompetent in our law.110 This legal test in our law is described as follows:111

It must appear to the trial court or be proved that the witness suffers from -

(a) a mental illness; or

(b) that he or she labours under imbecility of mind due to intoxication or drugs or the like; and

(c) it must also be established that as a direct result of such mental illness or imbecility, the witness is deprived of the proper use of his or her reason.

Evidence of the ‘incompetence’ of the witness is presented to the court, and an investigation follows to determine whether the witness is ‘deprived of the proper use of his or her reason’ as a result of the incompetence.112 Such investigation can also be done on the basis of the court’s own observations of the witness.113 De Vos further explains that the exclusion here is

directed at a certain degree of mental illness or imbecility of mind, which deprives the witness of the ability to communicate properly in regard to the subject matter in question. Therefore, a person who is affected to some extent but still endowed with the proper use of his reason, which enables him to convey his observations in an understandable way to the court, will be a competent witness.114

The ability to effectively communicate with the court, therefore, is a key requirement for the competence of witnesses. Interpreters are utilised for those with communication impairments,115 but in some instances witnesses are found to be incompetent to testify due to speech impairments (for example where the person was paralysed from the neck down due to a stroke and accordingly unable to speak).116 ‘Gesture language’ may be used to present oral evidence by a so-called ‘deaf and speechless’ person.117 Msipa has argued that in criminal proceedings ‘the question should not be whether a person is competent to testify; rather it should be what types of accommodations are required to enable the person to give effective testimony’.118 The implication of this proposal is that courts would have to provide the kinds of accommodation needed: such as qualified interpreters (for instance, speech therapists), develop Augmentative and Alternative Communication guides, and train lawyers and judicial officers on how to effectively communicate with and elicit testimony from a person with an intellectual, communication or psycho-social disability rather than dispose of testimony on the basis of ‘incompetence’.

Often medical professionals, mostly psychiatrists, are called upon to provide expert testimony as to the ‘mental capacity’ of a particular person, whether in civil or criminal proceedings. There are ethical considerations when incapacity or incompetence of a person with psycho-social or intellectual disability in legal proceedings is averred, including the consideration that the expert could be a ‘hired gun’ in terms of promoting the client’s case.119 This is an adversarial approach to dispute resolution.

3.3 Comparison of legal capacity in formal and traditional courts

The common law concept of legal capacity is not extended to customary law, nor its practice in communities. However, CREATE’s research findings indicate that the de facto deprivation of legal capacity through pervasive stigma, segregation and, therefore, exclusion from community life and dispute resolution processes, does occur.120

Whilst the legislature and formal courts have developed rules to divine the ‘mental’ capacity of a person, traditional courts have no such rules or procedures. Expert testimony with regard to legal capacity in traditional courts is unheard of.121 It is more likely that the participants in the traditional court will decide a person’s ‘capacity’ or lack thereof to act in proceedings affecting them, whether the family members at the family level dispute resolution, the induna at isigodi level, or the inkosi at the traditional court level. Indeed, the undeniable role that family and caregivers play in providing informal support can impact on what perception of capacity is created by such a supporter when interacting with traditional leaders ‘on behalf of’ the person with the disability.

While we are not calling for the participation of expert witnesses in traditional courts, we do question the ability of any person (including informal support provided by family members or caregivers) to determine the capacity of a person with a disability in traditional court proceedings. Further, we question the provision of support that may be needed (as well as promoting safeguards from abuse) without specific training in the recognition of legal capacity and the provision of appropriate support measures. People in rural communities often rely on traditional healers for mental health. One challenge of this practice is that traditional healers rely on the opinions or reports of family members as to the healing process of the person with the psycho-social illness.122 This raises red flags with regard to a potentially undue influence when a person with a psycho-social disability is ‘supported’ by a family member in traditional court proceedings.

The relationship between traditional healers’ understanding of psycho-social disability (its causes, treatment and the prevention thereof)123 and their perception of a person’s mental capacity and traditional court members’ perceptions of legal capacity has not yet been explored in research. However, mental health literacy among traditional healers has been called for.124 We would also argue for social context training of traditional healers on disability in line with the emphasis of the CRPD and the African Disability Protocol on equal recognition before the law and legal capacity on an equal basis with others.

Ultimately, without adequate data on experiences by persons with disabilities who do participate in traditional courts, as opposed to current baseline research indicating low reporting and participation,125 it will be difficult to develop appropriate guidelines for traditional councils on how to promote equality, legal capacity and access to justice. Further research and monitoring are required, as are meaningful consultation and participation by persons with disabilities in developing such guidelines.

3.4 Traditional courts’ law reform

The Traditional Courts Bill (B-2016) was released for comment on 9 December 2016 and is now known as the Traditional Courts Bill (B1-2017).126 This most recent incarnation is woefully inadequate when it comes to the prohibition of discrimination and provision of reasonable accommodation measures for persons with disabilities. Below is a brief summary of some pertinent aspects of the Bill and a critique thereof.

4.1 Legal capacity

The CRPD does not refer to mental capacity, but it is explained by the CRPD Committee in their General Comment on legal capacity as follows:148

Mental capacity refers to the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors.

The Committee further explains that ‘perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity’.149 Legal capacity is explained as referring to legal standing and legal agency of a person. 150

State parties to the CRPD are expected to recognise that persons with disabilities have legal capacity on an equal basis with others in all aspects of life,151 but that support may be needed in making certain decisions, and provision of such support should adhere to safeguards152 because the support is effectively a ‘restriction’ on legal capacity.153 Three aspects of the CRPD’s understanding of legal capacity bears mention, namely, (a) possession of legal capacity; (b) the exercise of legal capacity; and (c) equal protection and benefit of the law.154

As possessor of legal capacity, the person is a bearer of rights and responsibilities. Articles 12(1) and (2) acknowledge this aspect respectively: State parties are to recognise that ‘persons with disabilities have the right to recognition everywhere as persons before the law’, and ‘that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’.

The exercise of legal capacity may require support from others: Article 12(3) imposes on state parties the duty to ‘take appropriate measures to provide access by persons with disabilities with the support they may require in exercising their legal capacity’. This provision is entirely in line with African notions of communitarianism as it requires that a system of societal support is set up, recognising the interdependence of people requiring that we pursue our lives in ‘conjunction with’ others.155 To restate this duty: Where a person with a disability needs support to make a decision, this support should be provided, including reasonable accommodation to assist the person in understanding the decision. 156 Such accommodation may allow different ways of providing information about the decision, such as sign language, alternative communication, ‘pacing, repetition and a trusted source for information’.157 Support may be required through the help of an advocate (peer or citizen advocacy, self-advocacy or even state provided advocates).158

Such support must contain safeguards that protect against harm and abuse: 159

State parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. These safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

If support is provided to a person in exercising their legal capacity, whether informally or formally by a relative, friend, paralegal, attorney or any other person, the support is circumscribed by these requirements. This would include instances where a person with a disability exercises their legal capacity with support in a traditional court.

In a traditional justice system based on community participation and where support is usually provided by a relative, often with a vested interest in decisions relating to the daily life of the person with a disability (for example, household reliance on income from the disability grant), undue influence can be a real concern. Yet, a trusted support person, whether a family or community member, who ‘values the autonomy and choice of the individual’ can provide support with decision making, as long as it is not ‘ imposed and the person must always be free to reject offers of support or to end the support relationship at any time.’ 160

How to imbue the safeguards of article 12 in the decision making of persons with intellectual or psycho-social disabilities will need to be taught to family members and caregivers of persons with disabilities, as well as stakeholders in legal processes (including traditional courts). As Werner explains, ultimately, ‘true choice’ means that persons who ‘support’ the persons with the disability should ‘focus less on the outcome and more on the process of decision-making’ and ‘accept that people with [intellectual disabilities] should be allowed to make mistakes as learning opportunities’.161

Provision of support may in some instances require reasonable accommodation in the exercise of legal capacity. However, the CRPD Committee made it clear that the right to receive support if needed is not contingent on undue burden (or unjustifiable hardship, the defence that applies to the provision of reasonable accommodation) and access to support is an immediate obligation resting on state parties.162 Here, relevant training of the clerks of the court, persons with disabilities and their families, as well as the izinduna and amakhosi is vital.

4.2 Access to justice

With regard to access to justice, article 13 of the CRPD requires that state parties

shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages

and

shall promote appropriate training for those working in the field of administration of justice, including police and prison staff. 163

The Committee unequivocally states that ‘[i]n order to seek enforcement of their rights and obligations on an equal basis with others, persons with disabilities must be recognised as persons before the law with equal standing in courts and tribunals’.164 As such, we submit, traditional courts must explicitly recognise rural persons with disabilities subscribing to customary law as having legal standing, equal to non-disabled community members.

With the recognition of legal standing comes the requirement for reasonable accommodation where needed. Article 13 should therefore be read with articles 12(1) and (2) in particular. The recognition of the legal capacity to provide testimony in ‘judicial, administrative and other legal proceedings’ is guaranteed for persons with disabilities under the CRPD which, if necessary, may require the provision of support to exercise such capacity, whether the person is a complainant, witness or alleged perpetrator.165 The kinds of accommodation may include the recognition of diverse communication methods; procedural accommodation; the provision of sign language interpretation; and other assistive methods.166 While some of these measures (accommodations) are already employed in some formal courts in South Africa, there is no evidence of this being provided in traditional courts. Kayess and Fogarty explain that since article 12 only deals with one aspect of equality before the law, namely, legal capacity, article 13 was specifically drafted to ameliorate disabling ‘legal procedures, rules, and practices’ requiring states ‘to make adjustments to legal procedure and rules of evidence to ensure effective access to justice for persons with disability on an equal basis with others’.167 Hence, these two articles should be read together when legal capacity is exercised in legal proceedings.

Access to legal representation in proceedings affecting them has historically been denied to persons with disabilities.168 The CRPD, however, requires access to legal representation on an equal basis with non-disabled persons, especially where interference with legal capacity is concerned.169 Further, persons with disabilities may not be denied the right to defend their rights in court.170 The CRPD and the General Comment on article 12 (and with reference to article 13), therefore, cannot be any clearer on this. The Traditional Courts Bill171 prohibits legal representation172 in traditional courts. Considering the persuasiveness of literature on the need for ‘advocates’, ombudsmen or support persons to assist persons with disabilities with decision making in matters affecting them,173 we would argue that paralegals may be well suited to fulfil this role in traditional court proceedings.

In order to promote recognition of legal capacity on an equal basis with others, the CRPD requires state parties to provide ‘appropriate training’ for personnel or stakeholders involved in the administration of justice.174 Within the traditional courts administration of justice would necessarily include by implication izinduna, amakhosi, amphoyisa enkosi (traditional police acting as sheriff, messenger and enforcer of court orders) and i mibuzo yoMabhalane weNkantolo yeSizwe (the clerk of the court). The Committee has stressed the need for ‘first responders’ to legal disputes or complaints to be trained and for awareness raising ‘ to recognise persons with disabilities as full persons before the law and to give the same weight to complaints and statements from persons with disabilities as they would to non-disabled persons’.175 In traditional communities the induna is likely to be the first person to whom an incident is reported after the family conciliation has failed.

The Committee explicitly refers to the need for the judiciary to ‘be trained and made aware of their obligation to respect the legal capacity of persons with disabilities, including legal agency and standing’.176 While izinduna and amakhosi in their courts respectively may not be ‘judicial officers’ as such, the role they fulfil in the traditional courts mean that they are the very heart of dispute resolution. Dedicated training and awareness raising for amakhosi and izinduna is sorely needed on this score, particularly since the training of the justice personnel in traditional and formal courts vary considerably.177 Recent law reform efforts envisage the establishment of a Legal Services Ombud with wide powers to ensure the integrity of the legal profession and to deal with complaints by the public against legal practitioners178 (which would not include traditional court personnel). The training of traditional leaders has included a capacity-building programme on leadership and good governance between 2011 and 2015,179 aiming to include the protection of human rights in traditional communities. The programme content included a curriculum inter alia on criminal and civil law and interpretation of policies, human rights, conflict and dispute resolution, and presiding over traditional courts.180 However, the rights of persons with disabilities are absent from the curricula. One recommendation from an evaluation of this programme is that traditional councillors should also be trained and thus enable amakhosi to introduce new practices learnt from the training intervention more easily within the council.181 In its 2009 policy, which paved the way for the law reform process on the Traditional Courts Bill, the Department of Justice advanced that it would provide the capacity and resources necessary for the judicial functions of traditional leaders, towards training and administrative support.182 This gap remains and needs to be addressed.

As the traditional council as well as community members participate in the dispute resolution process, these community members also require conscientising on legal capacity and, therefore, legal agency of persons with disabilities. Indeed, the Division of Social Policy and Development of the UN has recommended

Community level awareness raising on disability and for empowerment of communities to support their members, including persons with disabilities, in obtaining access to justice; this includes for example ensuring that persons with disabilities enjoy equal access to legal aid services and legal literacy programmes, implementation of campaigns against stigma and stereotyping, and provision of human rights training for key service providers. 183

Such awareness-raising campaigns should, therefore, be provided to all members of the traditional council as well as community members, and should include family members and caregivers of persons with disabilities. The latter is vital because of the possibility of family members acting as ‘gatekeepers’, stopping persons with disabilities from accessing assistance to resolve a dispute where they may be implicated themselves or have a vested interest. The duty of awareness raising rests on the Department of Justice from the perspective of the requisite knowledge on these key legal and rights aspects. On the other hand, COGTA may also have expertise of the workings of traditional leadership and so contribute to awareness raising, particularly as the provincial and local houses of traditional leadership are administered by it. Importantly, the community members with disabilities should be consulted in the design of such awareness training.