Calls for scrapping of Traditional Courts Bill continue

November 1st, 2012
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By Nomfundo Manyathi

During public hearings on the Traditional Courts Bill (B1 of 2012) (the Bill) in September, legal bodies, non-governmental organisations, gender groups and unions voiced their opinions on the Bill before the Justice Department’s Select Committee on Security and Constitutional Development. Almost all those who appeared before the committee were of the view that the Bill should be withdrawn or rejected in its entirety.

The Bill was first tabled in the National Assembly in 2008 but was withdrawn on grounds that proper consultation was necessary and because various concerns were raised about its provisions. It was reintroduced in the National Council of Provinces (NCOP) in December 2011.

Details of the hearings are reflected in transcripts published by the Parliamentary Monitoring Group. According to these, the chief director of policy at the Justice Department, Jacob Skosana, gave a presentation on the Bill. Mr Skosana noted that one ‘consistent criticism’ relating to the Bill was that there had been a lack of adequate consultation. While he agreed that ‘perhaps rural women had not been adequately consulted’, he did not believe this was sufficient reason to draft the Bill afresh as he believed the existing problems could be addressed.

Mr Skosana said the department had isolated specific areas of the Bill that may need to be strengthened or re-formulated. He noted that the Bill had been criticised for –

  • failing to adequately protect and promote the rights of women and children;
  • exclusion of legal representation;
  • over-concentration of powers in respect of traditional leaders;
  • no right to opt out, which was seen as conflicting with the right of access to courts in the Bill of Rights; and
  • its current formulation of traditional courts being based on the boundaries of the old tribal authorities under the apartheid structures.

A further problem was that the traditional justice system was seen as perpetuating harmful customs and practices that offended against the Bill of Rights and some sanctions were seen as constitutionally objectionable.

Mr Skosana said that the Justice Department had suggested that traditional courts be integrated into the traditional councils for purposes of dispute resolution, adding that measures could be taken to determine the quota of women who must participate in the traditional councils and their role during sittings. He explained that the inclusion of the courts under traditional councils would result in better gender representivity since traditional councils comprised one-third women.

Mr Skosana said that the Justice Department had recommended renaming the Bill the ‘Resolution of Certain Disputes by Traditional Councils Bill’.

Submissions on the Bill

The transcripts also reflect oral submissions on the Bill by various individuals and bodies. Some of these are elaborated on below.

Minister of Women, Children and People with Disabilities

The Minister of Women, Children and People with Disabilities, Lulu Xingwana, said that the constitutionality of the Bill must be measured against the equality clause, adding that the Bill did not promote substantive equality as enshrined in the Constitution.

Minister Xingwana recommended that the Bill be completely overhauled and rewritten, in consultation with rural women and other marginalised groups, and that sufficient time be afforded for consultation.

Minister Xingwana highlighted the designation of the presiding officer as problematic, adding that her department recommended that the presiding officer should not necessarily be a senior traditional leader, but could also be any woman or man of standing in the community who is appointed in full consultation with the community. This would ensure gender equality and meaningful representation, she said.

The Minister noted that the Bill recognised disputes arising out of customary law, but said that it should provide for an opt-out option and afford people the right to choose the system they wished to apply.

Minister Xingwana said that the concerns that had led to the Bill being withdrawn previously had still not been addressed, resulting in the same Bill, with the same flaws, being presented.

In summarising the department’s views and recommendations relating to the Bill, Minister Xingwana said –

  • it was unconstitutional to have predominately male-dominated courts;
  • legal representation must be allowed, as must the right to appeal;
  • people should have the choice whether or not to be bound;
  • chiefs should not be involved in political parties if they are presiding officers;
  • a code of conduct similar to that guiding judges must be drawn up for presiding officers;
  • traditional councils and traditional courts must comprise 50% women;
  • all cases affecting children, guardianship, custody and maintenance should not fall under traditional courts but must be decided in line with legislation that governs children and maintenance matters. Marriage and divorce must be dealt with in the civil courts in line with marriage laws.

Minister Xingwana pleaded with the NCOP not to pass the Bill in its current form as the effect would be to replace the apartheid Black Administration Act 38 of 1927 with another piece of legislation that was ‘oppressive and discriminatory to the women of South Africa’.

LSSA

The delegation from the Law Society of South Africa (LSSA) consisted of chairperson of its Gender Committee, Martha Mbhele; member of its Family Law Committee, Zenobia Wadee; and chairperson of the Constitutional Affairs and Human Rights Committee and Black Lawyers Association President, Busani Mabunda.

Ms Mbhele said that the LSSA appreciated the efforts made to repeal the remaining sections of the Black Administration Act but felt that the Bill was not the right way to do so. This was because the Bill would confer too much power on traditional leaders and make it difficult to regulate their activities.

Ms Mbhele questioned what level of training would be necessary to render traditional leaders experts in customary law and enable them to understand the rules of natural justice. She noted that the Bill conferred ‘enormous power’ on traditional leaders.

Ms Wadee said that the Bill fostered power without accountability and blurred the separation of powers, since unilateral powers were given to chiefs, who would act as administrators, legislators and judicial officers, adding that this made it possible for ‘rural dictators to reign supreme’.

Ms Wadee added that the Bill provided for the transfer of cases to small claims courts or magistrates’ courts but this was only at the discretion of the presiding officer. It would be unjust if people were compelled to adhere to a traditional system they regarded as illegitimate, she said.

Mr Mabunda recommended that the Bill be amended and aligned with the Constitution rather than discarded, adding that the LSSA was of the view that South Africa had to take positive steps to ‘repeal the vestiges of the Black Administration Act’.

However, he agreed that there were numerous problems with the Bill and that mechanisms must be found to ensure that it aligned with the Constitution and the Bill’s stated objectives.

Mr Mabunda suggested that judicial powers be conferred on traditional councils, which would address concerns about representivity. He spoke about the need to have jurisprudence on customary law and mentioned that customary law is recognised by the Constitution and has the same status as Roman-Dutch law and common law. He argued that the withdrawal of the Bill would create a vacuum leading to the continuation of the Black Administration Act.

SAHRC

Senior researcher at the South African Human Rights Commission (SAHRC), Anthea van der Berg, said that customary law was an integral part of South African law but it was required to survive the test of constitutionality and must uphold values of equality, non-racism and non-sexism.

Ms van der Berg said that the Bill lacked clarity on jurisdiction and sanctions, which were directly linked to the power of the institution of traditional leaders. She added that the Bill’s jurisdiction was reliant on geographic boundaries rather than membership of a customary group and there was concern that people would be subject to a court system they may not recognise and without having an opt-out option.

CASAC

The Council for the Advancement of the South African Constitution (CASAC) rejected the Bill in its entirety. Its representative, Nomboniso Gasa, said that although the Bill was presented as an attempt to promote, affirm and recognise customary law within constitutional parameters, it was not about customary law, but was about recognition of traditional leadership and its role in a democracy.

Ms Gasa stressed that CASAC was not rejecting the systems of traditional leadership and customary law, adding that traditional leaders had a role to play in customary law, traditional justice and African culture broadly, but they were not the custodians of African customary law. She urged the Justice Department to ‘go back to the drawing board’.

Ms Gasa further stressed that the notion of segregating communities in terms of ethnic and tribal identities made a mockery of the founding principles of the Constitution, especially if people had no choice.

Nomfundo Manyathi, nomfundo@derebus.org.za

This article was first published in De Rebus in 2012 (Nov) DR 13.

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