LSSA appears before parliamentary committee on Traditional Courts Bill

November 1st, 2012

By Barbara Whittle

The Law Society of South Africa (LSSA) was one of a number of stakeholders invited by the Select Committee on Security and Constitutional Development to make oral submissions on the Traditional Courts Bill (B1 of 2012) in September. The LSSA had submitted written comments on the Bill earlier (see 2012 (Oct) DR 18) and it was represented in parliament by Welkom attorney Martha Mbhele, chairperson of the LSSA Gender Committee; and Johannesburg attorneys Zenobia Wadee of the Family Law Committee and Busani Mabunda, chairperson of the Constitutional Affairs and Human Rights Committee and President of the Black Lawyers Association.

Ms Mbhele made the opening remarks, in which she questioned the kind of training that would be required for traditional leaders to change their attitudes and fully understand the values and principles on which South Africa is founded. Some members of parliament had argued that traditional leaders with proper training could dispense justice to their communities. Ms Mbhele explained that the Bill referred to training, but was thin on details. She asked what the training would entail. Her inquiry was strongly supported by committee member Dennis Bloem, who reminded committee members that he had been asking the same question throughout the hearings and was glad that the LSSA had also raised it.

Ms Wadee went through the legal and other aspects of the LSSA’s submission, which included its concern that, among other problems, the Bill did not allow for legal representation, even in respect of criminal cases. This infringed on the right to such representation and the constitutional right to a fair trial, particularly for uneducated, marginalised and indigent persons.

Mr Mabunda focused on the need for jurisprudence on customary law. He mentioned that customary law was recognised by the Constitution and has the same status as Roman-Dutch law and common law. He argued against the withdrawal of the Bill as this would create a vacuum leading to the continued operation of the Black Administration Act 38 of 1927.

Virtually all stakeholders and individuals appearing before the committee demanded that the Bill be withdrawn or scrapped in its entirety.

Compiled by Barbara Whittle, communication manager, Law Society of South Africa,

This article was first published in De Rebus in 2012 (Nov) DR 20.