By Barbara Whittle

In its comments to parliament on the Traditional Courts Bill (B1 of 2012) last month, the Law Society of South Africa (LSSA) focused on highlighting areas where the constitutionality of the Bill might be challenged.

The aim of the Bill is: ‘To affirm the recognition of the traditional justice system and its values, based on restorative justice and reconciliation; to provide for the structure and functioning of traditional courts in line with constitutional imperatives and values [and] to enhance customary law.’

Women comprise approximately 60% of traditional communities. The LSSA was concerned that the Bill as it stood would not protect the dignity of women. The LSSA noted that the protection and recognition of women’s rights would be undermined by the Bill, as customary law is firmly rooted in a patriarchal system. Traditional courts are comprised almost exclusively of older men and, in many places, women are not allowed to attend traditional courts as they may not enter sacred places. In other cases women are either not permitted to represent themselves or they must be represented by a male family member – and sometimes that male family member is the same person infringing on their rights or threatening their security.

The LSSA said: ‘In the past, women were considered perpetual minors and were not empowered to participate in decision-making processes. The gains that have been made during the past years towards the empowerment of women and gender equality are being reversed. It is essential that women are included and allowed to participate in the development of customary law, so that their own needs, and those of their children, are taken into account. Should this Bill be enacted, many women in rural areas, where development is happening at a very slow pace, will find themselves having to struggle against the twin threats of both poverty and oppression from their male counterparts.’

The LSSA pointed out that, whereas in the Bill the traditional courts are given the power to deal with cases of a civil and criminal nature, there are, however, no checks and balances on the powers granted to traditional chiefs, nor is the separation of powers evident. ‘Unilateral power is given to traditional chiefs who, in the execution of their duties, will act as legislators, administrators and judicial officers of customary law. This creates a potential for rural despots to reign supreme,’ said the LSSA.

The fact that the Bill does not allow for legal representation, even in respect of criminal cases, infringes on the right to such representation and the constitutional right to a fair trial, particularly for uneducated, marginalised and indigent persons.

The LSSA also noted that –

• an order of the traditional court is final and there is no provision for an internal appeal system;
• no provision is made for the keeping of mechanical records of the entire proceedings, making appeal and review proceedings before the magistrate’s court difficult;
• cases may be transferred from the traditional court to the magistrate’s court or small claims court at the discretion of the presiding officer; however, the parties do not have the right to choose to have their matters heard in a ‘mainstream’ court as there is no clause to opt out of this system; and
• careful consideration should be given to the training model for traditional leaders, since experience has shown that teaching by way of a manual, delivering a lecture and evaluation by way of questions and answers is not always appropriate. Material should be created that, as far as possible, resembles ‘real-life’ situations.

The LSSA indicated that the Bill sought to dignify customary law and place it on a proper footing. However, in practice it has the effect of recreating aspects of the system of apartheid, as it uses the same approach as the tribal authorities legislation of the 1950s. It inadvertently leads to imposing ‘apartheid boundaries’ on communities, yet again reversing the gains that have been made since 1994.

The LSSA concluded that people living in rural areas appear to appreciate settling disputes without straining relations, but a different vehicle – and not that envisaged in the Traditional Courts Bill, which has traditional courts presided over by traditional leaders – must be used to address this gap.

The full comments by the LSSA can be accessed on the LSSA website www.LSSA.org.za under ‘Legal practitioners: LSSA comments’.

Compiled by Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2012 (Oct) DR 18.