By Nomfundo Manyathi-Jele

The Law Society of South Africa (LSSA) has submitted comments on the Traditional Courts Bill B1-2017. In the submissions, the LSSA stated that it is pleased that the Bill is a much improved and amplified version of the previous Bill, but believes that there are still various aspects that need to be addressed. The LSSA goes on to highlight these aspects, which include the following:

Composition of courts

The LSSA states that clause 5(1)(b) provides that the traditional court must be convened by a traditional leader or any person designated by the traditional leader. The LSSA believes that parameters should be placed on who would qualify to be designated.

Training

The LSSA states that it is important that the traditional leader and any person designated by him or her as contemplated in clause 5(1)(b) must be sufficiently and competently trained to comply with the Constitution, so as to guard against the High Court being saddled with review proceedings in terms of clause 11. ‘If such persons are not properly trained, the potential will be there for matters to be taken on review, due to a lack of understanding of the Constitution and the objectives that the Bill seeks to achieve,’ the LSSA stated in its submissions.

It added: ‘Careful consideration should be given to the training model, as experience has shown that teaching by way of a manual, delivering a lecture and evaluation by way of question and answer is not always appropriate. Material should be created that, as far as possible, resembles real life situations.’

The LSSA is also concerned about the delegation and separation of powers and believes that the Bill should clarify whether the powers of traditional leaders may be fully delegated or whether some would remain the preserve of the traditional leader.

Legal representation

Clause 7(4)(b) denies a party before a traditional court the right of legal representation. The LSSA feels that preventing a party the right to legal representation will deny many persons, particularly the uneducated, the marginalised and the indigent, the constitutional right to a fair trial.

‘Further, legal practitioners assisting parties may play a pivotal role in enhancing the jurisprudence of traditional/indigenous law in line with the Constitution,’ the LSSA stated in its submissions. It added: ‘The fact that participation in the traditional courts is voluntary and that there are alternative ways through which a case can be ventilated, should not be construed to imply that the general rights and duties relevant to normal civil and criminal courts should not apply in respect of traditional courts. This is relevant, given that there is recourse for review by the High Court in terms of clause 11.’

Jurisdiction of traditional courts

In its submissions, the LSSA stated that although it notes that there is no distinction between civil and criminal jurisdiction in customary law, it is concerned about the provisions of clause 4(2)(b)(i), namely, that criminal matters referred to in terms of sch 2, can be dealt with by the traditional courts, except those that are already being investigated by the South African Police Service (SAPS). ‘We believe that all matters of criminality should be reported to the SAPS and investigated, also so that they can form part of the statistics of the country. Reporting should not be curtailed based on the monetary amount,’ the LSSA stated.

Regarding clause 8(3), which permits traditional courts to make an order for compensation for personal injuries, the LSSA submitted that personal injury matters should be excluded from the jurisdiction of traditional courts as these matters are complicated and require medico-legal reports from experts, determining the extent of the injury and future consequences of such injuries. ‘The extent of an injury is often difficult to determine at first glance and it may take years for such injuries to settle,’ it stated.

Orders that can be made by traditional courts

‘Clause 8(1)(b) empowers traditional courts to order a party against whom proceedings were instituted and who is financially not in a position to comply with the order to render some specific benefit or service to the aggrieved party instead of compensation. Although we believe that this provision has been made with good intentions, it opens up the possibility for abuse by the aggrieved party, including subjecting people to servitude and forced labour. If not monitored properly, it may lead to undesirable consequences, which may be offending Section 13 of the Constitution,’ the LSSA states in its submissions.

Record of proceedings

In conclusion, the LSSA states that the Bill makes provision for the recording of the proceedings (clause 13). It states, however, that no provision is made for the keeping of mechanical record of the entire proceedings. The LSSA states: ‘This will make review and appeal proceedings difficult and we suggest that this issue be addressed.’

The full submissions can be viewed at www.LSSA.org.za.

Nomfundo Manyathi-Jele, Communications Officer, Law Society of South Africa, nomfundom@lssa.org.za

This article was first published in De Rebus in 2017 (May) DR 20.