Traditional Courts Bill raises concerns

May 1st, 2018

By Kgomotso Ramotsho

The Portfolio Committee on Justice and Correctional Services (the committee) expressed concerns regarding the time it took to draft the current version of the Traditional Courts Bill B1 of 2017 (the Bill) taking into consideration that there are serious gaps in the Bill. In a statement released on behalf of the committee by the Parliamentary Communication Services it stated that the committee had raised concerns at the public hearings held on 13 and 14 March.

The statement stated that the Chairperson of the committee, Dr Mathole Motshekga, said the committee was disappointed that it took more than ten years to produce the Bill. The statement added that Dr Motshekga said the Bill did not seem to do what the people of South Africa had concerns about years ago and did not address the matters of concern raised during the previous time the Bill was before Parliament.

The statement noted that the committee heard a presentation from the KwaZulu-Natal Provincial Efficiency Enhancement Committee and the Alliance for Rural Democracy. The presenters raised concerns that the Bill indicated that the review of traditional courts would be handled by the High Court. The committee heard that the process could be cumbersome and unaffordable, as litigation in the High Court was costly. Another concern was of the references to the role of women’s participation in traditional courts, were also highlighted by some as problematic.

The statement highlighted the other concerns, namely the lack of –

  • enforcement against those who breached the code of conduct and also of sanctions against presiding officers who abused power; and
  • recourse to legal representations for complaints.

The statement pointed out that the purpose of the Bill was to provide a uniform legislative framework for the structure and functioning of traditional courts in line with constitutional imperatives and values. The Bill aims to provide inhabitants of traditional communities with the option to either submit themselves to the traditional courts system or opt out by using the conventional system.

The statement stated that the committee heard the views that an opt out clause could bring disorder to the system, with some saying that it could render the traditional court system obsolete. The statement noted that questions were raised about how an opt out system would work and the legal status of traditional courts. The question of introducing legal representation into the system was widely debated, with concerns expressed that this would change the tone of the system.

The statement said that the committee also heard from the Centre for Child Law with regard to matters such as abuse and domestic violence, which should be referred to magistrates’ courts and that it should be made mandatory. Mr Motshekga emphasised the importance of a home grown, legal system that represents the values of the people. ‘The purpose of all legal systems, irrespective of whether it is a court or a tribunal is to get the truth,’ Dr Motshekga said. The statement added that Dr Motshekga assured the public that the committee will take all submissions into account when it debated the matter in order to draft legislation that protects and respect customs, culture and human rights.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2018 (May) DR 13.