Debating the Traditional Courts Bill – Thobejane and Claassens on 702

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A radio debate on Eusebius McKaiser’s 702 talkshow threw a spotlight on key points of controversy in the Traditional Courts Bill, which was reintroduced in Parliament this week.

Listen to the debate here.

The Bill provides for the recognition and regulation of courts convened by traditional leaders.

Kgosi Setlamorogo Thobejane, chairman of the Congress of Traditional Leaders (Contralesa), and Aninka Claassens, director of the Land and Accountability Research Centre at UCT, took contrasting positions on issues including the right to refuse to participate in traditional courts and the need for explicit protections for women in customary law.

Thobejane criticised changes in the new bill which require that traditional courts must be constituted of women and not only men, and promote and protect the representation of women,  Cape Talk said in an online report on the debate.

“The notion of saying the inclusion of men and women in the constitution of this structure, to us means nothing. When we are saying a community, we are referring to all residents irrespective of gender,” Thobejane said.

“This thing of he-she is in English. We don’t have such in vernacular.”

Claassens, who has hailed the improvements in the TCB draft since it was first introduced in 2008 as a victory for civil society, said the opt-out clause was welcome, but inadequate in its current formulation.

“The provision that allows for people to opt out is not a ground for review, so how do you enforce it,” she said. 

The provision for review on the basis of process would be of little use to poor rural people since it would require them to hire lawyers to protect their rights, she said.

The Bill will be tested in public hearings organised by the National Assembly and the National Council of Provinces.

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