The Traditional Courts Bill (B1-2012, formerly B15-2008) was developed to replace Sections 12 and 20 of the Black Administration Act of 1927, colonial-era provisions that still empower chiefs and headmen to determine civil disputes and try certain offences in traditional courts. The TCB has lapsed, which means it will not be passed.
The TCB’s stated aim is to advance South Africans’ access to justice by recognising the traditional justice system in a way that upholds the values in customary law and the Constitution.
When the TCB was first introduced in Parliament in 2008, it met with much opposition, which has continued after its reintroduction in late 2011. Traditional leaders had been privileged in the drafting process, while the people most affected had been excluded. Rather than affirming traditional justice systems, the Bill fundamentally alters customary law by centralising power in the hands of senior traditional leaders and adding powers that they did not traditionally hold under custom.
This centralisation of power ignores and disempowers the complex layers of governance that exist below senior traditional leaders, where dispute resolution is most often handled before it is escalated to the senior traditional leader. This undermines existing accountability structures both from below and at higher levels. It effectively empowers senior traditional leaders to interpret custom, enforce it and make the final decision in case of an appeal.
The TCB exacerbates existing challenges to access to justice. It denies the right to legal presentation. This affects particularly women, as in many traditional courts they are not allowed to speak or represent themselves, but have to rely on male relatives to represent them. This puts women at a serious disadvantage, particularly in cases arising from disputes with their male relatives.
The Bill also creates new challenges and inequalities, including denying people the right to appeal to state courts and empowering chiefs to deny people land or sentence them to forced labour, among other punishments.
The TCB entrenches the power of traditional leaders within controversial apartheid tribal boundaries. It makes it a criminal offence for people to reject those boundaries, or to challenge chiefly abuse of power. People are denied the right to opt out of traditional courts.
The Bill ignores living customary law that builds on how people practise this law in their daily lives. Because of these fundamental flaws, the TCB does not address historical distortions of custom that denied justice and perpetuated oppression.
Rather, it gives these distortions new legitimacy to entrench a separate legal system for black people living in the former Bantustans. The TCB turns rural black people into subjects who are denied the full rights of citizenship that urban South Africans enjoy.
Download the Traditional Courts Bill in PDF.
Download a summary of the negotiating mandates in PDF.
Download the full negotiating mandates in PDF.