Before the current irregular round of public hearings on the Traditional Court Bill (TCB), two other rounds took place at which the overwhelming majority of participants had already rejected the Bill – as they still do.
Across sectors and geographic regions, both at provincial and national level public hearings as held in 2008 and 2012 by Parliament, participants argued that the TCB should be withdrawn in its entirety. Others wanted it to be amended in specific ways and redeveloped with input from the communities due to fall under the Bill’s jurisdiction. Significantly, apart from submissions by traditional leaders, none of the people based in areas affected by the TCB wrote in full support of the Bill.
The submissions offer insight – in people’s own words and voices – into traditional leadership and the realities of customary law and traditional courts across the country. The submissions communicate diverse understandings of vernacular jurisprudence, as well as how the TCB would influence these structures and systems on the ground.
The diversity of submissions offers perspectives into how different sectors of society have experienced the development of the Bill and reacted to its content. Submissions from government departments, civil society organisations and research and monitoring bodies based outside areas where the Bill would apply offer insights into its structural elements and tackle the expected macro-level impacts on affected communities.
The submissions from individuals, groups, and institutions based in areas that would be affected by the Bill also engage with the TCB’s broader structural impacts. They also often offer more intimate discussions of current and past experiences of living under customary law. Based on these experiences, these submissions explain how people believe the TCB would affect their lives and communities.
While critiquing the TCB, most submissions emphasise that opposition to the bill does not imply a rejection of custom or tradition. As the South African Human Rights Commission notes: [T]he current debates around the Bill are thus not about the integrity and/or legitimacy of the traditional court system but rather to determine the manner in which this recognition should be reflected in legislation within our constitutional democracy.
Rather than devaluing or undermining the significance of customary law, the majority of submissions highlight the harmful impact that the TCB would likely have, based on people’s currently experiences of customary law systems and structures.
A common thread in the submissions contextualises customary law within South Africa’s constitutional democracy and the expectation that custom complies with the letter and spirit of the Constitution. Most participants, especially those living under customary law, argued that customary law and traditional courts need to respect and protect individual and group rights, in line with the protections guaranteed to all citizens.
Democracy and the expectations associated with liberation from apartheid featured prominently in submissions. Many authors juxtaposed experiences of life in the Bantustans with hopes about the freedoms, protections and rights promised by the end of apartheid.
This thread in the submissions highlights the value that many place on living in a democratic dispensation, characterised by a Constitution and a Bill of Rights that they can draw on to demand rights, freedoms and protections previously denied to Africans.
The dominant sentiment across sectors was that customary law and constitutional rights need to inform each other and work together in shaping experiences of justice in traditional courts, rather than being framed as oppositional. Many people living under customary law shared challenges that they currently experience in traditional courts. They warned that the TCB would undermine existing forums where more democratic and responsive processes of justice are currently taking place.
This is an excerpt from Voices in the Legislative Process: A Report on the Public Submissions on the Traditional Courts Bill (2008 and 2012). The full report can be accessed here.