Contradictions in provincial TCB mandates

Comparative analysis of negotiating mandates on the Traditional Courts Bill

At the negotiating mandate meeting of 12 February 2014, the Select Committee requested the parliamentary legal advisor to come up with a document that compares all the proposed amendments and would facilitate the clause-by-clause negotiation of the Bill. In this document, we argue:

• The negotiating mandate documents reflect many ‘issues’ that provinces have with the Bill, but these are not all proposed amendments. In some cases, these are the reasons for the province rejecting the Bill, in others the issues identified are principled flaws without any proposed amendments to fix these. In the circumstances, these issues cannot be addressed through a simply clause-by-clause amendment discussion and therefore the Bill must lapse.
• The amendments that are proposed by the various provinces are so far-reaching and at times contradictory that it is not clear how the provinces with the mandate to vote on these amendments  could reach agreement within the parameters of the mandates they were each given. A delegate is not allowed to cast a vote contrary to the parameters of the mandate provided by her/his province.

Considering the negotiating mandates as tabled

A proper reading of the Mandating Procedures of Provinces Act 52 of 2008 (the Act) read with the rules of the NCOP would indicate that, at the start of the first negotiating mandate meeting of the Select Committee on Constitutional Development held on 12 February 2014, the chair was obliged to consider the position of each province towards the Bill as a whole. The Act contemplates the negotiating mandate to confer authority on the provincial delegation to negotiate within certain parameters when the relevant Select Committee of the National Council of Provinces considers a Bill after it has been tabled and before final mandates are considered.  A negotiating mandate may include proposed amendments to the Bill – but it is not simply assumed that any issues raised in a mandate are proposed amendments.

The NCOP rules indicate that the Select Committee –

(i) may not propose an amendment that –

(i) changes the classification of the Bill;

(ii) renders the Bill constitutionally or procedurally out of order within the meaning of joint rule 161;

(j) may recommend approval or rejection of the Bill or present an amendment Bill;

If the Chair had allowed the committee to first consider the general positions of the Provinces, it would have found the following:

Eastern Cape’s mandate asserts that “the Bill is fundamentally flawed and no amount of amendments will be able to remedy the Bill”. Thus, bearing in mind the Act’s insistence that delegates stay within the parameters of their negotiating mandates, delegates from the Eastern Cape would be voting for amendments while still planning to vote against the bill. In the circumstances, it is difficult to understand why the Eastern Cape would participate in the proposal of and voting on amendments at all.

Limpopo, who also rejected the Bill, raised amongst several issues that the long title of the Bill should state that its purpose is to ‘promote’ rather than ‘enhance’ customary law. This amendment requires a fundamental shift in the objective of the Bill. The legislature is constitutionally obligated to facilitate the promotion of living customary law: that is, the law as lived by the community. Its obligation is not to ‘enhance’ it by codifying it, but to facilitate communities developing their customary law in line with the Constitution. This amendment requires a redrafting of the Bill in its entirety.

Gauteng’s mandate indicates, without reference to specific sections, that in its view the Bill will not pass constitutional muster and therefore should not be passed. Its reservations are based on how the Bill envisions traditional courts to function as a part of the judicial system in South Africa and the fact that the Bill is not based on the consent of the parties. These are principled rather than detailed reservations. The Gauteng mandate rejects the fundamental basis of the Bill. The comments on specific clauses earlier in the document are made for the attention of the drafters who, the Gauteng legislature assumes, will proceed to redraft the Bill. These are not amendments to the current Bill. The Gauteng delegation should thus refuse to pass the Bill on the basis of amendments, particularly if these do not address its fundamental objection to the fact that Traditional Courts are imposed on people living in the former homelands without their consent.

The Western Cape Legislature indicated that its vote against the Bill is based on a number of fundamental problems with the Bill, including, significantly, the fact that the Bill was not drafted in consultation with the people it will affect. Based on that objection alone, the Bill logically cannot be amended to make it consistent with the mandate of the Western Cape – it requires a new drafting process that starts with consultation on the ground.

Finally, the mandate of the KwaZulu-Natal legislature indicated that it will abstain from voting on the Bill as further consultations (and clarity, according to the KZN delegate’s comment in parliament) were necessary for it to come to a decision. It is not entirely clear what ‘further consultations’ refers to: if it refers to public consultations, then KZN will not be in a position to provide any voting mandate until such time as sufficient consultations are held.

The four provinces with negotiating mandates rejecting the Bill do so on the basis that amendments cannot fix the problems they describe. Rather, their rejections are outright, based on fundamental or procedural flaws and therefore cannot be saved through amendments. However, the delegates may obviously raise their concerns during the negotiating meeting and may vote on amendments provided that they don’t contradict their Province’s mandate in respect of the Bill.

The only way the Bill could possibly be passed is if all four provinces who indicated conditional approval, are satisfied that all the amendments they propose are adequately addressed (including issues raised by other provinces which they support). In addition, KZN would have to decide that its concerns fall away and that sufficient clarity and time for consultation were provided. It is unclear how they could come to that conclusion without the further consultations which the mandate refers to having taken place.

NOTE: The ‘consolidated mandate document’ distributed to members at the meeting of 12 February 2014 leaves out many of the issues raised by provinces, in particular fundamental issues that do not relate to specific clauses. The committee CANNOT ignore underlying issues that are broader than specific clauses; these are often the most central concerns raised by provinces. Ignoring these would render the process flawed. What the committee would have to do, in cases where no specific amendments are proposed, is come up with amendments to address these fundamental problems of their own accord. For example, Mpumalanga argues that the Bill should be renamed the “Restorative Justice and Reconciliation Bill”. The province’s mandate proposes that the Bill “should apply to all South Africans in both rural and urban areas regardless of whether they fall within the jurisdiction of a traditional leader”.   This is an enormous and fundamental change to the envisaged scope of the Bill and would require re-drafting throughout.  In the current Bill the jurisdiction of traditional courts is based on the old tribal jurisdictions created in terms of the Bantu Authorities Act of 1951 that were entrenched by the Traditional Leadership and Governance Framework Act of 2003.  Mpumalanga states that renaming the Bill would make it more “encompassing and also bring it in line with the objects of the Bill which advocate a traditional system that is embedded in restorative justice and reconciliation”.  They also argue for a complete break with the Black Administration Act of 1927.  None of these far-reaching recommendations are however, supported by amendments to specific clauses.

Summary of proposed substantive amendments and issues to be addressed

In this section, the amendments proposed by provinces with the mandate of a conditional vote in favour of the Bill are presented in italics indicating that these are the parameters within which these four provinces must vote.

Where it is indicated that no amendment is proposed, the committee must draft an amendment.

Relationship between traditional courts and Magistrates’ Courts

1.  Free State identifies, without proposing an amendment, the “challenge” of non-cooperation between traditional courts and Magistrates’ courts.
2. It also insists that the jurisdiction of traditional courts versus the magistrates’ courts must be clearly defined and that the Bill must clearly state what happens in a situation where a party raises a point that a traditional court lacks the jurisdiction to hear. Again no specific amendments are proposed.
3. Limpopo emphasises the need to ensure that Magistrates’ courts understand customary law and its application. No specific amendments proposed.
4. The Western Cape asserts that traditional courts should be characterised and regulated under section 34 of the Constitution. That would require an entire rethink of the Bill. They do not propose how that should be done in drafting.

Opting out

1. Mpumalanga draws attention to the abuse inherent in the current prohibition on opting out, but does not propose wording to ameliorate the problem it identifies.
2.  Eastern Cape requires an opting out clause in order to, for one, protect women. A person may opt out “especially if they do not consider themselves bound by such a traditional law”.
3. Western Cape requires an opting out clause.
4. Gauteng proposes an opting out clause in its comments on clause 5.

Women and children

1. Free State is concerned that women are prejudiced in traditional courts and not adequately protected through the Bill. They propose only one amendment in this regard: that two assessors be provided for each hearing, indicating however that more is required to address the problems facing women.
2.  North West requires that equitable representation of women in these courts be progressively realised. They provide no specific amendments in this regard.
3.  Mpumalanga states that the Bill as currently drafted does not address the challenges encountered by rural women at the hands of some traditional leaders.  It says that clause 9(2)(a)(i) needs to be redrafted to ensure that women are protected.  It does not however, propose how such an amendment be achieved.
4.  Mpumlanga states that children should be assisted by their parents or guardians and that interpreters and assistive devices should be made available to assist people with disabilities.
5. Limpopo indicates that it would require the Bill to make provision for family courts to deal with issues of women and children. They provide no specific amendments in this regard.
6. Eastern Cape raises a similar concern. It states that “the institution of traditional leadership is patriarchal in nature…There is no attempt in the Bill to address this matter.” No amendment proposed.
7. Elsewhere Eastern Cape does propose specifically that the Bill outlaws any practice where a woman is not allowed to enter the court space or where she must be represented by a man or where specific dress codes are required. The mandate continues: “The Bill must therefore expressly address all the inherent discriminatory practices against women and children within the traditional justice system”. No specific amendments are proposed to remedy this.
8. Eastern Cape also indicates that clause 9(3)(h) is problematic in that it “perpetuates the fact that women are minors who must be represented by their male counterparts”.
9. The Western Cape mandate plainly states that: “The Bill does not advance the principles of a constitutional democracy as contained within Section 9 of the Constitution… particularly with regards to the rights of women and children”. No specific amendments are proposed to remedy this.

Collection of revenue

1. Mpumalanga states that all revenue collected should be deposited into the account of the relevant traditional council, and used to develop the community and assist in the running of the traditional council.
2. Limpopo indicates that all ‘fines or revenues’ collected by traditional courts should be deposited into a ‘tribal account’ and not the provincial revenue fund. Note: this suggestion is problematic given the enormous problems with so-called ‘tribal accounts’ and the auditing of these accounts as  evidenced by recent investigations of the office of the Public Protector and SCOPA. . The Committee should investigate these problems thoroughly (many of which were raised during public hearings) before considering such an amendment. Limpopo acknowledges the challenge by insisting that compliance with the PFMA must be sought – but the PFMA does not apply to ‘tribal accounts’ and, therefore, this is no solution.
3. Eastern Cape is happy for the funds to go to the provincial revenue fund, but specifies that they must be utilised by the communities for development purposes. No specific amendments are proposed.
4. Eastern Cape is also concerned about what happens to fines paid in non-monetary terms – where will the cattle, for example, go?
5. Eastern Cape wants any form of service fees from the traditional courts to be outlawed.
6. KwaZulu-Natal wants an amendment that revenue collected goes to the traditional council fund. The problems pointed out above apply.

Jurisdiction

1. Free State states that the jurisdiction of the court is ‘vague’ and that it is unclear how the traditional court will deal with issues of land ownership, occupation and use without the involvement of municipalities. It states that “this must be clarified from the outset” – but proposes no amendments to do so.
2. North West requires clarification of the roles of chiefs vis-à-vis headmen/-women without proposing specific amendments.
3. Mpumalanga requires that the Bill should apply to all South Africans, urban and rural, and not be restricted to those living under the jurisdiciton of traditional leaders.  It says that restricting jurisdiction in this way, denies urban people access to restorative justice and reconciliation (point 2 of the Mandate dealing with Application). This raises the fundamental issue of equality before the law for all South Africans, and the problems of restricting the jurisdiction of the Bill to a closed category of people who may not opt out.
4. Mpumalanga insists that traditional courts should not be able to hear rape cases ‘for example’ and that a schedule of matters that cannot be heard in such courts be included in the Bill.  However no such schedule of cases is included in their mandate.
5. A concern relating to how the Bill will further empower chiefs in relation to land allocations is raised by the Western Cape.
6. Eastern Cape is concerned about the difference in custom that applies when the dispute arises outside a specific jurisdiction – how will the presiding officer be able to apply law that is not familiar to him/her? Similarly, it raises the possibility of people being subjected to a law which they don’t know and don’t subscribe to. No specific amendments are proposed to remedy this.
7. Eastern Cape believes that there is conflict with regards to criminal procedures between the traditional and formal court systems which may create ‘double jeopardy’. No specific amendments are proposed.
8. The Western Cape insists that criminal jurisdiction cannot be extended to traditional courts or councils.
9. Gauteng wants the civil matters within the jurisdiction of the court to be outlined.

10. Gauteng proposes that the jurisdiction of the courts should be based on “consent rather than coercion/force”.

11. It is the view of the Gauteng legislature that for traditional courts to have criminal jurisdiction is  unconstitutional.

      Legal representation

1. There are contradictory amendments proposed in relation to the issue of legal representation: some provinces want the Bill to explicitly allow it (e.g. Eastern Cape, Western Cape, Gauteng, KZN) while others want the definition of legal representation to be clarified (Free State). Mpumalanga states specificially that clause 9(3)(a) that prohibits legal representation is contrary to the Constitution.  It proposes that a procedure similar to that in the small claims court be adopted should this provision be retained.  But Mpumalanga does not suggest specific wording for this far-reaching amendment. Gauteng asserts that the Bill will be unconstitutional if no legal representation is allowed.

Capacity/budget to implement

1. Free State is concerned about the capacity of DoJ to implement the Act.
2. Free State wants the Bill to specify how relevant persons (traditional leaders and council members) will be trained and wants those who will be implementing orders to receive similar training.
3.  North West requires traditional leaders to be ‘properly briefed’ and trained on the Constitution and, presumably, criminal law.
4.  Mpumalanga states that the ‘financial implications and resources that will be required for the successful implementation of the Bill should be taken into account during the drafting of the Bill and its regulations’. This seems to imply that Mpumalanga envisages that the current Bill will be withdrawn and redrafted.
5. Limpopo requires significant expansion of training: to all headmen and –women, traditional councils, officials, magistrates. It also proposes ABET training for these categories of people. In the circumstances, it proposes that a budgetary workshop be held (before the Bill can be passed) where clarity on how this mandate will be funded would be sought.
6. Gauteng requests that a budget for implementation be included by the DOJ for consideration of the Provinces.

  Appeals

1. Free State requires the Bill to be “simplified” in order to clarify appeals processes and their affordability. They propose no specific amendments that would address this issue.
2. Western Cape wants the appeal process to be strengthened, but proposes no specific amendments in order to do this.
3. Eastern Cape wants appeals to be possible in all cases.
4. Eastern Cape also points out that the appeal structure proposed in the Bill does not recognise existing customary hierarchies.
5. The requirements that proceedings must have been ‘grossly irregular’ to justify a review is unacceptable for the Eastern Cape. Any form of irregularity must be subject to review.
6. The limitation on appeals is unconstitutional according to Gauteng.
7. Gauteng also points out that the right to appeal is meaningless given the fact that the Bill does not require records of proceedings to be kept.

   Customary law

    Northern Cape requires that all spheres of traditional leaders be recognised.

1. Eastern Cape asserts that the Bill creates no uniformity of law between courts and complains that the courts will be under-regulated compared to, for example, the Criminal Procedure Act’s regulation of other courts. These issues are actually constitutional in nature and speak to what the Constitution recognises when it recognises customary law. This requires an informed debate about the constitutional recognition of customary law and what that means. It cannot be addressed through ad hoc amendments.
2. Similarly, the Western Cape’s requirement that customary law be ‘documented’ would have to be tested against relevant Constitutional Court jurisprudence that stresses the flexible and ‘living’ nature of customary law.
3. Gauteng indicates, in its comment on clause 4, that the Bill fails to facilitate the development of customary law in line with the Constitution by empowering only those whose leadership position is recognised by statute.

      Inequality

1. Eastern Cape insists that the Bill creates a separate and inferior legal system for rural people.
2. Gauteng indicates that “there are inherent challenges with some of the provisions of the Bill in the light of our constitutional jurisprudence which has at its core the achievement of equality and advancement of human dignity, non-sexism and non-racialism”.

      Centralisation of power

1. Mpumalanga argues that the designation of persons as traditional leaders should not be limited to kings, queens and senior traditional leaders, but should include any person of good standing in a community, such as a priest or school principle. Further, that tindvuna and headmen/women be alternative presiding officers as one traditional leader may have 13 villages within his jurisdiction. This is, in effect, a proposal that traditional courts operate at multiple levels within society and not only at the apex of the system.
2. Eastern Cape raises a similar objection: it states that “in some traditional communities, the courts are chaired by the Council of elders or the forum of community leaders and not an individual. However, the Bill is “silent on the status of […] council of elders or the forum of community leaders”.
3. Eastern Cape, Western Cape and Gauteng legislatures are concerned about the centralisation of power in the hands of one traditional leader – all argue it is contrary to the principle of the separation of powers and thus unconstitutional.
4. Gauteng raises a related concern: there is no balance of power that would ensure that a presiding officer is not influenced by his/her own interests.
5. KZN proposes specific amendments that would ensure that the presiding officer does not hear a case where he has a direct interest in it, or where an accused legitimately requests his recusal.
6. Gauteng links the major challenges it identifies with the Bill with the failure of its sister-legislation, the TLGFA – see comments on clause 4.

      Sanctions

1. Mpumalanga states that clause 10(2)(l) of the Bill is too wide and gives traditional courts unfettered discretion to impose any order that they deem fit.  The province proposes that clause 10(2)(l) be deleted as it unconstitutional to deprive any party of their constitutional right to appeal or review.
2. While Limpopo wishes the powers to apply and enforce sanctions to be increased significantly, Western Cape wants the existing sanctions to be reviewed “to ensure that traditional communities are protected from abuse”.
3. Eastern Cape requires the sanction of forced labour to be scrapped.
4. Eastern Cape also requires the words ‘or any other person’ to be scrapped where they mean that the court may apply a sanction to someone other than the parties before the court.
5. Eastern Cape also wants the sanction that allows traditional leaders to deprive people of community benefits to be scrapped.
6. Limpopo, on the other hand, proposes that a traditional leader may banish a person from the community.
7. Eastern Cape also wishes the traditional court to enquire into the ability of a party to comply with a sanction before the sanction is imposed.
8. Gauteng believes that the sanctions as currently framed “create a strong potential for abuse of power”.

      Consultations

1. Eastern Cape and Western Cape are both unhappy with the level of consultation during the drafting process of the Bill.

      General

1. Northern Cape requires the Bill to “be in sync with other legislation”.
2. Free State requires clause 9(3)(4)(b)(ii) to be deleted, but there is no such clause in the Bill.

Final comments

• The Northern Cape’s mandate indicates that:

a)      The public had many concerns about the Bill. The majority of the people attending the hearings “wanted more time to engage and consult on the Bill”.

b)      The traditional leaders were overwhelmingly in favour of the Bill but wanted a number of changes all designed to entrench their power. Most of the changes they proposed were unconstitutional,[2] which should have raised alarm bells with the Northern Cape legislature.

c)      The CGE made written inputs to the legislature indicating that they regard the Bill as both unconstitutional and contrary to various international law obligations.

d)      Despite these indications that the Bill was NOT accepted by the people of the Northern Cape, apart from the traditional leaders whose comments indicate that they were looking to entrench their powers, the Northern Cape legislature votes yes to ‘the principle’ of the Bill. It is difficult to understand what that means – but if it is a vote in favour of the Bill, it contradicts what the committee heard in its public hearings.

e)      The committee proposes only two ‘principles’ (rather than specific amendments) and, without explanation, indicates that, despite the hearings in the province, it will vote in favour of the Bill.

• The North West mandate submitted on 11 February 2014 departs significantly from its previous mandate submitted in May 2012. The first mandate adopted by the North West indicated the province’s disapproval not only of detailed provisions, but with the very principles upon which the legislation was built. These included:

a)      The violation of the separation of powers by making traditional leaders judicial officers (in addition to their administrative and assumed lawmaking role);

b)      It centralization of the power of decision making in customary communities, thus violating living customary law and the Constitution;

c)      The fact that communities regarded the Bill as the “Black Administration Act smuggled backdoor”; and

d)      That the development of the Bill was deeply flawed as it was not done in consultation with communities.

The mandated indicated that “hearings were attended by 2050 people”, of which “95% of the communities rejected the Bill […] The communities maintained that the Bill be done away with altogether”. The complaints raised against the Bill and cited in the North West mandate were based on matters of principle and constitutionality that could not be cured by amendments to the current Bill.

The North West then decided, without explanation, to hold a further round of hearings in four venues on 21 November 2013. These hearings were observed by the Human Rights Commission and member of the Alliance for Rural Democracy. Their reports indicated the following:

i.          The hearings were held in different venues from the hearings of May 2012. In the circumstances, it would be safe to assume that the vast majority of those in attendance saw the Bill for the first time at the hearing itself and had little to no knowledge of its content.

ii.          This assumption is borne out by the observation of monitors at the hearings that the majority of people in attendance were youths apparently transported to the venues and not familiar with the issues at stake.

iii.          The assumption is further supported by the questions and comments raised during the brief discussions on the bill. These indicated a complete lack of understanding of the issues that led to the previous rejection of the bill; in fact of a complete lack of understanding of any of the provisions of the bill.

iv.          The structure of the hearings did not allow anyone with limited knowledge to acquire the necessary understanding: the hearings on the TCB were combined with far more substantial discussions on the actual topic of the day, namely a tender bill.

v.          The presentations on the TCB at each of the hearings differed in content, length and tone: in one venue, for example, traditional leaders were allowed to make long speeches about issues of the recognition of customary law and –leaders in general creating blatant misrepresentations of the bill and the nature of the strong opposition in previous hearings.

vi.          Moreover, the outcome of the previous hearings (both in the province and at the NCOP) was not raised or explained at all.

Despite these obvious flaws, the North West decided to change their mandate radically. Abandoning all the fundamental concerns raised earlier, the North West now indicates that, based on community participation, the bill is accepted. This is simply not borne out by the evidence.