Controversial Traditional Courts Bill will be challenged if passed in parliament

By Nolundi Luwaya

In less than a week parliament will decide whether to confirm the Traditional Courts Bill (TCB), which has been at the centre of an almost 20-year struggle for legislation that is true to customary law and reflects the democratic values of customary systems.

Approval by the National Assembly will usher in a new chapter in the battle. But there remains a small hope that a new legal opinion requested by MPs in the justice portfolio committee may pause the matter, at least temporarily.

The background is that the bill seeks to regulate the structure and functioning of traditional courts in line with constitutional values. It will finally repeal the provisions of the Black Administration Act of 1927, which has continued to regulate these courts even in our democratic era.

It seems extraordinary that a bill intent on doing such good and necessary things should face such prolonged and vehement opposition. But enduring problems with the bill have been pointed out repeatedly by rural communities, activists, thought leaders and civil society organisations that have engaged with the bill’s long journey through the legislature. In its current form the bill falls short and is still not the bill communities living under customary law demand or need.

A key demand has been that the TCB should reflect and honour the voluntary, affiliation-based nature of customary law and customary dispute resolution forums by allowing affected people to opt out of contested tribal boundaries. The practice of voluntarily affiliation is a central, historically affirmed component of customary systems. It guarantees accountability of the systems as it empowers people to leave customary groups and identities that fail them. The choice to opt into the forums, authority and practices of a community is a better indicator of legitimacy than forced compliance could ever be.

Given the ambition to regulate traditional courts in line with constitutional values, it seems short-sighted and contradictory to fail to build the inherently democratic elements of customary law into the bill. This is not an impossible ask. The first 2017 version of the bill (a second version was proposed in 2018) expressly provided for people to elect to opt out of traditional courts. This provision and multiple references to the voluntary nature of customary law were removed by the portfolio committee in a dramatic about-turn in 2018. There is only one surviving reference to the voluntary nature of customary law in clause 3, which outlines the bill’s guiding principles, an abstract notion that is not concretised.

Resistance to the bill has grown into broad opposition to the “bantustan bills”, a set of laws applicable only to the former homeland areas. These laws, which include the TCB and the recently enacted Traditional and Khoi San Leadership Act (TKLA) entrench the deeply contested governance framework developed by the colonial and apartheid administrations in our country — a framework that enshrined segregation on the basis of race. It posited a rural countryside inhabited by neatly divided, homogeneous black tribes governed by traditional leaders ultimately responsible to the state, and to the state alone. The achievement of this vision necessitated forced removals into manufactured tribal boundaries and entities that bore no relation to how communities had actually been living in practice.

Rural communities fiercely resisted the framework during apartheid and rose up to reject the forced delineation of tribes and bantustans. The transition to democracy brought with it the promise of finally breaking out of the artificial identity of “tribal subject”. However, these boundaries and the identities they had created were carried into the democratic dispensation via the 2003 Traditional Leadership and Governance Framework Act (TLGFA). Rural communities have been clear and consistent in rejecting them.

Twenty-five years after the end of apartheid laws such as these keep the contested boundaries alive. Rather than using the TCB and TKLA to break away from the continuing legacy of apartheid-based divisions, the current version of the TCB maintains this connection. In its definition of a traditional leader the bill refers to a traditional leader as someone who is “recognised in terms of the applicable legislation providing for such recognition”. The relevant applicable legislation is the TLGFA (soon to be replaced by the TKLA when it commences on April 1 2021). The cross-referral makes it inescapable that the boundaries of the courts’ jurisdiction will default to the controversial tribal boundaries entrenched by the TLGFA and TKLA.

This is why expressly allowing for opting out has been and remains such an important demand for activist groups. If legislation can be shown to replicate an oppressive historical inaccuracy the least parliament can do is provide affected communities with a way to opt out of these boundaries. Instead, the TCB requires that a participant must exhaust “all traditional court appeal procedures available in terms of customary law” before being able to refer their matter to a magistrate’s court to be heard anew.

Some of the most vocal opponents of the TCB have been rural women who were concerned that the bill would not address the rights violations they already experience in these forums. Earlier versions of the bill allowed a continuation of the discriminatory practice of men representing women, rather than empowering women to represent themselves. Clause 5 in the current version of the bill finally acknowledges the ideal of women’s participation and representation in traditional courts. However, it places the sole responsibility for putting measures in place for this in the hands of “the cabinet member responsible for the administration of justice”. How this will be done is not clear. Women and vulnerable groups are required to trust that unknown future measures will be put in place by the cabinet member.

The bill acknowledges that such measures should “create an environment that facilitates and promotes the meaningful and voluntary participation of women in accordance with the constitutional value of non-sexism”, but the lack of an opt-out clause undermines this commitment to “voluntary” participation.

These enduring flaws mean the TCB continues to fail rural communities despite the immense time and resources they have put into the parliamentary consultation processes. They deserve an outcome that heeds their demands and better reflects their participation. This would show exhausted and disillusioned rural South Africans that the parliamentary process can work. Instead, parliament is rushing to finalise a version of the bill that continues to entrench a top-down, undemocratic approach to customary law. If passed, the bill will be challenged in court and ultimately struck down for its failure to protect basic rights.

This article first appeared in Business Day on 23 February 2021.

Nolundi Luwaya is director of the Land & Accountability Research Centre at the University of Cape Town.

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