The Traditional Courts Bill is before Parliament for the third time. While the current version is an improvement on its previous iterations, the portfolio committee on justice and correctional services seems determined to reverse these improvements.
The patriarchal way in which most members conducted the first set of hearings on the bill indicates the kind of traditional court the committee favours.
The bill was first introduced in Parliament in 2008, but was withdrawn. It was reintroduced in 2012 but lapsed in 2014 after being rejected by a majority of provinces in the National Council of Provinces. It faced widespread opposition from many sectors of society, especially rural citizens.
Previous versions of the bill were opposed as unconstitutional for several reasons: it did not provide for women to represent themselves or participate as members in traditional courts; only courts at the level of senior traditional leader were recognised; and only senior traditional leaders could preside over the courts.
The bill proposed penalties that could include an order to provide free labour, deprivation of customary entitlements such as land and banishment from the community.
It did not provide for opting out when summoned by a traditional court.
A reference group consisting of traditional leaders, the government and civil society was formed in 2015 to consider issues identified in the previous versions of the bill. The 2017 draft was informed by the outcomes of the group.
Many concerns raised about previous drafts of the bill are rectified in the 2017 draft.
It captures the voluntary and consensual nature of customary law by enabling people to opt out of the jurisdiction of superimposed “tribes” and of specific traditional courts.
It also incorporates the notion of living customary law, which is defined as fluid and evolving regarding past practices and present context. The Constitutional Court has defined living law as law that is developed by the people who practise it and live by its norms.
The new bill also explicitly protects against discrimination in line with the Bill of Rights and provides for full participation of all members of a community.
Concerns, however, remain about the practical implementation of these improvements.
On March 13, 14 and 20 the justice committee invited interested parties to make oral submissions at hearings in Parliament. The hearings modelled the very patriarchy that some members of the committee apparently would like to see enforced by law.
The committee’s chairman, Mathole Motshekga, berated the Department of Justice and Correctional Services. “As a portfolio committee we are very, very disappointed that it took you 10 years to produce a bill like that … which does not seem to do what we have been saying must be done — notably, that we must restore the dignity of this institution,” Motshekga said.
So much for the hard-won improvements that had taken rural people a decade to achieve in the current version of the bill.
The unequal treatment of participants at the hearings was blatant, especially on the first two days. Presenters whose views the committee, especially Motshekga, disliked were treated with hostility and their submissions dismissed on the basis of their identities.
Only the Royal Bafokeng Nation and Deputy Judge President Isaac Madondo of the KwaZulu-Natal provincial efficiency enhancement committee were not interrupted.
Prof Thandabantu Nhlapo was able to present on behalf of the Land and Accountability Research Centre but was interrogated by the committee.
The committee also took the unprecedented step of allowing delegates from the National House of Traditional Leaders to question presenters.
Notably less hostile
On March 20, the attitude of the committee was notably less hostile towards the three interested parties that made submissions on the day. Perhaps this was related to who the presenters were: the Congress of Traditional Leaders, the National House of Traditional Leaders and veteran activist Nomboniso Gasa. Or perhaps it was because the committee’s earlier hostility towards stakeholders had caught the media’s attention.
Many committee members objected vehemently to the new opt-out mechanism. Sibusiso Mncwabe of the National Freedom Party noted: “That clause on its own invalidates the whole thing. It says … you have an option to respect your king or disrespect your king.
“Because to me if you will not attend when summoned, that is the highest level of disrespect. Why do we have to institutionalise this disrespect and put it in black and white to say you have an option to attend or to opt out? Why have a traditional court in the first place if it is optional?”
Most committee members echoed the view that people will only use traditional courts if they are forced to.
Other committee members based their objection to opting out on the ideal that a community is a group of people who share values. Thus, if people decide to opt out of a traditional court, they do not share the community’s values and should live somewhere else.
This view is ahistorical and ignores SA’s colonial and apartheid history. The Natives Administration Act of 1927 created tribes, while the Bantu Authorities Act of 1951 created tribal authorities with defined geographical jurisdictions. Both processes involved violent forced removals, land dispossession and the imposition of chiefs who complied with colonial and apartheid terms at the expense of legitimate leaders who refused to do so.
Albert Luthuli, for example, was deposed when he refused to co-operate with tribal authorities. Many people were forced to live under chiefs whom they did not recognise and were lumped together with communities with which they shared neither history nor culture.
After the democratic transition, tribes became traditional communities, while tribal authorities became traditional councils in terms of the Traditional Leadership and Governance Framework Act of 2003. Traditional councils have the same geographic jurisdictions as their “tribal” predecessors.
The legacy of the violent imposition of tribal authorities remains very much alive.
Apartheid distortions of custom
David Matsepe of the DA, who is not a member of the justice committee, was the only MP who seemed to welcome the opt-out mechanism, noting that it found its dictates in the Constitution. All laws, including the Traditional Courts Bill, must be in line with the Constitution and this is indeed one of the objectives of the bill.
The committee appears determined to reel back to the discredited 2008 version of the bill and superimpose it on rural people. Yet the 2008 version was rejected by rural people and five provinces, not because they were against chiefs or traditional courts, but because the bill sought to entrench apartheid distortions of custom.
The committee is also ignoring the Constitutional Court’s approach to “living customary law”, which breaks from SA’s apartheid past in that it emanates from the people, not the state.
The 2008 version of the bill cannot be passed by Parliament because it is in flagrant breach of the Constitution.
This article first appeared in Business Day on 28 March 2018