How the lived experience of traditional courts will change if the Traditional Courts Bill becomes law

By David Mtshali 

People like our client and others who may be summoned to appear in a traditional court will be negatively impacted by the bill as they will be forced to appear in a traditional court, even if it is against their will and against their customary law.

The Traditional Courts Bill is about two decades old — a very long time to be under contestation and deliberation. However, traditional courts themselves have been part of many communities’ customary law for as long as anyone can remember and they continue to operate, with the agreement of members of the communities, in many former homeland areas of South Africa.

Participation in these traditional courts is, in accordance with customary law, voluntary in nature. The latest version of the bill (the 2021 version), however, makes it compulsory for people to appear in traditional courts when summoned. Furthermore, it does not allow for people to be legally represented in traditional courts.

Unsurprisingly, there are highly polarised views of the bill, with some concerned that the latest version will have a negative impact on traditional communities while others argue that it will help formalise traditional courts and enable them to function properly. Even the Parliamentary legal adviser has provided two legal opinions that contradict each other on the same bill.

In this piece, I foreground the current experience of a man who I represent in my capacity as a lawyer at the Legal Resources Centre (LRC). He resides within the jurisdiction of the Bafokeng Tribal Court in North West.

In November 2020, the LRC had a consultation with the Thekwana Community in Rustenburg in North West about a land claim they have lodged in terms of the Restitution of Land Rights Act 22 of 1994. During the consultation, one community member (our client, who wants his identity withheld), was served with a notice to appear before a presiding officer in the Bafokeng Tribal Court the following day.

The notice, written in Setswana, had the court’s official stamp on it, and was signed by the clerk of the court. It said our client was charged with “go ba kgatlhanong le botsamaisi” which means “being opposed to management or being anti-management”. The notice provided no specifics of the charge. This made it impossible for him to know what he was defending himself against.

Our client did manage to confirm that the complainant was the acting headman at Thekwana. This fact was problematic because according to the Bophuthatswana Traditional Courts Act 29 of 1979, a tribal court has no jurisdiction to hear and determine a matter in which the tribal authority or the chief or the headman is a party. The reason for this prohibition is precisely to ensure that leaders don’t abuse the courts to settle personal scores.

On arrival at the Bafokeng Tribal Court, we were advised by the clerk that the matter was very serious and would thus be first on the roll. It was only during the hearing that we found out that my client was charged with organising a meeting. Such meetings had allegedly been prohibited until further notice by the Chief of the Bafokeng Traditional Council when the country was put on lockdown in terms of Covid-19 regulations. We immediately requested a postponement to take instructions from our client and prepare his defence. The matter was postponed to 3 December 2020.

During consultation with our client, it became clear that the alleged meeting was held during the period of Covid-19 Alert Level 2, when meetings were permitted subject to certain conditions. Thus, the charge against our client appeared to be without merit. Furthermore, the charge was problematic considering the Constitutional Court judgment on a similar issue in Pilane v Pilane 2013. In that case, two community members of the Bakgatla-ba-Kgafela Traditional Community appealed against the decision of the North West High Court to grant three interdicts prohibiting them from convening meetings under certain auspices.

Notably, it was the senior traditional leader (Kgosi) of the community, with the traditional council, who had sought the high court interdicts. The first interdict prohibited the applicants from convening meetings. The Constitutional Court set aside all three interdicts. It condemned the effort by traditional leaders to prohibit people from convening meetings despite their constitutional right to freedom of expression, association and assembly.

As in Pilane v Pilane 2013, our client is of the view that prohibiting him and others from holding meetings to discuss issues that relate to their community, and to the headman in particular, impacts negatively on their right to freedom of expression, association and assembly. He believes that the traditional council and the headman want to silence the voices of those who attempt to hold them to account. He considers it unacceptable to be dragged to court for holding a meeting that enhances local participation and accountability.

Despite the apparent trumped-up nature of the charge and the court’s lack of jurisdiction over our client, he appeared for the second time on 3 December 2020. We arrived a few minutes after 10am and found our client already in the witness box being questioned by the presiding officer, who is also a headman. The complainant was not in attendance.

We inquired whether the complainant had provided the court with reasons for not being able to attend. The clerk of the court provided information that the complainant was attending “a meeting called by the Chief of the Bafokeng Tribal Authority”. We registered our dissatisfaction with the explanation and furnished the court with copies of the Constitutional Court judgment in Pilane v Pilane 2013. The presiding officer acknowledged our concern, but requested that the matter be postponed nonetheless. It was accordingly postponed to 1 February 2021.

On that date, we drove 170km from the LRC offices in Johannesburg to the court in Rustenburg and arrived there at 9am, only to be informed by a security guard that the court was closed due to lockdown regulations. We were astonished by this. A simple call or email notifying us of the court’s closure would have sufficed.

From the lived experience of our client, it appears that certain provisions of the new version of the Traditional Courts Bill may have a detrimental effect on the people it purports to protect. The latest version of the bill compels people to appear in a traditional court when summoned and prohibits legal representation. This means that if it becomes law, our client would be compelled to appear in the Bafokeng Tribal Court if summoned, but would no longer be allowed to be legally represented by a lawyer. There would be no one to advise the court, for example, that the charge laid against our client had been found to be unconstitutional by the highest court of the land.

It appears that the bill will affect people in a manner that would be inconsistent with the Constitution. The Constitution provides everyone with the right to participate in the cultural life of their choice and to enjoy their culture. It further provides every accused person with the right to legal representation. The bill, by contrast, imposes traditional courts on people and prohibits them from being legally represented in these courts.

People like our client and others who may be summoned to appear in a traditional court will be negatively impacted by the bill as they will be forced to appear in a traditional court, even if it is against their will and against their customary law. This will create an environment where the current and future “dissenting voices and robust discussions” that the Constitutional Court expressly identified as legitimately arising from the right to freedom of expression in Pilane v Pilane 2013, are: (1) not heard; and (2) punished with court orders.

The reality is that the bill will not enable traditional courts to function properly. It will instead entrench and legalise unconstitutional conduct by traditional leaders to the detriment of our client and others similarly placed.

David Mtshali is an attorney at the Legal Resources Centre in Johannesburg.

This article first appeared in Daily Maverick on 8 June 2021.

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