UPDATE: FEBRUARY 2021
On 2 December 2020 the Traditional Courts Bill (TCB) was passed by a plenary of the National Council of Provinces (NCOP) – the version passed by the NCOP does not provide for opting out, which gives people the choice of where to take their matters, between traditional courts and Magistrates’ courts. The current version of TCB reflects a more conservative agenda aimed at making traditional courts into courts of law under section 166 of the Constitution. This is a change which presents many challenges and contradictions. The TCB is now set to go back to the Portfolio Committee on Justice and Correctional Services for consideration of the amendments made by the NCOP Select Committee on Security and Justice. It will then head to a plenary of the National Assembly for final adoption before it proceeds to the President for signing and will then become a law. We do not yet know when the National Assembly will deal with the Bill and we continue to monitor Parliament.
The Traditional Courts Bill has a long legislative history spanning more than 10 years since the introduction of the first version of the Bill in 2008. Attempts to pass the initial version and subsequent versions of the Bill have all been met with strong public outcry, especially from rural communities and rural women concerned with what the Bill will mean for them and how it distorts customary law. Although an improved version of the Bill that included the opt out clause was introduced to Parliament during 2017, this provision was removed by the Portfolio Committee in 2018. The Bill almost entirely removes reference to the consensual and voluntary nature of customary law and creates a parallel legal system for rural citizens in South Africa, compared to people living in urban areas.
Download the joint press statement issued by the Alliance for Rural Democracy & Land and Accountability Research Centre on the passing of the Bill by the National Council of Provinces on 2 December 2020 in PDF.
The Traditional Courts Bill (B1-2012, formerly B15-2008) was developed to replace Sections 12 and 20 of the Black Administration Act of 1927, colonial-era provisions that still empower chiefs and headmen to determine civil disputes and try certain offences in traditional courts. The TCB has lapsed, which means it will not be passed.
The TCB’s stated aim is to advance South Africans’ access to justice by recognising the traditional justice system in a way that upholds the values in customary law and the Constitution.
When the TCB was first introduced in Parliament in 2008, it met with much opposition, which has continued after its reintroduction in late 2011. Traditional leaders had been privileged in the drafting process, while the people most affected had been excluded. Rather than affirming traditional justice systems, the Bill fundamentally alters customary law by centralising power in the hands of senior traditional leaders and adding powers that they did not traditionally hold under custom.
This centralisation of power ignores and disempowers the complex layers of governance that exist below senior traditional leaders, where dispute resolution is most often handled before it is escalated to the senior traditional leader. This undermines existing accountability structures both from below and at higher levels. It effectively empowers senior traditional leaders to interpret custom, enforce it and make the final decision in case of an appeal.
The TCB exacerbates existing challenges to access to justice. It denies the right to legal presentation. This affects particularly women, as in many traditional courts they are not allowed to speak or represent themselves, but have to rely on male relatives to represent them. This puts women at a serious disadvantage, particularly in cases arising from disputes with their male relatives.
The Bill also creates new challenges and inequalities, including denying people the right to appeal to state courts and empowering chiefs to deny people land or sentence them to forced labour, among other punishments.
The TCB entrenches the power of traditional leaders within controversial apartheid tribal boundaries. It makes it a criminal offence for people to reject those boundaries, or to challenge chiefly abuse of power. People are denied the right to opt out of traditional courts.
The Bill ignores living customary law that builds on how people practise this law in their daily lives. Because of these fundamental flaws, the TCB does not address historical distortions of custom that denied justice and perpetuated oppression.
Rather, it gives these distortions new legitimacy to entrench a separate legal system for black people living in the former Bantustans. The TCB turns rural black people into subjects who are denied the full rights of citizenship that urban South Africans enjoy.
View the Alliance for Rural Democracy’s press release on the ‘death’ of the TCB.
Download the Traditional Courts Bill in PDF.
Download a summary of the negotiating mandates in PDF.
Download the full negotiating mandates in PDF.
Download the WC-PREM Report TCB negotiating mandates 4 Feb 2020 in PDF.
Download the WC Negotiating Mandate – Traditional Courts as at 7 Feb 2020 in PDF.
Download the Press Release NCOP passes TCB 3 Dec 2020 in PDF.
Download the NW Committee Report and Neg Mandate – Traditional Courts Bill B 1B – 2017 in PDF.
Download the NC Northern Cape negotiating mandate in PDF.
Download the Mpumalanga negotiating mandate in PDF.
Download the Mpumalanga negotiating mandate 2 in PDF.
Download the MODA Creative Project Report in PDF.
Download the Maverick Citizen piece from 3 December 2020 in PDF.
Download the Limpopo Negotiating Mandate in PDF.
Download the KZN Negotiating Mandate in PDF.
Download the GP Signed Mandating Procedure in PDF.
Download the GP Adopted Negotiating Mandate in PDF.
Download the Free State Negotiating Mandate in PDF.
Download the EC Signed Traditional Courts Report in PDF.
Download the EC Signed Negotiating Mandate in PDF.
Download the Department_Revised summary of TCB Negotiating Mandates 15 Oct 2020 in PDF.
Download the B1D-2017_Traditional_Courts Bill in PDF.
Download the 201117 WCape Final Mandate in PDF.
Download the 201117 Limpopo Final Mandate in PDF.
Download the 201117 KZN Final Mandate 111720 in PDF.
Download the 201117 Gauteng Final mandate2 in PDF.
Download the 201111 Mpumalanga Final Mandate Traditional Courts in PDF.
Download the 201111 Eastern Cape Final Mandate TCB in PDF.
Download the 201110 Northern Cape New Final Mandate for Traditional Courts Bill 2020 in PDF.
Download the 201106 North West Final Mandate of Traditional Courts Bill in PDF.
Download the 201106 Free State final mandate in PDF.