NCOP in disarray about TCB

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Today’s meeting about the Traditional Courts Bill (TCB) in the National Council of Provinces (NCOP) indicated a Committee in deep disarray.  The meeting was meant to discuss the negotiating mandates that the provinces have submitted with regard to the TCB.  On the basis of the outcome of those negotiations the Bill would be referred back to the provinces for them to vote on their final mandates.

The Committee remains fundamentally divided with four provinces rejecting the Bill outright, four supporting it but proposing far reaching amendments, and one, KwaZulu-Natal abstaining. Three things emerged from the meeting.

  • Those who oppose the Bill are raising procedural points that make it impossible for the Bill to be finalised before Parliament closes on the 14th March.  This makes it very likely that the Bill will lapse.  It cannot be re-introduced in the same form after the elections.
  • All the provinces have major reservations about the Bill, and have proposed a slew of amendments, many of which directly contradict one another
  • The Committee is struggling to chart a way forward because of the multiple and contradictory amendments put forward by the different provinces. Today they tried to discuss and vote on each province’s mandate, one at a time. But, as was pointed out, this creates intrinsic problems for discussions of subsequent mandates on the same clause.

The Department of Justice appears to have dropped the ball.  Its officials were not present when the Committee convened at 10am, and the meeting had to be adjourned until they could be found.  Even then the replies that Mr Jacob Skosana of the Department put forward to questions by members of Parliament were vague and elusive, and members of Parliament indicated that they were having none of that.

For example the first (and only) mandate to be discussed was that of the Free State. The Free State voted in favour of the Bill, but noted its concern that the Bill was not explicit on the participation of women.  A question was put to Mr JB Skosana as to how the concern should be addressed.  He said that the Department’s proposal was that the quota provisions governing traditional councils should apply.  He said that currently 40% of people in traditional councils must be women.  (This is not true, the TLGFA provides for 30% representation by women.  Furthermore the TLGFA enables the senior traditional leader to choose the women members).  Members of Parliament said they were not satisfied by his reply.  Or that it fully addressed the scope of the problems facing women in traditional courts.

Accordingly most said that while they agreed with the concern raised by the Free State, they could not support the ‘solution’ proposed by the Department of Justice as an adequate answer to the concern. Interestingly, provinces that had voted in favour of the Bill such as Northern Cape and Mpumalanga were among those who voted against a resolution based on Mr Skosana’s proposal.

The Free State also put forward a proposed amendment to the term ‘presiding officer’. They proposed that this term be replaced by the term ‘traditional council’. Asked for advice, Mr Skosana said that the Department supported this amendment. It is, in fact, at the heart of the changes to the Bill that the Department motivated in September 2012. However the majority of provinces at the meeting voted against the Free State’s proposal that traditional councils replace the role of presiding officer. This may well scupper the Department’s proposed way of getting around many of the constitutional flaws in the current bill.

Various members complained about the lack of support and service provided to the committee by the Department of Justice. They pointed out that despite particular objections and concerns being raised repeatedly they still had an entirely unchanged version of the Bill in front of them.  Mr Gunda of the Northern Cape said that it seemed the Department did not take the Committee’s concerns seriously.  He and others proposed that the Department prepare an amended version of the Bill for the consideration of the Committee.

Mr Nzimande of KwaZulu-Natal clarified however, that for the Department to intervene at this particular stage would be in conflict with the rules of Parliament. He insisted that it was the duty of the members of the house to discuss the mandates and negotiate the way forward, not abrogate their responsibility by passing it over to the Department of Justice.  He pointed out that because the provinces have all proposed differing, and in some cases contradictory amendments, anyone working on a new draft would end up privileging the position of particular provinces at the expense of others.  He said selecting which views and versions should prevail is at the heart of the responsibility entrusted to the provinces and was the purpose of the negotiations currently underway.  He indicated that it would undermine the validity of the legislative process for the Department to trespass on this process.

Ultimately a compromise was reached with regard to the way forward. This was that the State Law Advisers and Parliamentary legal team would draw up a clause-by-clause analysis setting out and comparing the positions of the provinces with respect to each clause.  They would also comment on the whether the proposed amendments and provincial positions according with the Constitution.

This implies that the Committee will henceforth debate the negotiating mandates clause by clause as opposed to province by province.  The meeting was adjourned to Tuesday and Wednesday the 18th and 19th February 2014.

For further background on the TCB, see this article . We have previously reported at length on the 2012 hearings (here and here) and 2013 hearings that have taken place on the TCB.

Download the full negotiating mandates in PDF.

opinion-grey Claassens is the director of the Rural Women’s Action Research Programme in the Centre for Law and Society at the University of Cape Town.
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