NCOP succumbs to pressure from the Executive not to withdraw the TCB


It has emerged that the Select Committee on Security and Constitutional Development in the National Council of Provinces (NCOP) sought legal advice about its options in relation to finalising the Traditional Courts Bill.

The legal opinion acknowledges that the Select Committee received 57 written submissions on the Bill, as well as negotiating mandates from nine provinces, and that only two of the nine provinces were in favour of the Bill.

Parliamentary procedure requires that negotiating mandates be debated once they have been submitted to the Select Committee. Rather than following procedure, which would have meant the end of the Bill, the Select Committee last week (15 Oct) claimed that the negotiating mandates were unclear and sent the Bill back to the provinces to be considered for the third time.

The legal opinion, issued by Parliament’s Constitutional and Legal Service Office, reveals that some members of the Select Committee recommended the withdrawal of the Bill. We also have information that the ANC caucus recommended that the Bill be put in abeyance because of the short time frame before elections. However, the Minister of Justice and Constitutional Development suggested that new hearings should be held; and the Department of Justice and Constitutional Development recommended that a task team be formed to draft amendments for the Select Committee to consider.  This task team would include representatives of traditional leaders and from the Commission for Gender Equality and the South African Human Rights Commission.

We have every confidence that neither the Commission for Gender Equality nor the Human Rights Commission would betray their mandates and participate in such a task team. Doing so would mean going behind our backs and undermining the public participation process that has already been concluded,” says Sizani Ngubane, Director of the Rural Women’s Movement.

She adds: “The people have spoken against the Bill on three occasions:  when it was first introduced in 2008, and twice during 2012 at the provincial and national hearingsThe only reason that the Bill would be sent back to the provinces is to buy the Minister time to strong-arm provinces into changing their votes in favour of the Bill, due to some mistaken belief that passing the Bill before elections will deliver rural votes.”

As Researcher at the Centre for Law and Society Thuto Thipe explains, this is not the first time that the Select Committee has failed to consider provincial mandates: “Following the hearings last year, it was clear that the provinces were not in favour of the Bill. Controversially, the NCOP simply ignored these mandates and sought to hold another round of hearings.”

The Alliance for Rural Democracy and the Tshintsha Amakhaya platform urge the members of the Select Committee to adhere to the democratic principles that they are sworn to uphold. The people have spoken out against the Bill: both through direct public participation, and through their representatives.  The Select Committee should engage with the existing provincial negotiating mandates forthwith, which means that the Bill must be withdrawn.


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