Parliament: Opt-Out, Traditional Courts Bill supporters’ most hated clause

In Parliament’s justice committee a push is under way to nix the Traditional Courts Bill’s opt-out clause that was drafted following extensive consultation to ensure South Africa’s 18-million rural residents do not forfeit constitutional rights. Why is this important? It talks to power relations in rural areas and whether customary law is viewed as a pre-colonial romanticised ideal or as living and evolving practice within a constitutional democracy.

 Traditional leaders publicly have invoked a list of grievances they claim undermine their rightful standing – from not being paid the same as elected public representatives, not enjoying the same perks of office to being slighted when it comes to elected governance structures like municipalities making decisions on land use or the introduction now of draft legislation to regulate initiations after years of scores of abakhwetha (initiates) dying or being left mutilated every initiation season. The list of complaints is long.

The ANC long has considered traditional leaders central to its support base, but that relationship also is complicated and complex. And so while the governing ANC has pursued laws to govern land use and spatial development to boost economic development, it has also left the door open to traditional leaders’ ambitions. At the ANC December national conference one proposal was the formal inclusion of traditional leaders in the National Council of Provinces (NCOP), the House that must bring provincial interests to the law-making process.

Yet in line with the constitutional recognition of the “institution, status and role of traditional leadership… subject to the Constitution”, traditional leaders have their own provincial representative structures and the National House of Traditional Leaders (NHTL), which becomes involved in law-making when proposed legislation deals with customary law and customs of traditional communities, according to the 2003 Traditional Leadership and Governance Framework Act.

Like land, and in areas of mining, traditional courts are a mainstay of traditional leaders’ power. While traditional courts are a fact of life in rural areas – they are sitting and resolving disputes on any given day anywhere across South Africa – their operations are largely unregulated, unmonitored and unrecorded. This the Traditional Courts Bill seeks to change.

The draft law introduces an administrative regimen including registrars and record-keeping, ensuring the participation of women, underscoring the importance of restorative justice and emphasising the promotion of equality, freedom of sexual orientation, identity and religion and a ban on corporal punishment or banishment as penalties.

But this, the third stab at passing the Bill, also provides for opting out from traditional courts, a clause included after months of consultations with representatives of traditional leaders and civil society organisations, facilitated by academics under the auspices of the Justice Department. Effectively, this opt-out provision gives residents in traditional communities the right not to subject themselves to traditional courts and rather take their matters to a magistrate’s or other court, including small claims courts or even the equality court.

It was this opt-out that became the bone of contention at the parliamentary justice committee public hearings last week, with justice committee chair Mathole Motshekga setting the tone by repeatedly questioning this provision.

His take on customary law?

“Why shouldn’t we look into the practices of former times when we didn’t need policemen…”, was one comment, alongside questioning why “Western law” was somehow regarded better.

“Why hero-worship magistrates as if they fall from the sky?”

Or, as he put it in the opening statements:

“Safe to say it is really disappointing that it took 10 years to produce a piece of legislation that seems to be a carry-over of colonial systems.”

In a highly unusual move, two representatives of the National House of Traditional Leaders (NHTL) were given the right to speak and question presenters, even though they are not MPs. Among their contributions was an endorsement of corporal punishment – banned in schools since 1996 – while arguing that adulthood was linked to the ability to self-support, meaning that a 40-year-old man “for who I must buy underwear… who still lives at my home” still was regarded as a child.

Public hearings by nature are robust as MPs engage with various views on a particular draft law. But the tone in the Traditional Courts Bill hearing was sharply condescending towards many not representing traditional leaders and their structures – varying only according to the gender and age of the presenters.

While arguing for protecting children from, among others, corporal punishment and the needed steps to ensure their vulnerability is not exacerbated, Centre for Child Law Senior Project Co-ordinator Zita Hansungule was told to ask older rural women how to raise children.

Her co-presenter, Children’s Institute Senior Researcher Stefanie Röhrs, was asked whether she spoke any Khoi-San languages, and why the organisation had not done any research in the township communities of Pretoria, where it is based.

Land and Accountability Research Centre (LARC) presenter Professor Thandabantu Nhlapo was treated more politely, perhaps in the knowledge that he not only chaired the 2004 Commission on Traditional Leadership Disputes and Claims, but also served in South Africa’s embassy in Washington, US, and the South African Law Reform Commission.

Nevertheless he was put under extreme pressure, having to justify supporting the opt-out clause. He did so by arguing that opting out was akin to the existing practice of rural residents voting with their feet if unhappy about a traditional leader.

It was the response to ANC MP Loyiso Mpumlwana, who earlier had argued for the Traditional Courts Bill to be passed without the opt-out provision so “everyone is subject to one law”, and then later see what to do about it.

Yet the opt-out provision is central to what the Bill must do in line with the Constitution. It recognises the role of African customary law – South Africa’s courts have already underscored the living, evolving and voluntary character of customary law in several cases – but ensures there is one unitary legal system, not one for rural residents in traditional communities and another for everyone else.

And it affords everyone protection of constitutional rights, among others of equality, dignity and freedom from servitude and forced labour by focusing traditional courts largely on civil cases and disputes within “the consensual nature of customary law” and “the right to freely and voluntarily elect to or elect not to abide by the various applicable practices and customs”.

When the Bill was officially tabled in January 2017, following Cabinet approval and after extensive consultations with both traditional leaders and civil society organisations, Deputy Justice Minister John Jeffery said “the Bill represents an end-product of a collation of ideas and wisdom without which we would not have succeeded in our endeavor to finalise the Bill”. This revised Bill now fell in line with the Constitution, he added.

The two previous stabs at legislating traditional courts, with consultations limited to traditional leaders, failed in Parliament in 2008 and 2012. In 2008 the draft law was rejected outright. After the Bill was reintroduced without changes in 2012, it progressed further amid opposition from civil society organisations representing women and rural communities, but stalled at the NCOP. Five of the nine provinces rejected the draft law outright by October 2013, with KwaZulu-Natal and Mpumalanga indicating their abstention, leaving only the Free State and Northern Cape in support. After a last attempt to pass the Bill just before the May 2014 elections failed, government went back to the drawing board.

How this current Bill will fare must now unfold, including whether the justice committee will make changes – and if it does, to what extent.

Following last week’s public hearings Motshekga in an official statement said the committee would take all submissions into account when it debated on this matter “in order to craft legislation what protects and respects custom, culture and, most of all, human rights”.

In the statement, Jeffery emphasised “the importance of a ‘homegrown’ legal system that represents the values of the people”.

This article first appeared in the Daily Maverick on 19 March 2018.

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