PRESS STATEMENT: Parliament ignores rural voices and passes Traditional Courts Bill without opt-out clause

By Various

We demand that President Ramaphosa not sign the current version of the Bill into law.

On 8 September 2022, the National Assembly (NA) passed the amended Traditional Courts Bill [B1D-2017] (TCB) in a plenary session.

Opposition was expressed by the Democratic Alliance, Economic Freedom Fighters, Freedom Front Plus and African Christian Democratic Party. This version of the Bill, which will now go to President Ramaphosa to sign into law, does not include the opt-out clause that stakeholders fought for since 2008. The provision would allow a party before a traditional court to ‘opt out’ of its jurisdiction in favour of another forum or court, thereby giving the party the option to choose. Its exclusion is an affront to rural people who have consistently demanded that their constitutional and customary rights be protected. Parliament has refused to do so.

The history of the Bill has been contentious. Rural people vigorously opposed Parliament’s attempts to pass an unconstitutional version of the TCB in 2008 and again in 2012. They successfully stopped the Bill from being passed – which discriminated against women, allowed for demeaning forms of punishment, and subjected people living in the former Bantustans to a separate legal system.

Following work done through a reference group process that included civil society, traditional leaders and government, positive changes were made to the Bill that was reintroduced in 2017. The reference group deliberated on the objectionable components of the 2008/2012 iteration of the Bill and the outcome was a much-improved version that included safeguards for women and vulnerable groups in traditional courts and an opt-out clause.

To our dismay, the opt-out clause was removed during deliberations by the NA Portfolio Committee on Justice in 2018. This was done despite the legal advisor’s opinion at the time that the removal of the opt-out clause would make the Bill unconstitutional. Now, all levels of the traditional court system must be exhausted before a matter can be referred to a Magistrate’s court, effectively limiting all parties involved in matters before a traditional court to that system.

Traditional courts were also given the status of courts of law, which subjects them to the formalities and limitations of the court system existing in towns and cities. This was done despite advice from state legal advisors that traditional courts should be regarded as special dispute resolution tribunals.

The Bill was previously amended by the Select Committee on Security and Justice and passed by the National Council of Provinces (NCOP) on 2 December 2020 after a rushed public participation process that failed to consider key issues raised by rural people and civil society. The changes made by the NA were accepted by the NCOP, which again proved that this Bill is not made for rural citizens and it will not do much to improve access to justice for them.

The Portfolio Committee on Justice and Correctional Services then considered the amendments made by the NCOP. Deliberations were initially promising as the Committee seemed committed to the constitutionality of the Bill. Following the 2018 legal opinion, the Committee requested another legal opinion on the removal of the opt-out clause, which came back saying the Bill will be constitutional without it. This was a change from the 2018 opinion. Unsatisfied, the Committee decided to source a third legal opinion from Senior Counsel outside of Parliament. After the external legal opinion was received, the Committee seemingly abandoned its commitment to the constitutionality of the Bill and simply agreed with the amendments made by the NCOP.

The NA’s passing of the TCB on 8 September 2022 mocks the tireless efforts and submissions made by rural citizens to Parliament to safeguard their democratic rights. For over a decade, rural people have made it clear to Parliament they will be locked into the jurisdiction of a traditional leader and a traditional court without any choice if the Bill failed to include an explicit opt-out provision. Some of these traditional leaders are not recognized by rural communities as they were imposed over them during apartheid. By restricting rural citizens to the jurisdiction of traditional leaders based on geography instead of voluntary affiliation, the Bill undermines the nature of living customary law and the freedoms introduced by the Constitution.

The Bill has the potential to perpetuate abuses and leaves rural people vulnerable to bad practices by presiding officers of traditional courts. Rural democracy is at risk and Parliamentarians have allowed this to happen by not heeding the pleas of rural voices. This betrayal diminishes our faith in the current government.

Parliament claims this version of the Bill preserves the integrity and dignity of traditional courts and provides access to justice for rural citizens. However, the Bill is completely impractical and based on a poor understanding of the challenges faced by rural citizens in accessing justice in rural areas. This Bill is not for rural citizens.

We call on President Ramaphosa not to sign the current version of the TCB into law, and to refer it back to Parliament or the Constitutional Court for consideration. We demand that a law like the TCB be based on voluntary affiliation, constitutional rights and living versions of customary law. Unless it is drafted in consultation with rural citizens, it will never truly facilitate access to justice for them or preserve the integrity and dignity of traditional courts.|

The rural groupings that continue to express opposition to the undemocratic version of the Bill are organised through the Stop the Bantustans campaign, initiated by the Alliance for Rural Democracy (ARD).

Stop the Bantustans is a coalition campaign set up to prevent the passage and implementation of legislation that recreates the Bantustans, such as the Traditional and Khoi-San Leadership Act (TKLA) and the TCB. This campaign is supported by organisations and individuals who agree with the aims and values of the campaign, and it will mobilise against the passing of the TCB in support of the rural masses that continue to push back against this Bill. Our human rights cannot be denied.

For further information please contact:
Alliance for Rural Democracy National Coordinator: Constance Mogale | +27 82 559 0632
Land and Accountability Research Centre Director: Nolundi Luwaya | +27 83 790 3662

This statement is endorsed by the following organisations/individuals:
● Alliance for Rural Democracy
● Professor Thandabantu Nhlapo
● Nkuzi Development Association
● Land Access Movement of South Africa
● Bakone Ba Phetla Communal Property Association
● Putfontein Land Buyers
● Wonderkop Land Claims Committee
● Rural Women’s Movement
● Eastern Cape Women’s Association
● Diniza Women’s Organisation
● The Womxn and Democracy Initiative, Dullah Omar Institute, UWC
● Kopano Mapela Concerned Group
● Baphiring Communal Property Association
● Magokgwane Land Claims Committee
● Land and Accountability Research Centre
● Phuhlisani
● Lawyers for Human Rights
● Batlhabine Foundation
● Bench Marks Foundation
● Makhomane Communal Property Association
● Masilela Communal Property Association
● Mashishing Interdenominational Council

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