TCB on life support

There is almost certainly not enough time for the Traditional Courts Bill to be passed before the end of the current Parliament’s term. The disarray in the National Council of Provinces’ Select Committee on Security and Constitutional Development observed last week continued this week. First, the meeting set for yesterday, 18 February to discuss provincial mandates was cancelled. The mammoth task of collating all the provincial mandates and giving legal advice that was laid before the Parliamentary and State Law Advisors last week had not yet been completed.

Second, at the meeting today it became clear that the Bill is now on life support. It is still alive, but only just. It can’t even be said that it’s critical but stable. Rather, it is slowly inching its way towards certain death and not even resuscitation will bring it back to life.

At today’s meeting, the legal team gave a detailed report on the task it had undertaken of working through both the concerns raised and the amendments proposed by the various provinces. The presentation flagged many serious flaws in the Bill that needed consideration by the committee in its deliberations.

Issues raised by provinces that were flagged as requiring far-reaching amendments to the Bill include that:

  • the representation of women before traditional courts is inadequately dealt with in the Bill;
  • the prohibition of legal representation in traditional courts is unconstitutional;
  • the sanctions the courts can impose under the Bill are so broad as to allow unconstitutional punishment to be meted out;
  • it is not clear in the Bill how somebody from an area which is different to where the court has jurisdiction can be tried under customary law s/he does not recognise;
  • the absence of a provision that allows people to opt in or out of customary courts is a serious flaw; and
  • the review and appeal provisions in the Bill are unfair and potentially unconstitutional.

The sum total of the legal advice from the Parliamentary Legal Advisor is that the Committee would need to make amendments to the Bill that are so wide-ranging as to effectively require a new Bill.

When the committee attempted to work out a way forward after the presentation, John Gunda, the Northern Cape delegate, categorically stated, “We mustn’t deliberate on this Bill, which South Africa has rejected.” Quoting the Minister of Women, Children and People with Disabilities, he continued, “‘This Bill can’t even be panel-beaten.’ We must go back and start again with a new Bill and consult people who will live under this Bill, not just traditional leaders like before.” Gunda even chided the legislature of his own province for producing a mandate that said the province was in support of the Bill while people at public hearings had rejected it.

Other members of the committee were unhappy that the advice from the legal team was only delivered verbally. The document from which the Parliamentary Legal Advisor read was not circulated to the committee at the meeting.

The conclusion of the meeting came when one delegate proposed that the delegates should now go back to their provinces for final mandates in the light of the problems of unconstitutionality highlighted by the Legal Advisor . It remains unclear exactly what the delegates would be taking back to the provinces as the delegates have still not negotiated on the Bill based on their provinces’ mandates.

What happened at today’s meeting indicates that the TCB stands no chance of being passed before the elections. The primary reason for this is that provinces have dug in their heels in rejecting it.  They received a substantial boost today when the Parliamentary Legal Advisor confirmed their suspicions that the Bill does not pass Constitutional muster.  It appears, however, that rather than declare it dead the Committee chair would prefer to let it fizzle out.   It has become clear that there is not enough time to pass the Bill before the end of the current Parliament’s term. There is simply no time to go back to the Provinces for final mandates and back again for voting mandates, let alone time to vote in the NCOP and then refer the Bill to the National Assembly.

The Committee continues to tie itself in knots trying to figure out how to drag out the process and thereby avoid provincial mandates rejecting the Bill outright and on principle. Whatever new life support machine for the Bill the Committee may still invent, it is clear that the voices of rural citizens are finally being heard.

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