On 17 October, the National Council of Provinces (NCOP) plenary adopted a resolution to revive the Traditional Courts Bill (TCB) along with 14 other Bills that had lapsed at the end of the 5th Parliament after having been processed by the National Assembly (NA) and referred to the NCOP for concurrence.
The proceedings on the Bills will resume at the stage at which they ended at the end of the last term, and where committees have commenced with processing the Bills, that work will be accepted as having been done by the committees. However, the revival of these Bills remained unresolved for about three months due to the fact that the House rules do not provide for the revival of Bills introduced in the NA but that lapsed before the NCOP. It remains unclear in terms of what rule the Bills have been revived. Please see this YouTube link for the plenary (https://www.youtube.com/watch?v=8anh363fI0g) and the revival of the Bills is between 11:45-14:13 of the clip.
On 8 and 9 October the NCOP’s Select Committee on Security and Justice was briefed by the Parliamentary support staff and the Department of Justice and Correctional Services, respectively, on the TCB and other Bills that will be processed by this committee. In the first briefing, the support staff explained that the Bills have no status and therefore there are no Bills before the committee. That Committee session was not a deliberation or meeting for the processing of the Bills, but an introduction of the Bills to the committee.
The Secretary of the Committee explained that in terms of Rule 238, all Bills introduced into the Council which have not yet been passed by the Council when it rises in the last sitting plenary session lapse but may be reinstated on the order paper during the next ensuing session. The rules only provide for introduced Bills, which is Section 76(2). However, the rules do not provide for lapsing of Bills that are referred by the NA for concurrence. Those Bills are still within the NCOP.
Furthermore, the secretary explained that in terms of Rule 103 of the Council the committee may at any stage, for purposes of fulfilling its functions, ask the department to brief it on legislation that is forthcoming or legislation that has been referred from the NA but is not yet within the Council. The formal engagement will then start with the public participation process. The Committee had written to the Chairperson of the Council and requested Bills before the committee to be revived or a resolution passed that they be referred to the relevant committees.
Regarding the TCB specifically, the briefing by the support staff included a summary of the content and history of the Bill. It was mentioned that the committee should consider the recommendations of the 4th Parliament when considering the provincial mandates. It was also noted that the current version of the Bill includes constitutional imperatives and values which address the previous concerns about the Bill not being constitutional. The opt-out clause was mentioned as one of the major provisions that were included in the Bill as it was demanded by commentators, however, it has been removed by the NA’s Portfolio Committee on Justice and Correctional Services, which processed the Bill before it was referred to the NCOP. The committee was cautioned that the opt-out clause might be raised as an issue in the provincial legislatures and the Bill may have to come back again.
In the briefing by the department, after a detailed presentation of the content of the Bill, Deputy Minister John Jeffery mentioned that there has been a call from civil society for the President to scrap TCB. However, the President does not have the power to do this. the Deputy Minister emphasized that the Select Committee has a legal duty to conduct proper public participation process and come up with a Bill that may not be liked by everyone, but one that people can live with.