The Traditional Courts Bill Is Soon To Be Back – New Bill or Old Bill With Embellishments?*

The murmurings about the Traditional Courts Bill are true. The Department of Justice and Correctional Services intends to table it in Parliament in the next few months.

Readers may recall that this is the Bill intended to regulate dispute resolution under customary law in accordance with the Constitution and provide access to justice to the approximately 16-21 million South Africans who live in rural areas subject to traditional leadership.

First introduced in the National Assembly in 2008, the Bill was thwarted by an outcry in the Portfolio Committee on Justice and Constitutional Development for its being based on consultation mainly with traditional leaders and the South African Local Government Association. No ordinary people had been consulted in its drafting and, as a consequence, its provisions were representative of the interests and will to power of the traditional leader lobby.

Substantively, the Bill was primarily criticised for centralising too much decision-making power (executive, legislative and judicial) in the traditional leader, in a manner inconsistent with the more democratic functioning of traditional courts under customary law. The Bill also did not address the concerns that women do not get a fair hearing in many traditional courts which tend to rule in accordance with the patriarchal values that remain endemic in traditional communities. It caused particular concern that the Bill’s provisions allowed for the common requirement that women be represented by men in traditional courts to persist “in accordance with customary law”.

The Bill was also challenged for being jurisdictionally based on apartheid boundaries perpetuated by the Traditional Leadership and Governance Framework Act of 2004. With that, the Bill did not allow community members to choose to rather have their matters heard by Magistrates’ Courts and, thus, under civil law (the general law of the land) if they preferred it to customary law. Instead, it compelled people who did not recognise a particular traditional leader as legitimately their own to submit to his authority for purposes of dispute resolution. Worse still, it empowered traditional leaders to take away people’s property rights as punishment in some cases. It therefore perpetuated the legal segregation and second-class citizenship of people in the former homelands that had been established under apartheid.

The adamance of the African National Congress was expressed by the President’s promises to traditional leaders that the Bill would be passed in short order. Yet, after three years of the ruling party’s attempts to pass the Bill despite repeatedly being advised by civil society and rural people that it was unconstitutional, it hoped to address the concern about inadequate consultation by processing the Bill through the National Council of Provinces.

The Bill was therefore introduced in the NCOP in 2012. Since the Bill was virtually unchanged, it was subject to the same criticisms that it was unconstitutional. It violated people’s rights to choose their culture, women’s rights to equality, the separation of powers, and the right to legal representation (particularly in criminal matters). It potentially took away the property rights of some, had failed to comply with the rights of communities to be consulted in the making of law, and infringed many other constitutional protections.

After the provinces conducted their consultation on the Bill, they too were largely persuaded that it would not pass constitutional muster and the bulk of their negotiating mandates said so. The President had to finally concede these problems in his address to the National House of Traditional Leaders in November 2012. But the Bill lingered – while the Select Committee sought to see if they could still find a way around the problems – until it was realised in February 2014 that it had lapsed.

The first the public learned of the Bill’s resurfacing was in March this year. LegalBrief then reported that ANC MP Mathole Motshekga asked Justice and Correctional Services Minister, Michael Masutha, about the Traditional Courts Bill. In a written reply, Minister Masutha responded that he intends to table a revised version of the Bill in Parliament in November or soon thereafter. He advised that the Bill would be revised: “The Bill will be preceded by a dialogue with all stakeholders and the broad public. The outcomes of this dialogue will inform the contents of the revised Bill.”

What is troubling is that, when the Department’s representative, Advocate JB Skosana, appeared before the Portfolio Committee on Justice and Correctional Services on 23 April 2015, the Committee pressed him to expedite the tabling of the Bill. Adv. Skosana responded that the Department would compress its consultation period. With the inadequacy of the Department’s pre-drafting consultations having been a fundamental part of the problem with the initial Bill, compromising the Department’s consultations is inadvisable.

The discussion document that is to form the basis of the Department’s public dialogue has not yet been made available. We can only hope that it takes into account the public comments received in the backlash against the original Bill and allows ordinary people’s input to form the basis of any future legislation.

What offers potential hope in the evolved approach briefly articulated by the Department to the Portfolio Committee is its description of traditional courts as a means of alternative dispute resolution. One hopes that the Department has realised that, as courts, traditional courts are indefensible under the Constitution. Empirically, also, they are not courts in the sense meant of civil courts.

Rather, they are mediation and arbitration spaces highly contingent, for any effectiveness, on their social embeddedness. This is why participation of the community in their decision-making is what largely defines them. This ironically also makes them forums in desperate need of reform to make them wholly attentive to women’s rights to equality and non-discrimination.

*This is an amended version of the piece that appeared in The Conversation on Monday, June 8th.

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