Traditional Courts Bill opponents are undermining traditional leadership – Contralesa

By Siyamtanda Capa

THE Congress of Traditional Leaders (Contralesa) has lashed out at those opposing the Traditional Courts Bill saying they are undermining traditional leadership.

Contralesa president Kgosi Mathibela Mokoena on Friday accused Non-Government Organisations(NGOs) who have strongly opposed the bill of “renting crowds” and accused them of never having set foot in a traditional court.

He was referring to comments made this week that Parliament, in passing the bill last week, had ignored the voices of rural communities.

Mokoena said hundreds of kings, queens and royal leaders were prepared to support the bill should those opposing it turn to the constitutional court.

After at least 15 years the Traditional Courts Bill is finally on President Cyril Ramaphosa’s desk awaiting Ramaphosa’s signature to sign it into law.

The bill dates back to 2008 and since then has been revised and amended several times.

And while Contralesa has welcomed the developments, at least 20 NGOs and the DA have opposed the bill saying they would try to dissuade Ramaphosa from signing the bill into law.

During the debate in the national assembly the bill was opposed by the DA, EFF, FF+ and ACDP.

The Bill seeks to regulate the structure and functioning of South Africa’s traditional courts in line with the country’s constitutional values.

It is also understood that the aim was to repeal the provisions of the Black Administration Act of 1927, which still regulates traditional courts.

At the centre of the debate is the removal of the “opt-out” clause in the latest version of the bill.

The provision of the clause 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.

But Mokoena said this was “nonsense” and unnecessary.

“We are aware of some noises from people saying there is supposed to be an opt-out clause. We are saying that is nonsense.

“Some of those people who are opposing this bill have never been near a traditional court and they know nothing about what is happening in our courts. They have never set foot there,” Mokoena said.

He added that they were prepared to defend and support the bill should it be taken to the constitutional court.

“The kings, queens and royal leaders in the country are all prepared.

“If they are taking this to the Concourt we are ready and we will bus our people there, all our kings and queens to go and show support at the Concourt to go and show support for this bill,” Mokoena said.

Mokoena said there were clauses he was unhappy with but decided he would request they be amended once passed.

In a joint statement this week a collective of 21 NGOs said the bill has the potential to perpetuate abuses and leaves rural people vulnerable to bad practices by presiding officers of traditional courts.

The NGOs said the bill was 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 statement said.

Meanwhile the DA’s Werner Horn said the bill was unconstitutional.

“We are of the view that the bill is not constitutional, it’s not in the best interest of people living in rural communities, where traditional law is still practised.

“[The bill] continues the marginalisation of women in those communities even though it purports to bring equality into the way these courts are to function. The reality is that unless the substantive provisions of the customary law in areas where women are seen as perpetual minors will simultaneously be changed. It will have no effect,” Horn said.

This article first appeared in IOL on 18 September 2022.

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