Traditional Courts Bill props up a system spawned by apartheid

Why is the ANC rushing through legislation that entrenches the unstable reign of chiefs?

The highly problematic Traditional Courts Bill was rammed through the justice portfolio committee by ANC MPs this week. It is the only ANC-sponsored bill to have been outvoted in parliament. This happened in 2014 when the ANC could not secure the support of the majority of provinces in the National Council of Provinces. The bill was lambasted by rural people in public hearings, by provincial mandates from ANC provinces, by the former minister of women,  Lulu Xingwana, by former ANC secretary-general Cheryl Carolus, and by headmen who said it subverted the inclusive nature of village councils and reiterated the model of chiefs courts adopted by the Native Administration Act of 1927.

Despite the early concerns, the minister of co-operative governance & traditional affairs, Dr Zweli Mkhize, recently had a series of meetings with lobbies representing traditional leaders at which he made it plain that a reintroduced Traditional Courts Bill would be adopted by parliament before the elections.

The bill sets up a parallel system of justice for those living in the former homelands, and prohibits them from “opting out” of chiefs’ courts and choosing to use magistrates’ courts instead.

 The issue of whether 17-million South Africans living in the former homelands should have the right to go to the court of their choice has been a sticking point since 2003 when the South African Law Reform Commission released a draft bill reflecting its view that, for the bill to pass constitutional muster, people must be allowed to opt out of chiefs’ courts.

 Traditional leaders cited the opt-out provision in rejecting the draft. The department of justice then shaped a new bill “in collaboration with the House of Traditional Leaders”, according to its memo on the 2008 version of the bill. This version empowered traditional leaders to demand unpaid labour from anyone within their “tribal jurisdictions”, and to cancel customary entitlements, including land rights. It contained no provisions to enable women to attend and represent themselves in traditional courts. It made it a criminal offence to stay away once summoned to appear before a traditional court.

 Why would legitimate traditional leaders want powers like that?

It all goes back to the deeply contested Bantu Authorities Act of 1951. That act was used to delineate the boundaries and install the leaders of the then “bantu authorities” that were later renamed “tribal authorities”. These tribal authorities were then amalgamated into 10 “homelands ” through processes of forced removal that “resettled” more than 3.5-million black South Africans outside of “white SA”.

 The Traditional Leadership and Governance Framework Act of 2003 recast the tribes of old as “traditional communities” and the tribal authorities as “traditional councils”. But it kept in place the deeply disputed tribal boundaries and the traditional leader lineages created during apartheid .

Albert Luthuli and Govan Mbeki both resisted and wrote about the distortions and violence perpetrated by the Bantu Authorities Act.

Luthuli wrote in 1962: “The act makes our chiefs, quite straightforwardly and simply, into minor puppets and agents of the Big Dictator.”

Mbeki wrote in 1964: “Many Chiefs and headmen found that once they had committed themselves to supporting Bantu Authorities, an immense chasm developed between them and the people … in its place there was now the autocratic power bestowed on the more ambitious Chiefs, who became arrogant in the knowledge that the government ’s might was behind them.”

 Nelson Mandela wrote in 1959: “In South Africa, we all know full well that no Chief can retain his post unless he submits to Verwoerd … the proposed Bantu Authorities will not be, in any sense of the term, representative or democratic.”

 The outcome of the imposed system has been highly unstable and many challenges to the legitimacy of assigned leaders and boundaries have been lodged.

This crisis of legitimacy makes the punitive powers provided by the bill very welcome for traditional leaders. It allows them to deal with anyone who challenges their precarious authority, adding coercive power that may be abused to achieve unpopular outcomes.

 Which brings us to the next question: why would the ANC not only support, but work with such haste to push through laws like these?

Past leaders of the ANC wrote about creating a new amalgam of South African law built on combining the best elements of both customary and common law. More recently, ministers and even former presidents have spoken out against serious abuses by some traditional leaders — only to be sidelined or demoted.

 They and their views no longer inform ANC policy.

Instead we have leaders who are putting significant effort into ensuring that the traditional leader lobby gets all the power it demands, including ownership of communal land. Mineral resources minister Gwede Mantashe has appealed against a court judgment that requires rural people to consent before their land rights can be confiscated.

Because of the constitution, he will lose his appeal.

And because of the constitution, this amended bill will be struck down, too. Among its glaring unconstitutional provisions it creates courts — which can hear criminal matters — where lawyers are not allowed; the Bill of Rights guarantees access to legal representation in criminal cases.

 In supporting this patriarchal, authoritarian and unaccountable version of customary law, the ruling party has turned its back on the desire for accountable practices among many traditional leaders, and on the premise that customary law is by its nature accountable and inclusive.

 Some traditional leaders have already been emboldened to act without concern for accountability. These laws will facilitate even greater abuse of power in SA’s rural areas.

This article first appeared in Sunday Times on 10 March 2019.

Permanent link to this article:

Custom Contested