By: Monica de Souza Louw
From: Amandla! Issue No. 51 | March 2017
We thought the Traditional Courts Bill was dead. After more than two years of struggle against it, civil society and rural activists celebrated their victory when it failed to get enough votes in the National Council of Provinces and lapsed in 2014. That was Bill 1 of 2012. Now the Traditional Courts Bill (TCB) has been introduced in Parliament for the third time as Bill 1 of 2017. Again, there is some anxiety around its contents. This is understandable, given the Bill’s history.
The Bill has a bad record
The TCB was first introduced in the National Assembly as Bill 15 of 2008. It was withdrawn in 2011. It then reappeared without changes in the National Council of Provinces as Bill 1 of 2012. In public hearings across the country, people said that the Bill replicated colonial and apartheid laws. It kept the same geographic jurisdictions for traditional courts as the former Bantustans. Furthermore, the proposals in the Bill were harmful to women and other vulnerable groups. They would concentrate unfettered power into the hands of traditional leaders, even if their authority was contested or oppressive.
Several constitutional rights were compromised: legal representation, security of land tenure, cultural identity, and freedom from cruel punishment or forced labour. If the Bill had come into force, these serious flaws would have undermined the goals of an equal and democratic South Africa.
The Department of Justice and Correctional Services clearly learned its lesson about the power of the public voices which rejected the 2012 Bill. It decided to set up a reference group to guide the drafting of a new TCB. The resulting third version of the Bill is a vast improvement on the previous two.
On the other hand, the National Assembly’s Portfolio Committee on Justice and Correctional Services seems to be looking back fondly at the old TCB. In a departmental briefing to the Committee on 31 January 2017, it became evident that members are split. A majority want the urgent return of the old TCB. A minority welcome the new draft, subject to tweaking around feasibility and clarity.
The Department highlighted some major shifts in the new Bill’s approach. The new TCB is based on principles of voluntary participation. Individuals can opt out of participating in dispute resolution in a traditional court. The previous TCB bound people to the authority of a traditional court if they lived within its geographical jurisdiction. This jurisdiction came from the boundaries for tribal authorities and the Bantustans during apartheid. There was no way to dissociate from this racial geography.
In the new TCB, a clerk must be informed if a person decides to opt out. This may not completely solve the problem. There may be imbalances in power when they interact with this clerk. There may also be social consequences. There is also the worrying possibility that a court could effectively continue to hear disputes in the absence of people who opted out by providing advice or guidance. These provisions could be improved with inputs from the public and constructive drafting. Yet, in their responses several Committee Members opposed the very notion that participation in a traditional court could be voluntary. They suggested that traditional courts could only be suitably recognised through clear jurisdictions and strong powers to enforce orders.
There was also little acknowledgement by Committee Members of the apartheid geography that plagued the previous Bill versions. The Department explained that the TCB no longer said that there would be a traditional court for each “traditional community”. Therefore the court system would be freed from this baggage.
However, the TCB does make reference to a “traditional leader” who will convene a traditional court. This “traditional leader” is someone who holds a position “in accordance with an Act of Parliament”. The Bill does not specifically mention the controversial Traditional Leadership and Governance Framework Act of 2003. But it is interesting that during the Department’s briefing several Committee Members assumed the courts would use the Framework Act. It is the Framework Act that converted former “tribes” into present-day “traditional communities”, and “tribal authorities” into “traditional councils”. Use of the Framework Act would link traditional courts to the jurisdictional boundaries put in place by the 1951 Bantu Authorities Act. Which would take us back to apartheid geography again.
The Bill requires the Minister of Justice and Commission for Gender Equality to report annually to Parliament on women’s participation in traditional courts. It also starts a conversation about prohibited conduct against other vulnerable persons – another major shift from the previous TCB. Some Committee Members implied that gender inequality in traditional courts was attributable to government’s failure to transform traditional councils, an institution separate to the courts. Yet the committee still has a duty to ensure that the TCB, and any other Bill in its care, prevents gender discrimination and provides ways in which women can enforce their rights. It is worrying that some Committee Members do not consider this part of their mandate, particularly since gender issues featured prominently in previous opposition to the Bill.
Indeed, the Committee’s Chairperson, Mathole Motshekga, said repeatedly in the briefing that critiques of the old TCB were driven by urban-based “intellectuals” opposed to African legal traditions. Contrary to the Chairperson’s misleading musings, people living in traditional communities did voice their opinions on the Bill when it was before Parliament previously.
Take for example Sibongile Mthimkhulu from Babanango in KwaZulu-Natal, whose 2012 submission reads:
“As women and as widows this bill is not going to improve our situation…. I myself have been to the Chief to complain about the placing of wild animals on our land and nothing was done. It surprises and upsets me that I am going to be subjected to a Chief who has not provided me with help when I have needed it most!”
Then there was Solomon Mabuza of the Silwanendlala Ubuntu Farmers Agricultural Co-operative in Mpumalanga:
“We write to you as small farmers who are abused by the tribal authority. The TCB gives the same tribal authority judicial powers to hear cases. How will our tribal authority be fair when it hears our cases? The cases that we have are against the tribal authority.”
These are only two statements out of many submissions. But they speak directly to the genuine experiences of people. They affirm tradition, but they also expect their leaders to be accountable. It is offensive and dishonest for the Chairperson to casually dismiss them.
Does consultation mean anything? Moreover, how can the Committee only be satisfied with a Bill version that has already been rejected twice? What does this say about the meaning of public participation on proposed laws? The Department has made efforts to incorporate public criticisms into a new draft. This shows that there was a need for substantial changes in approach in order to achieve a different outcome.
So what has emboldened Committee Members to push for a rejected approach to regulating traditional courts? Perhaps it is an increasing shift in power from ordinary people to an elite group of corporates, traditional leaders and government officials. This shift is presently being facilitated by laws such as the Traditional and Khoi-San Leadership Bill of 2015. Whatever the motivation, Committee Members’ initial responses to the Bill are alarming. Anxiety around the TCB seems unlikely to diminish. It looks entirely justified.
Monica de Souza Louw is the Governance Lead Researcher at the Land and Accountability Research Centre, University of Cape Town.