The spin was on from the panel of two deputy ministers, a director-general and a senior justice official. There was much at stake as vocal and widespread opposition by rural and women’s organisations and others scuppered two previous tries to get a traditional courts law seen as pro-traditional leaders passed in 2008 and from 2012. On Monday the panel’s message was firm: traditional courts exist in South Africa, are used by millions of people and it was now time to “regularise the existing system” and bring traditional courts under the auspices of the Constitution.
This 2017 Traditional Courts Bill, still to be formally certified by state law advisers and officially referred to Parliament, talks of speedy and cost-effective dispute resolution and restorative justice, rather than justice and the law. Such courts will deal with theft and malicious damage to property not exceeding R5,000, assault, break-ins, trespassing and defamation.
Crucially, this Bill allows for members of a traditional community to opt out (this needs to be communicated to the clerk of the customary court at the beginning of the process), appeals to relevant existing customary law processes, and an escalation to a High Court for review.
These provisions clearly are the outcome of the consultation and reference group process. None were included in earlier versions of the Traditional Courts Bill, which in both its 2008 and 2012 versions bound rural residents to customary courts whose jurisdiction effectively echoed the boundaries of apartheid bantustans. The opt-out provision is a victory for civil society as it provides choice to members of traditional communities. The recognition of customary law as alive and changing with its own complex and valid appeals is also significant success for civil society organisations, as is recourse to the High Court.
Both the controversial 2008 and 2012 versions of the Traditional Courts Bill were drafted following consultations only with traditional leaders, long regarded by the ANC as a secure voters’ base. This effectively politicises the often-unequal power relations in rural areas by putting traditional leaders, not communities, on centre stage. Even in its 2015 National General Council documents, the ANC describes traditional leaders playing a key role “in representing and preserving the culture and identity of community members, may be a key driver of development in rural areas”.
But customary law is contested. In August 2015 two landmark court rulings upheld traditional communities’ right to determine their own practices, and recognised evolution in customary law. The Cala Reserve Community in the Eastern Cape had the right to appoint its own headman, according to a full bench of the Eastern Cape High Court, against opposition from the provincial government. And Constitutional Courts upheld the right of the Bakgatla-Ba-Kgafela Communal Property Association in North West to democratically control its land restitution case. At the time these court judgments were described widely as key to the democratisation of customary law.
In 2008 the original Traditional Courts Bill had been rejected outright amid a public outcry. Reintroduced without any changes in Parliament four years later, the 2012 Traditional Courts Bill again met a wall of opposition from communities and civil society representing rural communities and women’s organisations. While at some point in the run-up to the May 2014 elections it became a sweetener for the traditional leaders’ vote, the parliamentary process ground to a halt. In October 2013 during the National Council of Provinces (NCOP) process, five provinces rejected the draft legislation outright, while KwaZulu-Natal and Mpumalanga indicated they would abstain due to the divisive and deeply disliked Bill, leaving only the Free State and Northern Cape in support. In February 2014 there was a final, and unsuccessful, stab at the Bill, which finally failed.
The ANC always had the option to instruct its parliamentarians to nevertheless vote for the Bill – a simple majority would have carried the day even amid vows from civil society and others to challenge the law in the Constitutional Court. But the governing party backed away from the usual parliamentary numbers game. Instead, consultations were pursued.
It seems the justice ministry and department has learnt its lessons with the substantially revised 2017 version. But the question of women’s equal participation in customary courts remains a flash point.
On Monday gender issues were sidestepped – it is encouraged, but not enforced, while the ministry and Commission for Gender Equality would keep watch and adopt measures where necessary – as were questions on the potential abuse by traditional leaders, who head customary courts while also in charge of the particular community’s affairs.
The question of gender was “difficult”, acknowledged Jeffery, given the range of customary practices which in some instances do not allow women a full say, and the equality provisions in Section 9 of the Constitution: “Everyone is equal before the law and has the right to equal protection and benefit of the law”.
Co-operative Governance Deputy Minister Obed Bapela stressed this would be an evolution as women could not be forced when they chose to decline participation. But he pledged there would also be education and awareness campaigns:
“As society evolves, we see more and more women participate,” added Bapela.
As it stands, the Traditional Courts Bill in Clause 7(3)(a)(i) states that “women, as parties to any proceedings or members of the traditional court, are afforded full and equal participation in the proceedings, as men are”.
Regarding potential abuses by traditional leaders in charge of traditional courts, it was pointed out the Bill in Clause 5(5) states: “Before commencing any session of a court the traditional leader convening the court or the person designated by him or her must say the prescribed pledge that he or she will promote and protect the values enshrined in the Constitution and this Act.”
The Bill also allows the justice minister and the various houses of traditional leaders to author a code of conduct.
Legal representation, as in previous versions of the Bill, is not allowed in traditional courts. While there is precedence for this in the Small Claims Court and before the Commission of Conciliation, Mediation and Arbitration (CCMA), where lawyers are also not allowed, this provision may still prove troublesome.
Also a potential flag is the new stipulation that traditional courts may also proffer (non-binding) advice on customary matters like ukuthwala (forced marriage), initiation, customary marriages and the guardianship of children from a customary marriage and customary inheritance. Whether this is a back door to entrench traditional leaders’ powers remains to be seen in the public hearings that will unfold.
It’s a long haul yet. “We hope we have produced a Bill that has greater support… Nobody is going to be particularly happy with the Bill, but we want people to say they can live with it,” said Jeffery. DM
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