The Traditional Courts Bill will land in the Constitutional Court if it is passed in its current form, say land rights activists Nolundi Luwaya and Mavuso Msimang. They were in conversation with Maverick Citizen journalist Zukiswa Pikoli during a webinar to discuss the constitutionality of the bill.

Luwaya is director of the Land and Accountability Research Centre at the University of Cape Town. It focuses on the recognition and protection of rights and customary law in the former homelands.

Msimang is chair of Corruption Watch and serves as an environmental consultant. He has worked for the likes of WWF South Africa and SANParks, and was home affairs director-general from 2007 to 2010.

Activists have been pushing for reform of the Traditional Courts Bill for years. They have consistently argued that it contravenes customary law and the Constitution. 

In June 2019, they marched to the Union Buildings to protest against the bill in its present form. As recently as December 2020, they called on President Cyril Ramaphosa not to sign it into law.

In its present form, the bill puts everyone living in rural areas under the geographical jurisdiction of traditional leaders. In turn, they preside over traditional courts. As a result, voluntary affiliation will be impossible.

The bill envisages that traditional courts will deal with a set list of issues: theft under R15,000, damaged property under R15,000, assault and crimen injuria. It can also give advice on customary practices such as initiation.

South Africa has a pluralistic legal system that allows for more than one system of law to be recognised, explains Luwaya. “The Constitution and the Constitutional Court have made it very clear that customary law is a part of South African law and is afforded the same status as common law,” she adds.

Customary law is subject to the Constitution, therefore all of its elements need to be aligned with it, she said. 

This bill has been in the making since 2003. The draft bill was drawn up by the South African Human Rights Commission after lengthy public consultation. This version was rejected and a different one was introduced in 2008.

This version was “incredibly contentious”, said Luwaya. It made opting out of the traditional court system a criminal offence, didn’t allow women to represent themselves and had extensive sanctions which the court could impose on people, she explains. 

This version lapsed, but was reintroduced in 2012. It took years for it to move through Parliament. In 2014, the majority of provinces rejected it and it was not passed.

The department of justice launched a process of engagement with a reference group that included civil society organisations and traditional leaders. From that process, another version was introduced into Parliament in 2017. 

“This version really reflected the process of compromise that had happened in that reference group space,” said Luwaya. It did provide for opting out and had better protection and treatment of women. 

“It really gave us hope that this bill would pass and was more aligned with what rural people had been asking for for the longest time,” she said.

However, the justice portfolio committee made “substantial” changes to that version of the bill. All references to the consensual and voluntary nature of customary law were removed and the provisions which dealt with opting out were removed – and this is the version that is presently before Parliament, explains Luwaya.

In December 2020, the National Council of Provinces passed the bill – only the Western Cape and KwaZulu-Natal rejected it. The justice portfolio committee has requested a legal opinion on the bill, which is imminent.

Many people had spoken up against this bill for years, but they had been ignored by lawmakers, said Luwaya.

There was a lot of deference and pride of place given to the thoughts and requests of traditional leadership, which came at the price of rural people, she said. 

The bill and its passage through Parliament was a prime example of how “hard, loud and consistently” communities which would live under this law have had to say that this was not what they wanted or needed, and did not align with the type of customary law they ascribed to, she said.

For instance, the bill in its present form does not allow people to opt out. “The value and legitimacy of traditional courts is determined by the people who use them. Where people feel the council, which convenes the court, has legitimacy and responds appropriately to their needs, then you’ll find the courts are used,” she said.

“The opt-out provision is about recognising that this is a bottom-up authority and that people must be allowed the opportunity to choose to not use the court. 

“This is not about undermining traditional leaders, but rather about subscribing to and protecting a deep principle of customary law,” she said.

Including the opt-out clause honoured this and made sure people were not locked into a system that might subject them to terrible human rights abuses, she said.

Although the opt-out clause was not a fail-proof or perfect solution, it was a necessary baseline, she said. Not all people would know of this option and others might be pressured not to use it, but at least it would exist.

The bill in its present form will make the traditional courts the “enforcement arm” of the Traditional Khoi-San Leadership Act, said Luwaya. The act gives traditional leaders control over land and the power to enter into agreements without community consultation. 

The bill in its present form could allow courts to be used to summon and sanction anyone who disagreed with decisions, she said.

In addition, it is unclear what will happen when a person brings a complaint against a traditional leader to the court.

What rural communities were opposed to was a system of governance that relegated people who used traditional courts to the status of second-class citizens…

It was saddening that a bill that was detrimental to the people was being passed through Parliament – especially one led by the ANC, which was voted into power by many of the people who would be affected by this bill, said Msimang. 

“I am saddened by the fact that we have an ANC government which is grappling with things that are very clearly retrogressive and defends them. 

“To continue working under the framework de facto of the former Bantustans, and to deprive certain citizens of the common South African citizenship, is something which I really don’t understand,” he said.

Pikoli pointed out that the ANC fought so hard against the homelands imposed during the apartheid era, yet they were insisting on a bill that harked back to this. 

Msimang said there was “no logic” for using the boundaries of the former homelands or removing the rights of people and giving them to traditional leaders, some of whom were placed there illegitimately by the apartheid regime.  

Luwaya and Msimang agreed that opposition to this bill did not mean opposition to the entire institution of traditional leadership.

People want the traditional courts to exist and be used, but they want the structure of the courts and leadership to be aligned with the Constitution, Luwaya points out. The courts are used – they are accessible, familiar and the most direct access to justice some people have, she explains.

What rural communities were opposed to was a system of governance that relegated people who used traditional courts to the status of second-class citizens, she added. 

It would be a big mistake to do away with customary law, said Msimang.  

“People believe in these things and, where it serves well, it should be allowed. It shouldn’t constrain them,” he said.

How did a “retrogressive” bill make it this far to then be referred for legal opinion? Luwaya said this did call into question the law-making process, as the Constitutional Court had said a number of laws needed amending before being passed by Parliament.

Parliament is also failing to understand the system it is trying to regulate, she said. This led to a misalignment and misunderstanding and a bill that was unconstitutional and needed fixing.

Msimang argued it was obvious that interested parties would be leaning on the government with promises of bribes and votes to pass the bill as it was. 

They agreed that everyone in South Africa needed to care about this bill. The barrier between urban and rural was a lot more porous than people thought, Luwaya pointed out. People didn’t live within neat boundaries. 

“This [the bill] is a genuine and real threat to their ability to live in a manner which aligns with the Constitution and provides them the opportunity to make the choices they wish.

“Ensuring that there isn’t the development of a separate system in which people are relegated to a second-class citizenry is everyone’s concern because it’s about constructing the one united South Africa that was fought so hard for and which the Constitution asks us to strive for,” she said.

Rural areas were “living areas” and people had a system that had worked for centuries, said Msimang. This needed to be upgraded as things changed, but it should not be destroyed, he said.

They agreed that it would be “tragic” if the bill was passed as it was. Msimang hoped it doesn’t happen, and that the matter would have to be referred to the Constitutional Court. 

Luwaya also foresees legal action as well as a strong response from rural communities. 

She said they would be justified in making the ANC feel their disappointment at the polls “to send a strong message that this is not the type of governance that they deserve or need, and there are consequences when their voices are ignored”. DM/MC