January 18, 2021

Ten years in the waiting, but still a long way to go on the Traditional Courts Bill

Ten years in the making, the Traditional Courts Bill still has a very long way to go. That was the clear message from public hearings on the Bill which commenced in Parliament this week.

Indeed, the Chairperson of the Portfolio Committee on Justice and Correction Services, Dr Mathole Motshekga, described the public submissions on the latest version of the Bill as a mere “curtain-raiser”.

Further public hearings across the country will follow. They may be necessary, but judging from comments heard in Parliament this week, are likely to result in further delay.

The notion of constitutional supremacy permeates our legal system. A problem therefore lies in the fact that certain traditional values and, in particular, traditional dispute resolution procedures, may be seen to be in contrast with Constitutional provisions. This makes this issue a delicate matter to mediate.

Two previous versions of the Bill, in 2008 and 2012, got as far as the House, but were never passed. This time around Parliament needs to get it right. After being withdrawn and sent back to the drawing board twice there was some hope that the new Traditional Courts Bill of 2017 would provide a solution.

'It is really disappointing that it took 10 years to produce a piece of legislation that seems to be a carryover of colonial systems.'

But when the Department presented the Bill at the public hearings this week, it was met with strong criticism – especially from the Committee Chairperson and other ANC members of the Portfolio Committee.

“Safe to say it is really disappointing that it took 10 years to produce a piece of legislation that seems to be a carryover of colonial systems,” was Motshekga’s response.

The Bill seeks to provide a comprehensive legislative framework for the regulation of dispute resolution procedures according to traditional African values. The Bill seeks to give effect to the aims of restorative justice, community involvement in dispute resolution and the acknowledgement of the voluntary nature of customary law. It also seeks to enhance access to justice for those in rural areas, providing a forum that is more culturally familiar.

A new provision introduced since the 2012 Bill, the “opting-out provision”, proved to be particularly controversial at the public hearings. It allows for disputes to be heard before a Traditional Court, but permits the option of “opting out” of these procedures. The rationale, as described in the “Guiding Principles” in Clause 3 of the Bill, is that African Customary Law is by its nature voluntary and consensual. People can choose the culture and customs that they wish to live by and are therefore permitted to have their disputes heard by the forum of their choice, including a Magistrate’s or High Court.

The UCT-based Land and Accountability Research Centre (LARC) pointed out in their submission that the lack of this provision in the 2012 Bill had failed to give effect to the voluntary and consensual underpinnings of customary law. The LARC therefore supported the inclusion of the opting-out provision.

But the opting out provision was not appreciated by the ANC members of the committee, as well as the Deputy Judge President of the Kwazulu-Natal division of the High Court, Isaac Madondo, who also made a presentation at the hearings.

They argued that if any person, regardless of race, visits or lives in an area that is subject to the rule of a King, Queen or Chief, that person effectively “opts in” to the norms and rules of that community as well as the jurisdiction of the Traditional Courts that fall under it. It was argued that the opt-out provision disrespects Traditional Courts and “makes a mockery of the entire Bill”. In addition, they said the fact that one can opt out of a Traditional Court but not a Magistrate’s Court perpetuates the view that African customs are seen as inferior to Western legal norms.

This raised the next bone of contention which is the legal status of the proposed Traditional Courts. The question is whether they are to form part of the court system laid out in Section 166 of the Constitution, (which may make opting out inappropriate). But the Preamble to this Bill suggests that Traditional Courts are intended to remain separate from the court structure of the Constitution, stating that they are “distinguishable from courts in the judicial system contemplated in Chapter 8 of the Constitution”.

Traditional Court procedures do raise significant Constitutional concerns. This is especially so given that Schedule 2 of the Bill grants Traditional Courts the jurisdiction to hear what would ordinarily be regarded as criminal matters including theft, malicious damage to property and assault.

Yet the Bill prohibits legal representation and the procedures, laws of evidence as well as the rules for bias and recusal differ substantially from that seen in a Magistrate’s Court. This raised the question whether the Bill violates the rights of accused persons in Section 35 of the Constitution.

At the same time it was acknowledged that the ban on lawyers saves costs, and protects the community-based and participatory nature of customary dispute processes.

If a party is aggrieved by the decision of a Traditional Court, the Bill grants parties the right to take the matter on judicial review. While this may sound good in theory, the cost and nature of the High Court system, as well as judges’ lack of familiarity with customary law, makes this an ineffective means of holding presiding officers in Traditional Courts to account – a problem which is not sufficiently mitigated by other accountability measures in the Bill.

The Bill was also heavily criticised by Members of the Committee for failing to address the problem which arose in the 2008 version: that the Bill is still tainted by colonial and apartheid influences. Territorial jurisdiction still replicates the homelands created by the apartheid government in terms of the Bantu Authorities Act of 1951 but several rural communities are the result of forced removals and they do not recognise the Traditional Leaders who preside over that area.

In terms of the Bill, Traditional Courts would be presided over by “Traditional Leaders” who are defined as “any person who, in terms of customary law of the traditional community concerned, holds a traditional leadership position in accordance with an Act of Parliament.”

The Act of Parliament refers predominantly to the Traditional Leadership and Governance Framework Act of 2003 (TLGFA) which regulates the appointment of Traditional Leaders. It terms of Section 11 of the TLGFA, Traditional Leaders must be “identified” by the “royalty” of the area concerned to the Premier of that province, who must then recognise that person as a Traditional Leader. Whilst in most cases the “royalty” of a community is likely to identify an upstanding and respected member of that community for the position of a Traditional Leader, the fact remains that an unelected King, Queen or Chief appoints an unelected leader to preside over community disputes.

This presents the risk of violating democratic principles. There are also concerns that Traditional Leaders are not trained or equipped with the necessary skills to resolve the disputes under their jurisdiction.

The right to practice and enjoy the culture of one’s choice is linked to the principle of self-determination and is entrenched in our Bill of Rights. These traditional dispute mechanisms existed and operated long before colonialists subjected tribes and Chiefdoms to Western legal principles. They also have much to offer, being inexpensive, accessible, community based hearings, which are aimed at restoration above retribution and espouse the value of Ubuntu.

The underlying premise of the Bill is therefore admirable. It is hoped that Parliament will now act swiftly to deal with the difficulties presented by it and finally grant Traditional Courts the status and respect that they deserve.

Mike Law

Law is a political and legal researcher specialising in Parliamentary processes holding a masters’ degree in constitutional and administrative law.

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  • Author: Moira Levy
Last modified on Thursday, 15 March 2018 22:19

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