December 02, 2020

Can we do without the Traditional Courts Bill, asks CGE?

The long-running Traditional Courts Bill regularly returns to Parliament for debate. Here is a transcript of the presentation by Mr K Ahirudhra, Head: Parliamentary and International Policy, Commission for Gender Equality (CGE), who addressed the Women in the Presidency Committee.

The CGE can evaluate any law of Parliament if it believes it is necessary to do so. The CGE can also evaluate any system of personal or family law or custom. The CGE can also evaluate customary law when it deems it necessary. Our jurisdiction extends to all laws that are likely to affect gender equality or the status of women. That is where we must place our focus. Sect 11 1(d) of the Gender Act says that we can recommend to Parliament any other legislature which will promote gender equality. We can make recommendations to the national legislature, provincial legislatures and even the local councils or municipalities that will promote the equality of women. That is our legal mandate.

[Since] the Black Administration Act was repealed, traditional courts have not been regulated by any statute as such. That is a gap that exists now. When we look at the Traditional Courts Bill, three questions normally arise. Can we do without the Traditional Courts? That is the question that is always raised because it is traditionally felt that traditional courts operate to erode the rights of women. Then the question is asked, if we don’t have traditional courts, what will happen? Traditional leaders can raise a constitutional challenge because the Constitutional Court and the Constitution make traditional courts a firm institution in our law.

'At present there is no legislation regulating traditional law and this is where the problem arises.'

In Bhe v Magistrate’s Court, Khayelitsha, the Constitutional Court quite clearly stated “the Constitution itself envisages a place for customary law in our legal system.” Certain provisions of the Constitution put it beyond doubt that our basic law specifically requires that customary law should be accommodated not merely tolerated as part of South African law”. So the Constitution has looked at the function of customary law which is dispensed by traditional courts and said this is a part of our Constitution. It has to be respected, it has a firm place in our Constitution and the legislative landscape.

But they must be subject to legislation. However, at present there is no legislation regulating traditional law and this is where the problem arises. Would it be good to have no legislation regulating traditional law? No, it would be dangerous, because then traditional leaders would be left to their own devices and they could function with impunity. There would be no consequences for their conduct. That is what we must appreciate when we consider the Traditional Courts Bill. The Constitutional Court is warning us that we must not have a piece of legislation that is not regulated because that would spell disaster for our women.

Remember the Traditional Courts Bills deals with legislation that has existed for hundreds of years. It also tries to bring in the Constitution and it tries to fill in the gaps left by the now repealed Black Administration Act. So it is trying to do a lot. Clause 2 says the object [of the Bill is to] facilitate the full, voluntary and meaningful participation of all members in a traditional community that is regulated by a traditional court. It means that people who want to be subject to traditional law must be allowed voluntary participation.

We have a problem with customary law as it exists today, and that is it is a living law. It deals with the lives of people and it evolves as people’s lives change, and society changes all the time. As customary law changed, what happened is that the privileged elite were given the opportunity to negotiate the changes that took place, and the interests of elite males have been given prominence while the competing cultural experiences of women and youth found no expression and even today remains outside codified customary law. That is one problem we must take cognisance of.

The object of the Bill says the traditional courts must recognise the consensual nature of customary law. It is all about preserving tradition, but the CGE feels we should not use the word preserving tradition. Traditions need to be evolving, and values that oppress women should be allowed to evolve and change. If people don’t want to be subject to traditional law, that is their constitutional right and it must be respected. That has been included in the objects of the [Act]. The objects of the traditional law must protect harmony, co-existence and peace.

The Guiding Principles can be the road map of the Bill once it is promulgated. In 3.1 of the Guiding Principles it says that traditional law must be aligned to the Constitution. If any practices in traditional law disregard the rights of any person, for example a woman or a child, it is inconsistent with the Constitution and the conduct of the traditional court must be challenged.

Clause 3, sub-clause 2 says that in the application of this Act the following should be recognised and taken into account: the constitutional imperative that traditional courts, tribunal or forums, when interpreting the Bill of Rights, must promote the values that underly the values of a democratic society based on human dignity, equality and freedom, and in interpreting any law or in developing the common law or customary law must promote the spirit, purport and object of the Bill of Rights.

Sub-clause 2 goes on to speak of the systemic unfair discrimination and inequality that are contrary to constitutional values or that have the propensity of precluding meaningful and voluntary participation in traditional court proceedings by any person in the group. For example, if the traditional court wants to exclude somebody who is from the LGBTI community they cannot do it. If that person wants to be subject to that traditional court they have every right to do so. It can be taken to the High Court, and the High Court will definitely set this aside.

What this Bill is saying is that nobody can be excluded because you cannot discriminate against anybody on the grounds of being LGBTI, or of being a woman, because this Bill will now allow the traditional court’s decision [to be taken] on review or to the High Court, and there will be sanctions. The sanction will be that if you exclude that LGBTI person, or that woman, the case will have to be re-heard or that decision set aside.

If the traditional court said “I don’t want to hear you”, the High Court will have to say you have to hear this person. Or, if the traditional court went ahead and heard that person and ruled against that person just to punish them for nothing, the High Court will say the decision is wrong, that person is found not guilty. The power of the High Court is that they can intervene and review. That is the protective mechanism in this Bill.

There are various protective mechanisms that align the traditional court to the Constitution. The guiding principles align the Traditional Courts Bill to the Bill of Rights, and do it very well. So no one can be discriminated against, especially women.

We have found that traditional courts may be placed near ancestral ground, and that can be done purposefully because women are not allowed near those ancestral grounds. Women cannot come and the hearing will be heard in their absence, including a woman who might be the aggrieved party. By that conduct they exclude the woman. That traditional leader can then go to the High Court and say we had the hearing and the woman was told to present herself but that woman is not allowed in that area. What protection does she have in terms of the Traditional Courts Bill? The Bill says if the decision is given in the person’s absence, that decision can be reviewed and set aside.

If they try to play this trick on the woman, their decision will be set aside. All she needs to do is take it on review to a high court.”

From the recordings of the Parliamentary Monitoring Group

Last modified on Tuesday, 27 March 2018 19:46

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