Controversial Traditional Courts Bill withdrawn

Thursday, November 29, 2012

Cape Town - The controversial Traditional Courts Bill is to be withdrawn and will not be brought before Parliament any time soon.

This was a unanimous decision taken at its last meeting of the year on Wednesday, by Parliament's Select Committee on Security and Constitutional Development.

The Bill was to have replaced the Black Administration Act on 30 December 2012.

The Traditional Courts Bill offered the prospect of access to justice to 18 million of the country's citizens who reside within the ambit of the traditional justice system. Traditional communities of South Africa find the traditional justice system more accessible and flexible in resolving their disputes.

However, government felt following public hearings both in Parliament and in local communities, that there were genuine concerns as traditional courts operated outside a proper legislative framework. This leads to accusations of irregularities and abuses in the system.

The Traditional Courts Bill was then introduced to extend constitutional provisions to traditional justice. However, since its introduction, the Bill has been criticised for being flawed for a number of reasons. They include the following;

- That it is unconstitutional in that it prohibits legal representation in traditional courts.
- That it does not contain provisions to ensure that women form part of the courts nor does it go far enough to ensure that women can participate actively in the deliberations of the courts;
- That it entrenches the balkanisation of traditional communities in accordance with the boundaries of the old tribal authorities of the defunct Bantustans;
- That it restricts access to justice by denying the right of persons to "opt out" of the traditional justice system and pursue redress of their matters in courts of law
- Traditional leaders will have more powers under the Bill.

The committee met to consider and adopt a report on the public hearings held at Parliament from 18-21 September this year. The report will be tabled in Parliament in 2013. It will also be sent to the provinces for consideration.

Committee members from across the political spectrum were as one in praising the report which said that between 95 and 87 percent of the public were against the Bill. The report also said consultations were not properly done.

Committee chairman TMH Mofokeng said: "This Bill is very far from being an Act of Parliament. We still have to consult. The public hearings indicated that lot of consultations still have to take place. We will table this report in Parliament, as well as send it to the provinces for consideration."

In November 2011, the Minister of Justice and Constitutional Development, Jeff Radebe, asked for the introduction of the Traditional Courts Bill in the National Council of Provinces. Radebe's department briefed the committee on the Bill in March this year.

Opposition against the Bill came from across society, with the Minister of Women, Children and People with Disabilities, Lulu Xingwana, playing a leading role.

She said during the public hearings that the equality clause in the Bill of Rights superseded traditional, religious and cultural rights. While there were progressive male traditional leaders, there were courts that did not allow women to speak or represent themselves.

Submissions at the public hearings were made by the Departments of Justice and Constitutional Development, Women and Children and People with Disabilities, as well as the National House of Traditional Leaders (NHTL).

A total of 57 submissions on the Bill were received from NGO's, civil society and communities.

Civil society organizations that took a stand against the Bill in submissions included Association for Rural Advancement, Women's Legal Centre, Law Society of South Africa, the Lesbian and Gay Equality Project, Sonke Gender Justice Network, Land Access Movement of South Africa, Community Law Centre University of the Western Cape, South African Human Rights Commission (SAHRC) and the Rural Women's Movement.

The Justice and Constitutional Development Department said its intention was always to create a framework within which traditional justice could be dispensed. It could also serve as a vehicle through which customary law could be expressed and developed as envisioned by the Constitution

The NHTL submitted that traditional courts were part of customary law, were in existence and argued that the Bill's primary function was to promote uniformity and regulate informal proceedings of traditional courts.

The SAHRC said the Bill would not assist in adhering to the obligations SA had under international law. According to the Constitution everyone had the right to a public trial. However, this could not be enforced without legal representation.

The University of Cape Town Law and Gender Unit said that the Bill was linked to the Traditional Leadership and Governance Framework Act which had entrenched apartheid boundaries. The Bill also created a second-class of citizenry by segregating the legal systems and subjecting some citizens to that system.

Sonke Gender Justice Network said the Bill perpetuated misogyny and a patriarchal society.

The Women's Legal Centre (WLC) submitted that during the apartheid era customary law had been reduced to writing but had been tainted with traditional interpreting matters to suit their own agendas.

Human rights activists Mary de Haas said at the public hearings it was highly unlikely that lesbian and gay people would be treated fairly by traditional leaders who were already biased against them. -