Traditional Courts Bill: Department of Justice briefing

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Justice and Correctional Services

31 August 2009
Chairperson: Mr N Ramatlodi (ANC)
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Meeting Summary

The Department of Justice briefed the Committee on the main objectives of the Traditional Courts Bill. He highlighted that at present the traditional courts were still governed by the few sections of the Black Administration Act that had been kept in force purely so that there was not a vacuum, but that this Act was outdated, and did not deal adequately with several issues around jurisdiction, fines and ways of administering justice. It would be repealed finally once the Traditional Courts Bill was passed and in force.

The Department noted that the Bill had been introduced, and public hearings were held, during the Third Parliament, but that it could not be finalised and for this reason it was being brought back. An extensive process had been conducted by the South African Law Reform Commission and many of the recommendations had been carried over into this Bill. The Department explained that the Bill sought to promote restorative rather than punitive justice, through alternative dispute resolution and involvement of the community, in order to de-fuse disputes wherever possible, and competent orders could include community service, apologies, or recompense. The procedural process by which traditional leaders would be recognised, the training that they would have to undergo, the standardisation that would be achieved, the fact that legal representation would not be allowed but representation recognised by customary law would, and the jurisdictional issues around a person from one area becoming subject to the jurisdiction of the traditional court where he was now living, were outlined. It was noted that traditional courts would be able to utilise the Alternative Dispute Resolution mechanism for instances of petty crimes within the traditional community, such as minor cases of assault, civil dispute, and theft or destruction of property worth less than R7 000. However, traditional leaders would no longer have the authority to call for arrest or imprisonment, and were limited to issuing compensatory and restorative orders. This would get cases settled to the community’s satisfaction that might not receive attention by courts in the mainstream system. It was also possible for a prosecutor to refer relevant minor cases to the traditional court, and where a traditional court discovered a larger issue that it could not resolve, then it would also refer the cases to other mainstream courts. There would not be any need for an extensive appeal system, save in cases where restorative justice principles were not applied. Administrative support and infrastructure would be provided by the Department of Justice, but there was no need for court buildings to be built. The Department of Cooperative Governance and Traditional Affairs would provide draft regulations, to be reviewed by collaborative efforts of justice colleges and civil society institutions, and these would be published simultaneously with the Bill.

Members noted that there had been quite an extensive public hearings process during the Third Parliament and recommended that this report, together with the report of the South African Law Reform Commission, and an explanation from the Department of Justice on why it might have decided not to implement some of the former’s recommendations, be placed before the Committee. Members were concerned about the jurisdiction issue, and the question of opting out, who was likely to receive exemption from training, the problem that substantially differing orders might be made in substantially similar matters, and what education and promotion campaigns would be launched. Members asked how exactly this Bill would change existing law and practice, practically on the ground, and sought clarity on how the process sought to be consensual. Members felt that they needed more time to consult on the issues, which was granted. It was likely that public hearings would be conducted together with the National Council of Provinces.

Meeting report

Traditional Courts Bill: Department of Justice and Constitutional Development (DOJ) briefing
Mr Deon Rudman, Deputy Director-General: Legislation, Department of Justice and Constitutional Development, noted that the Traditional Courts Bill (the Bill) was initially presented to Parliament in 2008, and was brought before the Portfolio Committee at the time for public hearings, but that it could not be finalised. For this reason it was now brought back to this Committee.

Adv Simon Jiyane, Deputy Director-General: Court Services and Policy, Legislative Division, Department of Justice, said that after the formal justice system was rationalised in 1994, there still remained the issue of mainstreaming the traditional courts into the legal system. There had been numerous different legal frameworks governing the operation of traditional courts. It was necessary to understand the existing systemic dynamics in order to understand how rationalisation would best be conducted. Indigenous law had always been “peripheral” to the legal system, though the adoption of the Constitution assured its recognition as parallel to the Western system. However, at that stage a uniform system to regulate the conduct of traditional disputes had not been established, although indigenous law was and remained still deeply embedded in local, particularly rural cultures.

After the adoption of the Constitution, the first step in the process of rationalisation came by way of an initiative of the South African Law Reform Commission (SALRC). Subsequently, based on the Commission’s findings, the Department began its own investigation in the provinces and Houses of Traditional Leaders to further establish what necessary steps rationalisation would entail, and to draw a draft of policy recommendations.

He said the process thus far had been difficult and fraught with many challenges. Although there may be loopholes in the present form of the Bill, it was necessary to adopt it in order to initiate the process of mainstreaming indigenous law and to bring it under Constitutional regulation.

He said the Bill would also make strides in helping to address crime and the social causes of crime through its Alternative Dispute Resolution (ADR) mechanism,  which would empower communities to resolve minor crimes and disputes without adding to the backlog being endured in the mainstream legal system.

He said that at the beginning of the process, a review of legislation governing traditional courts found all but two sections to be unconstitutional. It was therefore urgent that the process be followed by the establishment of a community court system and regulatory framework to inform how communities would be empowered to participate in dispute resolution.

Mr J B Skosana, Chief Director: Policy Development, Department of Justice, noted that the entire Bill was preceded by a policy process involving the establishment of a task team by the previous Minister, to provide a basis for the legislation and to engage in a consultation process before the drafting of the Bill. The main objectives of the process were to bring existing traditional systems in line with the Constitution, to officially recognize the traditional justice system, and to form the basis for legislation dealing with traditional courts, as required by the Traditional Leadership and Governance Framework Act, Section 2. Section 20 of that Act required that national departments allocate functions to traditional leaders falling within the mandate of the Department. The Minister of Justice must also develop mechanisms to allocate functions to traditional leaders that were relevant to applying traditional justice.

He said the other imperative of the Bill was to urgently and effectively substitute the remaining sections of the Black Administration Act of 1929. The rest of the Act was repealed, but some sections remained merely to prevent a systemic collapse. He said that traditional courts were still currently functioning under the provisions of this inadequate and archaic legislation, whose final repeal had been postponed until the new Bill was passed.

The traditional courts were currently running without any guidelines. The Bill sought not to add to but rather to augment the traditional courts’ current system, particularly by providing for an ADR mechanism. The Bill recognised different levels of conflict resolution, beginning at the family level, moving to the level of headman and headwoman, and moving through to a community forum. Furthermore, the Bill sought to standardise this system across the nation, since some regions differed in their approach to others. The Bill also sought to further address the points of incongruity between customary law and South African Constitutional values.

Mr Skosana said that there was also a need to clarify the legal position of traditional courts. Traditional courts, in the past, were defined as part of the judiciary, and traditional leaders exercised judicial functions. The Constitution made provision for two different ways of approaching the institution of traditional courts. They could be seen simply as extensions of the judicial hierarchy, or as alternative structures, outside of Chapter 8, but as permitted in Section 34 of the Constitution, which provided for the establishment of tribunals and forums to resolve disputes in line with Constitutional principles.

He noted that brining traditional courts within the ambit of the legal system would also help to establish accountable traditional leadership.

A main policy point embedded in this Bill was that, in contrast to mainstream courts which existed to respond reactively to disputes, traditional courts existed mainly to promote social cohesion and to defuse disputes before they arose, through mediation, rather than being regarded as purely punitive structures.

He said that the Department had taken into account the policy recommendations of the South African Law Reform Commission, which were based on extensive consultations, some of which had been adopted.

The Bill defined the traditional courts as institutions distinct from mainstream legal structures, as they were governed by custom and administered by elders, often in the form of kgotla and inkundla. These courts did not require legal representation of the individuals appearing before them, but did make provision for the kind of representation allowed and recognised by customary law.

He also said that in instances where a person’s ethnic heritage was based in a customary system different from that of the local prevailing system, the prevailing customary law of the given locale would take precedence.

Mr Skosana said, in relation to the issue of who could be designated as a traditional leader, that the Bill contained a provision that potential leaders and all traditional authorities would be required to undertake training programmes, within twelve months, on the application of the Constitution, social contact training, human rights training and other aspects, in order to receive their designation to sit in the customary court as a traditional leader from the Minister. Leaders would be required to recognise the full Constitutional rights of all citizens, including women and children, and would be mutually accountable to other leaders in this regard, in addition to all issues in which a leader is directly involved. It was further noted that these accountability requirements and mechanisms did not currently apply in terms of the Black Administration Act. A person holding a position of traditional authority would only be exempted from training if he or she had already undergone training in a sufficiently similar course.

In relation to the question of whether traditional courts would have jurisdiction in criminal cases, he noted that traditional courts would be able to utilise the ADR mechanism for instances of petty crimes within the traditional community, such as minor cases of assault, civil dispute, and theft or destruction of property worth less than R7 000. This would help extend the meaningful application of law, as applicants would not have to incur expensive legal fees to get redress, and would also be able to get cases heard that might be regarded as too small or insignificant for attention by the mainstream courts.

He noted that emphasis had been placed on traditional courts as sites that would dispense compensatory and restorative justice, rather than punitive justice. For this reason, the traditional leaders would no longer have the authority to call for arrest or imprisonment, and were limited to issuing compensatory and restorative orders, for example, replacement of property maliciously destroyed, and community service. He reiterated the point that traditional structures would be complementary to the mainstream legal system.

Mr Skosana said that, out of about 1.2 million cases reported annually, around 390 000 were dropped, either due to lack of capacity, missing dockets or other problems, and that there was currently no other mechanism to resolve disputes. Once the traditional courts were established, however, a prosecutor could have relevant minor cases diverted to these traditional structures. Similarly, if traditional courts discovered larger issues that could only be resolved in the mainstream courts, they would be obliged to report and refer on those matters. This complementary system would aid the efficiency of the legal system.

Mr Skosana moved on to the question of appeals. He noted that the purpose of traditional courts was, first and foremost, to promote peace and to resolve issues, and if they were unable or incapable of doing so, the relevant issues would be diverted to the mainstream legal system. For this reason, there was no need for an extensive appeal system. However, appeals to the Magistrate’s Court would be heard in cases where there was some doubt as to the traditional court’s observance of the principles of restorative justice. He cited, by way of example, that an appeal against an order for the issue of an apology to a community by a Traditional Court could not be overturned.

In terms of administrative support, he noted that infrastructure was a collective government responsibility, and not simply that of the Department of Justice. Although administrative resources and infrastructure, such as offices, secretaries, computers, and vehicles would be provided, traditional and customary law operated at a community level and would not require the construction of formal courts. The Department would, however, help in providing administrative services and training, such as issuing of notices, keeping and maintaining records, correspondence and general monitoring functions. The Department of Cooperative Governance and Traditional Affairs would provide a draft of regulations, to be reviewed by collaborative efforts of justice colleges and civil society institutions. The regulations should further be published simultaneously with the Bill, by April 2010, to assure that there were no gaps in practical implementation.

During the last public hearings, there were many concerns expressed about the possible abuse of power. However, most of these concerns had arisen in relation to the existing system, and these were issues the Bill sought to address. It was possible that this Bill may still be presented for public hearings and consultation at a provincial and community level, following information campaigns to ensure public involvement.

Mr Skosana reiterated that the Bill may not be perfect, but was much better than the existing BAA, which was a relic of the apartheid era with dehumanising content and lack of attention to issues such as jurisdiction.

Ms D Smuts (DA) noted that extensive consultation had already taken place under the South African Law Reform Commission process. She asked why the Bill in its present form had departed so radically from the recommendations of an already well-consulted Commission.

She also asked whether the Bill excluded civil issues such as the interpretation of wills, dissolution of marriages, determination of custody of minors, particularly those pertaining to women in fulfillment of Section 9 of Constitution

Mr Skosana said there had been extensive consultation with the SALRC, but that was centred around reforming the BAA. Many of the Commission’s recommendations had been built into the Bill but some had not. For instance, the Bill did accommodate the Commission’s recommendations on empowering and including women, but not those on allowing traditional courts to issue suspended sentences.

Mr D Kekana (ANC) asked whether a person could object to a traditional court’s ruling on the basis of a differing ethnic identity that precluded the court having jurisdiction over him or her.

Mr Skosana replied that the Bill did not make provisions for individuals to ‘opt out’ or deny the authority of the traditional courts, particularly as this would render them practically impotent. However, he stressed that traditional authority would not extend beyond areas specifically delineated as traditional communities as recognised by premiers. The Department’s thinking was based on the reality that it would be unfair for someone who was involved with and living within a community, and who had thus implicitly recognised and subscribed to its customary law, to claim to be immune from the authority of its court.

Ms N Michael (DA) asked what the status of leaders who had not received training would be and how they would be regulated. She noted that some regulations exempted some traditional leaders from such training.

Mr Skosana responded that exemptions from training would only apply in particular circumstances. He cited the case of a traditional leader in Limpopo who was also currently serving as a magistrate. In this case, it would be a waste of the State’s resources to train a person who already had an extensive legal background. Those leaders who did require training would have their licenses as traditional leaders revoked if they could not show that they had attended training within the twelve month period.

Ms Michael noted that Clause 13 stated that appeals may not be made, except pertaining to orders that were not in keeping with the principles of restorative justice. She asked what would be done in cases where substantially differing orders and sanctions might be issued for substantially similar crimes. She thought that it was necessary, in such a case, to provide for appeal measures in such cases.

Mr Skosana said he acknowledged the problem posed by the absence of a system of records and precedents by which to review and arbitrate on prior judgments. However, with the implementation of general regulations and the establishment of a system of records, such discrepancies would eventually be minimized. He noted that currently the regulations under the BAA were ridiculously outdated, for instance limiting some Courts to fines of no more than R10, and he said that this meant that in practice, multiple fines were generally issued for a single offence.

Ms Michael further asked what kinds of education and promotion campaigns would be launched to inform all citizens of all ethnicities of the content of the Bill, and assure that no person was excluded on the basis of race, gender or ethnic identity.

Mr Skosana said that continual engagement was necessary, and that since the public hearings held in 2008, the Department had continued to have engagement with the South African Human Rights Commission (SAHRC), the Congress of South African Trade Unions (COSATU), who were concerned about the potential of the traditional courts having the power to coerce forced labour. The Department was developing mechanisms to address their concerns.

Mr J Jeffery (ANC) noted that the previous Committee had adopted a short report identifying key points of contention. He also felt that that it would be useful to examine the specific differences between the South African Law Reform Commission’s Report and the current Bill, particularly if accompanied by a written report by the Department setting out specific reasons why changes were made.

Mr Skosana noted that the Commission’s report would be provided to the Committee. He said again that most of the Commission’s recommendations were contained in the Bill.

Mr Jeffery then asked exactly how the Bill would change existing law and practice, practically on the ground.

Mr Skosana emphasised that this law did not change customary law as such. The Constitution enjoined the acceptance of both formal and traditional systems, provided that the latter did not conflict with the Constitution. This Bill was really designed to effectively regulate procedure and enhance the observance of Constitutional values, whilst empowering structures in order to build efficiency and accountability.

He also noted that in India formal courts could take up to ten years to resolve a dispute. The traditional courts would be far more efficient. Another aspect enhancing access to justice was that community members would be able to use their own language, and would not be required to engage legal experts.

Ms Theresa Ross, State Law Advisor, Department of Justice, reiterated that the Bill would not change customary law, but mechanisms governing misconduct had been included to hold traditional leaders to account. For instance, in the past, traditional courts had sometimes overreached their authority by ordering corporal punishment, and that was an area that the Bill would now help to combat.

Mr Jeffery requested clarification on how public hearings would be held, and asked whether the National Assembly (NA) and National Council of Provinces (NCOP) would be consulted first.

Mr Jeffery said that he was sympathetic to the view that appeals should not be allowed, as this would effectively render traditional courts subordinate to the magistrate’s courts. However, he wondered if the status of the ADR mechanism as having to be consensual contradicted what was said earlier.

Mr Skosana said that consent referred to the consensus that would be reached by the community, not at the point when the dispute arose. For this reason there was no contradiction.  He said that the Bill also eliminated selective jurisdiction. Currently, if a community had two black South Africans and one other person who was not a black South African who were involved in a dispute, the traditional courts would not be able to handle the matter. However, this Bill would define the jurisdiction of the Court at a community level.

Ms Ross added that during the public hearings there were many conflicting opinions expressed about opting out of jurisdiction, and this had not been an easy issue to deal with.

Mr L Landers (ANC) asked the Chairperson for more space for consultation before proceeding further.

This was allowed.

Upon resumption, Mr Kekana proposed that the meeting be adjourned so that there could be further consultation with the NCOP.

The Chairperson agreed, and noted that it would be prudent to schedule public hearings with the NCOP.

The meeting was adjourned.

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