Traditional Courts Bill [B1-2012]: briefing by Department of Justice and Constitutional Development
Mr Jacob Skosana, Chief Director for Legislative Policy in the Department of Justice and Constitutional Development (DoJ&CD) ,said that the presentation provided a historical background to the traditional justice system; the Traditional Courts Bill (TCB); investigations of the South African Law Reform Commission (SALRC), concerns raised during the Parliamentary hearings of the National Assembly (NA); key policy considerations arising from comments and whether such comments have been taken into consideration; transformation of the traditional courts; transformation of the traditional justice system; the consequences arising from the finalisation of the Bill as well as recommendations from the DoJ&CD. The traditional justice system was one of the oldest legal systems that had its own distinct ancient origins. Research indicated that the system had been distorted from what it was in the past when it was untainted. Colonialism and the apartheid system were the obvious culprits for the distortion of the traditional justice system. The distorted traditional justice system was also firmly entrenched by the Black Administration Act of 1929 (BAA). The BAA provided for a separate administrative and judicial system for black South Africans (SA). The BAA was repealed in 2007 and not sooner because an alternative legislative framework had to be established first. Section 12 and Section 20 of the BAA have not been repealed and were all that remained of the legislation. Section 12 provided for civil disputes and Section 20 provided for the resolution of criminal disputes. In 2003 the SALRC conducted an investigation to reform the BAA and align traditional courts with constitutional values. In its report the SALRC recommended that customary courts be established as a parallel court system with court infrastructure, personnel, transcriptions and records.
The Minister of Justice did not approve the SALRC report and the Bill on the view that the establishment of a parallel court system alongside the magistrates’ courts would perpetuate segregation and lead to overlapping of their jurisdiction with that of magistrates’ courts. In addition the court infrastructure, personnel and Information Technology (IT) parallel to existing court infrastructure would be an administrative and financial burden to the state. The preferred position was then to establish traditional courts as special-type courts which would supplement the conventional court system with emphasis on the Alternative Dispute Resolution Mechanism (ADRM). In 2008 Cabinet approved the introduction of the TCB in Parliament as well as a supporting policy document.
There were certain criticisms of the Bill that emanated from the public hearings held by the Portfolio Committee on Justice and Constitutional Development. The first was that the TCB conferred more power on traditional leaders than the BAA; the Bill did not provide adequate protection for the rights of women; the Bill did not recognise the different layers of the traditional court system e.g. headmen/headwomen and senior traditional leaders and above; community service sanctions have the potential for abuse by traditional leaders and the Bill did not have adequate checks and balances on community sanctions; the Bill deprived communities of the right to legal representation; civil jurisdiction should be based on the consent of parties; the Bill did not provide the right to opt out in order to give a choice to pursue legal redress in the conventional courts; the appeal to Magistrates’ Courts and the choice of legal system where more than one conflicting customary law values were cumbersome and there was a lack of adequate consultation with communities.
The Bill was withdrawn from the Nation al Assembly (NA) by the Minister and re-introduced in the National Council of Provinces (NCOP). Some of the important questions which emerged from the comments on the Bill were whether Traditional Courts should be part of the judicial system and whether they should be called courts under the judicial system. In the judicial system there were separate lines of investigation; prosecution and adjudication where a judge could not be both player and referee. The re-introduction of the Bill in the NCOP did not mean that the submissions were not taken in to consideration. The Portfolio Committee on Justice and Constitutional Development was of the view that the Bill should go through the NCOP first because it was closer to the provinces where more input even at local level could be better solicited. The traditional courts system had to be developed like the other courts and brought in line with the Constitution e.g. the traditional court in Mdantsane still operated under the old system as it was under the Ciskei homeland and not the modern Buffalo City. The TCB was part of the discussion document on the reconfiguration of courts and the transformation of the judicial system by the ministry. The DoJ&CD was of the view that traditional leaders should not be recognised on par with judges, they provided a quasi judicial function. It should be noted that there was constitutional recognition of the institution of traditional leadership.
It was the communities themselves that owned the values that governed how they lived and the Bill did not re-write these values. In terms of traditional law, it was the community that made decisions and not one person. The consequences of the delay in finalising the Bill were that Traditional Courts continued to operate without an effective legislative framework; reported incidents of abuse and failure to observe human rights undermined the efficiency of the Traditional Justice System; the unclear roles of magistrates’ courts in relation to their appeal jurisdiction; the remaining provisions of the BAA were inadequate and the confirmation of jurisdiction of traditional leaders was inappropriate.
Mr Lawrence Bassett, Chief Director (CD) for Legislative Development from the DoJ&CD, added that the Department had been criticised for introducing the same Bill to Parliament. The Department published the Bill on 13 December 2011. The intention of the Department was to have the concerns raised during the parliamentary process under the NA Committee to be considered and addressed in addition to any further comments and concerns that may be received under this current process in the NCOP. The Department had come under criticism for publishing the Bill during the holiday season; this was why there was an expiry date well after the holiday season.
Mr T Matila (ANC; Gauteng) said that the Bill had to be dealt with appropriately, there had to be consultation on the ground unlike with the Protection of State Information Bill where it was not enough. During the NCOP hearings on the Protection of Information Bill it was discovered that people were misinformed by the media on the Bill. The Bill was welcome and it was important that the state law advisers had to advise the Committee on the constitutionality of this particular piece of legislation.
Mr D Bloem (COPE; Free State) asked why the Bill was before the Committee, was the NA scared of it?
Mr M Mokgobi (ANC; Limpopo) said that he did not find any information in the presentation on the views of the National House of Traditional Leaders (NHTL), why was this the case?
Mr P Zulu (IFP; KZN) said that the Bill was written in English only; the other 9 African languages should be catered for as well. Was there proper consultation with the NHTL?
Mr Sboniso Duma, Member of the KwaZulu Natal Provincial Legislature said that what was fundamental was that the views of those affected by the traditional justice system in remote rural areas had to be solicited. There were a lot of imbalances where traditional law was concerned e.g. in some areas women were told not to wear pants and at times people were made to pay levies that they were not meant to pay. Consultations at grassroots level were important given that the media had already polarised the subject. It would have been useful to have the views of the Congress of Traditional Leaders of South Africa (CONTRALESA).
Mr L Ndzimande (ANC; KZN) asked for clarification on the deadline by which the Committee must have completed the legislative process on the Bill. Provinces must be given more time
Mr Xolile George, Chairperson of for Cooperative Governance and Traditional Affairs (COGTA) in the Eastern Cape said that the issue of affirming African languages in the Bill was a serious matter and was a valid point. There had to be clarity on what the Bill sought to achieve. The programme for the Bill was unrealistic especially in relation to the provinces.
Ms Joy Motubatsi Chairperson of COGTA for Limpopo, asked for clarity on what was the link between the Bill and the Traditional Leadership and Governance Framework Act, what did the Bill say on the role of women on traditional leadership matters?
Mr Jabulile Nyembe, Committee Coordinator; Local Government and Housing: Gauteng Legislature said that it would have been useful if the Department would have said more on impacts that that the Bill would have on the Bill of Rights.
The Chairperson said that the Bill referred to training for those who would dispense traditional justice, what kind of training would this entail?
Mr Skosana replied that there was a process that had begun for the Bill to be translated in the other African languages. The comments made during the NA process had been captured and condensed in a report. The deadline for the finalisation of the Bill had already been extended four times; 31 December 2012 was the fourth extension. The parties to a case would first have to agree which legal system should apply, if there was no agreement then the system closest to the legal issue would automatically apply. The right to choose an applicable system of law was a constitutional right. The Department consulted the NHTL as well as their provincial counterparts. Once the Bill was passed there would be Regulations that would be more flexible and accommodative to different issues. There was no justification for the abolition of customary law; this was in line with other international jurisdictions e.g. Canada, Australia and India.
Ms Theresa Ross, State Law Adviser from the DoJ&CD said that there were suggestions that provision should be made in the Bill for the meaningful participation of women as well as assistance in litigation proceedings, the Committee would have to consider this. The objectives of the Bill were to provide the structure and proper function of traditional courts and bring this in line with constitutional imperatives. The training would focus on the Bill of Rights and the social context training.
Mr Bassett added that the NA was not scared of the Bill; the Bill was with the NCOP because the Portfolio Committee on Justice and Constitutional Development was of the view that the Committee was better placed to consult with provinces and it also felt that at the time there was not enough consultation at grassroots level. The Department used some definitions from the Traditional Leadership and Governance Framework Act.
Mr Skosana said that the Department has taken the training of traditional leaders very seriously. COGTA dealt with the status of traditional leaders.
Mr Ndzimande asked if the Bill has been costed and how did it fit in with the Department’s strategic plan.
Mr Bloem suggested that the Committee should draft its own programme as the current one was unrealistic.
The Chairperson interrupted and said that the provinces were yet to be informed on the proposed programme for their proposals.
Mr Bloem continued and said that there were already public hearings; it was unacceptable that the NA could not have addressed the public’s concerns since 2008 when the Bill was addressed.
Ms Nonzakazi Swartbooi, Chairperson of COGTA from the KZN Legislature, agreed with the Chairperson’s stance on the programme issue. It was a concern that the Bill provided for headmen/headwomen to be presiding officers. In KZN it was not cultural best practice for headmen/headwomen to be presiding officers nor did they have this power The Bill proposed that fines should be paid into the provincial revenue trust, this would require a comprehensive structure for a province to manage such funds. This would also put pressure on the Auditor General (AG). There was no clear policy on how the fines would be collected.
Mr Matila said that the programme was a concern and problematic as the deadlines were the same for other activities that the Committee had. The programme was unrealistic.
The Chairperson interrupted again and said that the issue of the programme was not supposed to be under discussion.
Mr Gurshwyn Dixon, Secretary of the Committee, said that the proposed programme was developed in terms of the NCOP’s six week cycle; this could be extended based on the legislature’s difficulties with the time period. The provincial legislatures would have to send their programmes and if there were difficulties with reaching communities then the Committee could motivate for an extension. The proposed programme was drafted in terms of the NCOP’s six week cycle.
Ms Lindiwe Bebee, Member of the KZN Legislature suggested that the deadline for the negotiating mandates should be set for 30 May and the final mandates to be held in August.
The Chairperson said that the proposal was noted.
Mr Skosana said that he had left out a question on the issue of costs. The Department had considered its own responsibilities in terms of the Bill, this was on the training only. The Department was going to take full responsibility for the training. To address capacity for the courts to provide alternative dispute resolutions, the Department would make use of paralegals.
Mr Matila said that he foresaw the Bill being an unfunded mandate, national government often took decisions without consulting provincial and local government.
Mr Mokgobi suggested that the officials should go back to the Minister and request proper funding.
Ms Motubatsi said that in her province there were already funds allocated in the budget for law making and public participation to accommodate these sort of issues.
Mr George said that the issue of unfunded mandates was no small matter and had to be addressed.
The Chairperson thanked Members noting concerns raised and adjourned the meeting.
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