Traditional Courts Bill [B1-2012]: briefings by UCT and deliberations on process

NCOP Security and Justice

30 May 2012
Chairperson: Mr T Mofokeng (ANC, Free State)
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Meeting Summary

Three experts in African Customary Law from the Faculty of Law, University of Cape Town, briefed the Committee, during the morning session, on the shortcomings of the Traditional Courts Bill. They suggested that the simplest way to overcome the main problem was to re-word the Bill so that the jurisdiction of the traditional courts should be governed by a person’s consent. It would be contrary to the Constitution if people were compelled to adhere to a system that they did not recognise as legitimate, as this would deny them the right to participate in a cultural life of their choice. A person voluntarily submitting to the jurisdiction of a traditional court would also accept all the principles that went with that court. However, the Bill sought to impose a traditional court on communities, and they would have sound reasons to challenge various aspects of that court.

Some of the aspects of the Bill that could be subjected to constitutional challenge were outlined. The current jurisdiction was founded on boundaries and definitions taken from the Traditional Leadership and Governance Framework Act, but this in turn was based on the Bantu Authorities legislation of the 1950s. Not only did this create problems of perception, but it also did not accord with reality. Communities were currently choosing to use courts that they believed were legitimate, and that was directly in accordance with the principle that “living” customary law legitimated itself. The problematic issues included the difference between “living” and “official” customary law, the fact that the traditional leaders operated as legislator, administrator and judicial officer, which ran contrary to accepted modern principles of separation of powers, and the fact that no legal representation was allowed. The presenters fully explained the definition of “living” and “official” customary law, and said this went to the heart of its legitimacy. The Constitutional Court had recognised the need to develop and adapt customary law to circumstances that the community itself accepted. The Bill failed to recognise participation of the people not only in the making of customary law, but in the dispute resolution mechanisms. It dealt only with the chief’s courts, whereas in fact most disputes were resolved by traditional councils, family councils, traditional institutions of headmen and headmen’s wards. These were far more accessible to remote communities, often dealt with issues at a specialist level, were often more attuned to the needs of women, and adopted a far more participatory approach.

Although it had been suggested that the traditional councils would form part of the courts, and thus involve women in the courts, this was not what the Bill said. The claim that headmen were recognised was also not entirely correct, since the recognition was afforded to them only as alternates in the chief’s court, and not in their own right. The claim that removal of the boundaries would lead to chaos failed to take into account the reality that traditional councils presently did not follow those boundaries. There were major problems with recognition of women’s rights, with criticisms that traditional courts were comprised almost exclusively of older men, and that in many places women were not even allowed to attend traditional courts, or had to be represented by a male family member, who might be the same person who was impinging on her rights.  Claims that clauses 9 and 3 allowed for equal treatment of men and women were not in practice borne out substantively. 

Consideration of negotiating mandates of provinces had been scheduled for the afternoon session, but Members were asked to mandate the Chairperson to approach the House Chair for an extension of time to deal with the Bill. Mpumalanga Provincial Legislature had called for an extension of time to complete its provincial public hearings, and the Committee had also received requests from the Minister of Women, Children and People with Disabilities, and other women’s groups, for the opportunity to brief the Committee. Many Members had not had the chance to attend the provincial legislatures’ public hearings and it would be particularly useful for this Committee, perhaps in conjunction with the Portfolio Committee on Justice, to hold its own public hearings in some, if not all provinces. This was in no way to be seen as detracting from the importance of the provincial legislatures’ hearings, but as complementary to them, and a broadening of the public participation process. All comments from all hearings must be taken into consideration when deliberating the final wording of the Bill. Although a COPE Member made a proposal that the Bill be withdrawn, he indicated that if this was not accepted, he would then concur with other Members that the process should be extended.

Meeting report

Traditional Courts Bill [B1-2012]: Workshop with University of Cape Town (UCT)
The Chairperson noted that the Committee had conducted public hearings into the Traditional Courts Bill (the Bill) but the Committee had received an offer from academics from the University of Cape Town (UCT) to brief the Committee on the contentious aspects of the Bill.

Prof Chuma Himonga, African Customary Law expert, Faculty of Law, University of Cape Town, thanked the Committee for the opportunity to brief it and said that the purpose was to enable Members to engage candidly with discussions to reach a solution on the Constitutional issues on the Bill.

She briefly outlined that UCT had a Chair in Customary Law, under the auspices of the National Research Foundation (NRF), which was intended to advance frontiers of knowledge in this area. Customary law had been marginalised or ignored altogether during the apartheid era, and this had motivated the NRF to now bring it to the fore and further develop the system. An important part of the Chair's work was the reform of customary law, and studies into the impact of this law on the public. The Traditional Courts Bill had important consequences for South Africans, and it was hoped that the workshop would form an opportunity for constructive engagement. She noted that Professor Thandabantu Nhlapo had served on the South African Law Reform Commission (SALRC) during the time that the Bill was being researched and prepared.

Prof Thandabantu Nhlapo, African Customary Law expert, Faculty of Law, and Deputy Vice Chancellor, UCT, said that UCT academics wanted to note a number of points that posed a danger for this Bill passing constitutional muster, as well as its general acceptance. The presenters from UCT did not wish to add to the “noise of criticism” but to cut through it, and explain where they saw the main constitutional difficulties.

Prof Nhlapo said that the points could be "clustered" and the first issue related to the boundaries that had been set in the framework within which the traditional courts were supposed to operate, in terms of the Bill.  The Bill had imported old apartheid boundaries to act as the framework for location of the courts, as it used the same approach as the Tribal Authorities legislation of the 1950s. Much of the negative comment at the provincial hearings was linked to this problem. Whilst the Bill clearly aimed to dignify customary law, and place it on a proper footing, it had the effect, in practice, of creating direct links with the former Bantustans, and that had led to problems of perception.

The second issue related to problems in the definition of “customary law”. He added that these were directly linked to the legitimacy of that law. Customary law was, by definition, close to the people, and was legitimised by the fact that people would approach and use the traditional courts, and obey their decisions.  However, if people were forced to use these courts, despite the fact that they contested the boundaries and jurisdiction of the courts, and contested whether they should fall under the control of the traditional leaders, then this was directly the opposite of legitimisation of the law. The system must operate through voluntary acceptance, not coercion. He noted that in order to accord with the principle of true customary law, the running of the courts and the use of the courts by the people should be consensual.

Prof Nhlapo noted that the third cluster of concerns related to women's rights, which had been consistently raised in the past, which would be elaborated on later. Even this was linked to boundaries and jurisdiction.

There were further concerns about separation of powers, and the right to legal representation before the courts. Both of these were politically, legally and constitutionally complex issues. The traditional courts were already, in a sense, vulnerable, because of criticisms that a traditional leader fulfilled, on his own, a combination of legislative, administrative and judicial officer roles, a concept that had been abandoned in the more formal systems that sought to enforce a separation of powers. 

The issue of legal representation was always linked to the constitutional right to have a fair trial. Many of those criticising the Bill had raised the fact that litigants before the traditional courts were not allowed to have legal representation, although on the other hand it was argued that allowing legal representation would change the whole complexion of the customary courts.

Prof Nhlapo suggested that the issue of boundaries and jurisdiction that he had raised at the outset went to the heart of most of the criticisms against the Bill. If people were not forced to use the courts, but opted to do so voluntarily, accepting the other points that he had raised, then this would go a long way to neutralising many of the side issues.

Prof Himonga apologised to Members that, because of the short notice, it had not been possible to compile hard copies of the presentations, but these would be sent to the Committee on the following day.

Prof Himonga addressed the constitutional dimension of “living customary law”. She said that there was too often a failure to distinguish between "official" and "living" customary law, with the two concepts instead being conflated. When the law was reformed it was necessary to address the correct and relevant system of law.  She noted that much of "official" customary law was a product of colonialism and apartheid, and so its very legitimacy was questionable. This fact had been identified, both in South Africa and other countries, as being at the root of the violation of rights of people subject to customary law. Official customary law was the system that was contained in and associated with the application of various pieces of legislation, including the Black Administration Act, most of which had been repealed, except for those sections providing for the continued existence of the traditional courts. Official customary law was also set out in the court decisions, which cited precedent. Official customary law did not reflect current practices on the ground, in specific communities, nor did it necessarily serve the interests of people on the ground. On the other hand, living customary law did consist of current customary practices that governed the lives of people on the ground, and it was, for that reason, flexible and subject to change. It was considered authentic because it was created and generated and adapted by the communities subject to that law. Prof Himonga noted that this was a vital principle, because one of the major criticisms related to who had been creating the norms to be applied. She stressed again that living customary law was made by the ordinary people in their communities, in a variety of ways, and must be participatory in nature. This principle of who was creating the norms that it was sought to apply was vital to the application of the bill.

Prof Himonga then touched upon recognition of living customary law by the South African legal system. References to customary law were contained in the Constitutional framework, and it was stated that customary law should be considered for the creation of the courts and the application of the law by those courts. She outlined some pronouncements by the Courts in the past, that emphasised the point about living law, noting that the Court had referred to “rules adapted to fit in with changed circumstances”. In the matter of Ex parte Chairperson of Constitutional Assembly in re Certification of the Constitution, the Constitutional Court had noted that the Constitution gave express guarantees as to the continued existence of traditional leadership, and the survival of an evolving system of customary law. The Court expressly said that how this leadership should function and how customary law should develop was left to future social evolution.

In another decision, the Constitutional Court had made reference to the need to develop customary law, and to adapt it to the changing conditions by the customary courts themselves. The Constitutional Court again referred to contemporary practices of the community, and said the legal status of customary law would not depend upon that law having been applied consistently in the past, as this was contrary to the concept of development. If there was dependence upon old practices, this would result in customary courts applying laws that communities no longer followed themselves, would be contrary to the spirit of the Constitution, and could not be accepted.

Section 211(2) of the Constitution provided for the right of traditional communities to function according to their own systems. A community must be empowered to bring its customs into line, itself, with the norms and values of the Constitution. Any other result would be contrary to the Constitution and would be disrespectful of the close bond between a community, its leaders and its laws.

Prof Himonga picked up again on the point about participation of the people in the making of customary law, and said that this applied equally to dispute resolution mechanisms, as all traditional forms of dispute resolution were participatory in nature. The Bill, however, failed to recognise the various layers and levels of
dispute resolution mechanisms (DRMs). The Bill recognised only one level, that of the Chief, but did not give recognition to DRMs of the traditional councils, the family councils, or the traditional institutions of Headmen. All of these were embedded in the community, and resolved disputes within the community, particularly in areas of governance, land, succession, and family law, so that the exclusion of these informal mechanisms failed to recognise a vital source of living customary law. That failure of recognition would be difficult to justify in the Constitutional framework. Research had shown that these forums had positive attributes in negotiation of power levels, and accountability, both of which were compatible with the spirit of the Constitution. It would be both commendable and constitutionally compatible were they to be included, and unjustified, from a Constitutional perspective, were they to be excluded.

Prof Himonga noted that another area in which the Bill fell short related to appeals. The draft Bill that had been drawn by the SALRC had allowed for a system of appeal from a lower to an upper traditional court. However, the Bill in its present form did not allow any internal system of appeal, where a case could move from one traditional court to another traditional court, before encountering the magistrate's courts, for it noted that any appeal from the traditional court (the Chief’s court) would lie directly to a magistrate’s court in the formal system. This, as well as departing from the multi-layered approach that she had outlined, also undermined the rights of communities governed by customary law to have their disputes resolved according to their customary rights. It created the potential to make customary laws that were likely to be incompatible with the Constitutional aims. It had been found that traditional courts tended to make more egalitarian decisions than magistrate’s courts, as judicial officers in the latter tended to replace egalitarian decisions, saying that they were not compatible with the “official” customary law. That did not give sufficient room to move from one system to another and it was difficult to make decisions that might be compatible with the constitution. According to the experience of other African countries, this would not be a good move.

Prof Himonga therefore summarised that this Bill, in order to pass Constitutional muster, should seek to adopt a traditional court system that, in all respects, promoted the development of living customary law, by allowing greater participation and involvement of the community at all levels.

Dr Sindiso Weeks, Senior Researcher: Law Race and Gender Unit, Faculty of Law, UCT, concentrated her presentation on the boundary issues, outlined by Prof Nhlapo, and women's concerns. She said it was important to consider how the boundaries were established, and noted that there was an intimate connection with the Traditional Leadership and Governance Framework Act (TLGFA) of 2003, which tried to re-set the way in which communities were constituted and recognised, including the establishment of councils. However, section 28 of that Act, which dealt with the transitional arrangements, made a direct connection back to the Bantu Authorities Act of 1951, by saying that all those leaders and areas recognised by the 1951 Act were deemed to be legitimate. This Bill had taken over into itself those same definitions, via the TLGFA. Clause 4, speaking to the designation of the senior traditional leaders and potential presiding officer, drew on that legislation, and so did the definition of the traditional court jurisdictions. Officially recognised traditional leaders would become the presiding officers of the traditional courts, and the jurisdictional boundaries of the TLGFA became the court boundaries. In addition, any tribe that was recognised under the TLGFA would be deemed a traditional community, subject to any other decision made following an application to the commission dealing with disputes. Tribal authorities were recognised as traditional councils, subject to the conditions that 40% of members would be elected, that 60% should appointed by the traditional leader, and that one third should be women.

Dr Weeks stressed that there was a misconception that the traditional councils were the same councils as would operate as the councils forming part of the courts. This, however, was not what the Bill said. The only reference to a traditional council was a reference to the counting and auditing of the statements, since traditional court statements were to be audited simultaneously with the statements of traditional councils. However, the definition of a traditional court said nothing about the traditional councils. To that extent, there was also a misperception that women would form part of the courts because they were to be included on the traditional councils; since the council had no explicit part in the court, this was not the case.

Dr Weeks said it would be helpful to show, in graphic format, the effect of section 28 of the TLGFA. She displayed a map of the projected “homeland” boundaries, of 1986. She then tabled a map of the traditional councils of 2010, and noted that the two showed remarkable similarities. This was why people were concerned about being subject to apartheid boundaries.

The opposing argument that had been presented suggested that if these boundaries were removed, it would result in chaos This, however, failed to take into account other alternatives. If it was recognised that the boundaries were essentially apartheid-imposed, and were not related to living customary law, then it was necessary to consider what boundaries would be accepted and adhered to under traditional practices. That necessitated a look at how the traditional courts were operating at present. Whilst they were supposedly working under the Black Administration Act of 1927, that Act was completely out of date, which was exactly why it had to be repealed. Instead of observing these boundaries and rules, communities were actually acting in accordance with their own system and approaching those courts whom they saw as legitimate and as fulfilling their needs and serving a function that they valued. If those boundaries, which essentially did not conform to people’s practice, were removed, it would not affect anything as the living customary law would continue to operate, and this was entirely consistent with the Constitution. She repeated that section 211 of the Constitution said that the status and role of traditional leadership would be recognised according to customary law, and that must be living customary law.

Dr Weeks expanded on the point made earlier by Prof Nhlapo and said that people were currently opting in to a system that they recognised, but the Bill required an automatic inclusion, with no right to opt out. The Bill stated that anyone who did not appear before a traditional court, whether or not that person recognised the court, would be guilty of an offence and would be punished, but that was not necessary, since a person who accepted the system would choose to attend that court in accordance with living customary law. She noted that clause 1 of the Bill said that traditional courts must operate in terms of customary law, but reiterated that customary law was governed by personal affiliation, so that anything that did not allow a person to opt out was out of place. The relationships between the Chief and his people lent legitimacy, and the fact that people continued to use the traditional court essentially legitimised it. When people stopped using the traditional court to settle disputes, this would clearly signify a perception of lack of legitimacy. This was entirely consistent with section 31 of the Constitution, which allowed people the right to participate in the cultural life of their choice. If people were compelled to adhere to a system that they did not recognise as legitimate, this was contrary to their culture.

Dr Weeks then expanded upon the points made about the layered system of courts and appeals. She reiterated that there could be family councils, neighbourhood sub wards or sub-headmen, a ward of headmen, chiefs’ courts and Kings’ courts. Appeals were often possible within the system. The multiplicity of forums provided for specialisation, and the whole system allowed for flexibility. She repeated the point made from Prof Himonga that the Bill currently did not recognise any of these other courts. The drafters had said that clause 4(4) did suggest that traditional courts could exist at multiple levels, since this allowed the Minister, at the written request of a King, Queen, headman or traditional leader, to designate another headman, woman, or member of a traditional royal family as an alternate. However, she stressed that this did not say that the headman was recognised as having his own court, but was seen only as a potential alternative to the presiding officer in the chief’s or King’s court. Only that top level was recognised, with no explicit recognition to the lower levels of courts. These lower courts often did the bulk of the work, so that many disputes did not even reach the chief's courts, as the problems were solved at lowest possible level. Therefore, regulating the chief’s courts would not regulate the whole system. In addition, Dr Weeks pointed out that one of the objects of the Bill was to provide access to justice for those from the poorest and most remote communities. If the system was properly understood, it would be seen that the lowest courts were in fact the most accessible. A woman living in a really remote rural village would not even be able to reach her chief’s court, and for her, the most accessible forum would be a neighbourhood council or headman’s court. In addition, these lower levels tended to provide the most women-friendly decisions.

Dr Weeks said that this was another instance of the failings of the current boundary system, because the Bantu Authorities Act had recognised boundaries at Chief’s level, not those at the lower level. Any attempt to impose formal boundaries at those levels would be very difficult, because layers overlapped and cross-cut, and there were difficulties in defining a headman’s jurisdiction against the jurisdiction of the person taking responsibilities for men’s issues or family issues. Ultimately, this came again to the point that people must be allowed to form and select their own forums, according to their own personal affiliations and associations.

Most of the courts at the lower levels were referred to as “councils”, and that was intentional, because they did not operate as magistrate’s courts did, and there should be recognition of the councils that formed them. Often, the community itself sat in council. She stressed that this was not limited to the Council of Elders, to whom the Bill referred in passing. Communities also sat in council, being able to ask questions, give testimony, participate in discussions leading to decisions, and the traditional leaders chairing these councils could include a family head or ward head. The person articulating the decision would draw from the wisdom of all those who had participated. Nothing in this Bill recognised that participation, and it was a major shortcoming. Although clause 1 made it an option for the Council of Elders to participate, this was still not recognised as an integral part of the system. This was inconsistent with current practice. The fact that they might not participate meant that the system would lose a vital component of accountability, since participation of the broader community would ensure that the decision was in keeping with the developments in the community.

Dr Weeks then moved on to the issue of women's rights. She said that whilst in many cases traditional courts did operate well, they nonetheless tended not to give optimal protection to women. In the SALRC and UCT research processes, many women had been strongly critical of the fact that traditional courts were comprised of older men. In most, but not all places, councils were comprised of men, actually excluding women. Dr Weeks stressed that women had to be included and allowed to participate in development of customary law, so that their own needs, and those of their children, were taken into account. In some places, women were not even allowed to attend traditional courts, as they could not enter sacred spaces, and in others they were not permitted to represent themselves. This was of particular concern for women in mourning, who were kept away from chiefs at this time, but this was of particular concern since this was the very time in their lives that they were most vulnerable to properly-grabbing by in-laws. The family member who was appointed to represent that women might be the very same person who was threatening her security. The Bill  also did not provide any provision to rectify the composition of the Council of Elders.

It had been claimed that clause 9(3)(b) did provide that men and women were treated equally, because it spoke of representation, and said women could be represented by men, or men by women, in accordance with customary law. However, in practice, this led to a continuation of the practice where women could be represented by men, and Dr Weeks was not aware of any area in which customary law allowed a man to be represented by a woman. This meant that to all intents and purposes the substantively unequal situation persisted.  Men and women were not given the same opportunities. Women comprised 59% of traditional communities, so it was also of concern that their dignity was not protected if they could not participate equally. This was a throwback from the apartheid era, since, in terms of the Black Administration Act, women were considered perpetual minors and were not empowered to participate in decision-making.

Whilst clause 9(2) sought to given over-arching protection, in that the presiding officer must ensure that women were afforded full and equal protection, and that vulnerable people were taken into account, it did not in fact do so, since both this clause and clause 3 spoke to procedure only, and not substance. There were substantive problems with women’s rights that had to be addressed. Theses clauses also only spoke of women in the context that they might be litigants, and did not afford them participatory rights as decisions makers. The duty lay with the presiding officer, and a women would have to challenge him directly if she felt that her rights were not adequately addressed or taken into account.

Dr Weeks summarised that the most fundamental problem, as outlined by all three presenters, was that the Bill sought to impose a system based on the boundaries of apartheid legislation, and one that was compulsory, rather than allowing for a system based on personal affiliation and acceptance of living customary law. The current Bill posed constitutional difficulties because the recognition of the existing boundaries conflicted with the principle of separation of powers, and this caused a problem if people were forced to follow this system. The only way to get around this would be to allow people to opt to use this system, and then to allow them legal representation before the traditional courts. A person who was accused of a criminal offence was, in terms of the Constitution, always entitled to legal representation, but this Bill was not only forcing a person under the jurisdiction of the traditional court, but then also denying a core constitutional right. On the other hand, if a person was allowed to opt in to the traditional court system, that person would know that s/he was opting in to a specific system that did not allow legal representation, and this legitimated the difficulty. In all instances where the Constitution referred to culture, it referred to an individual’s choice to perpetuate his or her culture and customary law, and this meant living customary law to which people chose to align themselves.

Mr D Bloem (COPE) said that this discussion had been very useful, and had empowered the Committee. He cautioned that this Committee must clearly not return to anything that was akin to the apartheid days, as this would severely affect the dignity of Members of Parliament.

The Chairperson interjected to point out that the Committee had not met to debate the issues as yet, and cautioned Members to ask questions of clarity, rather than making statements or proposals at this point.

Mr Bloem said he would abide by that decision.

A delegate from the KwaZulu Natal Legislature noted the challenges and controversy, and said that KwaZulu Natal had debated similar issues at various public forums and hearings. He noted that traditional ways were changing, as evidenced by the most simple aspects such as changes of styles of housing and clothing. Amakhosi in KwaZulu Natal (KZN) had not been opposed to the Bill. The TLGFA had repealed a number of other pieces of legislation and this Bill would serve as a guide to what should happen, which was needed. He noted that in his own Council, women were properly represented.

Mr L Nzimande (ANC, KwaZulu Natal) noted that the Committee would be meeting later to debate issues. There were a number of points that were relevant. He had wondered to what extent the contestations to the Bill had come from communities, saying that many of the boundaries were traditional community boundaries, not geographical boundaries, and the links between these and magistrate’s courts boundaries must be considered as the Committee processed the Bill.

The Chairperson interrupted again to note that Members were tending to dealing with specific issues.

The Chairperson suggested, and Members agreed, that the presentation by UCT be noted, and that any other issues raised during discussions could be sent to the presenters in writing for a response. He hoped to interact with them again. He also noted that an invitation had been extended to the House of Traditional Leaders when debating on the Bill.

During the afternoon session, the Chairperson noted that although the Agenda item specified that the Committee would receive the negotiating mandates, the Committee Secretary had since circulated a Memorandum in which he set out some procedural issues.

The Committee Secretary noted that summaries had been circulated of the points from provincial hearings. However, there had been a proposal that the provincial mandates be postponed, and that this Committee should hold its own public hearings on the Bill. This would take the Committee beyond the normal six-week cycle, and he suggested that the Committee Members should mandate the Chairperson to approach the House Chair for an extension of time.

He noted that the Minister of Women, Children and People with Disabilities had requested that she be afforded an opportunity to address this Committee on the Bill. In addition, many Members of this Committee had not had a chance to attend the public hearings held by the provincial legislatures, and there were certain problems around the process for public hearings as printed in the Government Gazette. The holding of public hearings in Parliament would give effect to the requirements around public involvement in the legislative process.

He stressed that this postponement and further public hearings would not negatively affect the negotiating mandates of the provinces. They were a vital part of the process; it merely meant that a decision on these would be postponed.

In addition, he noted that the Mpumalanga Provincial Legislature had sent a letter to the Chairperson of the NCOP, through the Acting Speaker, asking for an extension of three months to finalise its own provincial engagements. This would also be covered should an extension of time be granted.

The only potential problem with the extension of time would be that if the process went further than November, another amendment bill would have to be passed to extend the operation of the Black Administration Act again, to allow for the continued existence of the traditional courts in the meantime. However, this could be arranged. Another option that could also be considered was the holding of joint public hearings with the Portfolio Committee on Justice.

Mr M Mokgobi (ANC, Limpopo) proposed that the extension be supported. He also noted that Limpopo may wish to reconsider some of the points expressed in the negotiating mandate.

Mr D Bloem (COPE, Free State) proposed that the Bill be withdrawn. If that proposal was not accepted, then he would support the holding of public hearings.

Mr A Matila (ANC, Gauteng) supported the proposal to extend the process. He took the point that many of the Members were unable to attend the provincial legislatures’ public hearings. However, the communities on the ground may not necessarily be best represented by organised groupings presenting to Parliament in Cape Town, and he suggested that the Committee may wish to visit the key provinces itself, which he explained as provinces where traditional communities were found, perhaps excluding Western Cape and Gauteng.

Mr T Chaane (ANC, North West) was also in agreement with the proposal to extend the process. He sought clarity whether this process was likely to take the Committee through to November, as he thought it could be concluded sooner. He also noted that since provincial legislatures had already conducted public hearings, it should be made quite clear that further public hearings should not in any way be seen as detracting from the provincial public hearings, nor interpreted as any lack of confidence in the original processes.

The Chairperson agreed, and said that it would be made quite clear that this would be intended to broaden public participation in the process still further.

The Chairperson of the Cooperative Governance Committee from the Eastern Cape Legislature asked what this process would mean, in terms of time lines and programmes. The National Assembly had formerly conducted some public hearings, but there was criticism that the views expressed then had not been incorporated into the current Bill. He wondered if these public hearings would be regarded as a parallel process, and whether comments would be incorporated into the Bill.

The Chairperson clarified that these would not be seen as parallel processes. There would be attempts to engage fully and that all submissions, past and present, would be taken into account.

Mr V Manzini (ANC, Mpumalanga) also supported the extension of time, and started to relate an example of a woman who had, a short while ago, been denied access to a title deed of her property by her traditional leader, who insisted that she must marry again. There was substantial work that needed to be done to take cognisance of, and correct, what was being done, on the ground, by some custodians of the customary law were acting.

The Chairperson noted that the time for deliberating on the issues themselves would come.

Mr Matila stressed that the request from the Minister of Women, Children and People with Disabilities, and other women’s organisations indicated that other issues in addition to those already debated in the provincial public hearings may be raised, and all of this would help Members deal with the Bill.

Mr Bloem referred to the earlier comment that not all provinces may be visited, and expressed the view that the public hearings should extend to every province, as there were chiefs in each province.

The Eastern Cape delegate said it was important to define how the new process would be linked to the previous one. Attendance registers had not been kept, and there may be different outcomes, so he suggested that the invitation should perhaps be directed to “any other people” who may not have attended the previous hearings, as there was no point in simply having the same submissions repeated.

A Free State Provincial Legislature delegate welcomed the suggestion to hold public hearings in the provinces. Although there was support for the Bill in some areas, there were still nagging problems. The Department of Justice and Constitutional Development (DOJ) did not appear to be serious about the process, as evidenced by the fact that this Bill had not, since 2008, been translated to any other languages apart from English, which had led to lack of understanding in predominantly Afrikaans-speaking areas. No representatives from that Department had attended a single public hearing in the Free State. He added that although the National Assembly had held some public hearings in the past, this was now a section 76 Bill. People did not generally understand what the Bill sought to achieve, and workshops would have to be held  prior to any public hearings. He did not believe that broadening the processes could be criticised in any way as fruitless expenditure by provinces.

Mr L Nzimande agreed that because this was a section 76 Bill, there was a need for provincial consultation. There might be some points in the negotiating mandates that the Committee wanted to clarify. He suggested that the Committee should not specify that public hearings be conducted in every province, and it should obtain legal advice whether it would have to go to every province. The Committee should indicate also that it would welcome input from advisory bodies, such as UCT. The Select Committee coordinated provincial interests at national level, and therefore had a mandate to consider national issues. Provinces had been given only a short time to carry out consultation, and more time was needed.

Mr J Gunda (ID, Northern Cape) said that whilst he believed that it might be excessive to delay this Bill to the end of the year, it was nonetheless a very important Bill that required extensive consultation. It was of great concern to the people.

Mr Mokgobi summarised that the Chairperson and Mr Nzimande had made it clear that it may not be necessary to visit all provinces. The Committee needed to consider all the issues, and consider the implications of postponements. After this, the Committee should communicate with the provincial legislatures, and clarify what the procedure would be.

Mr Matila added that some provinces had already asked for an extension, and urged that the Committee should be very clear about the implications of the time frames, particularly since the provinces had been told previously that they could not be given more time. The reasons provided in the Memorandum could assist the Committee.

The Chairperson assured Members that there would be consultation with the provinces and where provinces felt that it was not necessary to conduct more public hearings, the Committee would abide by that. In any event, if public hearings were to be conducted, they would be arranged for different venues to those of the provincial legislatures’ public hearings.

The meeting was adjourned.


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