Traditional Courts Bill: public hearings (day 1)

NCOP Security and Justice

18 September 2012
Chairperson: Mr T Mofokeng (ANC, Limpopo)
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Meeting Summary

The first day of the public hearings into the Traditional Courts Bill (the Bill) commenced with a presentation by the Department of Justice and Constitutional Development (DOJ), who outlined the history of the Bill and consultations, and conceded that perhaps rural women were not adequately consulted. DOJ stressed that the Bill did not seek to create traditional courts, nor to pronounce on the constitutionality of practices and customs. DOJ, having heard a number of submissions, now proposed some changes to the Bill. The criticisms against the Bill had included inadequate protection and promotion of the rights of women and children, failure to distinguish clearly between courts, exclusion of legal representation, an over-concentration on the powers of traditional leaders, the lack of an opt-out clause, the conferring of criminal jurisdiction, the basis of apartheid boundaries to determine jurisdiction, and fears about perpetuation of harmful customs and practices would be perpetuated. DOJ now suggested that the traditional courts should be integrated into the Traditional Councils, with special measures to determine the quota of women who must sit, as well as their roles. Members of the community should be permitted to attend and participate, and the jurisdictions must be clearly set out. Training programmes must be introduced. The apartheid boundary formulations would be revised and those approaching the traditional courts, including those who lived in an urban area, would have to establish a connection to the court. Traditional Councils would in future be empowered to deal with any disputes, civil or criminal. The Court may be able to proceed with matters in the absence of a party. Restorative, rather than retributive sanctions should apply. All tiers of the traditional justice system must be recognised, and no appeal would lie from a traditional court to a formal court of law. There was a need for uniformity and standardisation of processes, accountability would be ensured by an oath of office, and the Bill would be renamed.

The National House of Traditional Leaders (NHTL) noted that traditional courts would continue whether or not the Bill was passed. The intention of the Bill was not to address unfriendly customary practices. Its representatives stated that it was not correct that women were excluded, nor discriminated against, and said that Parliament must take a stronger stance if the existing systems (including the reconstruction of the Traditional Councils) were not being properly observed. The NHTL proposed a definition of kingship and kingship council, asked that in certain clauses recognition be given to the role that the provincial and local Houses of Traditional Leaders must play, and said that the Minister, when making regulations, should consult with the NHTL. Traditional Courts should be allowed to deal with family disputes. The NHTL stressed that sanctions aimed to rectify difficulties, not to be punitive, and suggested that instead of the orders having the effect of a civil judgment; traditional leaders should be empowered to enforce judgments in their own way. It was in favour of appeals to an independent court, whilst an independent commission should deal with incapacity of presiding officers. Instead of DOJ seconding officials, all court officials must be trained. Payment of fines should be made to the Trust Accounts of Traditional Councils.  Oaths of office should be taken before a Judge President. Finally the NHTL conceded that more engagement would be useful.

Three members of the National Union of Metalworkers (NUMSA) related the particular problems they had experienced in their own areas, including levies imposed by chiefs, often at random, communities being forced to re-arrange their own lives to suit the Chief, cover-ups of crimes such as rape, perpetuation of the fact that women were expected to undertake all household chores in addition to working full-time, heavy oppression by males and chiefs, and women not being allowed to present their cases in traditional courts. NUMSA felt that the Bill would perpetuate fragmentation of systems and marginalisation of customary law, and pleaded that the Bill be withdrawn and that instead another way be found to incorporate customary law into a more unified system. It urged that other forms of dispute resolution be considered.

A representative of the Manyeleti Community Property Association and Land Claim noted that the current Traditional Councils were still engaging in apartheid-style practices, and that Traditional Courts were similarly sometimes engaging in mob justice. It was feared that this Bill, by giving more powers over land and allowing for imposition of sanctions that were not subject to appeal, would worsen the situation. The particular concerns of the Manyaleti Community and the history of its land claims were outlined in detail, and it was noted that it had been subjected to abuse, non-representation, and violations by its Traditional Council. This Association wanted the Bill to be scrapped, and suggested that a “bottom-up” approach to a re-writing must be taken, after full consultations with affected communities. It stressed that freedom of choice on jurisdiction was essential.

The Law Race and Gender Unit (LRG) of the University of Cape Town firstly questioned the status of the presentation given earlier by the DOJ. When this was clarified, the LRG outlined concerns that because the Bill was linked directly to the Traditional Leadership and Governance Framework Act, which entrenched apartheid boundaries, it was fundamentally flawed. 1 322 disputes had already been registered in relation to tribal council boundaries and the Bill effectively created a second-class and segregated legal system. The Bill also only covered courts at the apex level, and failed to recognise that most of the cases were in fact successfully settled in other tiers. The LRG felt strongly that customary law, to be effective, must be recognised by the people, and the system must take this into account, and allow people who were not happy with that system to opt out. Several of the South African Law Reform Commission recommendations of 2003, which had been practical and sensible, were never pursued because traditional leaders had voiced their objections. Traditional Council elections were problematic, which raised serious legal concerns about the statutory authority vested in those Councils.

The Rural Women’s Movement outlined the practical day-to-day problems faced by women in their communities, including a proliferation of levies charged by chiefs, Chiefs failing to render assistance unless their demands were met, intimidation by men and Chiefs in communities, and a fear that this Bill would perpetuate lack of equality. It also noted its concerns that the public hearings were not representative and that many communities were unaware of the hearings.

Members were asked to restrict themselves to raising questions for clarity, and not to engage with substantive issues. They asked for further comment on the NHTL claims that women were not discriminated against by traditional leaders, and noted that some serious allegations, including misappropriation and covering up of criminal offences, were made. They wondered if the Bill would have been different if rural women, in particular, were consulted prior to it being drafted. They commented that negative issues had been raised, and asked about positive experiences with traditional courts. They questioned how chiefs were able to deny communities access to their legal rights. It was unfortunate that the Bill had initially been produced in English, and they agreed that more consultation was needed. They clarified when the Ministers of Justice and of Women, Children and People with Disabilities would attend.

Meeting report

Traditional Courts Bill; public hearings (Day 1)
Department of Justice and Constitutional Development submission

Mr Jacob Skosana, Chief Director: Policy, Department of Justice and Constitutional Development, presented some background on the alignment of the traditional justice system to the Constitution. He described the five stages of development of the Traditional Courts Bill (the Bill), from the South African Law Reform process, in 2003, to the reintroduction of the Bill in the NCOP in December 2011, and the provincial hearings in 2012. The information and input gathered at all stages was well documented and usable, and he stated that the amount of time, energy and money that had already been expended militated against suggestions to “reinvent the wheel”. He noted that a consistent criticism had been the lack of adequate consultation, or skewed consultation that mostly involved the traditional leaders. The Department of Justice and Constitutional Development (DOJ) conceded that perhaps rural women had not been adequately consulted, but felt that this was not reason to commence with an entirely new draft of the Bill, as the problems could be addressed in other ways.

Mr Skosana stressed that the Bill did not seek to create traditional courts, nor did it pronounce on the constitutionality of practices and customs that made up customary law. The Bill was merely a framework through which traditional justice could be dispensed, by the structures authorised by section 39 of the Constitution.

The DOJ had isolated some specific areas that may need to be strengthened, or re-formulated. Clause 3 had been criticised as giving inadequate protection and promotion to the rights of women and children. The Bill did not distinguish clearly between the nature of the courts. The exclusion of legal representation was criticised as problematic, even unconstitutional. Further areas that had attracted criticism had been the over-concentration of powers on traditional leaders, whilst divergent views were expressed on the oath or affirmation of office in clause 15. The Bill currently did not provide for any right to opt out, which was seen by some as conflicting with the right of access to courts in the Bill of Rights. There were concerns about conferring of criminal jurisdiction on the traditional courts, whilst there was also concern that the Bill’s current formulation of traditional courts was based on the boundaries of the old tribal authorities, under the apartheid structures. A further problem was that the traditional justice system was seen as perpetuating harmful customs and practices that offended against the Bill of Rights, and some sanctions were seen as constitutionally objectionable.

Mr Skosana then went into some of these points in more detail. Traditional courts should not be equated with courts of law, and this must be reflected in the names, description and types of courts, which were essentially forums of community members (makgotla or inkundla). DOJ now suggested that the traditional courts should be integrated into the Traditional Councils, for purposes of dispute resolution. Special measures could be included to determine the quota of women who must participate in the Traditional Councils, and their role during the sitting. Any member of the community should be able to attend and participate. Procedures must be set out as to how the Traditional Council would act when sitting as a court, and its jurisdiction must be set.

Mr Skosana explained that the inclusion of the courts under Traditional Councils would result in better gender representivity, since Traditional Councils (TCs) already comprised one-third women, and they would have to include members of the traditional communities as well as traditional leaders. This solution would also eliminate proliferation of traditional structures. Training programmes could be introduced. This suggestion would allay the fear that the Bill could centralise power in individual traditional leaders, since they should no longer be designated as presiding officers.

DOJ agreed that a revised Bill should do away with apartheid boundaries, although by choice those approaching the traditional courts would inevitably have a connection (residence, affiliation, family or cause of action in that area) with the court. A person living in an urban community would still be able to approach the Traditional Council.

The insistence on the exercise of both civil and criminal jurisdiction by the customary courts, coupled with punitive sanctions, had been behind the calls for changes in respect of legal representation, but he suggested that the change to the Traditional Council having jurisdiction would allay the concerns.

In relation to the opting out, one of the guiding principles would be that Traditional Councils sitting as Traditional Courts would be empowered to deal with any dispute, whether criminal or civil, which had not commenced in a court of law. It was suggested that the Traditional Courts may only deal with a limited range of disputes. A person given notice to attend must do so, or give reasons for non-attendance, including reasons for reluctance to submit to the authority of the council. The Traditional Court should be able to continue in the absence of that person, but not take any decision that would have a legal effect on the absent party.

The DOJ stressed that there should be a move from retributive sanctions to restorative awards. Its awards would be, for instance, compensation, an apology, an order to discontinue a harmful act, a reprimand.

There should be recognition of the different tiers of the traditional justice system, from family dispute resolution upwards.

No appeal should lie against the award of the traditional courts to a court of law. However, DOJ felt that failure to comply with an award or directive of the Traditional Court should result in a criminal prosecution.

Accountability should be strengthened through the presiding officers taking an oath of office swearing allegiance to the Constitution. Mr Skosana emphasised again that training was an important element for everyone involved in the traditional justice system. There was also a need for uniformity and standardisation of processes, whilst recognizing the diverse different cultures and customs.

The DOJ finally recommended that the Bill could be renamed as “Resolution of Certain Disputes by Traditional Councils Bill”.

Mr Skosana summarised that DOJ believed that its proposals would contribute to the reconstruction of traditional courts, and no longer perpetuate the old dispensation that had applied under the Black Administration Act (BAA).

The Chairperson noted that Members should ask questions of clarity and not engage on specific aspects at this stage. No questions would be taken from the general public at this meeting.

Mr D Bloem (COPE, Free State) proposed that the input be noted and that the Committee move on to other public submissions.

Mr D Joseph (DA, Western Cape) agreed that the Committee should engage fully with the Department after the public hearings. He asked if the DOJ was intending to change the name of the Bill.

Prince M Zulu (IFP, KwaZulu Natal) noted that there must be a distinction between umgena and ukuthwala.

The Chairperson noted that Prince Zulu was now expressing a personal view and asked him not to continue on this question.

Mr A Matila (ANC, Gauteng) noted that this input was substantially different from what the DOJ had included in the current Bill.

Mr M Makhubele (COPE, Mpumalanga) noted that much had come out of the presentation, and the Committee needed far more time to deal with the Department.

Mr Skosana confirmed that certain aspects of the Bill would require reformulation. Clause 4, which provided for delegation, may not find a place in the reformulation. The short title could be changed. The process of further engagement would explain the clauses to which the input would apply. However, it would not be an entirely new Bill, but a re-formulation or differences of emphasis.

National House of Traditional Leaders submission
Kgosi Sefogole Makgeru, Deputy Chairperson, National House of Traditional Leaders, said that Traditional Courts (TCs) existed as a creature of customary law. They aimed to build communities and promote peace and goodwill, and they would continue to function, whether or not this Bill proceeded. The Bill was merely intended to streamline TCs and promote uniformity. It was not intended to address “unfriendly” customary practices like ukuthwala, as they could be dealt with in separate processes. The argument that women were excluded was not correct, and if it was felt that the law was not properly implemented, then Parliament had a role to play.

Dr Wilson Makgalancheche, Chief Executive Officer, NHTL, said, in relation to the definitions, that the National House of Traditional Leaders (NHTL) was proposing that there should also be a definition of “kingship” or “kingship council”.

He clarified that in addition to the NHTL, there were also provincial and local Houses of Traditional Leaders (HTLs). The NHTL recommended that clause 4 also include a provision that the Minister must not only consult with Premiers, when designating, but also with provincial HTLs.

In relation to clause 5, NHTL proposed that TCs should be able to hear marital disputes, custody and guardianship matters arising from customary marriages.

Clause 9 should be amended to allow more than one family member to be a representative.

The NHTL wanted to stress that “punishment” by a TC did not follow the line of the magistrate’s court, but instead the perpetrator was separated from his or her community. This could apply to theft or witchcraft charges.

Clause 11 of the Bill currently provided that an order made would have the effect of a civil judgment. Traditional leaders believed that they must be allowed their own way of enforcing decisions.

In relation to appeals, it was suggested that an independent court within the traditional institution system should deal with appeal matters, and this court should perhaps be constituted by kings, queens or other individuals.

In relation to clause 18 it was recommended that a traditional leader designated as the presiding officer must take an oath before the Judge President, not a Magistrate. This would be in line with the oath taken by members of the various HTLs.

In relation to clause 16, which dealt with incapacity of presiding officers, the NHTL suggested that an independent commission, comprising senior traditional leaders, be set up to deal with complaints. Clause 16(3) should include a reference to consultation also with the provincial HTLs, and clause 16(5) should be amended so that the Minister would have to consult with the NHTLs in national instances, and the Premier must consult with the provincial HTLs in provincial matters. Similar consultation between the Minister and NHTLs should apply in relation to the regulations described in clause 21(1), and to complaints procedures.

In clause 17, NHTL felt that instead of the DOJ seconding officials, all TC officials should be trained.

Payment of fines should be effected into the Trust Account of the Traditional Councils.

Kgosi P Maubane, Chairperson, NHTL, said that most of the criticisms expressed at public hearings had been directed not so much at the Bill as against the institution of traditional leadership. He felt that more engagement was needed outside of the Parliamentary meetings, to further the evolving of the institution. Traditional leaders were custodians of traditional community cultures and everyone must be involved in changes to that culture. The institution of traditional leaders was not a creation of apartheid, as had been suggested, and traditional leaders had suffered also under this system. He agreed that the Bill should apply beyond the current demarcated boundaries.

Mr Bloem asked how the NHTL would address the criticism that women were being discriminated against, by the traditional leaders, and that this was perpetuated by the Bill.

Kgosi Makgeru commented that not all traditional leaders acted in the same way. Whilst some may well not apply the law properly, it was going too far to suggest that all women were treated poorly by traditional leaders. A certain quota of all traditional leadership institutions was reserved for women, and progress was being made. Whilst there was not full equality yet, he did not think that the current Bill would lead to endangering of women.

Mr Joseph asked whether the Bill would have been different in form if women and women’s organizations had been consulted prior to the Bill being drafted. If the process was incorrect to begin with, amendments would simply perpetuate it.

Mr V Manzini (DA, Mpumalanga) asked if there were women councillors in the traditional systems. If not, then he wanted to know if they would be included in the near future.

Mr Maubane confirmed that there were women in the Traditional Councils in a number of the provinces, including areas that did not necessarily show widespread transformation. Most of the groups present today had been consulted in the past, so he was not sure that consultation in the earlier stages would have made a difference to the drafting. There had been plenty of opportunities for input since then.

A representative of the NHTL added that one third of the traditional councils were women, and therefore Traditional Councils were transformed. He appealed that Parliament should, in public hearings, reach out to women in the deep rural areas. In Venda, many of the women had spoken in support of the Bill, and had supported TC systems.

Mr Bloem asked about the contradiction between the existing court system and the new system – for instance in relation to maintenance claims.

Mr Gunda asked for the real differences between what the Bill proposed, and the systems that were being used on the ground. He asked if the NHTL had taken into consideration the views of all the traditional communities in South Africa.

Kgosi Makgeru responded that the Bill intended to streamline the operations of the existing traditional courts, by complementing and strengthening customary systems. The only real differences lay in training, record-keeping and general government support. Most of the operations of the current courts would remain.

Another representative of the NHTL said that women traditional leaders had in the past, and currently still did hold positions. He noted that women were actually protected by many customs and he disputed the claims that they were oppressed.

Mr Gunda made the point that not once had a woman traditional leader accompanied the NHTL representatives to Parliament.

The Chairperson asked that NHTL not respond to that, and reiterated that Members should confine their questions to seeking clarity on the Bill.

Mr Bloem asked what would happen to a person who was summonsed to appear before a traditional court, but refused to attend.

Kgosi Maubane noted that currently, a person could choose not to appear. However, the Bill sought to strengthen the powers of the institution and the new Rules to be formulated would presumably emphasise the need to appear, or deal with reasons for non-appearance. He stressed that the TCs built community strength, and a person who was not prepared to comply was probably not participating fully in the community. He reiterated the need for further engagement with civic organizations, saying that there seemed to be misunderstanding on a number of issues.

Mr M Nonkonyana (ANC) wanted to stress that women had not been excluded from the public debates. Years of apartheid oppression had blurred the understanding of the differences between the civil and traditional courts. TCs had been repressed, and some repugnant issues were included under the BAA of 1927. Since 1994, all courts had had to conform to the Bill of Rights. He stressed that the TCs were not adversarial in nature, and this was an important point to recognise. He also disputed the perception that TCs oppressed women, and he wanted to hear reasons for these claims. Activist women had participated in the White Paper process on traditional leadership. The system was working well. The reason for the Bill was to address the injustices of the past and put the traditional communities and TCs on par with the civil courts system, by making the TCs into courts of record.

Mr B Nesi (ANC, Eastern Cape) urged Members to engage more with the issues.

Mr M Makhubele asked for clarity on the comment that Parliament was in part to blame for non-participation of women in society.

Kgosi Maubane said that Parliament had the duty to correct imbalances, such as the fact that in Limpopo traditional authorities had not been transformed, largely due to financial difficulties, so that participation of women was not guaranteed in that province.

National Union of Metalworkers of South Africa (NUMSA) submission
Mr Woody Haroun, Parliamentary Office, National Union of Metalworkers (NUMSA), said that NUMSA took the Bill very seriously, and wanted to comment on some of the legal and constitutional aspects that were of concern to the many NUMSA members who were from traditional communities.

Mr Stanley Mthembu, NUMSA member and traditional community resident, KwaZulu Natal, spoke in isiZulu, summarised by a translator. In the rural areas, people faced huge hardships because the local chiefs would fix their own levies, in relation to a host of matters, including numbers of family members and livestock. He expressed concerns that in one instance, when a young woman was raped and impregnated, the local Chief had then required a “fine” to be paid by her father, because she had given birth to a child in the community, despite not being married. A person who was suspected of stock theft would not be subjected to a fair process, but could simply be chased away from the area. A local chief might object to the hosting of a function, such as a wedding, on a Saturday, if he regarded that day as sacrosanct to his own religious beliefs and everyone in the community would be required to conform to the Chief’s wishes.

Ms Xoliswa Matshabele, Union member, and resident of Idutywa, spoke about the abuse of women in her area, summarised by a translator. Elderly women were often subjected to sexual abuse. In some cases, fathers would rape their own daughters and then insist that the daughter must get an abortion, without the knowledge or consent of the mother. Both spouses may be working, but only the woman was expected to attend to household chores. A woman who had been widowed had no right to present her own case, and had to be represented by a male. Women were not allowed to address a king or chief from a standing position but were required to bow before them. She pointed out that in the workplace, many women were supervisors, in charge of males, and pleaded that the same should be accepted for the family situation. Inevitably, males presided over witchcraft trials and it would often result in the woman suspected of witchcraft being put to death. The women in the Eastern Cape pleaded that the Bill should be reversed and redrafted, since women were still under heavy oppression.

Ms Martha Mashaba, Union member and resident of Limpopo, said that in the civil courts, both the applicant and defendant had to put something on the table. At TCs, only men were permitted to speak, and no woman was allowed to ask any questions during the hearing. Women may be told to leave “our fathers’ land” within a week, and no consideration was given of the fact that they had to support their children and may have nowhere to go. Women were not permitted to cut trees in their own yards without having to make payment to the Chiefs.

Mr Haroun stated that the decision that NUMSA took at its Congress in June to withdraw the Bill was based on substantial discussion. NUMSA felt that the whole system was too fragmented and the Bill would create more fragmentation, and more marginalisation of customary law. NUMSA wondered why the TC system was being held up as such a good example, when in fact other alternative dispute resolution mechanisms, and the Ombud, worked even better and were available to all. He pointed out that NUMSA itself had pioneered some of those systems. There seemed to be an infatuation with the Bill. NUMSA was concerned that the Bill actually perpetuated the positions of traditional leaders, gave them increased power, and resulted in certain sectors of society being treated as second class citizens. Whilst he conceded that NUMSA members had a variety of opinions on the desirability of some clauses in the Bill, and the implications, there was overall concern that the fact that the Bill would, if introduced, apply to some areas only was “a recipe for disaster”. Instead, NUMSA would like to propose that customary law be brought into the formal system in some other way, through tribunals or ombuds, to find a way in which formal and non-formal mechanisms could co-exist in a fairer system.

Mr Bloem asked for clarity on NUMSA members’ concerns about legal representation, and why they felt that the Bill gave too much power to the traditional leaders.

Mr Haroun noted that many people living in the outlying areas had no access to legal representation anyway, so this was not so much of a concern as the fact of the amount of power vested in the traditional leaders.

Prince Zulu clarified, in respect of the rape allegations, that rape was of course a criminal offence and the Chief should, firstly, have fined the person committing the rape, and secondly have reported the incident to the South African Police Service (SAPS). He asked if this had happened. He noted that normally, those accused of witchcraft would be moved away from their areas.

Mr Mthembu answered that in this case, the Chief had shown no concern for whether or not the woman was raped, and was not concerned with reporting it to SAPS, but merely insisted that a levy be paid for the child. SAPS, in any event, took far too long to arrest a rape suspect.

Mr Haroun added that in many cases, the Chiefs were actually suppressing incidents occurring in their areas.

Mr Bloem noted that further concerns were raised about misappropriation of fines by traditional leaders, and intimidation of women and youth who were unable to represent themselves. Misappropriation was a serious issue.

Mr Haroun said that this was based on anecdotal evidence that had been put forward by NUMSA members.

Mr Nonkonyana asked for clarity on the point that women were not allowed to speak in TCs, commenting that the TCs were essentially to find out the facts from each party, and asked what the presenter had meant when she referred to “our system”.

Ms Mashaba gave a practical example, that if there was an argument between a person and a chief, the chief would want his voice to be heard, and would not given other parties a fair hearing, or even the opportunity to respond.

Mr Nonkonyana said that this seemed to have missed the point of his question. He noted, in regard to legal representation, that the main issue to bear in mind was that the TCs were intended to be accessible and cheap.

Mr Nonkonyana asked for further comment on the suggestion that the Bill be withdrawn, and wondered if NUMSA was suggesting that the Constitutional Court would rule the Bill unconstitutional.

Mr Nesi asked for further clarity whether it was suggested that the Bill was reinforcing poor systems already in place.

Mr Haroun answered that the Constitution recognised customary law, but it had to find its place in the country’s court system. The net effect could be that customary law was left with the traditional courts. Non-formal systems of adjudication should be integrated. NUMSA members were not opposed to alternative forms of dispute resolution, but did not think that TCs were necessarily the correct route, and it would like to see a more unified system. NUMSA urged that space be created for all parties to come together and consider the issues in a more objective way. Views across a much broader spectrum should be canvassed.

Mr Bloem noted that questions of clarity had been asked on the powers, misappropriation and legal representation. Mr Haroun had stated that his comment was based on “anecdotal evidence” and he wondered how correct this was.

Mr Haroun asked that Ms Gasa, who had accompanied NUMSA on its workshops, be given the chance to respond. He took exception to the suggestion that the anecdotal evidence was necessarily not worthy of consideration. 

Mr Nesi said that more engagement was needed as several problems were being raised.

Manyeleti Community Land Claim submission
Mr Andries Sihlangu, Representative, Manyeleti Community Property Association, said that this Bill seemed to be reintroducing apartheid-style legislation. Under the old apartheid laws, traditional leaders had the power to hand down sentences and they would invariably prefer those who could pay the most. A person convicted of witchcraft practices would be put to death. TCs imposed penalties through operation of mob justice and community punishments. They were still following apartheid practices.

Even today, the Traditional Councils were perpetuating similar practices. His particular concern related to a Traditional Council in his own area, who were attempting to evict the Manyeleti Community from their land. It was feared that this Bill would, by giving TCs power over land, and allowing them to impose sanctions that could not be appealed, make the situation even worse.

Mr Sihlangu’s family had been victims of forced removals, and his community had, even after making a land claim, again been faced with removal. He described, in some detail, the history of his community and the land disputes (see attached presentation), and noted the saga of fraudulent practices adopted by Traditional Council members. The community had only heard of what was actually happening when a Noseweek
article was published. The Traditional Council persisted in its illegitimate claims to ownership of the land, and the Manyeleti Community Land Claimants had been forced to take the matter to Court. The land claim had never been settled as a result of the abusive authority of the Traditional Council. He pointed out that the Chief had co-opted the Council and nobody had been given the chance to vote. 

Manyeleti Community Land Claimants submitted that the Bill should be scrapped or redrafted, to exclude land that would be privately owned under a Trust or Community Property Association. The powers given to Chiefs would violate rights of communities to own land, and to a fair trial and justice system. He stressed that a “bottom-up” approach to writing a new Bill must be taken. It was not enough to try to make changes to the current Bill. The only way in which a workable and fair Bill could be created was to hold full consultations and hear what the communities themselves thought and wanted. A good Bill must include the freedom of choice in respect of jurisdiction.

Law Race and Gender Unit (LRG), University of Cape Town submission
Ms Aninka Claasens, Representative, Law Race and Gender Unit (LRG), University of Cape Town, apologised for the absence of Dr Mnisi Weeks, who was ill.

She noted that this was the first time that the majority of people present had seen the new proposals of the DOJ, and LRG was very concerned that these far-reaching proposals, rather than the 2008 version of the Bill, should be the subject of the public hearings.

Mr Bloem raised a point of order. He confirmed that this was the first time that the DOJ proposals had been tabled and seen by the Committee.

The Chairperson also confirmed this point.

Ms Claasens disputed this, saying that one of her colleagues had picked up a copy of these proposals from a table in a Parliamentary venue in the previous week.

The Chairperson reiterated that nothing had been tabled by the DOJ, prior to this morning’s meeting.

Ms Claasens proposed that the areas covered by DOJ could not be considered as part of the public consultation process, pointing out that the DOJ had effectively made a submission.

The Chairperson asked if the LRG was intending to make a presentation. He had already explained that this meeting was not the correct forum for other people to comment on any of the proposals.

Ms Claasens asked if this was not to be considered a part of the public consultation process.

Mr L Nzimande (ANC, KwaZulu Natal) explained to her that the public consultation, and all the comments today, were based on the Bill, as gazetted. This was the second round of public hearings in the NCOP. What the DOJ had presented today was received merely as input from that Department. Only after the whole process had been completed, and all comments considered, would the Committee decide how to deal further with the Bill.

Mr Bloem agreed with this summary and stressed again that nothing had been tabled by the DOJ during any earlier meeting.

Ms Claasens said that in this case she would present comments on the 2008 version of the Traditional Courts Bill. One of the fundamental concerns was that this Bill was directly linked to the Traditional Leadership and Governance Framework Act (TLGFA), because it had adopted definitions in that Act, and entrenched tribal boundaries. LRG felt that it would be unlawful and unconstitutional for government to introduce a legal system that was discriminatory on the basis of race, but as long as the links between the Bill and TLGFA persisted, the Bill effectively created a segregated and second-class legal system for 18 million people living in former homeland areas. Customary law was supposed to be built on shared identities and expression, but the imposition of boundaries was in direct contradiction to the right to express a shared identity. Although there were only about 900 officially recognised traditional leaders, the Department of Cooperative Governance and Traditional Affairs (COGTA) had already reported 1 322 disputes on tribal council boundaries, with over 500 in Limpopo alone. It was virtually impossible, in practice, for groups to succeed in their challenge, since the TLGFA provided that successful challenges would be upheld only by the “majority” of the traditional communities, leaving smaller clans without recourse.

Another fundamental problem with the Bill was that it recognised only the TCs at the apex level. In fact, customary systems did not operate only at the level of the Traditional Council, and most operating at family, village or headman’s level. She cited an example of the Kalkfontein area, which was at one stage placed under a particular tribal chief who had instituted a reign of terror and sold their land. The Kruger Commission recorded all the abuses and the Chief at that time was removed, but the tribal authority was retained. Although the community successfully asserted its land claim, it still had to approach that chief, whom it did not recognise, to obtain proof of address to pursue any other rights, and when the chief refused to give it, or the people were reluctant to follow this route, they were left without recourse.

LRG also noted a problem in relation to opting out. The South African Law Reform Commission (SALRC) had presented a draft in 2003, which had suggested the right to opt out, but the traditional chiefs had not been in favour of that concept. The SALRC draft also had stressed that customary courts should be able to operate at all levels, but the chiefs believed that this would undermine their authority. The Traditional Courts Bill failed to take either of the SALRC’s points into account, and instead provided that it would be a criminal offence to attempt to opt out. It was significant that the Bill had been drawn in consultation with the NHTL. Using the earlier example of people in Kalkfontein, she pointed out that opting out did not take account of the power relations. The only way to get around that was to recognise that customary law was an opt-in system based on the fact that people believed in and wanted to accept it, and chose to interact with each other according to a set of accepted values. It was completely the wrong approach to adopt to make them opt out of an imposed system.

Ms Claasens added that in practice, there were many problems with the Traditional Council elections. Despite claims earlier on that the Traditional Councils were transforming, she pointed out that there were no guarantees that the remaining 66% of male members would be properly elected. In addition, no elections had ever been held in Limpopo, and even in places where elections had been held, the percentage of those voting was minuscule. In the Eastern Cape, there had been indications of electoral fraud, and COGTA had never provided the details that it was repeatedly requested to give. There were therefore serious legal concerns as to whether the Traditional Councils had statutory legal authority, given that they had not complied with the constitutional requirements.

Finally, Ms Claasens summarised that the experiences on the ground explained why there was such vehement objection to the matter.

Mr van Joseph asked for clarity on the experiences of communities prior to the BAA.

Mr Bloem commented that he had heard only negative points and asked if there were positive aspects to the Bill.

Mr Nesi noted that there had not been any reference to the rights to practice culture. He feared that at the end of the day, not all the positive points may have been made, and there was perhaps over-emphasis on the negatives.

Ms Claasens responded that some TCs were functioning well, but in these cases the correct functionality was related to their compliance with proper customary law, and not with the BAA. This applied particularly to village council level courts, which had never relied on the BAA, and did not need to be governed by this Bill. She noted that those who had expressed opposition to the Bill were, in the main, experienced in properly functioning structures. There were many positive experiences, as well as instances where changes had been produced. The country should be building on those, not debating a law whose primary function was to bolster the powers of traditional leaders, at the expense of proper customary law.

Ms Claasens said that Dr Weeks was currently engaged in an extensive study on traditional courts, which was highlighting some of the problems that headmen faced daily, but their courts were not referred to in this Bill.

The Chairperson asked for further explanation on the point that people had been unable to get social grants or ID documents if they were opposed to the chiefs in power. He pointed out that these document were issued by government departments, not the chiefs.

Ms Claasens reminded the Committee that applications such as these required that the applicant prove his or her address. In rural areas, this was done by reference to streets. IN traditional areas, the people had to obtain a “proof of address” letter from the Traditional Council. Some applicants were required by the Traditional Council to pay for that letter, whilst in other cases the authority would refuse to give it unless the applicant was up to date with tribal levies, which many people stopped paying in 1994, believing them to be unconstitutional. The problem was that these traditional structures had been given “wall to wall” coverage and authority in the former homelands and, in practice, they were denying access of people to the necessary documentation to assert their rights. The Bill would further exacerbate these problems, particularly since people would actually be able to be summonsed and punished according to customary law. In the rural areas, this was the reality of life for many people.

Rural Women’s Movement (RWM) submission
Ms S Mangele, Representative, KwaZulu Natal Rural Women’s Movement, spoke in isiZulu. A translated summary was given by Mr Nzimande. He noted that the representative had concentrated on the practical day-to-day problems faced by women in their communities. For instance, women had to visit the Chief to get a death certificate for someone who had died in the traditional community, but this would not be provided without levies being paid, and where people did not comply with whatever the Chief wanted, they would not be assisted. She herself had faced intimidation and had been ignored by men when she had been specifically asked by her own Headman to address them on a matter. A woman wanting to leave one area and move to another would be required to pay levies to chiefs in both areas. The representative raised a number of general issues about equality of men and women, and this Bill perpetuated the lack of equality. There was, finally, a complaint that the public hearings were not representative, because only some women had been were advised of the hearings.

Mr Bloem said that it was unfortunately true that many women had been excluded from the full public hearings process. He asked whether anyone had explained the Bill to women in detail. He noted that the initial drafts were produced in English.

Ms Mangele responded that the Bill was forwarded to her only by the Rural Women’s’ Movement. Her own community had never been informed of, nor given the chance to participate in, a process.

Mr Nesi said that he noted that point with interest.

Mr Manzini commented that the RWM must clearly empower women in their villages.

Ms Mangele confirmed that she would be circulating the information to women in her area.

Mr Nzimande noted that he was representing the KwaZulu Natal Legislature. Public hearings were held in Ulundi, and the RWM participated in several of those hearings.

Mr Bloem commented that many of the participants were asking questions about the absence of the Minister of Justice and Constitutional Development, and the absence of the Minister of Women, Children and People with Disabilities.

The Chairperson explained that both had presented apologies; the Minister of Justice was represented today, and the Minister of Women, Children and People with Disabilities would be present on Thursday.

The meeting was adjourned.


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