Traditional Courts Bill: public hearings (day 3)

NCOP Security and Justice

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

The first presenter, from the Association for Rural Advancement (AFRA), expressed his concern at the insinuation by some Members, on the previous day, that individuals had been told by NGOs what to say. He stressed forcefully that MPs should not assume that people were not able to think for themselves, were not truthful in relating their personal experiences, and suggested that Parliament should make use of its resources to travel to and consult with the deepest rural communities. AFRA felt that a decent and thorough consultation process should have been taken. It was worried that the Traditional Courts (TC) Bill failed to break with the colonial past and confined people to tribal boundaries, many under tribal authorities that they did not recognise. The Bill was in conflict with the Constitution as it did not allow for legal representation, or for opt-out, and the fact that it gave traditional leaders the responsibility of defining custom and tradition could lead to further abuses. Several abuses under his Chief were cited. By centralising power in one presiding officer, the Bill undermined family and clan courts. AFRA questioned if white landowners owning land in the traditional areas of authority would be subject to the traditional leaders, and said that if they were not, then this was simply a continuation of apartheid-type divisions. Community Property Associations should not be brought under tribal authorities. AFRA was also worried that women’s, particularly widows’ rights, were not protected, that “culture” was being applied by some Chiefs in an incorrect context and that it was never tested whether Chiefs were competent to hold that position. Whilst TCs themselves were needed, they should be presided over only by trained and competent people.

The Makuleke Traditional Community did not object to TCs as such, if properly run, but had many concerns about their current status and the effect of the Bill. There was a mismatch between the objects of the Bill, and its content, and the Bill, whilst claiming to address the traditional justice systems and values, would actually result in expansion of the power of senior traditional leaders, some of whom were already positioning themselves to seize power from community authorities and other structures. The Bill failed to define a “community authority”. The history of the Makuleke Land Claims was outlined, and it was stressed that although issues of chieftainship and land had been referred to the relevant structures, this Bill would result in cementing of apartheid-conferred powers and would worsen existing abuses. The Makuleke Community urged that the Bill be withdrawn and more space created for proper engagement with the private sector, NGOs and CBOs.

The Chairperson of the Free Gender Movement in Khayelitsha noted that most Chiefs at best simply ignored gay and lesbian people, and at worst perpetrated or condoned abuses against them, which included “corrective rape”, forced marriages, insults against them and their parents, and claimed to be enforcing practices that in fact had nothing to do with culture. She urged that the gay and lesbian community be directly consulted and their constitutional rights respected.

Peotona, a women-owned company, sought to take the country forward, and believed in the need to restore culture, value and customs to their rightful place, and to rebuild justice. Whilst it supported the institutions of customary law and TCs, it was opposed to the Bill, which it felt would destroy or undermine many of the achievements to date. The process of customary traditional leadership must start at ground roots, not the top, and customary law must be living, not encoded. The Bill was seen as unconstitutional, since it was discriminatory and non-inclusive, failed to recognise the separation of powers, since it allowed leaders to pronounce upon, enforce and sanction customary law, promoted a two-tier system, did not allow for any opting out, left women without effective recourse to their rights, and did not allow for legal representation. The Constitution said that customary law should be upheld, but it did not insist that this be done through TCs, and other options should be explored. Peotona urged that the drafters hold full consultations and the entire Bill must be rewritten, as it was not capable of being corrected. Whilst the current system was not perfect, people could live with it for a while longer pending a proper process and replacement by legislation that would improve their lives, instead of entrenching the problems. It must be recognised that whilst South Africa had good legislation, the reality of how rights were respected on the ground, particularly for women, was quite different. Many of the practices that Chiefs upheld as traditional were in fact criminal and these should not be allowed to continue.

The Minister of Women, Children and People with Disability said that after the Bill had been withdrawn from the National Assembly in 2008, it had not come back to Cabinet before being  re-introduced into the NCOP in 2011. Her Ministry had been established in 2009. Lack of proper consultation with women, especially those in rural areas, was a matter of great concern to DWCPD. Many provisions failed to comply with the Constitution’s equality clause. DWCPD felt that the presiding officer should not necessarily be a senior traditional leader, but could also be any woman or man of standing in the community, appointed in full consultation with the community. It supported an opt-out clause, believed there should be specific reference to protecting the rights of widows, that women should be allowed to participate in all courts, that forced labour should be excluded as a possible sanction, and that an independent and accessible structure should mediate complaints under clause 16. Traditional practices and customs harmful to women and children that were condoned by some chiefs, including ukuthwala and ukengena and witch killings, contravened the Constitution. There was concern about lack of reference to, or indeed presentations by children or disability sector groups. The Bill had the potential to legitimise illegitimate chiefs and give them more power. The Minister recommended that the Bill must be completely overhauled and rewritten, in consultation with rural women and other marginalised groups, and the existing dispensation extended until this was done. In addition, the Minister said that fines or taxes paid by rural communities to Chiefs must be regulated, audited and accounted for, and must be used for rural development and scholarships for rural children. Chiefs should not be involved in political parties if they were to be presiding officers. A Code of Conduct must be drawn for TC presiding officers, similar to that guiding the judges. Traditional Councils, and the TC must be representative, with 50% women, in line with the Women’s Empowerment and Gender Equality Bill gazetted on 29 August

The Community Law Centre (CLC), whose submission was endorsed by eight other organisations, also believed that the Bill was unconstitutional, and pointed out that it affected a huge proportion of the country, and had a significant impact on land, housing, violence, safety, and money. Development of the customary law must be based on sound, meaningful and participatory processes, starting at grass roots level. There was completely inadequate consultation for a Bill of this nature, women were intimidated, and children not consulted. The Bill undermined the right to equal benefit and protection under the law, created different legal systems, and CLC believed that people should have the right to consciously opt in
to the TC system. Whilst the Bill paid lip service to equality, it must be recognised that this did not exist, and nothing in the Bill really endorsed it. Very few efforts were made to address the needs of, or engage with children, and the CLC believed that the TCs should not deal with any matters affecting children, including property, living arrangements, custody, marriage and divorce and criminal matters, or, if this was not accepted, then the list of matters should be severely limited. Lack of skills of presiding officers in current TCs led to injustices, and appeals were in practice not possible. The Bill undermined other legislation that aimed to protect children, and consultation was needed with the Departments of Health, Social Development, and Education, organisations working with children, and with children themselves. No amount of training could affect the huge power imbalances that existed, and the system that the Bill imposed undermined existing culture. CLC believed the Bill had to be withdrawn, as it did not believe it was possible to “panel-beat” it into shape. The presenter noted that virtually every presenter had called for the scrapping of the Bill and urged Members to listen to the voice of their constituents and act responsibly.

Members noted that several presenters complained that the public hearings in the provinces were not well-coordinated or were not fully inclusive, but the Chairperson said that since they had not been arranged by this Committee, no discussion could be entertained on this. Members asked for more detail on the assertion that some Chiefs were actually opposed to their own people, and sought clarity on the concerns about property rights. They also asked if the NGOs were bringing any cases against traditional leaders and their role in the communities. They asked some presenters to expand on concerns that the Bill was unconstitutional.

Meeting report

Traditional Courts Bill: public hearings (day 3)
Association for Rural Advancement submission
Mr Thabo Manyati, Representative, Association for Rural Advancement (AFRA), aligned himself with the concerns on the insinuation made, on the previous day, that members of various community people, when making their submissions, had been influenced by non-government organisations (NGOs) to put forward their views. He stressed that the people making presentations had truthfully outlined their own experiences.

The AFRA submitted that a decent and thorough consultation process should have been followed, speaking directly with those affected, in the drafting of the Traditional Courts Bill (the Bill). Whilst Mr Manytai had been part of the public process in KwaZulu Natal (KZN), he felt that far more could have been done.

The Bill still failed to break with the colonial past and confined people to tribal boundaries. Several communities were forced under different tribal authorities, and there were inter-authority disputes, which resulted from the apartheid boundaries. If these were not corrected, it would have the effect of condemning rural people to lifelong disputes. The Constitutional Court, when ruling on the constitutionality of the Communal Land Rights Act (ClaRA) had stressed the incorrect reliance on old apartheid boundaries, yet these were also carried over in the Bill.

Other aspects of the Bill that AFRA considered to be in conflict with the Constitution included the provision that no legal representation be allowed, and the lack of an opt-out clause. The Bill placed the definition of custom and tradition on traditional leaders, which could lead to further abuses. He outlined matters in which this had already happened, including a Chief insisting that his community could do nothing on his religious holidays, or refusing to allow women to wear trousers. As mentioned earlier, people were forced to pay double taxation in the rural areas, and some were expected to pay fines in bottles of whisky, which could hardly be claimed to be in line with custom. If the sanctions and orders were not properly defined in the Bill, the abuses would continue. There was nothing in the Bill to cover the situation where the accused himself was a traditional leader, or where an accused was his family member. The fact that the Bill centralised power in one presiding officer was problematic, and this undermined family and clan courts. The traditional community boundaries had to be more clearly defined, particularly since some of the areas under private land would become part of the tribal communities. He questioned if white land owners would also be subjected to the Traditional Courts (TCs).

Mr Manyati confirmed that in the rural areas, there was a range of structures to manage and control land, independent of tribal authorities, such as the Community Property Associations (CPAs). It would be incorrect to bring these under the tribal authorities, because many of the CPAs had their own way of managing disputes, through their own indigenous customary law, and this would lead to conflict. The Extension of Security of Tenure Act and Labour Tenant Act noted that only a competent court could change rights over that land and if the TCs were allowed to rule on this, it would be contradictory. Even the Magistrate’s Court had no jurisdiction over such matters as they were in the exclusive jurisdiction of the Land Claims Court.

The AFRA suggested that the law should be scrapped. A lot of research work had to be done, in the rural communities, and Parliament needed far more time to understand the issues and consider if it wanted to re-engineer the apartheid systems, or do something new. A decent process of social dialogue must be followed. That must involve good consultation with women. The Bill would affect people for the rest of their lives.

Mr William Nyandu, a member of the community, outlined that he and his forefathers had been paying substantial taxes to their local authority. The Chief, at one time, had agreed that a project could be run, but later reversed his decision on that point, and had done the same when a meeting was requested, and actually called the police to stop it. The Chief had made denigrating and insulting remarks about the community, causing much animosity. His community, when objecting, had told that it would be exiled. If this Bill was passed, people living under this Chief’s authority would suffer. Nothing in the Bill could rectify the existing problems. Many Chiefs would in principle oppose anyone who fought for his or her rights.

Mr Nyandu further complained that there had been no proper consultation on the Bill. Only very few people were invited to attend the meeting in his area, only a short time was allowed for consultation, and the numbers of those attending were indicative of failure to consult. It was vital to ensure that the Bill was aligned with the Constitution. If it failed to properly protect women’s rights, and the rights of widows, who were not permitted by the Chiefs to work, then it would not be constitutional.

He posed the question of whether it was money or the people that were most important to the Chiefs. It was not clear whether “culture” was being considered in its proper context, and there was uncertainty about what was and was not correct custom. Mr Nyandu noted that Chiefs were born to the position, and it was never tested whether the Chiefs were competent to hold those positions. Whilst he believed that there was a need for TCs, professionals needed to do this job. Amakhosi should be educated and trained to render assistance.

Discussion
Mr D Bloem (COPE, Free State) commented that the Committee had been correct in its decision to hold public hearings in Parliament. It was clear that public hearings in the provinces were not well-coordinated, people were not well-informed and there was not wide representation.

Mr A Matila (ANC, Gauteng) said that the lack of proper consultation must be clarified.

The Chairperson asked that no further comment be made on this, as the public hearings were conducted by the provincial legislatures.

Mr Bloem asked if the meeting that the Chief had stopped was a community or village meeting. He asked for further comment on the statement that Chiefs were opposed to their own people.

Mr Manyati said that it was a CPA meeting. He said that the country as a whole was divided, but prior to apartheid, there were no urban or rural areas. He pleaded that the government must look to doing away with the borders.

Mr Matila asked for more detail on the serious allegations that Members had apparently asked people not to put their views across.

Mr Manyati responded that on the previous day, there had been a public insinuation, from some Members, that it was the white-run NGOs who had told individuals what they must say. This was not the first time such an allegation was made, and he pleaded with Members to desist from assuming that individuals from these areas would not truthfully relate their own experiences, or that they were incapable of drafting their own submissions. He added that it would be useful for Parliament and the MPs themselves, who, after all, received allowances and had resources, to actually visit the traditional areas and hear what people on the ground had to say.

Mr Manyati also noted that if not more than 200 people were consulted in Zululand, then it was not correct to say that there had been full consultation. Some people were not assisted financially to attend the hearings. Many of the amakhosi did not even know about the Bill. Parliament had to apply its mind to what decent participation was. There was an obsession with attendance registers, and although the workshops were useful, perhaps there should be individual visits to villages. The traditional leaders received sufficient stipends to travel to central places, but many of those in the villages did not receive newspapers and were not aware of the issues.

Mr Matila also asked whether it was correct that white farmers in an area would fall under the tribal authority. The whole reason for fighting apartheid was to create a single system, and it would be contradictory if two separate systems were set up in one area.

Mr L Nzimande (ANC, KwaZulu Natal) noted that several speakers had raised concerns about land, and the role of the TCs. However, he still failed to understand exactly what they were trying to suggest what the role of the Chiefs should be, and what the concerns were about privately-owned land. He asked if anything forced an approach to the tribal authority. He understood the concerns about Chieftainship interference.

Mr Manyati answered that traditional leaders claimed that all land belonged to them. When farm dwellers were, in the past, being abused, they had failed to intervene to assist them, but as soon as those dwellers acquired some land of their own, through legal processes, the Chiefs would immediately intervene and tell the people that the land now belonged to the Chief, or that the person could not live there. The Chiefs were therefore interfering with legal rights. In relation to private farms, he pointed out that some people had acquired rights as landless farm dwellers. The farm Dooringkop, owned by a white landowner with title deeds, was claimed by Nkosi Khumalo as his own land. He agreed that if the white landowner’s rights were not judged by the TC, since the owner lived in an area governed by that Chief, then this was a return to apartheid-style systems.

Mr M Makhubele (COPE, Limpopo) asked an inaudible question.

Mr D Josephs (DA, Western Cape) said that more people were bringing their customary traditions into an urban setting. The Bill was intended “to affirm the values of the traditional justice system”. He asked what those values were, and stressed that they had to be balanced against the values of the Constitution.

Makuleke Traditional Community and CPA submission
Mr Lamson Maluleke, Representative, Makuleke Traditional Community and CPA, described himself as a “son of the soil”. The CPA did not object to the TC system as such, if it was properly run, but it did have many concerns about its current status, and about the Bill.

There was mismatch between the objects of the Bill, and its content. The Bill, whilst claiming to address the traditional justice systems and values, could actually expand the power of senior traditional leaders. He said that one could not separate human nature from a human being, and whatever good intentions were embedded in the objects of the Bill, they were open to misinterpretation.

The Bill was silent on the definition of “community authority”. In his own community there were four community authorities sharing and rotating power. He outlined the development approach that was taken in Lesotho, which, although aimed at eliminating power, actually reinforced and expanded bureaucratic state power. This Bill, instead of introducing restorative justice, could actually disband the community authorities, and Chiefs were positioning themselves to seize power as soon as it was passed.

He outlined the history of the land claims of the Makuleke Traditional Community, who had been removed from the Pafuri Triangle but successfully won their land restoration claim. However, Chief Mhinga then claimed that this land must belong to his tribe, saying that the Restitution of Land Rights Act was not meant to interfere with the affairs of traditional communities. The Chiefs had in fact supported forced removals under apartheid, if this brought more people under their power. Whilst the Makuleke CPA understood that the issue of Chieftainship was being dealt with by other commissions, the issues actually could not be divorced from each other. The passing of this Bill would result in a cementing of the former apartheid regimes and would result in worse conditions for the Makuleke Community. Chief Mhinga was entirely opposed to the CPA, and those who had subsequently joined the community. Several abuses were already recorded, and this would worsen if even greater powers were conferred on him under the Bill.

Mr Maluleke urged that the Bill be withdrawn, in order to create more space for proper engagement, that would result in a model acceptable to all people. He outlined, in his written submission, the different models that could have been used, and concluded that the process of the Bill had used the “elite mass model”, which was based on the assumption that a small elite group was solely responsible for legislative decisions, on behalf of the ill-informed public. This implied that the values and interests of the elite were of primary importance. He noted again that there had not been sufficient consultation, and a generic process model should have been used that applied at all levels of government, the private sector, NGOs and CBOs.

Discussion
Mr Joseph sought clarity on the definition of “community authority”.

Mr Maluleke said that the problem was that the Bill did not define a community authority, and left open the question of what it was. In some areas, groups may come together under one authority, but they should not be forced to do so. As soon as this Bill was passed, the Chief he had mentioned would annex the community authorities.

Mr Joseph asked who the “elite group” was, in the model outlined.

Mr Makhubele wanted clarity on the suggestion that it was impossible to separate human nature from human beings.

Mr Maluleke said that Chiefs were only human, and they could mistakenly, or deliberately, perform incorrect actions.

Mr Matila noted that the presentation was well-researched, but wanted clarity whether the disputes with Chief Mhinga had a bearing on the processes of this Committee. It was not possible for the Bill to seek to legislate for a small community only.

Mr Maluleke confirmed that there was a dispute around the chieftainship, and that a claim had been lodged through the Traditional Leadership Dispute Commission. However, he stressed that if this Bill was passed, conferring more power on the Chief, he would immediately seize power to the detriment of the Makuleke community, particularly if this Bill was passed before the Commission’s findings. He reiterated that the participation on the Bill was not sufficient. He thanked those in the NA who had insisted that it be withdrawn, recognising its shortcomings

Lesbian and Gay Equality Project
Ms Funeka Sidao, Chairperson, Free Gender Movement, noted that most chiefs held the view that lesbians did not exist and effectively ignored them. The lesbian group was happy that it could be given the opportunity here to express its own views. She noted that various amakhosi made hurtful remarks about the parents of lesbians, and Mr Holomisa had suggested that rituals must be performed to change their sexual orientation. She stressed that lesbians were born with their orientation. Some lesbians were being forced to marry men, and there was doubt as to what would happen to lesbians in rural areas, since many were badly abused or killed. She herself had been raped and had to be hospitalised. Many of the abuses against lesbians were being performed supposedly in the name of culture, but in fact what the chiefs were doing had nothing to do with real culture. She urged that people should come and speak to lesbians, instead of talking about them, and that the Chiefs must be open to hearing their views. She urged that the gay and lesbian community had to be directly consulted, so that they could make a real contribution, and to accord with their Constitutional rights.

Peotona submission
Ms Cheryl Carolus, Executive Director, Peotona, outlined that Peotona was a women-owned company, although it did employ some men. The company sought to take the country forward, and took particular pride in putting resources back into rural areas. Peotona was aware of and proud of laws and policies that enabled everyone to reach their full potential. It believed in the need to restore culture, value and customs to their rightful place, to grow the dignity of the country, and to rebuild justice. Whilst it therefore supported customary law and TCs as an institution, it was fearful that the Bill would in fact destroy and undermine many of the achievements to date, and would entrench some of the most repulsive aspects of apartheid.

Ms Thandile Orleyn, Director, Peotona, said that there was a perception that educated women who resided in urban areas did not understand community law. She pointed out that although she was a qualified lawyer, she had knowledge of and appreciation of the issues, and her own husband was a chief.

Ms Orleyn urged that the process of customary traditional leadership must start at ground roots, not the top. The Bill made a mockery of the customary systems. From a procedural point of view, it was fraught with difficulty and would be tied up in the Constitutional Court for years if passed, so it would be better to attend to the problems now. She urged that all MPs must appreciate their responsibilities. The Bill was seen by Peotona as directly in contradiction with the Constitution and should never had been brought, in this form, to the House.

Ms Orleyn said that Peotona believed that a dignified process of customary law must apply, not remnants of the apartheid regime. Customary law must be living, not encoded. The Bill was discriminatory because it dealt with certain sectors of the citizens, and was not inclusive. People were not permitted to opt out of the system. She said that the poorest people living in villages were only too aware, from their own systems, what it was like to be mocked by those in power. If traditional leadership wanted to be heard and addressed, and given dignity, the issues must be addressed differently. She, like other presenters, stressed that this law would determine the day-to-day lives of people.

As a lawyer herself, Ms Orleyn was aware of the difficulties in sitting as a Commissioner of the Small Claims Court, and she thought that putting a traditional leader  with no training in charge of a Court, without specifying how that Court would act, would result in him “lording it” over the people.

Although this was not within her brief, she added that on re-reading the Bill, she had severe concerns also about clause 16, which stated that traditional leaders- who might be kings or queens – could be subject to magistrates’ review, and she said that this implied that royalty was in fact placed at the bottom of the ladder. She noted her concern that a traditional leader found to have been at fault could be required to apologise to the complainant, and said this was incongruous, as people looked up to their leaders.

Ms Orleyn said that women were still effectively without recourse to their rights. A woman had no confidence or access to courts, and those, particularly in the rural areas, would be dependent on a man. This Bill was effectively “throwing them to the wolves”.

Ms Orleyn noted that other presenters had spoken to land rights and she would not do so.

Many business women with a direct link to communities were serious about advancing the democracy on behalf of other women who had not had the chance to be educated.

Peotona did not believe that customary law should be done away with, but she pointed out that whilst the Constitution said it should be upheld, there was nothing that said that this must be done through the TCs. Customary law could be upheld in other ways. This system was inherently discriminatory as it was preserving two tiers. She urged a return to the drawing board, and full consultation before new wording was presented.

Discussion
The Chairperson noted that Schedule 6 of the Constitution, had mentioned the traditional courts in the transitional arrangements, which required that every court in existence in 1994 should continue to function and exercise jurisdiction. He noted that many opinions had been expressed, however, about abuses in those courts.

Ms Orleyn confirmed that the Schedule avoided a legal vacuum being created, but the Bill would not stop the current abuses, and in fact would entrench them, because many traditional leaders running those courts had been appointed by previous authorities, and that in itself was incorrect. Whilst the current system was certainly not perfect, people had been living with it for the last 18 years. She urged that people would prefer that a proper process be followed, even if this took another five years, to ensure that something to protect the people was put in place. She said again that the law would govern generations to come and she questioned why there seemed to be such a rush.

Ms Carolus added that these abuses happened because of attitudes. South Africa had very good laws, that were anti-racist and anti-sexist, but the reality on the ground was quite different. Other processes had to run concurrently to address this. Parliament now was ideally placed to deal with the matters properly, and to ensure that whatever was produced truly reflected the values of the Constitution. She said that many chiefs had been appointed by the apartheid regime, and rural people were subjugated to their power. Those living in rural areas were very vulnerable and there was no reason why they should be subjugated. The Constitution must be enforced, in their favour.

Mr Bloem asked for, and received confirmation, that Peotona had submitted a two-page document. He heard that the organisation was calling for the scrapping of the Bill. If the Committee decided not to do this, he would like to hear its recommendations as to how the Bill could be changed.

Ms Orleyn said that the entire Bill would have to be rewritten as it was simply not possible to correct certain clauses and assume that this would correct what was happening on a daily basis.

Mr Bloem noted the comment, in the written submission, that the Bill could lead to economic exploitation, gender bias and exploitation. He asked for more clarity on this.
 
Mr Matila asked for further explanation of the reference to “mockery”.

Mr J Gunda (ID, Northern Cape) noted the comments on participation in the courts and asked for more clarity on that, as also the comment that women were being forced into arranged marriages. 

Mr Joseph asked if any cases had been brought against traditional leaders at any level, by the organisations acting for women, to try to address the wrongdoing. He added that he had heard of instances where women would report abusive practices to the South African Police Service (SAPS) who would then refer the matter to the traditional leaders, and nothing further would be done. This was particularly serious in cases of continuous or repeated abuse.

Ms Orleyn said that there was a sense that customs and traditional practice must be brought more into the public space and to examine what they meant. For instance, ukuthwala, was a custom, but she pointed out that it actually was a crime against women. If a Chief decided that ukuthwala was acceptable, in its most traumatic form, it was actually abuse, and people should not beat about the bush about this. This was the kind of exploitation that was happening, and it made a mockery of women’s rights. When the processes under this Bill were started, many women in villages were simply not permitted to express their views. Under the apartheid system, when a woman’s husband died, the house had to be transferred to the son, and the same was still happening in the villages. She urged that it must be recognised that leadership and tradition and custom must be derived from the people, not from Presidential proclamations. In her own customs, even though there was recognition of a queen, women were still required to prostrate themselves before a male ruler, and that was absolutely ridiculous if a man was not required to do the same.

Ms Carolus added that NGOs had to be lauded for the work that they tried to do.

Mr Matila said that the submission did not address the constitutionality of the Bill itself and he asked for more detail on that.

Ms Orleyn responded that one of the greatest concerns had to do with separation of power. There were three arms of government – the executive, the legislature and the judiciary. Traditional leaders were, under this Bill, being permitted to determine what the law was, had the power to control their communities, and were allowed to enforce punitive measures, so this was a complete blurring of the functions. Powers were being given to those who, by imposing punitive sanctions, could impact on the rights of people. There was no clarity on how the powers must be exercised. In the Western court system, there was always the possibility of appeal. However, the Bill did not provide for a right of appeal on all issues, and where there were constitutional or procedural doubts, this was problematic. Every case should be tested against the Constitution. In the Western system, a person would be able to opt out of a class action, but here the opt-out was not permitted. Peotona believed that there were a host of unconstitutional aspects to the Bill. She added that the apartheid structures had set out a certain hierarchy where traditional courts were below the Magistrate’s Courts and that was being transposed into the new Bill. That too did not make sense.

Mr M Madlala, Member of KZN Provincial Legislature, noted several comments that the Bill should be started afresh, and that the drafting should not take place from “top down”. The NCOP was also dealing with other matters to do with traditional leaders.

Ms Orleyn said that the Department of Justice and Constitutional Development (DOJ) should do a proper job. Whilst it would not necessarily be relevant to call on foreign expertise or experiences, it was quite possible for local drafters to draw on the experiences of the people, which after all was the core of the democratic process. The DOJ should not shun its responsibilities to use every bit of expertise available to develop a proper law.

Mr Matila suggested that the Legal Resource Centre and others were opposed to the Bill, but that was not necessarily the expression of the communities.

Ms G Swaarbooi, Member of the KZN legislature, noted that certain offences listed in the Bill were criminal in nature, and she was worried that amakhosi had no expertise to deal with this.

Ms Orleyn thought that the Bill showed many instances of “cut and paste”, and she was not sure how the Minister would determine appropriate sanctions. She agreed that it would be very serious if the TCs were to attempt to deal with criminal matters, particularly where the accused was not entitled to legal representation. For instance, the case law on crimen injuria, which was particularly often prosecuted in South Africa, was huge and complex.

Minister of Women, Children and People with Disability
Ms Lulu Xingwana, Minister of Women, Children and People with Disability, gave an overview of the mandate of the Department of Women, Children and People with Disability (DWCPD or the Department), which was to monitor, and facilitate realisation of the rights of Women, Children and People with Disability (WCPD) within legislation and programmes implemented by government, the State Owned Enterprises, the public and private sector. The Department did so through mainstreaming (which meant assessing the implications for every sector of society) of all legislation, policies and programmes. The Department’s vision was to have a fully inclusive society free of inequality, abuse and exploitation. Her submission was made in line with this mandate. She was not here to fight with chiefs, committees, or any other Minister.

Ms Xingwana gave a brief history of the Bill, which was first tabled in 2008, in the National Assembly, but then withdrawn, on the grounds that proper consultation was needed, and because of various concerns with its provisions. However, from the time that it was withdrawn from the NA in 2008, and the time it was reintroduced to the NCOP in December 2011, the Bill had not come back to Cabinet. This was despite the establishment of the new Ministry of WCPD in 2009

The lack of proper consultation with women, especially those in rural areas, was a matter of great concern to DWCPD and the women of South Africa, as well as other issues that had been raised.

DWCPD acknowledged that TCs were recognised by the Constitution, along with the institution, status and role of traditional leadership, customs and customary law. It was also recognised that the “Western” courts should apply customary law, when applicable, subject to the Constitution and other legislation. However, DWCPD was worried that some of the provisions of the Bill did not comply with Constitutional imperatives. The equality clause in the Bill of Rights superceded traditional culture and religious laws. Equality before the law included equal rights in the administration of the law. The State should not discriminate on a number of grounds, as set out, and discrimination was presumed to be unfair, unless otherwise established.

The constitutionality of this Bill must be measured against the equality clause. The Bill did not promote substantive equality, as enshrined in the Constitution. The designation of the presiding officer was problematic. DWCPD recommended that the presiding officer should not necessarily be a senior traditional leader, but could also be any woman or man of standing in the community, who should be appointed in full consultation with the community, to ensure gender equality and meaningful representation.

In relation to clause 5(1), DWCPD noted that the Bill recognised disputes arising out of customary law and courts, but was concerned that the people did not have the right to opt out and choose what system they wished to have applied, and the Bill should provide for this.

In clause 8, DWCPD recommended additional wording reading “that is subject to section 9(2)a)(ii)” and said that the reference to “vulnerable persons” should include a specific reference to widows. The Bill should seek to protect women from harmful or discriminatory customary practices, as well as have enabling measures to allow for women’s participation. It was recognised that some traditional leaders were fair and progressive, but equally it must be noted that others were discriminatory, and there were courts where women were not permitted to speak, nor to represent themselves. Measures had to be included to allow their participation. She recommended that the Bill should state in specific terms that women should be allowed to appear, instead of allowing representation to be based on traditional  law and customs.

Ms Xingwana further proposed that clause 10(1)(a) should specifically exclude forced labour as a sanction and that when imposing any sanction the court must take into consideration what would be affordable and the level of vulnerability in relation to clauses 10(1)(c) and (2).

The DWCPD recommended the amendment of clause 15, amendment, to read “a traditional leader, or woman or man of good standing recommended by the Community as a designated presiding officer of a traditional court”. Many women had been refused the opportunity to become Chiefs, although they were well qualified, and this fact led to TCs largely being an all-male authority. Communities should be able to recommend the appointment of women.

DWCPD felt that clauses 16(1) and (4), which provided that complaints could be lodged to the Minister about incompetence, could lead to delayed justice. The DWCPD felt that an independent and accessible structure should be set up to mediate these complaints.

Other general observations included the lack of consultation with rural communities, especially women. DOJ had admitted that the Bill was drafted on the basis of consultation with traditional leaders, who were mostly male. Whilst some female traditional leaders may have been included, they were in the minority and they did not live the experiences of the ordinary rural women who were on the receiving end of decisions by TCs. Since rural women constituted about 59% of total rural populations, they should have been consulted. Traditional leaders would hot be able to effectively articulate the views, experiences and interests of women.

The Minister noted the references to traditional practices and customs that were harmful to women and children. These promoted domestic violence and limited women’s ability to escape from it. These included ukuthwala, often practiced against girls as young as nine or ten years old, and ukungena, where a widow was told to choose between marriage to her late husband’s brother, or face eviction. Witch killings were based on evidence that was not proven scientifically. The Bill was completely silent on equality and protection from harmful practices against children, and children below the age of 18 were, in some villages, forced to marry against their will. This contravened their right to equality, and there were potentially harmful impacts of early marriages on children’s rights to education, health and development. The Minister was concerned that no disability or children’s sector groups were asked to present.

Ms Xingwana quoted resolutions of the 52nd ANC Conference on Rural Development, Land Reform and Agrarian Change, which included strengthening the voice of rural South Africans, empowering poor communities and building momentum around agrarian change and land reform, by supporting the self-organisation of rural people, and working with progressive movements and organisations. The ANC expressed the desire to ensure that the allocation of customary land was democratised in a manner that empowered rural women and supported the building of democratic community structures at village level, capable of driving and coordinating local development processes. It wanted also to engage with traditional leaders to ensure that disposal of land would not take place, without proper consultation with communities. It was feared that the Bill did not promote this.

She noted that there was still work being done to research chieftainship. If this Bill was passed now, she feared that it would legitimise illegitimate chiefs and give them more power.

The DWCPD recommended that the Bill be completely overhauled and rewritten, in consultation with rural women and other marginalised groups Sufficient time and space should be given for consultation, so it would clearly not be possible to complete the process in this year. The consultation must cover the length and breadth of South Africa. The existing dispensation must be extended until sufficient consultation was done, particularly with rural women and rural communities. The intimidation of women during the consultation in provinces justified the call for broader consultation, in a space or environment that was non-threatening.

Ms Xingwana summarised the findings and recommendations for the Bill. The DWCPD felt it was unconstitutional to have predominately male-dominated courts, rendering decision making by males. The presiding officer should be able to be male or female. Legal representation must be allowed and the right to appeal must be allowed. People should have the choice whether to be bound by TCs. Any fines or taxes paid by rural communities to Chiefs must be regulated, audited and accounted for, and they must be used for rural development and / or scholarships for rural children. Chiefs should not be involved in political parties if they were to be presiding officers. A Code of Conduct must be drawn for TC presiding officers, similar to that guiding the judges. Traditional Councils, and the TC must be representative, with 50% women, in line with the Women’s Empowerment and Gender Equality Bill gazetted on 29 August, and with the SADC Declaration on Gender.  All cases affecting children, guardianship, custody and maintenance should not fall under TCs, but must be decided in line with the various legislation that governed children’s and maintenance matters. Marriage and divorce must be dealt with in the civil courts, in line with marriage laws

She pleaded with the NCOP not to pass this Bill, which would effectively merely mean replacing the apartheid Black Administration Act (BAA) with another piece of legislation that was oppressive and discriminatory to the women of South Africa. More time should be allowed for consultation. Finally, she reiterated that it was in the hands of the NCOP, and urged it to make the right decisions.

Discussion
Mr Bloem asked for clarity on the withdrawal of the Bill from the NA in 2008, and how the Bill found its way to the NCOP without going through Cabinet.

Ms Xingwana said that she could not answer the question as to how the Committee received the Bill, but assured the meeting that the Bill had not been to Cabinet between 2008 and 2011. It was withdrawn from the NA on the basis that it was unconstitutional, following significant input to the Portfolio Committee that complained about various aspects. When the Bill came to the NCOP in 2011, the concerns of women’s organisations were still not taken on board, so essentially the same Bill, with the same flaws, had been presented.

Mr Bloem said that he had asked most of the presenters whether the Bill should be withdrawn, or whether it was possible to “panel-beat” it into shape. The Minister had recommended a number of points that had to be addressed, and he asked her which option she would prefer.

The Minister said that whilst she did not have a problem with “panel-beating”, it would have to be a complete job, to ensure that people in rural communities were empowered. This was particularly true of, for instance, women with mental disabilities who would not be capable of giving evidence if they were raped, gays and lesbians, and children’s protection groups, none of whom had been consulted. In rural areas, the lack of recognition given to gays and lesbians was in itself unconstitutional. She stressed that the work could not be done in office, but had to be done in the communities, to hear what rural women had to say. New legislation could not be non-inclusive.

Mr Bloem quipped that the Minister had given a politician’s response, and asked again if she was suggesting that the Bill should be withdrawn, or panel-beaten.

Mr V Manzini (DA, Mpumalanga) said the Minister had suggested that parts had to be rewritten.

The Minister said that the decision on this was no longer in the hands of any Minister, but was up to the NCOP.

Mr Gunda was of the opinion that what the Minister had said was clear.

Mr Bloem thanked the Minister, said he understood her perfectly, and made a proposal that the Bill be withdrawn.

The Chairperson noted that this was Mr Bloem’s personal view, and the Committee had not yet taken a decision. It was necessary to continue with the process until an informed decision was taken.

Mr Matila said that there had been consultation at the provincial hearings, but there had been constant complaints about lack of proper consultation, and asked if this indicated that the provinces did not do their work.

The Chairperson asked the Minister not to respond, as she was not part of those processes.

Community Law Centre, University of Western Cape,
Ms Samantha Waterhouse, Researcher, Community Law Centre, University of Western Cape, said that the Community Law Centre (CLC) had been operating for 20 years to promote and develop the Constitution, democracy and good governance. The CLC submission had been endorsed by eight organisations.

CLC believed that the Bill was unconstitutional and unacceptable. It affected a huge proportion of the country and had a significant impact on land, housing, violence, safety, and money. Any development of the customary law must be based on sound, meaningful and participatory processes, starting with grass roots level. The CLC agreed fully with the repeated complaints about consultation, and whilst it noted that certain processes had been followed, they simply did not constitute adequate consultation on a bill of this nature. The time allowed for the public hearings was short, and although in KZN there had been some public education done prior to the hearings, in other places it was poor, and in some areas people had simply been told what to think. The spaces set for consultation were in many cases unsafe for women, and they could not speak out without fear of intimidation or retribution, in the presence of traditional leaders. This issue deserved investigation, as Parliament must invest in sound participatory processes. New policies were needed, drawing from people’s experiences, since all citizens must be able to speak out without fear of intimidation. Any public processes should also be fully responsive to the vulnerability of different groups – including children, women, the disabled, lesbian, gay, bisexual, and transgender groups, and migrant communities. Children should not be consulted in a room full of adults. Venues chosen must be accessible to those in wheelchairs, and people had to be empowered to speak out clearly and truthfully.

CLC believed that the Bill was currently unconstitutional because it undermined the right to equal benefit and protection. It created separate legal systems for different South Africans, which carried over into the questions of legal representation, training and selection of presiding officers who would make decisions, as well as appeal and review processes. The DOJ and other speakers had suggested that the Bill should include a clause allowing for opt-out. This, in the view of CLC was not sufficient; instead people should be able to choose, from the start, whether they wished to opt in to a system, and be subject to the customary laws and leaders. The Bill tried to address representation and provided for formal equality, but it must be conceded that there was in fact no real equality. Women, children and marginalised people should at all times have the right to be represented, and this should not be limited to representation by a spouse or family or community member. Children, for instance, had no say in who would represent them, but would simply be told who this would be, and the person chosen (by adults) may not represent the child properly.

The Bill had made the right platitudes by saying that the needs of children and the elderly had to be taken into account, but there was nothing in the Bill itself that made this a reality. She noted the Minister’s comments about the previous submissions of the Commission for Gender Equality, and noted her concerns that this Commission was not making a presentation, as it was a very important role-player.

Children constituted about 40% of South Africa’s population and half of them lived in the predominantly rural provinces. According to a household survey, 34% of the population in “tribal rural areas” were under the age of 20. Very few efforts were made to address their needs or engage with them. Children were dependent on adults for their survival and access to shelter, healthcare, food and education. Adults acted as gatekeepers of whether or not children accessed their rights. Unfortunately, South Africa showed very high rates of brutality and violence against children, most often committed by adults who were closest to the children. Research had clearly shown that rural children experienced even more profiled violations of their rights than urban children, despite needing even more protection.

It was important to instill respect for children’s well-being in adults, as well as respect in children. Assumptions were made that adults would act in the best interests of children, but that was not always the case. It could not be assumed that traditional leaders would put children’s interests ahead of their own. In terms of the Bill, TCs would have wide jurisdiction including matters concerning child abuse, property and living arrangements, particularly for orphans, child labour, and many criminal matters. Even though there were some matters over which the Courts may not preside, this did not prevent abuse from happening. She cited some real-life recent examples from the rural areas. A young girl had been accused of stealing an item of clothing, had not said in the TC that she was innocent, and had been very harshly beaten, despite the fact that this was currently contrary to the law. It later transpired that she had not committed the theft, but had been scared to challenge the adult accusing her. In another instance, one child was anally raped by a much older child but, when questioned by the TC, in an open space, was embarrassed to admit that this happened. There was no space for appeal. The lack of skills of presiding officers led to further injustices, and in the latter case the matter could not even be referred to the formal justice system because it was contaminated. Beatings were often used against children and some were so severe that the children had to be hospitalised. This Bill gave insufficient attention to appeals, and children who were beaten were not going to be protected against abuses. It in fact undermined much of what was contained in the Children’s Act and the Child Justice Act, each of which were based on significant consultation and took years to develop. For this reason, Ms Waterhouse recommended the need to restrict the matters that could be dealt by the TCs, particularly in relation to children.

Ms Waterhouse noted that although checks and balances were already contained in the Constitution – such as the right to appeals and to legal representation – it was naïve to imagine that simply referencing rights in the Bill would result in real protection. She urged the Committee to proceed with caution and to consider limiting the number of matters that affected children. She noted that she had asked a colleague for her opinion whether a provision should be inserted allowing representation for children, but had received the answer that this would make no difference, that the courts were for adults, and should never be used for any matter affecting children.

CLC said that the DOJ had to consult with the Departments of Health, Social Development, and Education, organisations working with children, and with children themselves.

CLC submitted that no amount of training could affect the huge power imbalances that existed. The Bill imposed a system that undermined existing cultural practices, and that failed to address issues of power embedded in the system. This Bill had everything to do with power but it did not address how, in practice, power played out in the communities.

CLC called for the Bill to be withdrawn. Ms Waterhouse noted the concerns as to whether the Bill could be “panel-beaten”, and said CLC would not recommend that be done. When looking at oral and written submissions, she noted that DOJ and the National House of Traditional Leaders had suggested that the Bill be retained, although DOJ suggested changes as well, and the DWCPD said would require “significant panelbeating". Every other speaker has called for the Bill to be scrapped. She appealed to the MPs, who after all were supposed to be representative of their constituents, to listen to those speaking and vote according to their interests. She reiterated the need for the NCOP to invest in sound participatory processes, to explore issues of customary law and constitutionality.

Discussion
Mr L Nzimande (ANC, KwaZulu Natal) noted the recommendation to limit children’s matters.

Ms Waterhouse stressed that the primary position of CLC was that the Bill should in fact be scrapped altogether. CLC did not believe that TCs should be empowered to deal with any issues involving children. However, if the Committee should decide that TCs could deal with such matters, then CLC was suggesting that full consultation be carried out, with people on the ground, to gauge their views as well. Whatever legislation was proposed should be based on full consultation not only with “experts” in the universities but with those on the ground.

The meeting was adjourned.

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