Traditional Courts Bill: Department responses to public hearings

NCOP Security and Justice

23 October 2012
Chairperson: Mr T Makofeng (ANC)
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Meeting Summary

Department of Justice and Constitutional Development (DOJ&CD) presented a summary of submissions made during public hearings on the Traditional Courts Bill in September. The first part contained submissions from the South African Human Rights Commission (SAHRC) and the Department of Women, Children and People with Disabilities (DWCPD), while the second portion was a summary of the input by the Department to the Select Committee on the matters requiring reconsideration.

It was emphasised that the period allowed for making submissions on the Bill had been too short. DWCPD noted that consultation had been conducted with traditional leaders who were mostly male.  However, further consultation should have been done with female leaders, as they made up a majority (59%) of people in rural communities. There was a general call from interested parties for the Bill to be completely overhauled and rewritten, in consultation with women.

The Department conceded that during policy development in 2008 the consultation process had been carried out with the House of Traditional Leaders playing a facilitating role in setting up meetings with provinces on the development of the policy framework on which the Bill was based.  However, it acknowledged that the consultation should have been more inclusive.

SAHRC recognised the traditional justice system as a source of alternative dispute resolution (ADR), since criminal and civil procedures were not used in the Bill. It was suggested traditional courts would not be courts but tribunals, so this ambiguity needed to be rectified.  On the other hand if traditional courts were in fact to be operated as official courts, then they should give sanction to constitutional requirements such as the right to legal representation. It was not clear in the Bill whether it was speaking about courts or resolution dispute councils. It was recommended that the name, as well as the language within the Bill, be changed to clearly reflect the role and mandate of the traditional courts, as the intention was one of ADR, not of litigation.

The Bill was unclear on whether it was actually speaking of a court system, or a dispute resolution mechanism. It was imperative to go back and consult with communities, do research into the abuses that were being perpetrated, as well as into how courts were operating. Jurisdiction and sanctions were linked directly to the power of the institution of traditional leaders, and the reference to “any appropriate order” was far too vague, and raised the potential for abuse. The Bill’s jurisdiction was reliant on geographic boundaries, and there was concern that people would not be able to opt out.

On the issue of retributive sanctions as raised by SAHCR, the Department responded in their submission by saying that these sanctions seemed to be at odds with the principles of the traditional justice system, as it was based on restorative justice.

Members expressed shock and concern to the Chairperson that the Department’s summary dealt only with SAHRC and DWCPD, despite the fact that Parliament had held public hearings on the Bill last month, where 22 organisations had been invited to make submissions on the Bill.  Only two had been supportive of the proposed law, while the rest had called for its withdrawal from Parliament, claiming it was unconstitutional. The Chairperson responded by saying other submissions had been ‘irrelevant’ and if Members had better ideas on how to reform the Bill, they should write them up for the Committee. Some Members expressed unhappiness that other inputs received during the public hearings had not been considered and asked that the issues raised in the meeting be taken back to the provinces for further consultation and deliberation on the way forward.

Meeting report

Briefing by the Department
Ms Theresa Ross, State Law Advisor, Department of Justice and Constitutional Development (DOJ&CD), presented a summary of submissions made during public hearings on the Traditional Courts Bill (the Bill) in September. The first part contained submissions from the South African Human Rights Commission (SAHRC) and the Department of Women, Children and People with Disabilities (DWCPD), while the second portion was a summary of the input by the Department to the Select Committee on the matters requiring reconsideration.

The first part of the submissions was broken down into themes.  These included consultation, the nature of traditional courts, content of customary law, international obligations in SA in respect of women, community participation, women, race and customary law, the issue of Khoisan communities, use of languages in the Bill, interface with the Constitution, opting out of the traditional justice system, and costing of the Bill.  The second part related to specific clauses within the Bill.

On consultation, it was necessary to realise that the issues raised were common to all submissions. It was emphasised that the period allowed for making submissions on the Bill had been too short.  DWCPD noted that consultations had been carried out with traditional leaders that were mostly male.   However, further consultation should have been done with female leaders, as they made up a majority (59%) of people in rural communities. There was a general call amongst interested parties for the Bill to be completely overhauled and rewritten, in consultation with women.  Furthermore, it did not address concerns first raised in 2008 when the Bill was in the National Assembly, and this was the main reason why the Bill had eventually been withdrawn for further deliberation.

In response, the Department conceded that during policy development in 2008, the consultation process had been carried out with the House of Traditional Leaders playing a facilitating role in setting up meetings with provinces on the development of the policy framework on which the Bill had been based. However, it was acknowledged that the consultation should have been more inclusive.  A notice for comments had been published on 13 December 2011, with a due date of February 15, 2012, which gave interested parties more than two months to make submissions.  After this time, the Bill had been reintroduced in the National Council of Provinces (NCOP) without any amendments and was largely the same Bill as initially tabled in 2008.  DWCPD also submitted that the Bill could not be finalised by year end, to which the Department responded that the Black Administration Act had already been extended four times since 2007, and the indication was that this dispensation would again be renewed.

Mr Jacob Skosana, State Law Advisor, DOJ&CD, said that the Department acknowledged that the consultation process could have been better, and as a result they were building on consultations with the Law Reform Commission. As the drafting process had taken place sometime after the initial consultations had been completed, further missteps had resulted.

Ms Ross said that the SAHRC recognised the traditional justice system as a source of alternative dispute resolution (ADR), since criminal and civil procedures were not used in the Bill. It was suggested traditional courts would not be courts, but tribunals, so this ambiguity needed to be rectified. On the other hand, if traditional courts were in fact to be operated as official courts, then they would have to give sanction to constitutional requirements, such as the right to legal representation. It was not clear in the Bill whether it was speaking about courts or resolution dispute councils. It was recommended that the name, as well as the language within the Bill, be changed to reflect the role and mandate of the traditional courts clearly, as the intention was one of ADR, not for litigation.

SAHRC said that customary law had to uphold constitutional values. The Bill was unclear on whether it was actually speaking of a court system, or a dispute resolution mechanism. It was imperative to go back and consult with communities, do research into the abuses that were being perpetrated, as well as into how courts were operating. Jurisdiction and sanctions were linked directly to the power of the institution of traditional leaders, and the reference to “any appropriate order” was far too vague, and raised the potential for abuse. The Bill’s jurisdiction was reliant on geographic boundaries, and there was concern that people would not be able to opt out. There were concerns also about sanctions, particularly the possibility of forced labour or evictions. There was a need to consider a traditional court appeal system, and magistrates’ courts would have to develop expertise in customary law.

Mr J Gunda (ID), interrupting the presentation, asked the Chairperson for a five-minute private caucus to discuss the summary of comments on the Bill among Committee Members.

Mr L Nzimande (ANC) said a closed meeting required a petition submitted to the NCOP Chairperson.

Mr Skosana said that the SAHRC was very explicit in distinguishing traditional courts from regular courts. The Department had agreed that there was a need to define them as either tribunals or courts.  If they were courts, then all legal matters relevant to courts would then need to apply.  The SAHRC also believed that the framework of the Bill imposed the South African or Roman-Dutch legal system on African customary law, which was a distortion.  However, taking this into consideration, the Department said the Bill did not seek to replace western-derived law with customary law, and terminology associated with ordinary courts was slowly being done away with.

Issues of international concern needed to be consistent with legal instruments that applied to the courts. Page 8 on women, race and customary law raised the following issues:
1) It was not clear how gender equality and representation would be achieved or promoted; 2) the Bill did not guarantee the appointment of women as presiding officers of traditional courts; 3) due to the pervasiveness of gender inequality in South Africa and the history in many communities of the exclusion of women, the Bill should ensure that there were measures to guarantee the full and equal participation of women in traditional courts at all levels.
From the DWCPD, issues brought forward were:
1) The Bill failed to promote substantive equality, as enshrined in the Constitution; 2) in its current form, it perpetuated harmful practices such as ukungena (customary practices relating to marriage rites and often involving unprotected sexual intercourse between the widow of a deceased partner and another man -usually a male relative of the deceased - chosen by the deceased’s family) and ukuthwala, or the abduction of potential brides usually without consent. The Department was alive to these concerns and the wording of the Bill could be adapted to make it clear that practices out of line with the Constitution were strictly prohibited.  It was also noted that the Bill should be expansive enough to provide reference for the Khoisan communities, and further consultation with those communities would be necessary.

In terms of costing, the Bill did not seek to establish physical traditional courts, but rather traditional councils would use their existing facilities when they convened traditional courts. The Bill had been costed by the Department of Justice, and involved mainly the training of traditional leaders and their staff.  New costing would be required to address a number of new proposals, as well as the responsibility of the Department of Cooperative Governance and Traditional Affairs (COGTA) flowing from the Bill.

To address the concern that the Bill entrenched old apartheid-era boundaries, the Department proposed a provision that would see a person who had a connection with the forum – either by way of residence, affiliation, family ties, or area where the matter arose – could refer to the traditional council, sitting as a court.

It was understood that customary law did not distinguish between civil and criminal matters, but rather dealt with matters holistically. The Department thus proposed that the traditional justice system would not deal with criminal matters, as this was the purview of the National Prosecuting Authority.  Retributive sanctions would also be deleted from the Bill, because the traditional justice system emphasised the wellbeing of involved parties and allowed for a person to be given support in the form of representation by any person of their choice.

On the issue of retributive sanctions, as raised by SAHCR, the Department responded in their submission that these sanctions seemed to be at odds with the principles of the traditional justice system, as it was based on restorative justice. This approach aimed to involve all parties to a dispute by collectively identifying the harm caused, the obligations resulting from accepting responsibilities, restitution, and taking preventative measures against reoccurrence.  Retributive sanctions could thus be replaced wholesale with restorative resolutions such as compensation, reprimands, formal apologies and counselling. No fines should be included in the Bill.
Discussion
Mr M Makhubela (COPE) said the Bill was being forced on traditional leaders. During the apartheid era, many laws had been forced on traditional leaders and the current process and lack of consultation was reminiscent of this period, as it seemed to say there was no need for greater public involvement.

Mr Gunda said that while there had been a lot of input from the public, it was important to realise that some traditional leaders had imposed themselves over and above the will of their own communities, resulting in the abuse of power.

The Chairperson asked how this should be reflected in the Bill.  If in the view of Members, there was relevant information that had been left out, they themselves should write up proposals on how to change the Bill.

Mr D Bloem (COPE) expressed concern that the Department’s summary dealt only with SAHRC and DWCPD.  This was an insult to all the other organisations who had given their opinions during a whole week of public hearings. It was also noted that the Black Administration Act had already been extended four times and it seemed unlikely that the 30 December 2012 deadline would be met.  Would this lead to a further postponement?

Mr D Joseph (DA) said that the public hearings had seen 20 to 22 organisations presenting their opinions, but only two organisations views had been summarised today. The National House of Traditional Leaders and the Eastern Cape House of Traditional Leaders had pointed to the Committee and said that they were unhappy with the Bill in its current form. The view was that they were against the Bill.  It was accepted that the Department had recommendations, but they had given responses only on the SAHRC and DWCPD comments.

Mr A Matila (ANC) recognised that all the inputs had been made by a variety of organisations and communities.   Now there had been a response from the Department, so it was desirable that these issues be taken back to the provinces to renew their negotiating mandate.

Mr Bloem noted that on page 3 of the presentation, there was a comment stating that the Bill could not be passed in the current year. Would this mean the deadline for conclusion of the Bill would be extended?

Mr M Mokgobi (ANC), in support of Mr Matila, said that as this was a matter of ethics for the provinces, there was a need for further engagement, as had been seen from the wide participation in the September public hearings. Furthermore, although DWCPD was a government department, it should be seen as a stakeholder on gender equality.

Mr Nzimande said the decision in support of what was now being proposed, had led to public hearings, yet consultations had not been adequate even after national stakeholder consultation.  If the Committee was not in a position to complete the Bill, it was necessary to communicate this with the sponsoring department and call for an extension. No one was going to die if deadlines were extended. Further engagement was preferred over rushing forward with a botched process.

The Chairperson said there were processes unfolding in the National Assembly to request an extension.

Mr Mokgobi said if processes were faulty, the Committee would right them.

Mr V Manzini (DA) raised the issue of communities that held opinions which were in conflict with their traditional leaders.  Who were these leaders actually governing?

Mr Gunda observed that community input was not in the summary.  This meant that the people had been excluded from consultation. It was clear that there was a need to go back to provinces for further engagement.

Mr Matila emphasised that for the next two weeks, the Committee and the NCOP in general would not be in Parliament to debate the Bill.   This would undoubtedly lead to further delays. There were also serious disputes coming out of laws and boundaries established in the apartheid era.

Mr Bloem asked if the Chairperson could explain the future procedure on the Bill. The Bill was sitting in the NCOP, but the National Assembly (NA) seemed to be extending the deadline for its conclusion.

Mr Nzimande clarified by saying that the NA was amending the Black Administration Act (BA Act) and was not infringing on the mandate of the NCOP. The deadline for the Traditional Courts Bill was actually contained in the BA Act, and the NA was extending the deadline on that basis. The BA Act was a section 75 bill- an ordinary bill not affecting the provinces- and was being handled by the Portfolio Committee on Justice and Constitutional Development and indeed there was nothing incorrect in what the NA was doing but it did have an impact on the Traditional Courts Bill as two of the clauses to be repealed were from the BA Act.

Mr Joseph said that further engagement with the provinces would clarify the Committee’s negotiating mandate until it reached a final mandated position on the Bill. This would give the Chairperson the authority to deal with all stakeholders in Parliament and make the necessary recommendations to the relevant Departments on its amendment.

Mr Manzini said that on 6, 7, and 8 November, the Gaza Kingdom would be holding community meetings to discuss land disputes. This clearly showed that things were not moving smoothly, so proceeding without further amendment and inclusive consultation would severely affect the Bill.

The meeting was adjourned, as Members were traveling to Johannesburg.



 

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