Traditional Courts Bill [B1-2012]: consideration of negotiating mandates

NCOP Security and Justice

11 February 2014
Chairperson: Mr T Mofokeng (ANC, Free State)
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Meeting Summary

The Committee initiated the process of considering the negotiating mandates from the provinces on the Traditional Courts Bill.  Provinces were asked to present their negotiating mandates to the Committee. Delegates were requested to be clear as to whether their respective provinces supported or rejected the Bill. If amendments or comments were contained in the negotiating mandates, delegates should elaborate on them.

The Eastern Cape Province started the process and did not vote in favour of the Bill. The Free State Province continued and voted in favour of the Bill, while still proposing amendments and expressing concerns about it.  Members became frustrated with the process as provinces had to vote on each amendment proposed and concern raised by Free State, which became very laborious and time consuming. The Department also had to make inputs on each amendment or concern raised by a province in its negotiating mandate. The Committee eventually agreed that the Department should draft a document consolidating all the amendments proposed and concerns raised by the provinces on the various clauses of the Bill, while attaching legal opinions to each. Members felt that the document would go a long way towards assisting the Committee in dealing with the negotiating mandates.

On the negotiated mandates themselves, Gauteng, Eastern Cape, Limpopo and the Western Cape provinces voted against the Bill. The Free State, Mpumalanga, Northern Cape and North West provinces voted in favour of the Bill.  Kwazulu-Natal abstained from voting on the Bill.
 

Meeting report

Traditional Courts Bill
The Chairperson asked the stand-in Committee Secretary, Mr Azgar Bawa, to elaborate on the process with regard to negotiating mandates.

Mr Bawa stated that negotiating mandates on the Bill had been received from the provinces. The Committee would ask each province to present its negotiating mandate. The process would start with the Eastern Cape Province and end with the Western Cape Province. Some of the negotiating mandates received from provinces suggested amendments to the Bill. The provinces suggesting amendments to the Bill would have to interact with the State Law Advisers Office and the Department of Justice regarding the amendments.

Eastern Cape Province   
Mr B Nesi (ANC, Eastern Cape) stated that the Eastern Cape did not support the Bill as it was. The Province did, however, suggest amendments to the Bill.

The Chairperson noted that as the Eastern Cape was not in support of the Bill, there was no need for the Committee to go into the amendments suggested.

Mr Nesi reiterated that the Eastern Cape did not support the Bill, and no amount of amendments would be able to rectify it. The Bill simply had to go back.

Free State Province 
The Chairperson proceeded to elaborate on the amendments proposed and the comments made by the province on the Bill:
- That under clause 5(1)(2)(b) it was incorrect to reiterate that the traditional court cannot get involved in matters of divorce or separation - the opinion is that the families should get involved when challenges arise in the marriage, as per tradition.
- That the Bill was not explicit on the participation of women.
- That it was also not clear on where the “seat of the traditional council” will be.
- That the challenge was that traditional courts are not assisted by the magistrate’s courts, for example, when an offender refuses to appear before a traditional court after being subpoenaed.
- Clause 8 – the word “presiding officer” should be substituted with the word “traditional council”. “

The Chairperson said that the Free State Province voted in favour of the Bill.
He asked whether officials from the Department of Justice and the State Law Advisers Office were present.

Mr L Nzimande (ANC, Kwazulu-Natal) responded that it seemed that the Department of Justice was not present at the meeting, and neither were officials from the State Law Advisers Office.

The Chairperson further pointed out that Parliamentary Legal Advisers were also absent from the meeting.

Mr A Matila (ANC, Gauteng) said that the Committee needed to negotiate on the mandates themselves. The negotiating mandates were out of the hands of the Department of Justice.

The Chairperson adjourned the meeting for ten minutes so that the legal teams could be summoned to attend the meeting.

When the Committee was satisfied that all legal persons were present in the meeting, the Chairperson pointed out that the Free State Province actually proposed only six amendments -- the rest of the negotiating mandate contained concerns. It was suggested that the Committee vote on each of the amendments suggested by the Free State Province. He asked the Department of Justice to comment on the amendment suggested to Clause 5(1)(2)(b).

Adv Jacob Skosana, Deputy Chief State Law Adviser, Policy Development: Department of Justice, responded that the traditional court had to be involved at the preliminary stage of proceedings -- for instance, during arbitration and mediation proceedings. The traditional court could not issue a divorce decree, however.

Mr Nzimande noted that if an amendment was proposed, there needed to be a procedure that went along with it. Marital matters were sensitive and there had to be limitations put in place, given the manner in which traditional courts usually sat and heard proceedings.

Mr Skosana answered that a mechanism would be put in place in the actual process. Rules could also be set on how proceedings should take place.

The Eastern Cape, Free State, Kwazulu-Natal and Limpopo provinces supported the amendment. The Gauteng, Northern Cape and Western Cape provinces rejected the amendment. The North West Province did not have a permanent delegate, but only a special delegate present in the meeting.
   
The Chairperson said that there was no majority and hence the amendment was not accepted.
He noted that the negotiating mandate also spoke to the Bill being silent about the participation of women. It was tagged as a concern.

Adv Skosana agreed that the Bill had not been explicit on the participation of women. The Bill was more neutral. No mention had been made of women. The Bill needed to recognise the shortfall in participation of women.

Mr J Gunda (ID, Northern Cape) said that the Bill trampled on the rights of women. He wished the Department to be more explicit in its response. What did they mean?

Adv Skosana conceded that the Bill did not speak to the position of women. An amendment would be drafted which would be clear on the position of women. The minimum requirement of 40% required in traditional councils would be used as a base for female participation in traditional courts.  

Mr Matila said that he needed a clear proposal from the Department which he could take back to the Gauteng Province.

Mr Nesi said that the explanation given was vague. Which women were going to participate in traditional courts?

Mr Nzimande stated that the Committee would receive a document containing the amendments which the drafters were to come up with. All the Committee needed was assurances from the drafters that the issue would be covered in the Bill.

Mr Skosana said that “traditional court” meant “traditional council.”  The minimum threshold of 40% participation of women in traditional councils was already contained in law. This minimum could also apply to traditional courts, or could be set even higher.

Mr Gunda was still not convinced. He asked who would make the decision to put the women in place. Would the decision be made by the Minister, a Dikgosi or a traditional leader?  What explanations were Members expected to give to their respective provinces.

Mr Skosana said that the law already prescribed a minimum of 40%. He noted that there were elected processes in terms of the Governance Act. He was willing to present the processes to the Committee.

Mr Matila stressed that the concern of the Committee was to know that there were safeguards in place in order to ensure that abuse of women did not happen.

Mr Nesi noted that there were still issues around the implementation of the 40% minimum of women’s participation in traditional councils.

Mr Nzimande said that the Department had responded to the concern of the Free State, and it was up to the Committee to apply its mind.

The Chairperson placed the issue before the Committee for a vote.

The Eastern Cape Province accepted the concern raised by the Free State, but not the response given by the Department.

The Free State Province agreed with the response given.

The Gauteng Province agreed with the concern but not with the response given by the Department. Mr Matila felt that the response given by the Department was not clear.

The Kwazulu-Natal Province agreed with the concern and believed the proposal did make an attempt for women to participate. 

Mpumalanga Province did not support the response given by the Department and said that something concrete needed to be drafted.

The Northern Cape Province also felt that something concrete needed to be drafted.

The North West Province did not have a permanent delegate present in the meeting. 

Limpopo Province only supported the concern raised by Free State.

The Chairperson said there was not sufficient support and hence the concern, along with the response given, was not accepted.

He referred to a further concern contained in the negotiating mandate, that the Bill was not clear where the “seat of the traditional council” will be.

Mr Skosana said that the community would decide where it would be. It was too imposing for the Minister to make the decision.

The Chairperson had to excuse himself from the meeting, and Mr Matila took over as Acting Chairperson.

A Parliamentary legal adviser made the point that drafters were not sure what the Committee expected them to draft. What were the drafters expected to produce?

Mr Matila said that drafters had to capture what had been raised.
 
He placed the issue of the “seat of the traditional council” before the Committee for a vote.

There was no comment from the Eastern Cape, Kwazulu-Natal and Gauteng Provinces. The Limpopo, Mpumalanga, Northern Cape and Western Cape Provinces abstained.

Mr Matila observed that the Committee did not seem to be moving forward. The Committee could not be seen to be going through the Bill, clause by clause, as the time it took gave the impression that the Bill would not be dealt with timeously and would hence not go through.

Mr Nzimande said that the Committee was following the correct process. The Committee had to apply due diligence to the process.

Mr Matila stated that he assumed that the Department had gone through all the proposals made by the respective provinces.  Many of the inputs contained in the negotiating mandates were concerns. He suggested that the Committee focus on amendments on which the Department would be expected to comment.

Mr Nesi responded that the assumption by Mr Matila was incorrect. Nothing in the Bill had been amended as yet. Amendments had been proposed, but had not been incorporated as yet. Changes were not yet made to the Bill. The work had not yet been done.

Mr Skosana reacted that if the Department had received instructions from the Committee based on the comments made by the provinces, the Department would have drafted a document. The Department had in the meantime worked on its own amendments, based on the concerns raised by the provinces. If the Committee gave instructions, then the Department would be obliged to carry them out.

Mr Gunda felt it best that the Committee Chairperson instruct the legal drafters to come up with a document that was an incorporation of all amendments proposed by the provinces.

Mr Nzimande noted that issues were different in each province. He was not convinced that giving the Department a blanket mandate was the correct way to do things.

Ms E van Lingen (DA, Eastern Cape) noted that there was a pile of mandates, and many of them raised concerns. If the Committee was to continue in the manner in which it was by voting on each concern, it was a nightmare of a process. She suggested that the Department come up with a document containing all the issues raised by the provinces. A document was needed that gave clarity per clause, per province.

Mr Matila pointed out that there was already such a document before the Committee. It was a consolidated document containing the concerns raised by provinces within each clause of the Bill. 
He continued with another amendment proposed by Free State, that in Clause 8 of the Bill the term “presiding officer” should be substituted with the word “traditional council”.  He asked the provinces to express their views on it.

The Eastern Cape Province had no comment.

Mr Skosana said that the amendment proposed was in line with the Department’s view that the traditional council should have a corresponding role.

Mr Nzimande felt it more appropriate to use the term “presiding officer”.

Mr Matila asked for a legal opinion on the issue.

Mr Herman Smuts, Principal State Law Adviser, State Law Adviser’s Office, noted that what was important was that “presiding officer” was defined and it was carefully crafted. He was not sure what the intention of the substitution was and what the proposal entailed.

Mr Matila placed the issue before the provinces for consideration.

Mpumalanga and Limpopo Provinces did not support it.

Mr J Bekker (DA, Western Cape) felt that the Committee was not making progress. He also suggested that the Bill with the amendments proposed by the provinces, be referred back to the Department.

Mr Gunda said that the Northern Cape could not support the proposal. He wanted justice to be done to the Bill to prevent it from ending up in the Constitutional Court. 

Mr Nesi appreciated the fact that the Committee had to deal with the negotiating mandates, but he felt that the Department should be sent back to come up with a draft document. Having a document to work from would speed up the process.

Mr Matila said that if members felt that the legal drafters should come up with a document, then it would be done.

Mr Nzimande pointed out that the Bill was a Committee Bill. Members had to follow the rules of Parliament. Procedures had to be followed. The Committee was to produce a C-list of amendments. The legal drafters could not rewrite legislation.  This was the task of the Committee.

Mr Gunda responded that the legal drafters were not being asked to rewrite the Bill. They were being asked to attach legal opinions to the amendments that had been proposed. The Committee needed legal opinions.  As things stood, the Committee was going around in circles.

Ms H Boshoff (DA, Mpumalanga) observed that the issue was not about procedures. At present the Committee was not moving forward. The amendments had no legal opinions attached to them. So what were Members supposed to base their facts on?

Mr M Makhubela (COPE, Limpopo) and Mr Bekker supported the suggestion made by Mr Gunda.

Mr Nzimande said that the Committee was now requesting legal opinions, when the Committee itself should be taking decisions.

The Eastern Cape and Gauteng Provinces also supported Mr Gunda’s suggestion.

Mr Matila said that the matter was settled. The proposals would be consolidated and legal opinions attached to it.

(On the negotiated mandates themselves, Gauteng, Eastern Cape, Limpopo and the Western Cape provinces voted against the Bill. The Free State, Mpumalanga, Northern Cape and North West provinces voted in favour of the Bill. Kwazulu-Natal abstained from voting on the Bill)

The meeting was adjourned.
 

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