Traditional Courts Bill: legal response to provinces' proposals

NCOP Security and Justice

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

The Committee had in its previous meeting requested legal drafters to summarise and respond to all the proposed amendments made by the provinces in their negotiating mandates on the Traditional Courts Bill. A compilation document had been compiled by the legal team and presented to the Committee. The document however did not contain any responses. Instead, the Parliamentary Legal Adviser’s Office provided oral responses to the provincial proposals. It was evident from the responses given that many of the clauses of the Bill required amendment. An even huger concern was that the matter of constitutionality reared its head for many of the clauses of the Bill. This being the case some Members urged that the Bill be withdrawn. However, in the end, the decision was taken to allow the Bill to run its course in terms of the parliamentary rules. The legal responses received together with the Bill would be referred to the provinces for consideration. Thereafter provincial final mandates on the Bill would be sent to the Committee for consideration.

Meeting report

Traditional Courts Bill
The Committee had in its previous meeting requested legal drafters to come up with a compilation document containing the inputs made by the provinces in their negotiating mandates on the Traditional Courts Bill, inclusive of legal responses to these inputs. A compilation document had been compiled by the legal team and provided to the Committee. The document however did not contain legal responses to the inputs made.

The Parliament's Constitutional and Legal Services Office (CLSO) went through the summary (see document) and provided the Committee with oral responses to the provincial inputs on the Bill.

Purpose of the Bill
Ms Phumelele Ngema, Parliamentary Legal Adviser, stated that Limpopo Province had requested that the word, "enhance” be replaced by, ”promote”. The explanation given was that the word “enhance” meant to intensify in value whereas the word “promote” meant to further. She said it was up to the Committee to decide which the better of the two was.

Mr J Gunda (ID, Northern Cape) interjected that the compilation document handed out to the Committee did not contain the responses from the legal advisers.

Ms E van Lingen (DA, Eastern Cape) agreed with Mr Gunda that the legal responses were not contained in the document as the Committee had requested. The responses were being given only orally.

The Chairperson urged members to listen to the legal responses given.

Clause 2: Objects of the Bill
Ms Ngema stated that the Eastern Cape Province was concerned that the Bill did not have a procedure on how legal proceedings would take place at traditional courts. She explained that Clause 21 of the Bill did make mention that the Minister would determine regulations and procedure would be set out in the regualotions. The provinces however preferred to have a regulatory framework that would appear in the Bill. The options were thus to set out procedure in the Bill itself or prior to the promulgation of the regulations, the Department would forward these to Parliament for approval. The Committee could decide which option was the best.

Clause 4: Designation and training of traditional leaders
Many of the provinces expressed concerns about this clause. On the issue of participation of women and the lack of provision therefore in the Bill, the 40% threshold spoken about in earlier meetings could be the route to follow.

Section 9(2) of the Constitution made it the responsibility of the presiding officer to ensure the full participation of women. Ms Ngema noted that the Traditional Leadership and Governance Framework Act provided a definition for an area of jurisdiction. If heed was taken of the definition, then traditional councils were already at present making provision for women. In essence, women participation was covered.

It was noted that the jurisdiction of the traditional court was linked to the jurisdiction of the traditional councils. There should be proper reference to the Governance Framework Act in the Bill. She added that in the Shilubana case the court said that women should not be prejudiced and should be recognised. However, at present, there was a feeling that something was lacking in the Bill.

Under Clause 4(1) the Gauteng Province had raised a concern, saying that only a senior traditional leader could decide which other structures could act as presiding officers. Ms Ngema said that Clause 4(1) was problematic.

Clause 4 also provided that a person’s appointment as a presiding officer could be revoked if the person did not attend training. Clause 21(1)(a) however did provide for the Minister to make regulations for criteria and training of presiding officers. If the Committee felt it should strengthen the provision, they could do so. Another concern was about the Minister deciding on training programmes. It was felt that there should be consultation with traditional leaders. Ms Ngema said that consultation was a good idea. Training programmes should also speak to the sanctions.

Another concern was that the Bill did not speak about whom would offer training. The Bill spoke about the Department having registers of who the presiding officers were and the training that they had received. It was felt by provinces that training should not only be for senior traditional leaders but for all structures. The concern was also raised that the Bill said that a person could become a presiding officer by virtue of their birthright. The Committee needed to consider this issue.

Provinces also raised concern about the fact that the Bill did not cover the situation where there was conflict of interest for a presiding officer. She suggested that the Bill needed to have an express procedure for when there was a conflict of interest. Perhaps there could be a procedure where the presiding officer could recuse himself.

The question on whether the position of presiding officer should be extended beyond senior traditional leaders was a plausible consideration and the Committee should think about it.

Clause 5: Settlement of certain civil disputes of customary law nature by traditional courts; Clause 6: Settlement of certain criminal disputes by traditional court; Clause 7: Nature of traditional courts and Clause 8: Sessions of traditional court
Ms Ngema chose to provide an overall response to these clauses. She suggested that civil and criminal jurisdictions should be clarified further in the Bill. The exclusions needed to be clear. The Bill must clearly specify what matters may not be considered by traditional courts. Concerns were raised that it should be made an offence for a traditional court to go beyond its powers. The Bill should be clear that matters of traditional courts should be reviewable. Section 35(3) of the Constitution ensured that every person had the right to a public trial. The comments made on these clauses were substantive and required redrafting of the Bill.

On Clause 7 the Bill was not clear about when traditional courts were administrative structures. If the Bill alluded to the operational structures such as the hierarchy of traditional courts then perhaps these concerns would be covered.

If one accepted the Department of Justice’s proposal that the' traditional court' definition should be extended, then Clause 8 required amending as well. A decision needed to be made on what a traditional court was.

Clause 9: Procedure of traditional court
The prohibition on legal representation in traditional courts was a violation of section 35 (3)(f) of the Constitution. It was a constitutional matter which needed to be considered. Clause 9(3)(a) was problematic as it infringed on a person’s right to have legal representation.

A concern was raised by Eastern Cape Province that Clause 9(3)(b) was prejudiced against women. Ms Ngema suggested it to be a valid concern.

A concern was raised about Clause 9(4) on the power that a presiding officer of a particular traditional court had over litigants. The provision did not cater for people who did not know the customs of the area where they had transgressed. It could be a problematic clause since it did not give details to guide the presiding officer.

Ms Ngema pointed out that Clause 9(5) had financial implications for funded and unfunded mandates.

Clause 10: Sanctions and orders that may be given by traditional court
Ms Ngema stated that there were cases where the powers of traditional leaders could be considered excessive. She noted that this clause was vague and too broad. Some sanctions could be considered unconstitutional.

Concerns about Clause 10(2)(f) could be dealt with in regulations.

She noted the concern that a person could be banished from his area in the interest of the community. The question was what was 'in the interest' of the community.

A concern was raised about Clause 10(2)(i) which people felt could deprive one of the right to property as protected by section 25 of the Constitution.

Ms Ngema suggested that amendments to Clause 10 were necessary to make it constitutional and lawful.

Clause 11: Enforcement of sanctions of traditional courts
Ms Ngema suggested that the enforcement process in the clause was misplaced. The Bill should have provided for mitigating factors to be taken into consideration before sentencing took place. In terms of criminal procedure, this took place before sentencing

She suggested that Clause 11 required an amendment.

Clause 12: Order of traditional court final
Ms Ngema was of the opinion that making the order of the traditional court final could be an infringement of section 35(3)(o) of the Constitution which guaranteed persons the right of appeal or review.

Clause 13: Appeals to magistrate’s courts; Clause 14: Procedural review by magistrates courts
Ms Ngema said that the provinces’ concerns were valid. In Clause 13, there should be a right to appeal at traditional courts. The limitation on the right to appeal was unfair and unconstitutional.

The same argument applied to Clause 14. There should be a mechanism for procedural review at traditional courts.

Both Clauses 13 and 14 required amendments to take into consideration the Constitution.

Clause 15: Oath or affirmation of office; Clause 16: Incapacity, gross incompetence or misconduct of presiding officers
Ms Ngema noted that there could be difficulties in complying with these processes. The process needed to be simpler.

Clauses 17: Assignment of officers to assist traditional courts; Clause 18: Record of proceedings
Ms Ngema said that the clauses needed to be clarified and strengthened.

Clause 16: Incapacity, gross incompetence or misconduct of presiding officers
Ms Ngema said that where a person was aggrieved, the options in the clause were very technical and legal.

Mr A Matila (ANC; Gauteng) pointed out that the Committee did not have inputs made on Clause 16 before them.

Ms van Lingen agreed and observed that Clause 16 was not in the compilation document that had been provided to Members. She asked when the Committee was going to receive the document that Ms Ngema was working from which perhaps also included the responses she was providing orally.

The Chairperson responded that the Committee would receive the document after the meeting.

Clause 24: Short Title and commencement
Ms Ngema said that a concern was that the name of the Bill should be reconsidered.

She noted that some general concerns over the Bill were that fees needed to be looked at. A constitutional issue was whether clauses dealing with such fees should form a section 77 Bill.

On the matter of separation of powers, the Constitution recognised traditional leadership.

On the issue of legal pluralism, the Constitutional Court had said that there was a place for pluralism but effect had to be given to it in the Constitution.

Regulations by the Minister would be done at a later stage. Details would be thrashed out in the regulations.

The dates in the Bill required changing.

Ms Ngema concluded that the proposals made by the provinces had a great deal of substance and there should be deliberation on these by the Committee and thereafter decisions should be taken.

Mr Gunda (ID) did not think that the Committee would be doing justice to the Bill if members negotiated on the Bill. He noted that the people of SA had rejected the Bill. There was a great many issues that needed clarity. The Bill was clearly unconstitutional. He asked for clarity on Clauses 9(4) and 9(5). What made Clause 10 unconstitutional? In the Northern Cape Province public hearings were only held in Kuruman. There had been no consultation with the Bushmen or the Khoisan. The Northern Cape had thus not been covered. The Bill needed to be rewritten. Traditional leaders were using the Bill for their own benefit. The people who were going to live under the application of the Bill needed to be consulted with.

Mr Matila stated that he was of the opinion that the Committee would be noting what the legal team had presented to them. He did not think that the Committee was in a position to debate the Bill in light of the submissions that had been received on the Bill.

He conceded that there were many provisions in the Bill that were unconstitutional but the fact was that Members had to take the Bill back to their provinces to obtain final mandates.

He suggested that the Committee note the responses made by the legal team, take the Bill back to the provinces and obtain the final mandates.

Ms van Lingen agreed with what was presented but said that the Committee could not continue without a hard copy document of the legal responses.

She asked that the State Law Advisers Office confirm that the Bill had constitutional issues. And that a redrafting of the Bill was necessary. If the Bill was to be redrafted would it also deal with issues that were not contained in the compilation document of the Department?

She asked whether the Committee could "withdraw" the Bill.

The Chairperson responded that it was parliament’s duty to make laws. The Constitutional Court would decide on the constitutionality of laws. The Committee had a process to follow in terms of parliamentary rules. 

Mr l Nzimande (ANC; KZN) said that the decision of the nine negotiating mandates allowed the Committee to process the Bill to whatever conclusion, irrespective of whether the Bill went through or not. He agreed that the Committee should move towards the final mandate stage of the Bill and reach finality on the Bill. The Committee could not predetermine the finality on the Bill as it had to go back to the provinces.

Mr J Bekker (DA, Western Cape) was worried about the Bill. He pleaded with the Committee not to force the Bill through. He suggested that the Bill be referred back to the Department.

Mr Matila pointed out that in the Gauteng Province there were only two traditional leaders.

The Chairperson interjected and said that responses from the legal team had been presented. He asked members not to raise new issues. The legal responses received should be taken by Members back to the provinces for consideration. Thereafter Members would receive final mandates from their respective provinces.

He summarily adjourned the meeting. 



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