Traditional Courts Bill: public hearings day 2

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Justice and Correctional Services

14 March 2018
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

The Bill was in its second day of public hearings where submissions were welcomed from the Land and Accountability Research Centre, Centre for Child Law & Children’s Institute, the Royal Bafokeng Administration, the Congress of South African Trade Unions and the Land Access Movement of South Africa. Presenters highlighted positive aspects of the Bill while at the same time raising concerns and questions over certain aspects of it. The debate was largely centred on the issue of opting-out of the traditional court system where participants had opposing views, while Members raised concerns about the domination of magistrate courts over traditional courts and that traditional courts were looked down upon.

LARC welcomed changes to the voluntary and consensual nature of customary law and the provision of a mechanism to opt-out of customary law. It, however, raised concerns over the practicality of the implementation of an opting-out mechanism, while also linking the current Bill to apartheid geographical boundaries. The Centre for Child Law made a joint submission with the Children’s Institute to ensure that the current Bill protected the rights of children. They recommended that the Bill should take into account the best interest of the child principle, to safeguard the interest of the child, and to refer criminal cases to the formal justice system as outlined in the Child Justice Act and Ubuntu. On matters relating to child abuse, the transfer of disputes to magistrate courts should not be optional but mandatory, and traditional courts should not be allowed to deal with cases of assault and domestic violence against children.

The Royal Bafokeng Administration was of the opinion that people should not be allowed to opt-out of customary law because it defeated the very purpose of traditional courts. They recommended that traditional courts had automatic jurisdiction over people occupying or residing in their area and that the monetary jurisdiction of traditional courts be increased to R 15 000 from R 5 000. The court should also have the power to make decisions relating to land disputes. The Congress of South African Trade Unions, on the other hand, welcomed the right to opt-out, the inclusion of anti-discrimination provisions for gender and sexual orientation and supervision by the Department of Justice, but also called for a 50/50 gender representation of traditional leaders, fairness in financial sanctions and the granting of legal aid to persons who sought appeal in magistrate courts.

Land Access Movement of South Africa suggested that the Bill be taken back to the drawing board for well-informed inputs which raised concern from Members because that was the first point of contact for any Bill that was drafted by Parliament. Members asked contributors not to punch holes in the Bill but instead to advise on what should be done so that the Bill could be passed. It was important to understand that the Bill was trying to move towards the creation of a law of forgiveness and reconciliation and therefore contributions should not be influenced by individual perceptions, assumptions and opinions.

Meeting report

Submission by Land & Accountability Research Centre (LARC)
Professor Thandabantu Nhlapu, LARC, University of Cape Town began his presentation by highlighting positive aspects of the Bill. These included the voluntary and consensual nature of customary law, the provision of a mechanism to opt-out of customary law, the recognition of different levels of dispute resolution and the express limitation of unlawful orders which had been permitted in previous Bills. LARC supported the inclusion of an opting-out mechanisms despite having concerns over the wording and practical implementation of Clause 4(3) of the Bill. LARC proposed that emphasis should be placed on an opting-in mechanism rather than an opting-out mechanism because an “opt-out” mechanism meant that people had been opted-in by default. Instead of viewing the opting-out mechanism as a discriminatory and insulting phenomenon as some traditional leaders or members felt, the inability to strike a balance in the wording of the Bill could actually be more harmful and relegate Africans to second-class citizenship. If people living in rural areas were placed under a package of constitutional rights that was less favourable than a package of rights enjoyed by those in urban areas, through mechanisms such as traditional courts, there would be inequality in the access to justice.

LARC sought clarity over several aspects of the Bill including the linking of the Traditional Courts Bill to colonial and apartheid boundaries because the jurisdiction of Traditional Courts and the definition of a ‘traditional leader', was borrowed from the Traditional Leadership and Governance Framework Act 41 of 2003. Clarification was also sought on the uncertainty around the judicial status of traditional courts because of the inclusion of the term “court” in their name. Were they courts of law under the judicial system? In reference to Clause 11, LARC questioned the accessibility to review proceedings in the High Court because of high litigation costs and instead proposed that aid be granted to persons that wanted a review in the High Court. The accountability mechanisms in Clauses 15 and 16 needed to be strengthened to prohibit abusive and harmful conduct of traditional court members and to include consultations with ordinary people about the content of the Code of Conduct. The Bill was also unclear as to how protection against discrimination in traditional courts was going to be implemented.

The Chairperson made a statement on the positive aspects of customary law which observed the principle of humanness because the dignity of the human person and his or her interest was held high. Most traditional courts understood, and respected human rights better than modern courts and he would have wanted to see that in the presentation. Destabilization of African communities seemed to pick up on negative aspects of customary law instead. He suggested that it was perhaps better to deal with the philosophical basis of the system because all legal systems were based on a philosophy.

Ms M Mothapo (ANC) noted that the presenter had overemphasized the issue of voluntary opting-out which needed some introspection. What in his view would be a better mechanism of opting-in and out? What would happen to the tribunals of the Khoi and San? Would they be excluded from the Traditional Courts Bill? Could he further clarify his concern about the definition of the word “court” as defined in the Bill?

Mr D Matsepe (DA) made an appeal that people refrain from saying that the structure of traditional courts was disrespected to prevent the stifling of objective debates.

The Chairperson agreed that it was okay for people to have differing views and should not be seen as dissenting, because it created a platform for people to engage and find common positions.

Mr S Mncwabe (NFP) expressed concern over LARC’s linking of the Traditional Courts Bill to colonial and apartheid boundaries and sought clarity because he was under the impression that the duty of the Government was to repeal all previous legislation that was not fair to the African People.

In response to the questions raised, Professor Nhlapu said that the voluntary and consensual nature of customary law was an important aspect of the Bill because it made customary law equal to common law, which strengthened the belief that customary law was nowhere near as rigid as it was sometimes perceived to be. Other mechanisms of opting-in and out depended on the relationship between traditional leaders and their people under the assumption that traditional governments were indeed democratic. The definition of a “court” needed to be clear because the definition on the Bill meant that traditional courts were similar to constitutional courts and if that was the case, then there was need for a mechanism to live with or deal with the constitutional consequences. The fault line that linked the Traditional Courts Bill to apartheid lay in the definition of a traditional leader which could be traced back to an Act in the apartheid era. Even though he understood that the Bill was derived from existing law, it was theoretically possible to take a different route and start from scratch.

The Chairperson emphasized that the purpose of any court was to find the truth and that traditional courts had some positive elements. He urged members to depart from the premise of trying to define what was modern or traditional because it was a deviation from the fact that the purpose of courts or tribunals was to find justice for all human beings.

Mr Sipho Mhlangu, Chairperson, National House of Traditional Leaders (NHTL) asked if there was a possibility of looking into instances where customary law affected people who lived in urban areas. What was the possibility of having a mechanism that covered everyone who believed in a custom regardless of where they lived because the current Bill was limited to apartheid boundaries? Customary law also affected people in urban areas and their system was set up in a way that traditional leaders had representatives in urban areas where cases were presented.

A Chieftain from the NHTL sought clarity on LARC’s recommendation of including ‘the choice to participate in customary dispute resolutions’ in all legislation under customary law and leadership. Did it mean that they needed to create two systems within one for people who chose to opt-out of the customary law of a community they lived in and was it not going to cause unnecessary division in a community living under traditional leadership?

Mr Matsepe said that there was no need to create two systems in instances where customary law affected people who lived in urban areas because of the availability of traditional representatives, which was an extension of what was taking place in the traditional environment.

The Chairperson urged the Committee not to deal with the issue of traditional courts as though it was trying to bring back the Bantustans which compartmentalized people into different tribes, because society was evolving and integrating. He further advocated for the addition of community courts which took into consideration the fact that urban centres were integrating. Concerns were raised over the option of opting-out in geographical areas where certain offences fell under the jurisdiction of a Chief or King. The idea of opting-out may result in a situation where traditional courts become a joke, bringing disorder to a system that was meant to bring order. Could there be a mechanism other than the accused person having the option of opting-out because a law must be one of general application?

Mr David Ramohane, Chairperson, Wonderkop Land Claims Committee, asked what approach would be taken to ensure that the court was seen to be fair and honest to offenders that did not understand traditional customs but lived in the jurisdiction of a community that observed customary law in mining areas for example. What would happen to offenders that undermined traditional system and did not comply?

Mr E Buthelezi (IFP) asked what necessitated the clause of opting-out because it was not helpful for people living in a community, who shared similar values, to have the option of opting-out when they committed an offence. Traditional courts had long been democratic because decisions were made after traditional leaders had consulted representatives of the community. He further urged contributors to take time to visit traditional courts so that they could create a Bill that they could own.

Mr G Skosana (ANC) said that the option of opting-out was contrary to the purpose of regulating the traditional courts because everybody would opt-out. If this was the case, traditional courts would lose their decorum and dignity.

Mr L Mpumlwana (ANC), in agreement with his colleagues, said that there was no option to opt-out of European courts, but one could do so in traditional courts, indicating that traditional courts had been looked down on. He suggested a two-step process in recognizing traditional courts where people living in communities that observed customary law should first be bound by traditional courts within their jurisdiction. The Bill should go further to decrease the jurisdiction of magistrates in communities where most people lived in rural areas and allow Kings and Chiefs to govern. The second step would be to tackle the question of having a unitary legal system where African law would perhaps be taken as the main legal system, such that the question was not one of opting-out but rather being bound by traditional courts.

Mr Matsepe said that the constitution was silent on the laws made at the local level but however required that laws be aligned to the dictates of the Constitution and that was where the question of opting-out found its definition.

Professor Nhlapu emphasized that if the voluntary and consensual nature of customary law was about choice, allegiance and loyalty it should not be worrying if people chose to opt-in or out because South Africa was a democracy. His only fear was that the Bill could end up being a very elaborate statute that was nothing close to what happened in the rural areas. It was evident that the whole notion of opting-in and out needed further debate and that discrimination was visible and instinctive between traditional courts and magistrates. The reason opting-out was linked to boundaries was because boundaries did not only have an emotive or significant value but also an allegiance to one’s community. Opting-out in that sense was voluntary allegiance. A two-step process would bring about the notion of traditional courts being considered as judicial courts which would further attract constitutional consequences.

Joint Submission by Centre for Child Law & Children’s Institute
Ms Zita Hansungule, Senior Project Coordinator, Centre for Child Law pointed out that both organisations welcomed changes to the latest draft Bill on voluntary participation and an ‘opting-out’ mechanism. To further protect children’s rights, she highlighted aspects of the Bill that required strengthening. The Bill should add a definition of the child which was aligned to the Constitution; it should take into account the best interest of the child principle, and it should include children in the list of persons in schedule 1 to avoid discrimination against them.

For children accused of a crime, the Bill should take into consideration the formal justice system as outlined in the Child Justice Act and Ubuntu and include a provision on the ages of criminal capacity for the child. Both organizations endorsed the submission by LARC where ‘corporal punishment, banishment and cruel, inhuman and degrading punishment be explicitly excluded from the permissible orders in Clause 8’. The Bill should explicitly inform individuals summoned by traditional courts that they had a right not to appear and that that information should be available in child-friendly language. From what age could children initiate or opt-out of proceedings and agree/disagree to have a case transferred to a traditional court? On matters such as child abuse, the transfer of disputes to magistrate courts should not be optional but mandatory.

Areas of training for people working in traditional courts were also not specified but the Bill should make specific reference to training on children’s rights under the Constitution, Children’s Act and Child Justice Act. They proposed that traditional courts be excluded from dealing with assaults against children and domestic violence against them in reference to Schedule 2. Clarity was sought on the type of advice traditional courts would give on issues relating to ukuthwala and guardianship.  

The Chairperson asked if both organizations had looked into traditional courts and found that they lacked systems that catered for the needs of children. Were Western court systems helpful in building African communities? Law makers had to understand the people and values for whom laws were made. Why was it that opting-out in child specific matters should be allowed in traditional courts but not permitted in magistrate courts? And why should traditional courts be obliged to transfer cases to magistrate courts as though they were superior? Did it mean that Africans were incapable of bringing up children?

Mr Buthelezi asked if there was any example of a case where a child was denied access to justice in a traditional court.

Ms Mothapo said that if a child committed an offence in the traditional setting, the parent/elder took responsibility and because children were not brought forth to traditional courts, there was no harm to them. Had the organizations visited Baavianspoort, a juvenile centre and seen the demographic? 97% of the children were black.  What message was that sending? Could the organizations mention cases where corporal punishment was taking place, or had they visited traditional courts, especially after the advent of democracy?

While expressing concern in the mandatory transfer of cases to the magistrate courts, a Chieftain from the National House of Traditional Leaders asked if the Bill’s intention was to have magistrate courts dominate traditional courts, such that the African way of doing things was not appreciated.

Mr Mncwabe explained that the advice traditional courts would give was advice on the meaning of culture to avoid the abuse of culture in certain communities.

Ms N Ngonyoma, Chieftainess, National House of Traditional Leaders, admitted that they could not run away from the ills of society or the fact that corporal punishment was excessive. Laws existed that safeguarded the rights of children against corporal punishment or the age for consenting to sexual activity, but those laws were not agreed to by everyone. Such laws were not practiced in traditional settings and it was therefore necessary to differentiate between what was law and what actually happened in traditional communities.

In response to the several questions raised by Members, Ms Hansungule said that the idea was not for matters to go to magistrate courts because it was magistrates dealing with the issue, but rather because of the sensitivity of the matter being dealt with. Removing children from the system was taking them away from the services that protected them under the magistrate courts. Traditional courts were also erroneous in restorative justice processes that helped in re-integrating and rehabilitating children back to their communities. She acknowledged that the magistrate court system was not perfect, and that community level support might be better in supporting vulnerable children, but how then could community level support be strengthened?

It was not that traditional courts could not deal with child offences efficiently, but there existed a legislative framework based on the Constitution, which required that any new legislation to be aligned to existing legislation. There was no empirical evidence on cases where children were denied justice in traditional courts, but submissions were based on the experience both organizations had when dealing with children. Their submissions were also informed by a large body of research which had been conducted nationally. Ms Hansungule had been to several child correctional centres and was aware of the sad state that most children were black but wondered what could be done to change the criminal justice system to avoid such a situation.

Mr Buthelezi appreciated that the presenters accepted that they had not done complete research on traditional courts and was of the opinion that contributions to the Bill should not be influenced by individual perceptions, assumptions and opinions, but on what practically happened in traditional communities. He hoped that future presentations would give advice on what should be done to finalize the Bill instead of punching holes, such that the Bill failed to pass. The failure to understand that the Committee was trying to solve problems created by their oppressors was futile in building the moral fibre of African tradition.

Submission by Royal Bafokeng Administration
Mr Aubrey Diswai, Executive: Shared Services, Royal Bafokeng Administration gave an introduction to his community where disputes were resolved by Traditional Ward Committees. Matters that could not be resolved by these courts were referred to the Statutory Traditional Court. Almost 90% of cases in 2015/2016 were land and housing disputes.

On the mechanism of opting-out, people should not be allowed to opt-out because it defeated the very purpose of traditional courts. Traditional courts should also have automatic jurisdiction over people occupying or residing in their area. In reference to Clause 9(1)-(4), the clerk should not have the power to vary an order of the traditional court. Clause 12 did not provide for appeals from traditional courts to magistrate courts which were the apex court in traditional communities. In Schedule 2, the Bill should increase the monetary jurisdiction of traditional courts from R 5 000 to R 15 000 because R 5 000 was insignificant. The court should also have the power to make decisions relating to land disputes and make orders set out in Schedule 2(g). Traditional courts should be given better support with things like stationery and the recording of court proceedings and the Bophuthatswana Act should also be included as one of the Acts to be repealed in Clause 18 of the Bill.

Ms Mothapo asked what informed the recommendation to allow traditional courts to appeal to magistrate courts because the Bill was set under a traditional structure. She sought clarity on the increase of the jurisdiction of traditional courts to impose R15 000 fines as well as the type of cases reported under family disputes, harassment and accusations of witchcraft. Could they clarify the Black Administration Act and unpack the Land Use cases that were the most prevalent? The clerk not having the power to vary an order of the traditional court would be taken note of by the Department of Justice. What did they mean by the granting of automatic jurisdiction for traditional courts given that an offence could have been committed under the jurisdiction of the magistrate court?

Mr Mpumlwana understood that the area of jurisdiction of the Bafokeng was the same as that of the magistrate but if they recommended that there should be no option of opting-out, what did the Bafokeng mean? Why should traditional courts be allowed to appeal to magistrate courts and what did they mean when they said that they would need assistance when matters were sent to the High Court?

Ms B Maluleke (ANC) wanted to know if corporal punishment was part of the punishments that the Senior Traditional Leaders had preceded.  Who collected the fines paid by litigants and were people from Europe and other communities being tried by traditional courts?

The Chairperson in the interest of time asked that the Royal Bafokeng Administration respond to the concerns raised by way of a written report.

Submission by Congress of South African Trade Unions (COSATU)
Mr Matthew Parks, Parliamentary Coordinator, COSATU welcomed amendments of the Bill on the right to opt-out, jurisdictional limits of cases up to R5 000 in value, gender and sexual orientation anti-discrimination provisions, sanction prohibitions and limits, appeals and grounds for review, supervision from the Department of Justice and the outlining of codes of conduct.

Proposed amendments included courts being obliged to inform accused persons of their right to opt-out and to refer to other courts, the limiting of the jurisdiction of traditional courts to handle criminal matters and Ukuthwala. COSATU proposed a 50/50 Gender representation of traditional leaders and in the composition of the court, expansion of sanctions to explicitly prohibit corporal punishment, land deprivation and expulsion from the community. Financial sanctions should also be reasonable and affordable while High Courts should be made accessible for appeals from traditional courts. Due to the high costs associated with litigation, legal aid should be given to persons who sought appeal in magistrates’ courts.  The grounds for review should be expanded to include instances where persons were not informed of the option to opt-out, were intimidated or victimized. Traditional leaders and court clerks who had committed offences should be barred from future courts.

Submission from Land Access Movement of South Africa (LAMOSA)
Ms Emily Tsale, Acting Director, LAMOSA, recommended that provision be made for adequate resources to facilitate training and capacity development for traditional court leaders, staff and the community for effective performance. There had to be fair representation and participation of women in traditional courts for gender equality and a bottom-up approach with involvement and inclusion of communities at the initial stage of drafting and discussion of policies and Bills. Improvement should be made to the mechanism for proper consultations and to include the communities in the nine provinces of South Africa to participate fully and engage robustly. The Bill should be taken back to the drawing board and Parliament should ensure that communities were given workshops to understand and provide well-informed inputs. The Bill should take into account indigenous knowledge, skill and technique of the communities, protection of  their rights and restoration of their dignity. Customary law should be recognized as living law and a provision be made for monitoring the performance, success, budget and revenue of traditional courts. LAMOSA proposed that traditional courts had to be regulated and aligned to the Constitution, while involving the civil society for checks and balances.

Ms Mothapo sought clarity on the meaning of several issues raised by COSATU on the need for accountability and offenders being informed of the right to opt-out, the duplication of judicial processes and the limiting of the jurisdiction of criminal matters to magistrate courts. What were the traditional matters that traditional courts should be left to focus on? Referral of offenders to other courts of their choice meant that the offender would have more rights.

Mr Mpumlwana did not agree with the option of opting-out but understood what COSATU meant and explained that the Committee was trying to move towards a better law of forgiveness and reconciliation.
Mr Skosana sought clarity on how the issue of diversity affected people who lived in the same community? People who lived in the same community irrespective of race, culture or language should be subjected to the same traditional court. How did boundary disputes between traditional leaders stop communities from having traditional courts? Could COSATU also elaborate on what was meant by reasonable and affordable financial sanctions? Was the suggested legal aid representation for traditional court proceedings or when appealing to another court? He asked LAMOSA, what they meant by a bottom-up approach because the drafting of Bills always started at that level? 

The Chairman, in the interest of time, also asked COSATU and LAMOSA to respond in writing to concerns raised. Submissions would be circulated to all participants in the meeting.

The meeting was adjourned.

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