The Committee continued with public hearings on the Traditional Courts Bill.
The Chairperson informed the public that Portfolio Committee departed from the premise that it was dealing with traditional courts that had been working since time immemorial and that it wanted to hear from all of the participants in order to improve the institution, the legal system and to bring the traditional courts in line with the Constitution. Providing oral submissions on the day were the National House of Traditional Leaders, the Congress of Traditional Leaders of South Africa and Ms Gasa, a researcher and an expert in African culture.
The Chairperson of the Congress of Traditional Leaders of South Africa assured the Committee that Contralesa would give full support to the Bill. The Congress wished to see an end to the Black Administration Act and supported the provisions of all clauses and the speedy enactment of the Bill as Parliament was not creating courts, just regularising them. He addressed the question of opting-out which, he believed, had been included by someone who did not value African culture or traditional leaders. The “opt-out” clause had to be expunged. Implementation of the Traditional Courts Bill was urgently required as the poor could not afford to hire legal representatives but were able to walk into a traditional court and access justice without any expense. The Congress indicated that it was not proper to involve the MECs for Traditional Affairs in courts as justice was a different arm of government. Traditional courts should fall under the Chief Justice in the country. The Congress agreed fully that there should be no legal representation in a traditional court as the CCMA operated efficiently without legal representatives and, besides, elderly men and women from the community would attend traditional courts in order to advise and promote customary law.
The Congress of Traditional Leaders was adamant that there was no restriction of women in traditional courts. Some women were leading evidence and others were presiding over traditional courts. There was absolutely no discrimination against women.
Members had many questions for the Congress. A Member asked for the reason for rejecting the ‘opt-out’ clause. How did the Congress respond to the perception that women did not have leadership roles in traditional society? What was the jurisdiction of the traditional court, especially if an offence was committed by someone who did not want to attend a traditional court? Were there specific areas that should be in the traditional court’s jurisdiction? Should the process be conducted in such a way that the Traditional Court Bill ultimately repealed the Black Administration Act? What was meant by African customary law? Which cases could be taken to a traditional court and which ones could not? How did the Congress deal with the provision in the Constitution that a person had a right to a fair trial which meant legal representation?
The Chairman of the National House of Traditional Leaders pointed out that the Committee would find that the National House of Traditional Leaders (NHTL) held very similar views to those of the Congress of Traditional Leaders. He added that the structure of the National House of Traditional Leaders had transformed, and that women held senior leadership positions nationally and provincially. The National House of Traditional Leaders suggested that a traditional community be defined as people grouped together who observed a common custom, customary law and tradition. It was also suggested that the relevant section be redrafted re-drafted to enforce attendance at a traditional court should a person be summoned to appear before a traditional court. It was proposed that the section on the pledge be re-worded so that the pledge would be taken in the same way as the Oath of Office and that a reference should be made to the pledge in the opening remarks in all courts in the country. The clerk of the court should not have the powers to change court traditional orders but should be obliged to issue a directive on compliance with any order made in a traditional court. In the matter of disputes, it was submitted that any court in the Republic of South Africa should be allowed to refer a matter to the relevant traditional court in terms of the jurisdiction of a traditional court. Parliament should merely note the Code of Conduct and not necessarily approve it.
Ms Nomboniso Gasa was particularly concerned that the Traditional Courts Bill would allow for the repeal of the Black Administration Act of 1927 and 1951 but that the colonial constructs of African customs and the jurisdiction of traditional courts had been carried over from the Black Administration Act into the Traditional Courts Bill. Even the idea that traditional courts were established because they were closer to the people had originated in the Black Administration Act. She said that the conversation was stuck around the very notion of a traditional community. Ms Gasa was adamant that allowing for the notion of opting-in and opting-out would be tested in the Constitution Court. She informed the Committee that there was no Africanist exception about the notion of opting-in and opting-out and that similar conversations were being engaged in by the Muslim Judicial Council and people who identified as Jewish in terms of culture and origin. She added that people had multiple identities and the legal identity and gender identity were only two of those identities. Patriarchy, as found in African customary law, had much of its origin in colonialism and remained a serious problem. While the Bill had gone a long way, it was not clear how the rights in the Bill, including the right to opt-in and opt-out, were going to be implemented and enforced. The Department of Justice and Constitutional had to develop tools and mechanisms to ensure that the rights were upheld.
Members asked why Ms Gasa thought the Bill would be found to be unconstitutional. Why was the opt-in and opt-out clause required by the Constitution when one could not opt-in and opt-out from a magistrate’s court? Could the traditional court system alleviate the huge population South African jails?
The Chairperson determined that the conversation would continue on another day so that the people of South Africa did not have to continue waiting for freedom in respect of the traditional courts. The position of the Committee was to complete the Bill as soon as possible.
The Chairperson welcomed royalty, distinguished guests and members of the public. He appreciated their attendance, despite the following day being Human Rights Day. The Justice Committee believed in doing justice to all and to levelling the playing fields, so the Committee preferred that all presentations were submitted in advance to ensure that everyone was on the same page. The Committee believed in the Constitution which stated that the country should restore the institution of Traditional Leaders.
The Committee felt disadvantaged because the Department had prepared a concept paper, but it had not been given to the Committee. There had also been a report from the Reference Group, but the Committee had not received that Report either. However, there were people giving input who had participated in the reference group and, therefore, the Committee would benefit from their input. He cautioned people against attempting to raise positions that they had lost in the reference group as the Committee was not a reference group and people could not plough over the same field. The Department had seen the need for a reference group and the Committee was not repeating that process. The Committee was hearing inputs that had been carefully processed and would be presented by interested parties. It was a public hearing because the Committee wished to ensure that the law would be applicable to ordinary people.
The Committee departed from the premise that it was dealing with traditional courts that had been working since time immemorial, long before any of the people in the room were even born. Everything was dynamic, so the Committee wanted to hear from all of the participants in order to improve the institution, the legal system and to bring the traditional courts in line with the Constitution that was binding on everyone in the country. He asked that all participants spoke without fear or favour so that everyone could be proud of the outcome.
The President would be addressing Parliament that afternoon and therefore the Committee had to be finished by lunchtime. On the programme that day were the National House of Traditional Leaders, the Congress of Traditional Leaders of South Africa and expert, Ms Gasa.
Presentation by Congress of Traditional Leaders of South Africa (Contralesa)
The President of the Congress of Traditional Leaders of South Africa, Kgosi Mathuba Mokoena,
introduced the input by Contralesa. He informed the Committee that, because of the importance of the Bill under discussion, Contralesa had decided to send heavyweights to the hearing. With him was Nkosi Jumba, NEC member of Contralesa, Mwelo Nonkonyana, Chairman of the Eastern Cape House of Traditional Leaders and Mr Mahumani, an NEC member and formerly a Chief Magistrate, and therefore well-versed in the law.
Kgosi Mokoena was aware that the previous the Chairperson of the Justice Committee had stated that the Bill on Traditional Courts would never see the light of day as long as he was Chairperson of the Committee and, indeed, the Bill had collapsed many times in Parliament. Contralesa hoped that it would be able to add to the content of the Bill. What Contralesa had seen in the SABC inquiry, and, as if that was not enough, the Eskom inquiry and then the State Capture inquiry, was that Members of Parliament were not just Ministers-in-waiting but were doing their work. Contralesa was aware that it was not just a public relations exercise.
There were experts who were theorising and just wanted to destroy African culture. They did not even stay in rural areas. He hoped that the inputs would not be in vain and that the Bill would progress through Parliament. He knew the Committee was doing very well as his organisation had followed the progress of the Bill and was happy with the processes. He wished to assure the Committee that Contralesa would give full support to the Bill. Parliament was not creating courts; just regularising them. It pained him when an African person asked what happened in the traditional courts. He thanked God that the new approach in Parliament was giving them courage.
Kgosi Mokoena addressed the question of opting-out, which he said had been included by someone who thought that he was an expert in African culture and by someone who claimed to be a prince. That person had thrown in that clause simply because, in his view, neither African culture nor traditional leaders were any good. However, traditional courts were for the poor who could not afford to hire legal representation. They were able to just walk into a court. The “opt-out” clause had to be expunged.
The Chairperson assured him that South Africa was not an outpost of Europe. It had been colonised against the wishes of the majority of people and the African people had freed themselves of the colonialists. There would be no colonisation or neo-colonisation. The country had been liberated so that Africans could be free and could take their place in the community of nations. Parliament was an independent institution and did not take instructions from anywhere except the electorate. Parliament would carry out the wishes of the people without fear or favour. He invited Contralesa to be free, as long as it respected the time allocated.
Hosi Mahumani, a member of the NEC in Contralesa, made the presentation. Contralesa was the voice of the majority of people residing in the rural communities. It derived its mandate from the community, from kings and queens and traditional leadership and headmen and headwomen. It had survived the onslaught of colonisation and was responsible for resolving disputes in rural areas. The 2017 Bill had been heavily revised and was more in line with the Constitution. It also offered more protection for women and disabled people.
South Africa had a hybrid legal system which included traditional law. Section 16 of the Constitution recognised all courts created by an Act of Parliament. Section 16 referred to courts, and that included traditional courts. It was unacceptable that in 2018, Sections 12 and 20 of the Black Administration Act were still in place. The government was making a serious mistake in applying the old legislation. There was no law that allowed a white person to be tried in a traditional court and so the matter of jurisdiction was very important.
A list of proposed amendments, including amendments to definitions, were suggested. The definition of a traditional leader required a slight amendment and Contralesa suggested the addition of the word “recognised” in the definition. Contralesa fully concurred that every person had to be trained. There was no objection because, looking at the equality courts, judges and magistrates had to undergo training. However, government had to provide sufficient funding for training. Contralesa agreed fully that there should be no legal representation. For example, the CCMA did not allow attorneys when settling a labour dispute. Elderly men and women would be in the traditional courts to advise and to promote customary law.
The lack of distinction between criminal and civil matters was a matter to be discussed but the organisation agreed fully with the need to give counselling. Clause 16 was problematic as it was not proper to involve the MEC for traditional affairs in courts. They should rather be subject to the Department of Justice. Judiciary was a different arm of government and traditional courts should fall under the Chief Justice in the country.
No provision had been made for mechanical recording of the court proceedings so that there could be appeals so they needed records.
Opting-out was very problematic as people were bound by their culture. If one spoke of options for those people staying in the same area or kingdom, the response was strongly in the negative. Contralesa was adamant that when it came to the courts, there was no restriction of women. Some were leading evidence and others were presiding. There was absolutely no discrimination against women. Contralesa repeated that it was disgusting to talk about the Black Administration Act in the current era and supported the provisions of all clauses and the speedy enactment of the Bill.
The Chairperson suggested that there could be places where women were not fully involved. That was because Parliament had failed to oversee the passing of the Traditional Governance Act, but there were other Acts which determined that women should participate so the Committee would communicate with COGTA to find out why women were not participating in some areas.
Ms M Mothapo (ANC) thanked Contralesa for the presentation and also raised her concern regarding the late submission of the document. The institution of traditional leadership, Contralesa, represented the traditional leaders but also traditional communities, in particular, the most vulnerable, and so she wanted Contralesa to unpack fully what the organisation stood for. Contralesa had over-emphasised “in line with the Constitution” in its statements, but what would be Contralesa’s take on the right to legal representation in Section 35. The person who was supposed to convene the kgoro was his or her royal highness. The criteria of that person needed to be unpacked. Section 15 of the Bill was contradictory as it did not fall in line with traditional law. She raised the issue of discrimination. There had been an outcry over the participation of women. There were only a few women deputy chairpersons in the Houses but there was a perception that women did not have a leadership role in traditional society. Could Contralesa please unpack its reasoning in respect of the ‘opt-out’ clause?
Mr M Maila (ANC) appreciated the contribution made by the traditional leaders. He agreed with the concept of separation of powers and that the courts could not be overseen by the MECs. On the jurisdiction of the traditional court, Kgoshi was saying that people dealt with disputes by their own choice and within their own communities. However, offences might be committed by someone who did not want to attend a traditional court. What was the jurisdiction of the traditional court? On the issue of the Black Administration Act, should the exercise be conducted in such a way that the Traditional Court Bill ultimately repealed the Black Administration?
Mr G Skosana (ANC) welcomed her royal highness. He raised the issue of jurisdiction. Were there specific areas that should be in the traditional court’s jurisdiction? What was Contralesa’s opinion on jurisdiction? The issue of functions was also a serious matter. He asked for Contralesa’s views. The issue of “opting-out” versus a respect for cultural diversity had to be considered. If opting-out were removed, it would contravene diversity. What was Contralesa’s view? Could people define culture differently? Was Contralesa comfortable with appealing to the magistrate’s court and should the magistrate hear the matter afresh, instead of just reviewing the decision?
Mr L Mpumlwana (ANC) welcomed and greeted the leaders, and appreciated their presence because there were too many issues that needed to be dealt with. Various issues had been raised. He agreed with some, and others he did not agree with. He agreed with them on the removal of the Native/African/Black Administration Act. What was meant by African customary law? Should they not say “African” law? Why traditional leaders? Whose tradition? African leaders or African Traditional Leaders. He asked for comment on the terminology.
He had another question on what the courts could try and not try. Contralesa seemed to be putting the African cause below the magistrates. Why? Why should African courts be below that? There was a way of appeals in African law that used to be called family court. Africans used to have their own way of doing things but now they were saying that they had to go below Roman-Dutch law. Then one could go to the High Court and one could get a European or an Indian who wanted to deal with it in terms of Roman-Dutch law.
He was worried about the question of jurisdiction in Schedule 2 which indicated that traditional courts could only deal with cases as long as the amount involved was not over R 5 000. Why could it not be the same as the magistrate’s court, if there had to be a restriction at all. Why could the amount not be increased? In the past, even murder was dealt with as there was a solution, i.e. the matter of compensation. What had been tried and not tried? He wanted comments on that. Thirdly, concurrent jurisdiction. It might not be glaring in places in Johannesburg but, for example, in Bizana, less than 100 people were not under the traditional leaders and yet there was a magistrate’s court. How should the Bill deal with jurisdiction? How would Contralesa advise the Committee to deal with that?
There was a provision in the Constitution that a person had a right to a fair trial which meant legal representation. He thought that African courts should have greater authority and should be able to try all matters even grievous bodily harm and murder. But that took one to the concept of legal representation. He was thinking in terms of a lawyer who stayed in a rural area. If the lawyer talked as an ordinary man, was he not disadvantaging those who did not have a lawyer?
The Chairperson stated that all laws were a trade-off. All law, except Statutory Law, was based on common law. Common law was the customary law of the English people and Roman-Dutch Law was the customary law of the Dutch people, so why was African law called customary law. Did African law not develop as other laws did? Why should a headman go to the magistrate before they went to the courts of the kings and queens? Why were certain spheres jumped? The appeal should go to the senior leader’s court and from there to the king or queen. If the Bill was trying to restore dignity, why only do it halfway?
The Chairperson discussed jurisdiction. One of the principles was that where a crime was committed, that was where the person was tried. It would be wrong if a white or Indian or Coloured were allowed to opt-out of the traditional court and say that they wanted to be tried in Johannesburg. People should not have to follow the criminal.
The title of Native Commissioners was simply changed to magistrates. The people who were magistrates did not study any of the indigenous laws. When he and others had studied law, they could not pass unless they had passed English, Afrikaans and Latin. Why, in this country, was there no law that said a person could not become a lawyer unless he or she was competent in one of the indigenous languages as he or she would practice law among mostly African people? How could there be justice if the people could not speak the language? He referred to the clauses concerning the Minister having powers. He said that it reminded him of the Ministers of Native Affairs. He did not believe that the Minister should have such extensive powers. He suggested that society was trapped in the situation because of the problem of colonisation of people’s minds. That was why Steve Biko had said that there was a need to decolonise the African mind. Unless the African mind was decolonised, labels would be changed but not the substance. Parliament was enjoined by the Constitution to bring about thorough transformation, and not just a change of labels. There was nothing magical about appealing to a magistrate as that was just another name for the Native Commissioner.
Training was critical. There was a Justice Training College and the South African Judicial Education Institute, but had those people been trained in African law themselves? The Committee wanted to hear from Contralesa because as Parliament, Members could not be making a law at that time and then after the elections, go back to the law and change it again. Members wanted laws that would have validity beyond their time so that they did not waste state resources doing the same thing all over again.
Mr Mpumlwana added that something was bothering him. If one offended in France, one was tried there. Likewise, in Britain. But when one went to Africa, one was tried according to European law. He did not want to make those changes currently but he asked for Contralesa’s opinion on making everyone bow to African law. There was a principle that said that African law was fine as long as it did not contravene Roman-Dutch law. That was against the Constitution as African law was equal to common law or Roman Dutch law. African law could not be subservient to European law, especially in Africa.
Response by Contralesa
Kgoshi Moloane thanked the Committee Chairperson, saying that he was enjoying Parliament for the first time in his life. He thanked the Committee for their informed questions that had dealt specifically with the matters on hand. He could see that there was no outside influence in the questions being asked by Members. The questions were insightful. There were many questions, but they would respond to as many as time allowed.
Inkosi Jumba spoke on the definition of the traditional community. She was referring to the question by one of the Members about cultural diversity. She explained that a traditional community were those who gathered themselves to discuss their issues according to their tradition, custom and culture. They defined themselves. She had been the leader of the Jumba traditional community since 2010. In the ancient times in that area, no woman would have led that community. When she, a woman, became the Nkosi, they had to sit down and refine how they would adapt to the situation. There was a difference between the institute of traditional leaders and the family, the village, the administration area and then the traditional council.
In respect of the poor participation of women, she had been leading the traditional community in the Traditional Council and the men were working as nkosana under her supervision. As a traditional leader, she had to guide the people. It was nice when they were as one because they got to know one another. People did not like to punish and that was why restorative justice was so important. Government had failed to roll out the laws but as traditional women, they did not always participate fully. In the communities, women nominated men. Women were not capacitated to stand for the positions. It was necessary for the women to understand that they could participate. They did not rely on custom. They relied on tradition. Despite the fact that the older women could not read or write, they shared their wisdom. They taught the young women. There was nothing assigned to an nkosi as a woman. If there was something that needed to be done, she did it.
Mr Nkosi Mwelo Nonkonyana asked whether anyone knew all the traditional laws in the country as each region had its own specific law, e.g. Venda law. The Roman legal system was a foreign system designed to oppress the people. Advocates were assigned to the High Court and the Chief Justice presided over them, but who were they to come between him and his family. Traditional law started with the family. The experts were there in the communities, but they had not been given the opportunity to communicate. The question of legal representation was irrelevant because in the traditional system, the head of the family accompanied a person to court. Even a witch could be heard. The person could come to court with family to advise the traditional leader. The question of who signed off on the courts had to be clarified. The person had to be well-versed and conversant with domestic law. He agreed that a compensation of R 5 000 was not much, but it was a start.
As far as jurisdiction was concerned, the community had a right to practice customary law so there was no place for foreign law. He did not see any problem in the implementation of customary law because they were dealing with people who came from the same community and had the same customs. He agreed that when the Traditional Courts Bill was passed, the Black Administration Act should no longer exist. The traditional leader had to be empowered with training. They were not dealing with punitive measures, but with restorative measures. They were talking about compensation in the Bill, not about fines. In a rural area, when the traditional leader punished a person, he did not punish the person. If the person had to sacrifice an animal, he or she enjoyed it and reconciled with the person that he or she had wronged. It was foreign for African people to go to jail and to come back and be enemies. R 5 000 was not much but the Minister of Justice would determine the amount every year. Malicious damage to property, housebreaking and grievous bodily harm could all be managed by traditional courts.
The Chairperson explained that Ministers were not lawmakers. If a law had to be changed, Parliament had to do that. He requested that Contralesa provide further responses and other submissions in writing as the Committee wanted to make it a fully participatory process.
Mr C Matsepe (DA) stated that his people were from a royal family. He had a problem with people who were not part of a traditional community but lived in their area. Such a person could not say that they did not want to go to a traditional court. He began to suggest what should be done but the Chairperson indicated that the Committee would discuss matters amongst themselves at a later stage. The purpose of the day was not to deliberate. It was a public hearing and so the Members were hearing what the presenters had to say.
Ms Mothapo suggested that the Committee should hear all the inputs and then ask questions so that the Committee did not appear to be biased.
Presentation by the National House of Traditional Leaders
The presentation was made by Inkosi Sipho Mahlangu, chairman of the National House of Traditional Leaders who believed that the Committee would find that the National House of Traditional Leaders (NHTL) held very similar views to those of Contralesa. He would focus on the document and not go into the preamble or details dealt with by Contralesa. He stated that traditional leaders were sometimes painted as the enemy of the people, as anti-women and so on, but if one went to the area where an nkosi lived, one would not see that. People from different structures had, the previous week, suggested that consultation on the Bill be taken to the villages for input. He agreed entirely because there the Committee would find people who were living in the traditional court system and who could be the true judge of the Bill.
The Deputy Chairperson at the National House of Traditional Leaders was a woman and there were provincial Chairs who were women and local houses that were led by women. The structure had transformed. Women had had an important role since time immemorial. NHTL had had a meeting with the Black Lawyers Association (BLA) and it had signed a memorandum of understanding with them. NHTL also had meetings with universities and it was working with the research structure into Customary Law at the University of Cape Town. BLA said that for the last decade, the courts had not been practising Roman-Dutch Law, so his question was why customary law could not be made common law.
Inkosi Mahlangu suggested that the word “abuses” in the preamble be replaced with the word “inconsistencies” as that would not be viewed negatively. In respect of the definitions, it was suggested that a traditional community be defined as “people group together and observe a common custom, customary law and tradition.’ NHTL proposed that Clause 4 (3) (a) be re-drafted to read, “that any person who has been summoned to appear before the traditional court must do so within the time allocated as long as the set time is reasonable.”
In clause 5 (5) it was proposed that the pledge be taken in the same way as the Oath of Office. It should not be like singing a hymn or reciting a morning prayer. However, the traditional leader or any person presiding had to make reference to the pledge and it had to be displayed in the courtroom. Concerning compliance, it was suggested that the clerk of the court should not have the powers to change the order but should, in consultation with the person who was presiding when the orders were made, issue a directive on the compliance of the order. In the matter of disputes, any court in the Republic of South Africa should be allowed to refer a matter to the relevant traditional court in terms of the jurisdiction of a traditional court. Parliament should merely note the Code of Conduct and not necessarily approve it.
Inkosi Mahlangu informed the Committee that inputs had been sourced from different areas and provinces in the country.
The Chairperson thanked NHTL and suggested that Ms Gasa make her presentation, after which the Committee would put their questions to both presenters.
Presentation by Ms Gasa
Ms Nomboniso Gasa, Researcher, Centre for Law and Society, University of Cape Town, appreciated the opportunity to engage with the Committee, and the work done by the Department of Justice and COGTA. She appreciated the reference group that had been set up.
The Chairperson interjected, telling her that the Committee knew the process, what the Department had done and that there had been a reference group. He asked her not to take the Committee into the history of the Bill but to present on the Bill that they had in front of them.
Ms Gasa stated that the intention of the reference group had been important as it had addressed some of the issues in the previous Bill which had resulted in the setting aside of that Bill in 2016. The Bill before them was a result of that reference group which had been important, not as a replacement for the voices of the people, but because there had been some areas of settlement. Courts, including those presided over by traditional leaders and others, had to be legitimate sites of dispute resolution for those who chose to use them. Those courts needed to be recognised and respected and included to ensure that customary law was consistent with the Constitution and the dynamism and constantly changing nature of customary law.
She recalled that somebody had asked what customary law was. Her caveat was that she used the term ‘customary law’ for convenience, but she had to state that the concept was problematic and needed investigation in and of itself. She did not agree with the concept of customary law but that was a debate for another time and place.
Ms Gasa stressed that the Bill repealed and replaced the last remaining sections of the Black Administration Act, initially Act 38 of 1927 and then revised as Act 68 of 1951. It was important to read what the Bill broke away from, or copied from, the Black Administration Act. Ms Gasa read aloud Sections 12 and 20.
Section 12 set black headmen and chiefs against black resident within his area of jurisdiction as the chief could appoint a person to hear claims of blacks against blacks. The jurisdiction of chiefs was a colonial construct. Section 20 talked about building the power of chiefs and headmen to try any black who had committed certain offences. Any offence related to a person who was not black could not be dealt with in such a court. The Bill was meant to replace those sections, but the conversation had been stuck around the very notion of a traditional community.
The Traditional Courts Bill spoke of bringing justice closer to the people in the rural areas. The Constitution demanded that everyone had access to justice in an affordable manner. The idea that traditional courts were established because they were closer to the people had originated in the Black Administration Act. She was just tagging that. The notion that customary law was affirmed through an Act of Parliament went beyond the current Bill.
She wanted to stress a number of issues. The difference between Native law and what became customary law had been frozen in time and the living customary law and living customs of Africans themselves had to be understood. Customary law could be the beginning of the development of African Civil Law. There were principles in customary law. Customary law was relational and consensual. If the Bill was intended to resolve disputes, there had to be an understanding of relational and consensual. What did those terms mean?
A lot had been said about the notion of opting-in and opting-out, which affirmed the Constitution. The Bill would be tested in the Constitutional Court against that notion, which, in fact, did not only apply to Africans. It was no different from the conversation the Muslim Judicial Council was having. People dressed differently but identified as Muslims. People identified as Jewish people in terms of culture and origin. Those organisations were also having discussions about opting-in and opting-out. There was no Africanist exception about the notion. The Muslim marriage could not be solely under the Muslim Judicial Council because a Muslim woman had to be able to invoke the rights that she had under the Constitution as well as her rights as a Muslim. The Bill was part of a broad spectrum about ways in which African identity was being addressed.
All people had multiple identities and the legal identity was only one of those identities, which included marital status, spiritual or religious beliefs. Gender identity was one of those identities. There would be different narratives about women in traditional leadership. Patriarchy, as found in African customary law, had much of its origin in colonialism. Patriarchy had made people believe that men had the wisdom and understood things better. The patriarchy found in African culture was imposed by the colonial people. Wearing black and wearing no embellishment in mourning was determined by Queen Victoria. Many people had adopted the black clothing and lack of embellishment as if it were the African culture. It also came from African patriarchal systems. The people were facing double jeopardy. One needed to examine the legislation and see how it would affect the vulnerable.
The Bill had gone a long way, but it was not clear how the rights in the Bill, including the right to opt-in and opt-out, were going to be implemented and enforced. The Department of Justice and Constitutional had to develop tools and mechanisms to ensure that the rights were upheld. Many traditional courts had not met the minimum standards of COGTA. Those standards had not been enforced. Whenever there were hierarchies, someone had more power than others. Where would the evidence of abuses be found? Only in the burnt bodies of women accused of being witches. The Bill had to be explicit about how it was going to deal with that. African traditional society was deeply entrenched in patriarchy, so the Bill had to show how it was going to deal with rights of women and the vulnerable.
There was a need for a discussion about the notion of customary law. It was important as the things were very nuanced for Africans. There were multiple identities in a person and in a community. Ilobolo was not discussed by women, but by the men. The men decided which man knew best how to negotiate lobolo and it was negotiated without the women. However, amongst the Tswana people, women led the ilobolo negotiations. It is important not to assume that customary law was the same throughout South Africa. Why was Customary Law not taught to most people in universities? Who knew all the different customs? That was why the Constitutional Court often asked experts in the particular community who knew customary law.
It was possible that the Bill would again not pass constitutional muster. The Bill required that they re-visit what it meant to be African. The apparent customary law of kings and queens was simply a copy of the European system. She did not have time to explain jurisdiction beyond geography.
The Chairperson blamed the educated people in the universities and the Department of Justice and Constitutional Development who had denied justice to the people for ten years. He thanked Ms Gasa for her input but stated that the Bill was going to be passed. There was no time for endless discussions. He indicated that he would take questions only from Members. He asked that there be no deliberations.
Ms Mothapo was unclear about what Ms Gasa meant when she had said “using customary law for convenience”? Her perception was that Ms Gasa was saying that the Black Administration Act was a better option than the Traditional Courts Bill. She asked her to say more about the promotion of multilingualism, especially of previously marginalised languages. Why did she think the Bill would be found to be unconstitutional?
Mr Maila said that when he listened to the presentation by Contralesa and the House of Traditional Leaders, he did not find many differences. However, Ms Gasa’s presentation was very challenging. She had suggested the need to repeal Sections 12 and 20 of the Black Administration Bill. The issue of jurisdiction came into play. Maybe the Committee needed to beef up the definition of traditional areas. For example, if a white person came from Johannesburg, could he or she not be tried in the rural area? The opt-in and opt-out clause was required by the Constitution, but could one opt-in and opt-out from a magistrate’s court? Ms Gasa’s input was interesting but she had indicated that she did not see the Bill passing the constitutional test. She had sounded like a prophet of doom. He did not want that. She should be one of them. Could she please identify the specific constitutional problem?
Mr Skosana referred to the suggestion regarding the insertion of the words “member of the House of Traditional Leaders”. He wanted to know what NHTL thought of keeping the MEC informed as well as the provincial Traditional House of Leaders. The reference group had been intended to find common ground.
He did not get Ms Gasa’s advice to the Committee. People had been waiting for 30 years for the change in legislation.
Mr Maila remarked that jails were filled with people who could not raise bail. The Traditional Court Bill could resolve other issues. For example, people would not be sitting in jail. The Committee had to find a way to pass the Bill as it would help in even unexpected ways.
The Chairperson thanked him for looking at the matter in a different light.
Mr Matsepe said that the clerk of the court should not change an order of a traditional court and the amount should be increased to R10 000.
The Chairperson liked the idea of the process being a conversation or a dialogue. He encouraged dialogue and asked members of the public at the hearing to give input.
Adv Wilmien Wicomb from the Legal Resources Centre stated that the manner in which the Bill effectively recognised Customary law as equal to common law was in accordance with the Constitution. It was even equal to statutory law. There was a need to give proper recognition of customary law and allow people to invoke customary law in their defence. She was a practising attorney and she often had clients who wished to use customary law to assert their rights, but they struggled to do so because the law in South Africa was not yet suited to give full recognition to customary law. She understood the arguments of people who wanted to create a separate entity for customary law, but she had a different view and she wished to give an example of how it could work in a more integrated fashion.
She told of a man who had lived and fished in the Eastern Cape his whole life. In 1998, in terms of the Marine Living Resources Act, he was forbidden to fish. He continued to fish and, when caught, had told the magistrate that he might have been guilty in terms of common law, but he was not guilty under customary law as it was his traditional right to fish. He had been found not guilty, correctly so according to Adv Wicomb, but the Minister had kept appealing the case. If customary law were to be separated into its own stream, separate from common law, then those customary rights could not be used to defend one against other laws. That would mean radically changing the way in which law was taught.
The Chairperson was unhappy because the Legal Resources Centre had been given a slot to present input the previous week but had not attended.
Ms N Songelwa, traditional healer, Nguni Council, stated that she resides in Khayelitsha, in Cape Town. There are traditional leaders under Contralesa within the townships or urban areas. There are a lot of things that she thought could happen in light of the different races, parents are troubled by their children and they would like traditional leaders and chiefs to come forward and speak to children where mothers give birth to a girl child but as they grow they begin to showcase characteristics of the opposite sex. If there are leaders that are women, they should come forward to empower women and their children. Nowadays, there are abnormal tendencies experienced by women through their children and often times, the mothers do not know how to handle such tendencies or transitions. Nothing is going to happen regarding these rights written in the customary law that will not embarrass the African Nation (referring to Black African Nations/Tribes), because traditional customs start from birth of a child up until adolescence. People need to engage truthfully so that we can lead our nations. Women need to be truthful about their children’s sex or gender from a young age so that a child could get the appropriate/right traditional customs from a young age. Lastly, she emphasised that she was certain that this Bill would be useful to communities because truthfully, how is the law going to be paramount if it did not start at bottom to address the issues experienced by members of communities. It was important that the Bill addresses how the law or people’s rights were addressed to avoid those rights being abused by other people.
The Chairperson thanked her for re-educating the Committee. He suggested that the presenters respond to the questions in writing but noted that he was considering another day for dialogue with the same people. He also invited everyone to add further inputs in writing. He wanted the Legal Resources Centre to provide more of its good input in writing.
Mr Mpumlwana asked Mr Nonkonyana to make his presentation available as that would be very helpful.
The Chairperson determined that the conversation would continue on another day so that the people of South Africa did not have to continue waiting for freedom in respect of the traditional courts. The position of the Committee was to complete the Bill and not keep people waiting for their freedom because some people had not done their work.
The meeting was adjourned.
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