The Portfolio Committee on Justice and Correctional Services dealt extensively with the responses by the Department of Justice to submissions on the Traditional Courts Bill. Consideration of the document was largely intended to determine whether any key points from the submissions had not been addressed as the delay in presenting the summary meant that the Committee had already engaged with the submissions during the public hearings. Furthermore, the Committee had debated the Bill and was largely satisfied that the Bill could be sent to the House of Assembly and forwarded to the National Council of Provinces. The extensive delay in finalising the Bill was a matter of great concern to the Committee.
The Chairperson presented the Committee’s general stance on the Bill because he believed that, generally, the people who had made submissions about the Traditional Courts Bill did not understand the nature of African society and the law that was meant to govern that society. African society was an established and structured and had three levels of traditional courts: headman or headwoman, the senior leadership or Nkosi, and the king or queen. Traditional courts were courts of law according to the Constitution. One could appeal to the level above, if required, and one could exhaust all the levels available in traditional law before approaching the High Court for a review.
The majority of people in South Africa were African and so Traditional Law had to be a compulsory course for all law students in South Africa. It was hoped that the Traditional Courts Bill would decolonise the minds of people who thought that everything that was English was superior. That piece of legislation could contribute to nation-building. In addition to facilitating communication, there were many principles, such as ubuntu, embedded in the language of the African people and so all law students should be obliged to take an African language.
The Chairperson noted that the concern about lesbians, gay, disabled people, etc. and other matters of non-discrimination were dealt with in the Constitution and the Bill of Rights and therefore those matters should not be addressed in the Traditional Courts Bill. Furthermore, the presiding officers in traditional courts had to be trained in the Constitution and the Bill of Rights. The Chairperson pointed out that, in any case, the abuses referred to were imaginary abuses. Discrimination against women flowed from the fact that, in the 15 years since it was passed, the government had not implemented the Traditional Leadership and Governance Framework Act, 2003. If the Act were implemented, the feared discrimination against women would not exist
The question of opting-out from the traditional court process was irrational and informed by the belief that other people were superior. However, everyone was equal, and all forms of the law were equal, so there could be no opting-out of traditional courts in any way or form. Traditional courts were not punitive. The traditional court was inquisitorial in nature and its purpose was dispute resolution and arranging compensation for losses. The Committee determined that the amount of compensation that could be awarded be raised from R5 000 to R15 000. The compensation would be paid to the aggrieved party, commensurate with the loss.
Some Committee Members raised concerns about aspects of the Bill. If the traditional leader had to convene the court, care had to be taken not to contravene the key constitutional principle of the separation of powers. The person who had the power to convene the traditional court could not later serve as the upper court on appeal. There was also the inescapable situation that, without the option of opting-out, there might be people who were not living in the traditional community but who might be forced to go through traditional court processes because they found themselves in the jurisdiction of a specific traditional court. It would be at odds with the Bill of Rights and the Constitution to force one to take part in the traditional court process.
The Committee noted that the Bill had been delayed because the Department of Justice and Constitutional Development had sent a report on the deliberations of the Reference Group.
The Committee Members addressed the matter of Magistrate Gqiba who had previously been suspended for misconduct. The Committee approved a proposal for the removal of Magistrate Gqiba.
The Committee addressed the issue of whether all Human Rights Commissioners should re-locate to the Commission’s offices in Gauteng. The question was about what the Act had intended in stating that the seat of the Human Rights Commission was in Johannesburg. The Committee determined to obtain legal advice on the question, following which it could determine whether all Commissioners should re-locate to Gauteng.
Members were informed that a parliamentary delegation from Ghana would meet with the Committee in the week of 11 to 15 June 2018. The delegation wanted to understand how the Committee conducted oversight of its portfolio.
The Chairperson reminded the meeting that Members had been asked to read the document from Department of Justice and Constitutional Development (DoJ&CD) and prepare to ask questions of the Department. The people who had made submissions had already appeared before the Committee and had addressed the Committee. Only where the Committee wanted to know the specific position of DoJ&CD, would Ms Ross need to provide a response.
The Chairperson told Ms Ross that the Committee believed that many of the people who had sent submissions on the Traditional Courts Bill did not understand the nature of African society and the law that was meant to govern African society. It was an established, structured society that began at the headman or headwoman level or sphere, then there was the senior leadership sphere, and then the king or queen’s sphere. At all levels there were courts. They were courts of law according to the Constitution. One could appeal to the level above, if required, and one could exhaust all the levels available in traditional law.
If one appealed to the magistrate from the headman level, one opted-out of the traditional court system and that undermined the traditional court system and was not acceptable, nor consistent with the law of the country. Already courts were overcrowded. The Chief Justice himself had, a couple of years previously, lamented the fact that the Traditional Courts Bill had not been passed. The king or queen’s court decisions could be subject to review by the Constitutional Court, High Court or other review court. However, the rider was that there could not be a review based on a different law.
The majority of people in South Africa were African and so Traditional Law had to be a compulsory course for all who wanted to become a lawyer or judge in South Africa. There were many principles, such as ubuntu, embedded in the language of the African people and so all law students should be obliged to take an African language. If one studied one language, other related languages could be understood. There had to be an understanding of the citizens of the country. That piece of legislation could contribute to nation-building.
The Chairperson noted that the issues of lesbians, gay, disabled people, etc. were dealt with elsewhere and need not be packed into the Bill. The Constitution dealt with matters of non-discrimination. The presiding officers in traditional courts had to be trained in the Constitution and the Bill of Rights. No law in the country was valid unless it was consistent with the Constitution. Members were talking about people who were very seasoned and had practiced over a long period of time. People should not fear and think that it was people who had come out of the jungle.
He referred to the notion of appeal, saying that it had existed before colonialism. The concept of escalation did not exist, so the Bill should use normal legal terminology. It was important to understand that customary law was not inferior and the experience of other African countries such as Botswana, Mozambique and Ghana provided evidence of the success of customary law.
The question of opting-out was irrational and informed by the belief that other people were superior, but everyone was equal, and all forms of the law were equal, and people had to be treated equally.
The process would be that the Committee would go through the summary, page-by-page, and raise issues.
Summary of Comments and Responses on the Traditional Courts Bill
Ms Theresa Ross, Principal State Law Advisor, Department of Justice and Constitutional Development (DoJ&CD), presented the Department’s position on the long title. The traditional courts were courts of law as per Section 166 of the Constitution. She was aware that the Constitution prescribed certain processes and qualification requirements for appointment to the courts but presiding officers in traditional courts were not required to adhere to those requirements. Certain public inputs had preferred to refer to ‘customary’ courts.
The Chairperson stated that they were called traditional courts and for 15 years Parliament had been working on a Bill for traditional courts so there was no need to change that title. Traditional courts implied kings and queens. The Bill should refer to all levels of traditional courts.
Ms Ross commented that not all areas of the country had kings and queens.
The Chairperson responded that it did not matter if some areas did not have kings and queens. For the purpose of writing the law, the assumption would be that all could access a king or queen.
Mr W Horn (DA) said that if the traditional leader had to convene the court, the Committee needed to take care not to contravene the constitutional principle of the separation of powers. That was a key principle in the Constitution. It had to be sorted out in some way as the person who had the power to convene the traditional court could not later on serve as the upper court on appeal, even if it had been like that in the traditional system. That would be entering dangerous waters.
The Chairperson said that the law would determine the jurisdiction and state what the presiding officers should do. The law would not conflate the judicial and other powers, so he did not see violation of the separation of powers principle. He asked for input from the Committee.
Mr G Skosana (ANC) understood that the king or queen or the senior traditional leader was not going to participate until the appeal was referred to him or her at the end of the process. He or she was not going to be the referee and the player.
The Chairperson noted that he was saying that it was an established practice that had been happening for ages.
Dr E Buthelezi (IFP) agreed. That was what was happening in practice.
The Chairperson pointed out that the abuses referred to were imaginary abuses that were not relevant to the Act. Page 3 dealt with opting-out, but all the submissions put before the Committee had rejected opting-out, so DoJ&CD could forget about that one.
Mr Horn stated that as lawmakers they had to be aware of one of the basic principles of the constitution which said that all law had to be developed by the lawmakers in line with the fundamental principles of the Constitution. The inescapable situation was that, without opting out, there might be people who were not living in the traditional community but who would be forced to go through traditional court processes because they found themselves in the jurisdiction or area of a specific traditional court. If one was forced to take part in the traditional court process, it would be at odds with the Bill of Rights and the Constitution. It had to be a voluntary process. He understood the emotions and the belief that opting-out would dilute the Bill, the status and effectiveness of the courts but it would cause pragmatic problems if opting-out were not allowed for in the Bill.
The Chairperson declared that the prevailing view was that if he went to London, he would not be allowed to opt-out of the customary law there, so why should people in Africa be allowed to opt-out of the laws of South Africa? Otherwise one went back to the colonialism repugnance of customary law, which would be offensive to Africans. The Committee should abide by the majority of the submissions that stated that opting-out was repugnant and offensive. Other Members could perhaps indicate what they remembered of the submissions.
Dr Buthelezi said that the Chairperson was right and even those who had supported opting-out had based their views on perceptions of the institution, not on reality.
Mr Horn replied that it should be carefully considered that supporting opting-out did not mean that customary living was a lesser way of living, so the Chairperson should not accuse him of that. It was not fair to be part of a system if one was not living in that system. It was a parallel system, to an extent, because the Common Law was applicable everywhere in SA, no matter how people felt about Roman-Dutch or English Law. But to force customary law on someone was not valid. The argument would only be valid if there was no other course of action for someone who found himself in that jurisdiction.
The Chairperson said that Mr Horn was confusing a way of living with the law. The Traditional Courts Bill did not impose the customary law way of living on anyone.
Mr Skosana agreed that the Chairperson was 100% correct. They were dealing with the law and not forcing people to live a customary way of life. if one did not accept the courts and one did not belong to a community, one should not commit an offence in that community. There could be no opting out in other courts, so why should one opt out of traditional courts?
Ms Ross appreciated the Committee’s view with regard to opting-out, but one had to look at Section 15 of the Constitution that talked to the right to freedom of opinion and also the Section on the freedom of association. Section 21 dealt with right of residence. Sections 30, 31 and 34 all talked to the rights of people. If one lived in a Traditional community, one had affiliated to the community and then had to respect the customary law.
The Chairperson told the Advocate that she was making one mistake: the Traditional Courts Bill had to be read in accordance with the Constitution, so the judges could say that a provision was inconsistent with the Constitution. That approach was not helpful. What was helpful was to accept that all laws had to pass the constitutional muster.
Mr Horn said, with the greatest respect, that the Chairperson was contradicting his previous statement. Laws were not to be read in accordance with the Constitution, but the laws had to be made in line with the constitution and pass constitutional muster. By not having the opt-out provision, he was of the opinion that that, in itself, would render the Bill unconstitutional.
The Chairperson opined that Ms Ross was trying to repeat arguments made elsewhere, but it had been rejected by the submissions made to the Committee
Dr Buthelezi believed that his views, and those of the Chairperson, should prevail. He heard what Ms Ross and Mr Horn were saying but opting-out was not acceptable. He could not buy cows in Sandton which was against his tradition, but he went to a traditional area to buy cattle. If a person went to a traditional area, he had to accept the traditional court if he contravened the law in the area. A traditional court could even determine that a person had not intended to contravene the law.
The Chairperson said Dr Buthelezi was making a very important point. Intention was an important point of law and that if a person had not intended to contravene the law, that would be taken into consideration.
Mr Horn suggested that, as the Committee was not going to reach consensus, the Committee should obtain a legal opinion from a constitutional expert on the constitutionality of the Bill without the opting-out clause.
The Chairperson said that it could not happen as the Bill was going to the NCOP. However, the NCOP would hold public hearings. The Committee would not delay the process further. Maybe Mr Horn’s point could be raised in the NCOP. He reminded Mr Horn that legal review was inherent in the process of law-making.
The Chairperson said that discrimination against women flowed from the fact that the government had not implemented the Traditional Leadership and Governance Framework Act, 2003, despite the fact that it had had 15 years to do so. If the Act were implemented, the feared discrimination against women would not exist. The DoJ&CD had to work with the Department of Cooperative Governance and Traditional Affairs to implement laws passed by the government.
Ms M Mothapo (ANC) added that the issue of women was covered in clause 5 in the Bill. It was true that the Traditional Leadership and Governance Framework provided protection for women. She fully supported clause 5 in that it gave protection to women.
The Chairperson noted that the Women’s Legal Centre had pointed out that customary law was subject to the Bill of Rights, so customary law could not treat women as inferior. That took care of the situation.
The Chairperson stated that Schedule 2 ensured that traditional courts did not step outside their areas of jurisdiction and all courts had prescribed jurisdiction.
Ms Ross explained that was precisely what DoJ&CD had stated in response to a submission.
To speed up the process, the Chairperson suggested that the Members looked only at the final column to determine whether they agreed with the position of DoJ&CD.
Mr Horn stated that he understood the response, but he did not think that it addressed the submission, in the sense that the Bill stated that the traditional courts could deal with a dispute of any nature, whilst in Schedule 2, there was a delineation of what the courts could deal with. Should the Department not react to the submission by saying that it would look at wording and limit the words ‘a dispute of any nature’ by adding ‘subject to Schedule 2’?
The Chairperson agreed that it was a question of formulation.
Ms Mothapo said that the Eastern Cape House of Traditional Leaders was double-dipping because the National House had already presented a submission. She asked for the DoJ&CD response to the submission by CONTRALESA.
Ms Ross explained that CONTRALESA wanted to revise the definition of customary leader by adding the words “and is recognised” (in terms of the Act). The difficulty in dealing with the “recognition” was that some Traditional leaders had not been recognised in terms of the Act but were currently operating. The Department had felt that they should be allowed to continue.
The Chairperson said that the Bill should be not be dealing with the issue of recognition. That was dealt with elsewhere.
Ms Mothapo said that there were a lot of cases in the high court of people who portrayed themselves as traditional leaders, but they were not. Recognition was very important in terms of traditional leadership as it was a hereditary position, but the leaders also needed to be recognised and had to attend the training at the Justice College. If the Bill did not require a ‘recognised’ leader, it would enable impostors to hold illegal kgoro.
The Chairperson noted that the Committee needed empirical knowledge and not theory. They were dealing with empirical knowledge. Some submissions were based on theory.
Ms Mothapo added that maybe the Western Cape government was still in process of recognising leaders as there were so many people who claimed to be kings and queens in those communities. Recognition was critical or there would be a lot of kangaroo courts around South Africa.
The Chairperson explained that government did not create traditional leaders. Communities nominated people, or people of blue blood were born to leadership positions, and then government recognised them.
The Chairperson referred to the statement that Khoisan people did not refer to a ‘court’ but to a ‘tribunal’. How could one say that when one did not know the Khoisan language? Was it not an arbitrary decision that undermined the integrity of the Khoisan people.
Ms Ross stated that the point was raise in relation to the previous Bill. At public hearings in the Western Cape and Northern Cape, the Khoisan people had said that they did not have a thing called ‘court’. The word ‘tribunal’ came from Section 34 of the Constitution.
The Chairperson asked what happened when a Khoisan community resolved disputes. That was a form of a court. One could not say that their language was so under-developed that they did not have a concept of a court. The Khoisan were the oldest people.
The Chairperson approved the use of the word ‘consensual’. A lot of the points were simply repetitions.
Ms Mothapo noted another reference to ‘opting-out’. She said that people were portraying traditional courts as something different, but the Queen in England had just signed consent for her grandson to marry. If in customary law, the queen did not agree to a marriage she would be accused of oppressing the person.
The Chairperson stated that it was hoped that the Traditional Courts Bill would decolonise the minds of people who thought that everything that was English was superior. It meant that the minds of educated Africans were an important part of nation-building so that people could co-exist and stereotypes would not exist.
The Chairperson referred to the comment that traditional courts and conventional courts had different value systems. It was not true because the notion of human rights derived from the common understanding of humanity. Conventional courts were about procedure and not retribution, which meant an “eye’ for an eye’.
The Chairperson commented that it was wrong to say that the Bill was pitched at the level of traditional leader as that excluded the headman or headwoman.
The Chairperson asked why the Child Justice Act had to be inserted in the Bill. The Child Justice Act dealt with criminal matters while the Traditional Courts bill dealt with disputes.
Ms Ross explained that DoJ &CD had disagreed with the inclusion of a reference to the Child Justice Act.
Mr Horn understood that traditional courts were about disputes, but there was some provision for dealing with criminal matters in traditional courts where the value of goods was below R5 000. How did one reconcile that with the national legislation, constitutional legislation and the Child Justice Act?
The Chairperson replied that the Child Justice Act was a law of general application and the Traditional Courts Bill was not seeking to overrule the law of general application. It did not seek to repeal laws of general application.
Mrs Mothapo pointed out that fortunately children did not appear in traditional courts as only the parent appeared. Children were very protected in African culture. It was a vicarious liability of its own kind.
Ms Ross understood that a person had to appear before the court or there would be grounds for dispute.
The Chairperson stated that that did not happen in customary law which said that the parent must appear and not the child, as the parent was responsible for what the child had done. English ways should not be brought into the customary law courts.
Ms Ross asked whether the Bill should then state that no child should appear before the court.
The Chairperson explained that, because the presiding officer would know that children did not appear before the traditional court, there was no need to write it down
The Chairperson noted further ways of opting-out.
Ms Mothapo asked about the submission by the Legal Resource Centre on the capacitation of the presiding officer and role players in the courts. Were they active community members or presiding officers of the court and clerks?
Ms Ross said that it was not about the general members of the community who could participate but it referred to those community members who were court officials and convenors. They should receive training.
The Chairperson pointed out that they were not ‘convenors’ but presiding officers and other court officials.
The Chairperson noted a reference to default judgement. How could there be a default judgement? If one were not in attendance in a traditional court, one would be found and brought to court. He noted that DoJ&CD had rejected the submission, indicating that processes of the conventional courts could not be introduced in traditional courts.
Mr Horn had a question on clause 4 of the Bill regarding the jurisdiction of the court. He wanted clarity from DoJ&CD. In the current version, a criminal matter over R5 000, had to be transferred to the formal court system. However, he pointed out that matters referred to Common Law courts had to have been investigated by the South African Police Services (SAPS) and given the go-ahead by the National Prosecuting Authority (NPA) before those matters could be enrolled in court. So how could the cases be transferred from a traditional court to a Common Law court?
Ms Ross read clause 4(2)(a).
The Chairperson said that the language was too complicated and there were too many detours and tricks. That wording had to be simplified so that the law was accessible to ordinary people.
Ms Mothapo noted that the Department had not made a clear response on the cases that proved to be criminal.
Ms Ross stated that DoJ&CD had said that there was no distinction between civil and criminal law in traditional courts.
The Chairperson noted that the Department was limited in its knowledge of customary law.
Ms Ross explained that the Law Society South Africa wanted all criminal matters to be referred to the South African Police Services both for investigation and to ensure that all instances of criminality were captured for statistical purposes.
The Chairperson said that there was no need for the distinction as there was no distinction between criminal and civil law in customary law. When the Act was applied, children would not be found guilty of minor criminal matters in traditional courts. So, there was no distinction and it was not necessary to have that in the Bill.
Mr Horn looked at the submission on Schedule 2. He could not say the response was not valid because traditional courts did not distinguish between criminal or civil matters, but that same distinction was used in determining the jurisdiction of the court. Was that not a contradiction?
The Chairperson explained that a matter before a traditional court was dealt with regardless of whether it was a civil or criminal matter. People had to decolonise their minds.
Mr Horn asked about clause 4 which indicated there had to be compelling reasons before a matter could be withdrawn or put aside. Looking at the Bill of Rights, would that be questionable? Under Common Law, any complainant could withdraw a complaint with the police but in the traditional courts, one could not withdraw a matter.
The Chairperson said that the parties did not have to go to the court if they could sort it out amongst themselves. It was a normal thing to solve issues outside of court. The Committee did not have to worry about that.
Mr Horn asked the Department about the whole issue of women. Was the DoJ&CD satisfied that the Bill which was aimed only at regulating the traditional courts, and included women, would work even in those communities that precluded women from taking part in customary law and saw them as perpetual minors?
Ms Ross began a response, but the Chairperson interjected that precluding women would be repugnant to the Bill of Rights which was applicable throughout the country. The principle of equality applied to all South Africans so there was no need to answer the question
Ms Ross stated that she was responding to Mr Horn’s question about the Bill. DoJ&CD believed that women were protected because the Bill was aligned to the Bill of Rights and because women had to represent themselves in court. A dispute could only be entertained if that person represented him or herself.
The Chairperson said that she was over-explaining as women were equal in South Africa. It was the colonialists who had said that women were minors, not the traditional courts. People should not think that some of the things said by particular people was inherently African.
Ms Ross stated that several submissions had suggested that the monetary ceiling for criminal disputes should have been higher, but DoJ&CD thought that R5 000 was acceptable.
The Chairperson said that the monetary amount was symbolic. It did not really mean R5 000. The NCOP public hearings would illicit some suggestions.
Dr Buthelezi said that the amount should be raised as if someone stole a head of cattle, it would be more than R5 000.
Ms Ross said that the court would not have jurisdiction if the amount of the theft was above R5 000.
Mr Buthelezi stated that in the magistrate’s court, the fine is paid by the accused but it did not go back to the person who had lost his cattle. The idea was to pay back the cost of the cattle that had been stolen.
The Chairperson suggested that the point of departure was wrong. The amount should be lifted according to the different levels of the traditional court.
Ms Ross stated that traditional courts could not deal with fines as that would have to be dealt with in terms of the PFMA. The Bill proposed the payment of compensation and not a fine.
Ms Mothapo asked how traditional courts were to deal with the amount that one paid for the closing of the case or kgoro, e.g. R20.
The Chairperson stated that things such as PFMA should not be brought into the Bill. Kgoro had nothing to do with PFMA.
Ms Mothapo explained that if the case had been dragging on for some time, or if some person had been dragging his feet, that person would have to pay a small amount as security. It would be recorded and did not go to the presiding officer.
The Chairperson stated that if it did not go to the presiding officer, there was no need to bring in the PFMA.
Ms Mothapo asked why the Department was silent on those that undermined the court. The Department’s response to a submission was that the sheriff had no jurisdiction. Who was going to assist in keeping things orderly in a traditional court?
Ms Ross stated that the lack of security was premised on the opinion that traditional courts were not punitive courts, so no one should object to being in court, but that premise had changed since the opting-out clause had been removed.
The Chairperson declared that his traditional court had members of the community that kept order in the courts and that was not a matter for the Bill.
Ms Mothapo explained that if a person did not comply with a traditional court order, people would be sent to attach things from the person’s homestead. The Bill did not permit those actions.
Ms Ross agreed that the Bill did not deal with warrants of execution. Clause 9 of the Bill allowed for the involvement of the Justice of the Peace where a person who did not comply.
The Chairperson asked who the Justices of the Peace were.
Ms Ross explained that the Justice of the Peace was an already existing mechanism under the 1963 Act. It was not a new concept.
The Chairperson asked why, if the Kgoro took a decision to take ten cattle, could the kgoro not send people to fetch the cattle. Why should people have to be appointed as Justices of the Peace?
Ms Mothapo was concerned that Clause 9.4(b) (ii) reverted to the apartheid system. It stated that if a traditional court took a decision and one party was aggrieved, the aggrieved party could appeal to the magistrate’s court.
The Chairperson explained that when DoJ&CD had prepared the responses, it had not recognised the different levels of traditional courts. That view had changed, and all levels of traditional courts had to be exhausted and then the review was by the High Court. There would be no transfers because that was opting-out.
Ms Mothapo asked about the recording of evidence.
Ms Ross explained that court proceedings had to be recorded in the dominant language of area. The Bill provided details to be included but that submission had concerned mechanical recording which the Department could not afford to implement.
Ms Mothapo said that, at present, when a traditional court took a decision and the aggrieved person appealed to the magistrate’s court, the clerk of the magistrate’s court required the traditional court records. Currently the traditional courts used a form adapted from one used pre-1994, NRJ-163.
The Chairperson agreed there had to be a record in the lowest court so that matters did not start de novo (afresh) at the higher level of the court. If a headman had made a wrong decision, the senior leader should be able to see where he had made the mistake.
Mr Skosana said that written records were adequate as there would be budgetary issues if all traditional courts were required to have mechanical means.
The Chairperson agreed. Matters would be made worse when there was load shedding.
The Chairperson noted that if a presiding officer did something wrong, unless it was intentional, the presiding officer was not penalised.
The Chairperson asked Ms Ross to explain the point about dealing with misconduct of presiding officers.
Ms Ross explained that the submission was to the effect that misconduct should be dealt with by the Judicial Services Commission or the Magistrates Commission, but the response of DoJ&CD was that they could not be dealt with by those Commissions as the presiding officers would not have been appointed by either of the Commissions.
The Chairperson added that solutions to any problem had to be found inside the traditional courts system or else it was like opting out. It was like having a Native Commissioner. DoJ&CD should not come with ideas of Native Commissioners.
Ms Mothapo asked about training. The DoJ&CD’s response was that the South African Judicial Education Institute (SAJEI) and Justice College would be doing the training, but it was a concern of the Committee that the SAJEI and Justice College did not train in customary law.
Ms Ross explained that it was about judicial training for judicial officers.
The Chairperson noted that it took the Committee back to the point that all law students should study traditional law.
The Chairperson asked about the concept of ukuthwala. Why was it included? Ukuthwala was where force was used against someone. It would have to be revisited because it was a criminal affair. In his day, ukuthwala was when a man took his bride-to-be home, sometimes in the middle of the night. It had to be revisited.
Ms G Breytenbach (DA) asked about ukuthwala. Was it the bride who had agreed to marry or had someone else agreed on her behalf?
The Chairperson explained that there was a process of agreement between the individuals, then agreement by the family and then the third process was bringing the bride to the other family even if it was in the night. It was a custom.
Ms Breytenbach said she still did not understand whether the woman had a say and could disagree. What age was the woman?
The Chairperson said that the woman would be above age 21 as that was the law. There had to be consent.
Ms Breytenbach asked if the lady could refuse.
Dr Buthelezi explained that the lady had to agree, and she could not be a minor. There would be an arrangement to collect the lady and then the next morning the man’s family would send someone to tell her family that they would find the woman at the husband-to-be’s homestead.
The Chairperson remarked that the term ‘ukuthwala’ was presently used to describe the taking of a bride against her wishes.
Ms Ross asked if there was another word for ‘ukuthwala’
Dr Buthelezi said that ‘ukuthwala’ was the correct term. They could not change the term ‘ukuthwala’ simply because people were using the term incorrectly.
The Chairperson agreed with Dr Buthelezi.
Ms Mothapo noted that there were references to the Reference Group, but the Committee did not have a report on the discussions of the Reference Group.
Ms Ross offered to remove the reference to the Reference Group.
The Chairperson said that the Committee had been told that the Reference Group did not have minutes. He explained to Ms Ross that the Committee would explain that the Bill had been delayed because the Committee had not received the Reference Group report from the Department.
Following a brief discussion, the Chairperson determined that compensation should be up to R15 000. The amount should be commensurate with the loss suffered.
The Chairperson said that Ms Breytenbach’s recommendation that Members should go and study the document before discussion had been a good proposal. The Committee had made good progress that day. He apologised for being harsh towards Ms Ross, but it had not been personal. It had been a difficult task.
Mr Horn asked about the representation of children. He was not convinced that the Bill addressed what the Chairperson had said in 7.3(a)(ii). In 4(a) and (b), it stated that there was no right to legal representation. He was not convinced that support or assistance would satisfy the right to a fair trial.
The Chairperson explained that if a child offended, it was the parent that had offended, and the parent had to appear. That was within the definition of assistance.
Ms Ross stated that there was no legal representation in a traditional court. Some of the submissions, especially from the Centre for Child Rights, wanted representation for children. DoJ&CD’s response was that legal representation was not appropriate because it was a process towards dispute resolution.
The Chairperson stated that it had been a very useful process. All had learned a great deal, and everyone could agree that the Bill was a very important Bill. He thanked the Department. When the Bill went to the NCOP Committee, it would see that the Portfolio Committee had done justice to the Bill. He awaited the report from the Reference Group.
Report on the suspension of Magistrate Gqiba
The Chairperson indicated that Members were in possession of documentation relating to the suspension of Magistrate Gqiba. He stated that the Committee had previously addressed the matter of Magistrate Gqiba. She had been suspended but some Members had wished to read the documents before taking a final decision on her situation. That had been more than six months ago, so all Members had had time to read the documents. Was anyone of a different view having read the documents? If not, could he get a proposal for the removal of Magistrate Gqiba.
Ms Mothapo proposed the adoption of the report that Magistrate Gqiba be dismissed. Mr Skosana and Mr Horn seconded the proposal. No one opposed the proposal to dismiss Magistrate Gqiba.
South African Human Rights Commission
The issue before the Committee was whether all Human Rights Commissioners should re-locate to the Commission’s offices in Gauteng. The Commissioners had agreed that that should be the case. However, the Deputy Chairperson, Priscilla Jana, had said that she could not move to Gauteng because of her ill-health and on the advice of her doctors.
Ms Breytenbach stated that as far as she was aware, the Act required Commissioners to be in Pretoria. Neither the Committee nor the Human Rights Commission could change the requirements of the Act. She noted that Ms Jana had assured Committee Members at her interview that she could move to Gauteng. The Committee could not change the Act nor could the SAHRC.
The Chairperson asked if any of the Members took a contrary view. All Commissioners had to operate out of the headquarters in Gauteng.
Ms Mothapo was tempted to argue but, in that particular case, there were exceptional circumstances. The Chairperson should engage with Adv Majola, the Chairperson of the Commission, and obtain further details.
Ms Breytenbach said that she understood the problem but did not believe that the Committee could arrange a solution.
Dr Buthelezi did not understand how MsJana’s condition prevented her from moving to Gauteng where there were even more doctors than there were in Cape Town. Her position required her to be in Gauteng.
The Chairperson said that he had met with the SAHRC Chairperson on that matter and he had reached the limits of his thoughts. He could not say anything differently.
Ms Breytenbach suggested that the Committee needed time to explore a way forward.
The Chairperson noted that the issue had been raised a year or more ago and had been debated in the Committee. Mr Gaum also wanted to stay in Cape Town.
Ms Breytenbach said that it was not about wanting to move or not. Mr Gaum had applied for a job in Gauteng and he had no option but to move.
The Chairperson wondered whether Ms Jana was medically unfit to travel to Gauteng or unfit to relocate to Gauteng.
Ms Breytenbach stated that if she were unfit to travel, she could not do the job.
Ms Christine Silkstone, Committee Content Advisor, stated that the Act only spoke about the seat of the Commission, so she suggested a legal opinion be requested on whether the Commissioners had to be located in Gauteng.
Mr Skosana said that if it were a matter of travelling, the Commissioner’s work required travel. Furthermore, there were very good doctors in Johannesburg. She was not going to a rural area. She was also the Deputy Chairperson. Would it set a wrong precedent? He agreed that a legal opinion was necessary.
Mr Maila said there were more questions than answers. Was she working for the Commission or was she doing something else in Cape Town? The Committee needed legal advice, but the Chairperson should also liaise directly with the SAHRC Chairperson and the matter should be held in abeyance until the following week.
The Chairperson agreed to obtain a legal opinion and that he interact with the SAHRC Chairperson and then come back to the Committee. If one were the Deputy Chairperson of the Commission, then one had to take on that responsibility when the Chairperson was not there, and his office was in Gauteng.
Parliamentary Delegation from Ghana
The final issue was that a parliamentary delegation from Ghana wanted to meet with the Committee in the week of 11 to 15 June 2018. Could the Committee agree and make arrangements? Members had to ensure that they would be at the meeting with the delegation.
Mr Maila asked what the subject matter was.
The Secretary responded that the delegation wanted to see how the Committee conducted oversight of its portfolio. He would provide Members with a full agenda prior to the meeting.
The Chairperson thanked Members for their patience.
The meeting was adjourned.
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