The Committee met to deliberate on the Traditional Courts Bill. A Delegation of State Legal Advisors briefed the Committee on amendments the Committee requested in the Bill. The most notable change in the Bill was removal of reference to the voluntariness of Traditional Courts. The Legal Advisors notified the Committee that removal of the clause in the Bill which gives an opt out may render the Bill unconstitutional. Most Members were of the strong opinion that there should not be an opt out clause as traditional law should have the same stature as common law and traditional courts should proper and equal recognition. It was said that customary law should not be subordinate to Roman-Dutch law as it even outdated colonialism. Other Members were concerned about the constitutionality of the Bill. The majority of the Committee voted to have the opt out clause removed.
The Bill was sent back to the State Legal Advisors to include amendments recommended by the Committee.
Ms Theresa Ross, Principal State Legal Advisor for the Department of Justice and Constitutional Development, outlined that the Department provided copies of the Bill with amendments made by the Committee. Included was a drafted opinion which said that removal of the opt out clause in the Bill would be unconstitutional since it would allow the choice to only one of the litigants.
Ms G Breytenbach (DA) asked for a copy of the opinion.
The Chairperson said it is being distributed.
Ms Breytenbach then asked when it became available.
The Chairperson said it became available now.
Ms Breytenbach noted that the date on the copy was 21 June 2018.
The Chairperson replied that Parliament was in recess and Members were occupied with public hearings.
Ms Breytenbach said that the Chairperson should have sent her an email.
Amendments to the Bill (See Document)
Ms Ross said the two issues raised by the Chairperson, the opting out provision, spoke to the voluntariness of participation in the system. What was done in the Bill, from the preamble, was to delete all references that point out to voluntary participation in resolution of disputes in the courts. Particularly in the preamble, there was one issue the Committee raised because the preamble made reference to highlight abuses made in the system - this was deleted from the Bill. A decision of the Constitutional Court was stumbled on in which the Court ruled that the Constitution recognises customary law as a legal system that lives side by side with common law – this has been inserted in the preamble.
All references in the Bill to voluntary participation in the resolution of disputes in traditional courts were deleted.
Schedule 1, which deals with alleged abuses, has consequently been deleted since there are no longer references to abuses in the Bill. Schedule 2 now becomes Schedule 1. The Monetary Jurisdiction of traditional courts has increased from R5 000 to R15 000.
An alternative paragraph to clause 6 of the Bill was provided.
Ms Ross went through the rest of the changes.
Ms Phumelela Ngema, Parliamentary Legal Advisor, read out the opinion that said the removal of the opt out clause in the Bill would be unconstitutional.
Ms Ngema said that Section 30 of the Constitution provides that everyone has the right to participate in the cultural life of their choice but no one may do so in a manner inconsistent with any provision in the Bill of Rights. Section 31(1) of the Constitution provides that persons belonging to a cultural, religious or linguistic community may not be denied their rights as outlined in those specific provisions. Section 31 (2) provides a built-in limitation to the effect that such rights may not be exercised in a manner inconsistent with any provision in the Bill of Rights.
Ms Ngema said that there is a distinction between a source of law and the system which enables the existence of that source of law. She concluded by saying the removal of the opt out clause may render the Bill unconstitutional.
The Chairperson asked whether the point of departure was if customary law was law and, if so, if one went into an area under customary law and made a violation that this was a violation of the law. How could one opt out of a court which has no jurisdiction in that area for being tried for that violation? Culture and law should not be confused or conflated. Ignorance of the law is no excuse – this applied to Roman Dutch law and applies to traditional law too.
Mr LMpulwana (ANC) agreed that customary law was part of the law – culture and law cannot be confused. This was not to say that the opinion provided to the Committee was incorrect – the Member simply disagreed with it. Could one simply opt out of Roman Dutch law? Was the question about jurisdiction and someone from a non-African background being able to opt out of being tried under traditional law?
Mr M Maila (ANC) asked which other courts, aside from traditional courts, are governed in terms of section 30 and 31 of the Constitution. Traditional law should have the same stature as common law and all courts must be given proper and equal recognition.
Ms M Mothapo (ANC) raised concern that the Bill as it stands would make customary law subordinate to Roman-Dutch law. Traditional courts and laws outdate colonialism.
Mr S Swart (ACDP) said that the matter at hand was not whether one could opt out of Roman-Dutch law or not but the constitutionality of removing the opt out clause in the Bill. The Committee must bear the constitutionality of the Bill in mind.
Mr W Horn (DA) said the Committee must be careful that this Bill does not make it as such that common law is subordinate to customary law. It is worrying that if the proposed changes to the Bill are made and it becomes an Act, only customary law would be applicable in those areas where Traditional Courts have jurisdiction. One cannot rectify mistakes of the past by repeating them.
Ms Breytenbach said that the Committee cannot consider passing unconstitutional legislation. Being mindful of the inputs made and where they came from, the Committee could not contemplate having millions of South Africans from various cultures living according to systems foreign to them.
Mr Mpulwana said that customary law ought to be equal to common law.
The Chairperson said the Committee does not agree that there should be an opt out clause in the Bill.
Ms Ngema highlighted that the Constitution is now the supreme legal system. The matter at hand does not deal with violations at law but deals with settling disputes.
The Chairperson said the issue was not about the source of law. The issue was if someone violates a customary law in an area in which it has jurisdiction, the matter must be tried according to customary law. Customary law is of equal standing to other laws.
Mr Mpulwana said that customary law is not only a body of law dealing with disputes. Customary law did not originally have limited jurisdiction therefore there should be no choice to opt out.
Mr G Skosana (ANC) asked what would happen if a claimant takes a matter to a Traditional Court and the accused decides she/he does not want to be tried in according to Traditional Law because the accused does not adhere to that tradition.
Ms Breytenbach was persuaded by the advice of the Legal Advisors. She will not support any Bill that does not have an opt out clause in it.
Mr Swart said the Committee can ask the Legal Advisors to look at the Bill with the proposed amendments in totality to see if this would change their legal opinion. He too was persuaded by the legal opinion of the State Legal Advisors.
Ms Suraya Williams, Principal State Legal Advisor in the Office of the State Law Advisor, outlined that the Bill was certified as constitutional when it was introduced to Parliament. Drafting the Bill was challenging as it had to be crafted in a certain way so as to circumvent constitutional challenges. The opting out clause hinged on the right of access to courts in section 34 of the Constitution.
The Chairperson said that majority of the Committee has not been persuaded.
Committee members Mpulwana, Maila, Mathapo, Skosana, Ngema and the Chairperson of the Committee voted to have the opt out clause removed.
Mr Swart reserved his position that the opt out clause should remain in the Bill.
The Chairperson referred to Section 6 of the Bill and said that “Custom” should not be in there as it dealt with customary law and not customs. He also referred to Section 1(c) and asked for the categories to be removed and replaced with a singular term.
Ms Ross said that reference to languages was taken from the Constitution because they wanted to say Traditional Courts as referred to in these languages.
The Chairperson asked the Legal Advisor to relook at Section 2 of the Bill which deals with the Objects of the Bill so that it addresses issues the Committee has raised. Mainly it is to make Traditional Courts courts of Law and not Courts of Customs.
The Chairperson asked the Legal Advisors to look at the issues presented by the Committee.
The majority of the Committee approved Section 17 of the Bill which deals with Regulations.
The meeting was adjourned.
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