Traditional Courts Bill: finalisation; with Deputy Minister
Justice and Correctional Services
06 March 2019
Chairperson: Ms M Mothapo (ANC)
The Deputy Minister briefed the Committee on outstanding matters of gender representation, the nature of the court and the referral to the Magistrates’ Court. Further consultations had taken place with National House of Traditional Leaders and Congress of Traditional Leaders of South Africa (CONTRALESA). He spoke to the amendment to clause 3(3) of the Traditional Courts Bill [B1B-2017] as the Bill ought to refer to Schedule 1 on prohibited conduct, instead Schedule 2. The second amendment was to clause 5(3)(a)(b) on the composition and participation of traditional courts. Previously, the Committee wanted 5(3) to be removed. The Department proposed that it be retained. The third amendment was to clause 12. Previously, the clause referred to escalation of matters from the traditional court. It was amended to referral of matters from traditional courts to Magistrates’ Courts. It was only after exhausting all appeals in the traditional court system that an aggrieved party could approach the Magistrates’ Court having jurisdiction. The traditional court should be a court of law; and not a court of customary law per se. Existing customary procedures should be exhausted prior to appealing to the Magistrates’ Court. The question of referral of matters to the Magistrates’ Court was discussed with the National House of Traditional Leaders and the CONTRALESA and they were in agreement with the change.
After the briefing, Members from the Democratic Alliance walked out because they were in disagreement with the amendments. They could not support the Bill as the opting out clause did not appear in the Bill. They left the meeting immediately after making their position known and before the Committee voted on the Bill.
An ANC member was concerned that referral of matters to the Magistrates’ Court meant that traditional courts were not seen as on a par with Magistrates’ Courts. He believed they were on the same level and thus aggrieved parties should appeal to the High Court not Magistrates’ Courts. The Deputy Minister explained that the cost of a High Court appeal was the reason for this but parties could go to the High Court.
The Chairperson stressed that members should consider the adoption of the Bill as the Bill would greatly assist rural and traditional communities. The Committee was cognisant that although traditional courts already form an integral part of the delivery of justice in our country, it was a constitutional imperative that they be transformed to suit the new constitutional dispensation. The remaining Members felt that if the traditional leaders were happy with the amendments, they had no objection.
The Bill was adopted by the remaining seven committee members from the ANC and EFF.
The Chairperson remarked that due to the time constraints of this Parliament, the NCOP process was likely to happen in the Sixth Parliament.
The Chairperson invited the Deputy Minister of Justice and Correctional Services to brief the Committee on the amendments made to the Traditional Courts Bill [B1B-2017].
Deputy Minister briefing on proposed amendment to Traditional Courts Bill
The Deputy Minister, John Jeffery, took the Committee through the amendments. He understood that the Committee voted for the amendments to the Bill but there were further consultations that needed to take place. There had been a meeting with the National House of Traditional Leaders and Congress of Traditional Leaders of South Africa (CONTRALESA). The first amendment was on the page 11 of the Traditional Courts Bill [B1B-2017]. That was clause 3(3). The Department was proposing that what they had discussed with the National House of Traditional Leaders and CONTRALESA be included in the Bill. Under clause 3(3), it ought to refer to Schedule 1, and not Schedule 2. The Schedule 1 referred to the prohibited conducts. The second amendment was on page 16. Amendment was made to clause 5 dealing with the composition of and participation in traditional courts, in particular, sub-clause 5(3)(a)(b). The Committee wanted the 5(3) to be removed. The Department proposed that it be retained. The third amendment was on page 28, clause 12. Previously, the clause referred to escalation of matters from traditional court. It was amended to refer to referral of matters from traditional courts to Magistrates’ Courts. It was after exhausting all appeals in the traditional court systems that an aggrieved party could approach the Magistrates’ Court having jurisdiction. The traditional court should be a court of law; a court of customary law. Existing customary procedures should be exhausted prior to appealing to the Magistrates’ Court. The question of referring matters to the Magistrates’ Court was discussed with the National House of Traditional Leaders and the CONTRALESA and they were all in agreement with it.
The Chairperson said that the nature of the traditional courts was proposed by the Committee to be a court of law. There were three outstanding issues: issue of women, prohibited conduct and the nature of the court. The Bill had to make provision for gender representation and thus depart from the previous gender exclusion practices.The question of ‘escalation’ was substituted by the term ‘referral’. Members should deliberate on the Bill and bring discussion on the Bill to conclusion. She remarked that the Bill would greatly assist rural and traditional communities. The Committee was cognisant of the fact that although traditional courts already form an integral part of the delivery of justice in our country, it was a constitutional imperative that they be transformed to suit the new constitutional dispensation. At present, these courts were still governed by the Black Administration Act of 1927. This was completely unacceptable.
DA members, Ms G Breytenbach and Mr W Horn, walked out because they were in disagreement with the presented version. They indicated that they would not support the Bill as the opting out clause did not appear in the Bill. They left the meeting immediately after making their position known and before Members could vote on the Bill.
Mr S Tleane (ANC) said that amendments went a long way to recognise traditional courts as courts of law. If the traditional leaders were happy with the amendments, he had no objection.
Mr L Mpumlwana (ANC) sought clarity on the status of the traditional court and referral of matters to the magistrate court. Were these two courts on a par or was the magistrate court a high court, compared to the traditional court. Why should matters not be referred to the High Court, if the magistrate court and the traditional court were on the same level?
Mr G Skosana (ANC) remarked that the matter of contestation was the question of opting out. Traditional leaders were opposed to that. He was happy that there was no option for opting out from the traditional procedures, unless exhausted. Everyone should be subject to the traditional court. People should be allowed the leave to appeal after exhausting all traditional court remedies.
The Chairperson thanked the Department for finalising the drafting of the Bill and asked the Deputy Minister to respond to concerns raised by Members. She asked if traditional leaders would be judicially trained.
The Deputy Minister responded that there would be opportunity to attend court process training designed for traditional leaders. On the question of referring matters to High Court, he responded that the difficulty of appealing to the High Court was the cost. Appeal to the High Court was very expensive, resulting in inaccessibility. The Magistrates’ Court was an accessible court. The problem of provision of a referral mechanism to the High Court was all about the legal cost. All stakeholders agreed with the referral mechanism to the Magistrates’ Court.
Mr Mpumlwana disagreed. The question of cost could not be used as a ground to submit the traditional courts to the Magistrates’ Courts. This gave the impression that the traditional court was below the Magistrate Court in the hierarchical order.
The Deputy Minister replied that there was an option to go to the High Court, if the aggrieved party wanted to. The Magistrate Court was cheaper, accessible and available to communities. It was an institution to be used by means of referral. This was to ensure that everyone was satisfied, especially those who were not happy with the traditional court decision. Referral to Magistrates’ Court did not mean that the traditional court was below the Magistrate Court.
Mr Tleane remarked that if the traditional leaders and communities were happy to refer matter to the Magistrates’ Court, Members should not hold traditional leaders and people to ransom, given that the Bill could be amended at later stage after adequate consideration. He appealed to all Members to endorse the Bill as amended. There was no conflict between traditional court and magistrate court.
Mr Mpumlwana said that the judicial system should maintain a good hierarchy. It should be underscored that the traditional leaders were on a par with the Magistrates’ Court.
The Deputy Minister stated that if there were disagreement amongst Members, they should use the mechanism of voting to see who was for the Bill or against it. He reminded Members that the Traditional Courts Bill had been in Parliament for a long time. It should be considered for adoption. The Bill would also be considered and processed by the provincial legislatures in the Sixth Parliament.
The Chairperson remarked that due to the time constraints of this Parliament, the NCOP process was likely to happen in the next Parliament. The Bill intended to increase access to justice by enhancing the effectiveness, efficiency and integrity of traditional courts for the purpose of resolving disputes. The essence of the Bill was aligned to the National Development Plan’s vision of realising a developmental and capable state as well as broadening social cohesion.
Mr V Smith (ANC) asked whether other parties had tended their apologies. The DA members had walked out. The Chairperson should avoid an endorsement of the Bill done only by ANC members.
Mr T Mulaudzi (EFF) remarked that the Bill should be allowed to be put to the test and the EFF supported the Bill as presented by the Deputy Minister.
Voting on Traditional Courts Bill
The Chairperson allowed Members two minutes to read through the two-page Committee Report on the Bill and then moved to adopt the Committee Report.
The Committee Report was adopted unanimously by the seven committee members present.
Mr Mpumlwana moved for the adoption of the Bill.
Adv Mulaudzi seconded.
The Committee went though the Bill page by page, checking if there were grammatical errors.
After that, Mr Mr Tleane moved for the adoption of all clauses.
Mr Skosana seconded.
The Chairperson thanked Members for the adoption of the Bill and the Deputy Minister for his presentation. The Bill was accepted and adopted by the majority of members who were seven in number.
The meeting was adjourned.
Mothapo, Ms MR
Breytenbach, Adv G
Horn, Mr W
Jeffery, Mr JH
Mulaudzi, Adv TE
Skosana, Mr GJ
Smith, Mr VG
Swart, Mr SN
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