The Committee engaged in an informal discussion with the Department of Justice and Constitutional Development on the Traditional Courts Bill. A formal briefing by the National Council of Provinces (NCOP) permanent delegate could not take place because the Bill had not been formally referred to the Committee. The focus was on how traditional courts could be aligned to the Constitution of South Africa.
The Department said that the intention of the Bill was not to create traditional courts, but to regulate the existing traditional courts in line with the Constitution. The Bill had a long history, having been first introduced to Parliament before 2008 in the National Assembly, but it was very different now, as there had been a lot of opposition on quite a few aspects of the Bill. The Bill aimed to improve access to justice services and for traditional courts to promote social cohesion, with the emphasis being on restorative justice.
Members questioned the financial implications associated with the implementation the Bill; how it aligned with the Constitution; the Khoi-San community’s recognition of their traditional leadership; the relationship between traditional leaders and ward councillors in terms of jurisdiction; gender equity in traditional courts; and technical aspects relating to appeals emanating from traditional courts.
The Committee also considered and adopted the draft Committee report on the 2018/19 Annual Report for the Department of the Premier, draft Committee meeting minutes, and the draft Committee quarterly report for the period July to September.
The Chairperson referred to item five on the agenda: ‘Briefing by the NCOP Permanent Delegate on the Traditional Courts Bill [B1B-2017].’ She said that as the Bill had not yet been formally referred to the Committee, and as the Committee was informed by the Announcements, Tablings and Committees (ATC) only on Monday 28 October 2019, of the revival of a list of National Council of Provinces (NCOP) Bills that had not been finalised in the fifth Parliament -- which included the Traditional Courts Bill -- she was using her prerogative as the Chairperson to move that the item be taken off the agenda until it was formally referred to the Committee.
However, considering that the person who was going to present on this item had travelled a long distance to make themselves available for the meeting and the Committee did not want to want to waste peoples’ time, she suggested that instead of a briefing, the Committee should hear from the Department of Justice any information on how the traditional courts could be aligned to the Constitution of South Africa.
Mr C Dugmore (ANC) asked for clarity regarding the slot at 10am that was allocated for the NCOP permanent delegate on the agenda. In seeking clarity, he emphasised that he wanted to be sure that he understood correctly, that since the delegate from the NCOP was not coming as indicated under item five on the agenda, the Department of Justice was coming instead to brief the Committee.
The Chairperson responded that because the Bill had not yet been formally referred, the Committee could not go through the formal procedure of being briefed on the Bill, whether it was by the permanent delegate or the Department. However because of the fact that the Department was already on their way to the meeting, it would be wrong to waste their time. Hence the suggestion that the Committee hear information on how traditional courts in general, could be aligned to the Constitution.
Mr D Mitchell (DA) said that just for the record, it would mean that the Committee would have an informal engagement with the Department of Justice, and that as soon as the Bill had been formally referred by the Office of the Speaker or from the NCOP Speaker to the Committee, then they as the Committee could start the actual formal process of being briefed by the NCOP delegate.
Draft Committee Report on 2018/19 Annual Report for Department of the Premier
Moving on this item on the agenda, the Chairperson said that the best way to deal with the report was to go through it page by page, as this would allow Members to make additions and amendments per page.
On page two, Mr Dugmore said that he wanted to check, under point 3.4, that the reference to the ‘other advisor’ was Nick Allan, and not Nick Kleland, as the Premier had mentioned. He was under the impression that the Committee had indicated that the Premier was to provide the names of the other two advisors once those posts were filled. He proposed that this request be included in the report, because this was information that the Committee had asked for.
The Chairperson confirmed that on page two, under point 3.4, the surname would be changed from Allan to Kleland, and that in relation to the information previously requested, it would include that the Premier had been asked for details of the two special advisors once the positions had been filled.
Mr Dugmore raised a point about that the wording under point 3.11. He said the formulation of the sentence could be slightly better. In the current report, it reads as follows: “in terms of employment equity, the Committee noted the concern that Departments have remained static with achieving progress of representation on senior levels and the Western Cape education had regressed in this instance”. His suggestion was that the words ‘with achieving’ be replaced with the word ‘while’ so that the sentence becomes “in terms of employment equity, the Committee noted the concern that Departments have remained static while progress of representation on senior levels and the Western Cape education had regressed in this instance”. The sentence should be formulated in a way that would reflect the concerns raised within the Western Cape Education Department.
The Chairperson asked if the other Members were happy with the proposed wording. Noting that there were no further amendments made on the other pages, she moved that the report be adopted with the amendments.
Mr Dugmore asked the Chairperson, or any Member, to advise the Committee on the normal procedure to deal with adjustment budgets. With the annual report, he had noted a formulation and was not sure of what advice the officials had received as to how this was going to be handled. Would it be correct for him to say that the Committee had presumably noted the information requested and passed resolutions, but in no way indicating support or otherwise by the Committee -- merely noting support?
The Chairperson responded to say that as a Committee, they did not put their view into a report and to her knowledge, she could not see any part of the report that had a view expressed in it.
Mr Dugmore raised a wording issue with another sentence in the report, where he pointed out that as a Committee, they normally referred to employment equity plans and not just equity plans as stated in the resolutions. The sentence being referred to him said should read “invited the Department to brief on the Department’s employment equity plan,” because that was what the plan was technically called.
The Chairperson confirmed this amendment by re-iterating that under point 6.2 on page three it would read, “invited the Department to brief the Committee on the Department’s employment equity plan”.
Confirming that there were no further amendments to the document, the Chairperson moved the adoption of the report with amendments. Mr R Allen (DA), seconded by Ms W Philander (DA), supported the adoption of the report with amendments.
Committee Meeting minutes of 10 October
Mr Mitchell said that, without being pedantic but rather for the sake of formality, the way in which the two Democratic Alliance Members were indicated in brackets on page one needed to be amended to reflect consistency throughout.
No further amendments were made to the minutes on the remaining pages, and the Chairperson put forward a motion to adopt the minutes with amendments.
Ms Philander raised her hand in support of the adoption, and was seconded by Mr Allen.
Draft Committee Quarterly Report (July – September 2019)
Mr Dugmore asked the Committee co-ordinator, through the Chairperson, to clarify if the report was being handed out to Members of the Committee for the first time at the meeting, or if they had received it before, because he could not recall being sent the document previously.
The Chairperson responded that she had been advised that the document had been vetted only the day before the meeting, and that was why Members were being given the document only at the meeting. She gave the Committee an option to either adopt the report in the meeting or not, or to take a five minute break to become familiar with the document. It was her advice that Members take a five-minute break so that they could go through it, as it was not a complicated document.
Following the short break, the Chairperson said the Committee was going to go through the draft Quarterly Report on the Standing Committee on Premier and Constitutional Matters, July – September 2019, page by page and make the necessary amendments.
On page three, Mr Dugmore raised a clarity seeking question about the Standing Committee’s visit to Laingsburg on 28 August 2019. He asked that the Committee be informed about the processing of the report, in terms of whether that processing and adoption had been done by another Committee or not.
The Chairperson said that she had received advice that the report had been adopted and sent to all departments with the resolutions, and the Cluster A visit had been added.
Mr Dugmore asked whether it had been a meeting of all the different committees involved that had adopted and sent the report, and the Chairperson confirmed this to be the case.
Mr Mitchell said that on page three, it read that the attendance of the MPP’s was 16, which was not correct. After some background comments were made by fellow Committee Members, he responded to say that he heard what the other Members were saying.
Mr Dugmore asked if what Mr Mitchell was referring to was in the minuted report adopted. He was wondering how to deal with that visit on the basis that if people went to the Joint Committee to look at the overall report, and this Committee had adopted the same report itself, whether it would not be an issue.
The Chairperson said she had been advised once again that the “no” just needed to be changed to “yes.” That was because it had already been adopted and just incorrectly reflected on the page. She thanked him for highlighting that particular edit.
Mr Mitchell pointed out that for the sake of consistency, because of the fact that the document became a public record after adoption, that it should be amended to show ‘yes’ as part of the Cluster A report, as adopted at whatever date.
He wanted to go back to the issue raised earlier about the attendance of the MPPs. He understood that it was a cluster and that people sat on various committees, but disputed that there were 16 MPP’s during the cluster week. Again, because of the fact that the document became public after adoption, it should be amended because a member of the public would read and interpret it as it was, with the reflection of 16 MPPs in attendance.
The Chairperson said the names of the MPPs that went on the particular oversight were on page four and five, under the table of Members’ attendance on 28 August 2019. Therefore these particular Members either went on the oversight as primary MPPs or as alternates. She asked Members to indicate if they were happy with that explanation.
Mr Dugmore said that if he looked at all the names listed, it appeared to be everyone who had been there, because it was quite a big delegation.
Making an amendment on page four, Ms Philander asked that the attendance on 11 September be changed to ‘AP,’ as an apology had been tendered and recorded in the minutes as such.
Also referring to page four, Mr Allen said an amendment needed to be made to reflect that Ms L Maseko (DA) had stood in for him.
The Chairperson asked Mr Allen to indicate to her where this needed to be recorded. Mr Allen said on 11 September in the table of Members’ attendance. She said it was not necessary to make that amendment, because his attendance had been recorded as an apology.
Mr Mitchell said that the amendment he raised for pages four and five was related to the point he made earlier -- because the report would become a public document. He understood that there were 16 delegates, or Members of Provincial Parliament (MPPs) that went. However, under additional members, its Members were not additional Members as per the ATC on the Committee. The example he gave was Mr K Sayed (ANC).
The Chairperson responded that she had received advice that the alternates on the Committee and the additional Members in attendance had been separated. She went on to explain that what happens is that first the Committee Members would read Democratic Alliance, African National Congress and Economic Freedom Fighters under the table of Members’ attendance -- who were the permanents. Then, separate from that, were the alternates on the Committee, and then separate from that were the additional Members, simply because additional Members may attend those particular oversights as well.
The Committee Members were happy with the explanation provided.
Mr Mitchell said the issue he had was related to the correctness of the document, especially because of how it would become a public document. The quarterly report was for the Standing Committee of the Premier and Constitutional Matters, therefore the document should reflect Members who were part of the Committee. He was raising his point, taking into consideration the guidance given by the Chairperson and without questioning the procedural advice.
The Chairperson gave Mr Mitchell an example based on the report and the different meeting dates, like 31 July and 14 August. She explained that even if it was not an oversight visit, any other person who attended those meetings was noted as having attended, which was part of the reason they go around the table to note the Members who were in Committees. This was because sometimes Members wanted to go to a meeting, even if they were not necessarily primary or alternate Members of the Committee, but felt that it affected themselves, their constituency or portfolio, or that there was particular information that they would like to request or hear about.
Mr Dugmore asked if it would not be a good idea that on page three, where it reads on 28 August 2019: ‘Institution/Department Attended – Department of the Premier as part of the Cluster A visit week’, it reflected in brackets ‘as part of Cluster A delegation,’ so that it reads ‘Department of the Premier (as part of the Cluster A delegation)’.
The Chairperson confirmed what Mr Dugmore suggested -- that on page three, under 28 August 2019, it be indicated that the Department was part of cluster A, or similarly reflect in the report that it was a cluster A adoption. A suggestion made that could be off assistance was that perhaps under attendance, people just be referred to page four and five so that they could see what was being referred to.
As a result of no further amendments being forward by members, the Chairperson moved for the adoption of the draft quarterly report.
Ms Philander supported the adoption, and was seconded by Mr Allen.
Mr Dugmore said that looking at the last page, which may be the standard format, it read that the following documents were attached:
- Minutes of all Committee meetings held, even if not yet adopted by the Committee;
- Committee reports of all hearings and visits;
- Latest Budget Statement -Actual expenditure report;
- Committee Programme for the next term;
- Committee Tracking Document.
He said the Committee had heard from the procedural officer that the report had been compiled on the day of the meeting, but in reality those other items that would normally be there were not there. He proposed that at the next meeting, the Committee get all those documents for the record, because it would be interesting to see the expenditure report to get a sense of what they, as the Committee, were spending that money on. Also, the other issues, such as programmes for the next term, because for instance on the programme for the next term, he had written to the Chairperson and asked that the Premier be invited to actually share the safety plan that he refers to in the media, but which the Committee had no way of knowing whether that was a proposal for inclusion.
He proposed that because of the missing documents, the Committee be procedural and hold off the formal adoption of the quarterly report until they got those documents, even though he was not sure when they would meet again. Alternatively, the Committee could correct the report so that it says the following documents would be provided to the Committee, but that they were not actually attached.
Mr Mitchell said that he completely agreed with Mr Dugmore, and suggested that after the meeting this got circulated by email, because the Committee had technically already adopted the report.
The Chairperson suggested the Committee could move an amendment, and say that the following documents would be circulated to Members. While she heard Mr Dugmore’s request, resolutions were not usually included in this particular document, as it was noted under each committee how many resolutions there were -- for example, how there were eight resolutions from 31 July. She said that perhaps at the next meeting, the safety plan, which she was advised was part of the resolution, could be sent to the Committee and be put on the programme as well.
To finalise the agenda item, she requested a mover for adopting the document with the amendments. Mr M Xego (EFF) and Ms Philander supported the move for adoption.
Traditional Courts Bill: Informal discussion
The Chairperson referred to the Western Cape Provincial Parliament rule that states that all business before the House lapsed at the end of fifth Parliament, so the Committee required the National Council of Provinces (NCOP) to formally refer the Traditional Courts Bill [B 1B-2017] (s76) to them again. However, as the Committee had not yet received an official referral, they could not have a briefing on the Bill from either the permanent delegate or the Department. Because she was anti-wasteful expenditure and because the Committee had agreed earlier to the suggestion, there would instead be an informal discussion with the Department about information on how to align traditional courts in general to the Constitution.
Department of Justice and Constitutional Development Presentation
Mr Lawrence Bassettt, Department of Justice and Constitutional Development (DJCD), said he was working in the legislation section of the Department. He started his presentation by emphasising that traditional courts already existed and were in full function. The intention of the Bill was not to create traditional courts, but rather to regulate traditional courts in line with the Constitution.
He gave a bit of history on the Bill, to put it into context. It had been introduced into Parliament before 2008, and the Portfolio Committee on Justice at that time had been briefed and public hearings were held. The Bill then was very different to what it looked like now. There had been a lot of opposition to quite a few issues that were in the Bill, which he would highlight during the course of the presentation, because the current Bill attempted to address those issues.
The Portfolio Committee and Parliament had suggested that the Bill be withdrawn in light of the opposition and be introduced into the National Council of Provinces (NCOP), where it would be better dealt with. They felt that the NCOP was better equipped at grass roots level to deal with public consultation. It was withdrawn by the Minister at that stage and introduced in Parliament in 2012 to the NCOP. The same Bill that was in Parliament in 2008 was introduced into Parliament in 2012.
Mr Bassett said that in hindsight, that may not have been the right approach. However the thinking at the time around the Bill was that if the Department knew what the concerns were, it could offer to assist the Committee to address these concerns and during the course of Parliamentary process to reformulate the Bill and amend it in line with the deliberations in the NCOP.
The Bill had lapsed in 2014 before the elections. In 2017, a new Bill was introduced into Parliament and the Bill took into consideration and arguably addressed all the concerns that were raised in the previous two Bills that had been introduced..
The Deputy Minister had established a task team which was more of a reference group of government departments -- Cooperative Governance and Traditional Affairs (COGTA), the Department of justice and Constitutional Development, civil society and traditional leaders. The task team was mandated to come up with a Bill suitable for introduction into Parliament.
The joint effort of the task team was the Bill that was currently in front of the Committee, which had been introduced to Parliament in 2017. It had been approved in the National Assembly in March 2019, and then referred to the NCOP. That concluded the history of the Bill.
Mr Bassett said the object of the Bill was set out in Clause 3, which was to create a uniformed legislative framework regulating the role and functions of traditional courts and the resolution of disputes. The emphasis was in accordance with constitutional imperatives and values. The intention of the Bill was to improve access to justice services and in so doing advance the effectiveness, efficiency and integrity of traditional courts for the purpose of resolving disputes. He wanted to say this because it came up often that the purpose of these courts was to promote social cohesion, co-existence and peace and harmony, with the emphasis being on restorative justice.
Traditional courts existed, and it was essential that they were transformed so that they aligned with the new constitutional dispensation. It was in chapter 12, schedule six, of the Constitution that the existence of traditional courts was recognised. Every effort was being made to address the concerns raised in respect of the two previous Bills which had been introduced in Parliament, especially when it came to the role of the protection of women and other vulnerable groups.
The Bill recognised other levels of dispute resolution in the traditional justice system -- for instance, the headman or headwoman’s court, which exist because not every part of the country had a king or queen’s court.
Clause 3 sets out the guiding principles of traditional courts, while clause 4 deals with the institution of proceedings in traditional courts. What clause 4 was saying was that a party could only bring a matter to a traditional court and nowhere else in the judicial system, or when it was in the investigation stage by the police.
Mr Bassett asked Committee Members to look at schedule 2 of the Bill, saying it was important to understand that this Bill was about dealing with matters that were not of a serious nature. Looking at schedule 2, traditional courts could only deal with disputes, for instance theft, where the amount involved did not exceed R15 000. So it was limited with what it could deal with, and the intention was that it dealt with these matters to promote social cohesion and restorative justice.
In clause 4 and elsewhere in the Bill, there was no talk about civil and criminal matters, there was only the mention of disputes, meaning that there was no distinction between civil and criminal jurisdiction in these courts.
Clause 5 sets out the composition of, and participation in, traditional courts. It was an important provision because of what it states. With the procedure in traditional courts, parties must still be allowed to be assisted by any person of their choice in whom they had confidence. Legal representation was not allowed, and there seemed to be general consensus that legal representation was not suited for the traditional justice system.
This was a very important law, because it sets out all the regulatory matters that have to be complied with. A session of a traditional court must be held at a time and place that it accessible to all members of the community, and the proceedings must be in accordance with customary law and custom, which may differ from place to place.
Mr Bassett explained that what the Bill tries, or tries not to do, was to regulate customary law because of how customary law differed from place to place. The intention of the Bill was not to try and impose, or have a Bill in place that was not in line possibly with what was done in one part of the country and not in another.
Clause 8 had been changed quite considerably in comparison to the previous Bills, to try and address the concerns that had been raised.
Adding on to what was said about clause 9, he said the Committee must remember that these courts were voluntary and aimed for restorative justice.
Clause 10 was one of the provisions that had financial implications, and through this clause there would be nine provincial court registrars.
Elaborating on clause 11, Mr Bassett said that he knew that the first question that would probably come to everyone’s mind was that to go to the High Court was too expensive, which was correct. In reference to the previous slide, one of the tasks of the function of the provincial registrar was to refer matters to the High Court to assist parties. The rules and regulations which they, as the Department, had in mind had to be of such a nature that it made access to the High Court, for the purposes of these reviews, as inexpensive and easy as possible.
The main financial implications arose from the suggested training of personnel. The Department had not costed accommodation, and as a result the existing structure had to be used. There was no money and the budget was limited, meaning that the Department had to work with what it had.
Mr Dugmore said he wanted to get a sense of which provinces in the country had functioning traditional courts, as he was not aware of any in the Western Cape. Wouls having a provincial registrar plus staff, as per the recommendation on the last page, be adequate to service the needs in a particular province?
With regard to the budget, he made reference to the R11 million that was mentioned towards the end of the presentation, which appeared to be just for the office of the registrar, secretary and administrative officer. He wanted to know what the overall projected cost would be, given the presence and operation of traditional courts across the country.
He asked the Department to inform the Committee where court hearings were actually taking place, because according to what it had said at the beginning of the presentation, it was not as though these courts had to be created, because they were already operating. The question was if they were operating in community hall facilities.
Because the Department had mentioned that the National House of Traditional Leaders had been involved in the consultations on the Bill, he asked if the Department had the support of the House of Traditional Leaders.
Mr Allen said that the Department’s opening remarks had provided the context, but had not defined exactly how the Bill aligned to the Constitution. What he was asking was for the Department to provide more detail, for the Committee to better understand.
Referring to the point in the presentation, ‘that proceedings may not be instituted in traditional courts if the dispute was being dealt with at another level’, he asked the Department elaborate on that. Also, the fact that there was no opt out clause was something he wanted the Department to address, because there was uncertainty from the presentation as to what would happen if a matter was already in a traditional court -- later on in the presentation, the Department had mentioned that a magistrate could refer a matter. He also asked Mr Bassett to speak more on the appeal mechanisms which he had touched on, because it was unclear how they would look.
Mr Bassett responded that he might not have the answers for all the questions that had been posed, and realised that maybe he should have brought someone from Cooperative Governance and Traditional Affairs (COGTA) with him to the meeting.
He did not have the information about the number of traditional courts that there were around the country readily available, and undertook to revert on that and send it through to the Committee. However, if his memory served him correctly, he thought there were around 300 or more. As far as he was aware, there were none in the Western Cape and Gauteng, and the Northern Cape did not have too many either.
On the operational side, he did not have all the answers, but he would revert back to the Committee. In the Eastern Cape and Kwa-Zulu Natal (KZN) there were a lot of traditional courts which operated in various places, but again, he would get the details.
Mr Bassett said that there had been complaints that there was not enough staff. This was an issue that COGTA would have to deal with, because these people fell under the jurisdiction of COGTA.
Responding to the question on the cost of R11 million, Mr Bassett said that it had been costed purely for the appointment of provincial registrars, and anything else required for implementation of the Bill was simply going to have to be found within the budget, as there was no other money. The Department responsible for implementation of the legislation would have to deal with the financial implications.
He did not have information about the overall cost implications.
The Bill had been referred to the House of Traditional Leader in terms of s18 of the Traditional Leadership and Governance Framework Act, which required the Bill to be submitted to the National House of Traditional Leaders on introduction of the Bill in Parliament. The Bill had been amended during the Parliamentary process in the National Assembly, and it was Mr Bassett’s understanding that it had the support of the traditional leaders. There had been a few amendments during the course of the National Assembly proceedings which the traditional leadership had requested. Those amendments had been effected, and that had led to the position where the traditional leaders were currently.
He was not sure whether the National House of Traditional Leaders had specifically indicated support, and would find out.
Responding to the question of how the Bill aligned to the Constitution, he said there were a whole range of provisions in the Bill which were intended to align it. In terms of promoting access to justice, but in line with constitutional values, he had mentioned the various aspects where the Bill needed to align with the Constitution in so far as they related to the resolution of disputes, to embrace the values enshrined in the Constitution -- human dignity, achievement of equality, advancement of human rights, promotion of non-racialism, non-sexism and freedom of sexual orientation.
Regarding gender equality, it was imperative that traditional courts honour the guiding principles when applying this Act. They must recognise how the constitution proposes that traditional courts must promote the values that underline society, based on human dignity, and that it was trying to align and address the abuse that had happened in the past, which included the existence of unfair discrimination and inequality.
Mr Bassett asked the Members to have a look at schedule 1, together with clause 3(3), that referred to conduct. The conduct mentioned in schedule 1 was just some of the conduct that had been mentioned by way of illustration, to try and ensure that these courts operated within constitutional values.
Apologising to Mr Allen, he said he had not spoken about clause 12, which related to appeals by a party who had been aggrieved by a decision or order of a traditional court. The party may, after exhausting all traditional court system appeal procedures available in terms of customary law, refer that decision or order to the magistrates court having jurisdiction. The aggrieved party was able to make an appeal by going to the magistrates court in which a matter had been referred in terms of subsection 1. The prescribed regulations would have to ensure that it was cost effective, easy and accessible.
Responding to Mr Allen’s question about the institution of proceedings, Mr Bassett said that if the issue was being dealt with at another level -- for example, a matter in customary law that was inscribed in the family -- that was at a dispute resolution level in customary law. If a matter was being dealt with there and was under way, the matter could not be taken to the traditional court. If a matter was before a headman or headwoman, which was another level of dispute resolution, a party could not institute proceedings in the traditional court. If a party had already taken the matter up with the police, by way of laying a charge and the police were investigating the matter, it could not be taken to the traditional court because if the police were dealing with that matter, it was the police who decide to refer it to the prosecuting authority. It was for that reason why the matter could not go to the traditional court.
Mr Bassett said one must bear in mind that the matters were limited to matters of a less serious nature - theft, malicious damage to property, crimen injuria, etc.
He realised that he had not dealt with the financial implications, as the Committee would have liked him to, but he would get back to them on that. He would also get further information on the operation of these courts and their numbers.
The Chairperson reminded Mr Bassett that he had not responded to the question about opting out.
Mr Bassett replied that in the Bill that was introduced Parliament, this was a provision that the traditional leadership had requested. Under clause 4, a person had the right to opt out. That provision was had been out during the Parliamentary proceedings in the National Assembly, and clause 12 was put in, which dealt with appeals, so if a party was unhappy about a decision of a traditional court, that party could take it on appeal.
The Chairperson opened up for another round of questions.
Mr Xego said that his question was in relation to page four of the presentation, which detailed how clause 3 highlighted the constitutional values being of paramount importance, and the different aspects referred to there including identity. He wanted to understand this concept in terms of the Western Cape and the Khoi-San people. Looking at the definitions section in the Bill, he wanted to understand how far the Department was with the recognition of the Khoi-San people and their traditional leadership status, because there were some people who were claimants of this status in the Western Cape, and the Committee did not want a situation where they were not recognised.
With regard to the same Bill, in relation to clause 4 read with schedule 2, Mr Xego said that because there were issues that were viewed at a communal level, these could be brought to the attention of a ward councillor, and the ward councillor could be of assistance if he wanted to understand the relationship between traditional leaders and ward councillors in terms of jurisdiction. The Department must check that they were located in municipal demarcated zones.
The Committee did not want to have a situation where there was a tug of war in terms of relationships and jurisdiction which then raised the question of who was in charge of what. He therefore wanted clarity because at a community level there were disputes that were brought to the attention of ward councillors, especially in the rural areas, instead of a traditional leader. That kind of arrangement raised the question about what the relationship between the two of them was.
Ms Philander said that she was interested in the composition and participation in traditional courts as set out in the Constitution, of equal representation. The Bill speaks to voluntary participation, which would not necessarily result in equal representation. She asked what kind of measures would be put in place to ensure equal representation in those courts.
Mr Bassettt said that as far as the Khoi San communities were concerned, which was a COGTA issue, the Bill of the DOJ & CD recognised that there might be traditional courts or tribunals that dealt with, or regulated the Khoi-San community. The definition of traditional courts meant a customary institution or structure which was constituted and functioned within customary law with the purpose of resolving disputes, which was referred to in the different languages, and subsection (j) of the Bill was for Khoi-San communities.
Parliament had recently enacted new legislation -- the Traditional Leadership and Governance Framework Act -- and it recognises Khoi-San communities. Mr Bassett asked Mr Xego if he could come back to him about that.
On the question about identity that was raised, he was not sure if it was linked to the Khoi-San question, but their identity was related to sexual orientation or sexual identity.
Regarding the relationship between ward councillors and traditional courts, no tug of war currently existed because if a complainant had a matter that they wanted to take to court, that matter could be dealt with by the court. It was the complainant’s right to decide where to take that matter for resolution, and if the ward councillor could deal with it they could decide rather to take it to the ward councillor.
Mr Bassett said that he was not too sure what powers ward councillors had, and maybe this was an issue for COGTA, but in his opinion a party had the right to also take their complaint to a traditional court. He did not foresee any tension, but maybe that was something he would need to get feedback about from COGTA.
On the question raised by Ms Philander, about composition and equal representation, what the Bill said in clause 5(1) was that a traditional court must consist of both women and men. During the deliberation and preparation of the Bill, lots of negotiations happened and discussion revolved around the question of whether it should be more descriptive, and whether it should set out quotas. It was suggested at the end of the day that the goal was to promote the right to equality.
Mr Bassett that the question of being too descriptive could have resulted with the courts not being able to function, because some communities were hesitant to have women form part of these courts. However, clause 5(3)(b) says that the Commission for Gender Equality (CGE) and the Minister must put measures in place to promote and protect this area of representation and participation of women as parties and Members of traditional courts, in order to create an environment that promotes voluntary and meaningful participation of women. It was difficult to say what those measures were going to be exactly, but it was going to be an evolving process and those measures would be there to promote and protect a fair representation of women.
Mr Xego said he would like some clarity about the relationship between traditional leaders and councillors. His interest was particularly about how this relationship was affected when it came to issues involving land borders or boundaries. He gave an example of a person owning land and another encroaching over the owner’s boundary. To settle the dispute, the parties would go as far as getting a municipal map. These were issues that were normally brought to the attention of traditional leaders. In those kinds of disputes, the Committee did not want a situation where a matter which was dealt with at a municipal level could also be resolved at a traditional court level.
He wanted clarity on what was detailed on page 12 of the presentation. Here, the Department talked about orders that could be instituted, and issues of compensation that they could impose, so it was a situation of compensation versus fines. What would happen in a situation where these orders had been issued, and there was a serious challenge with them, which was referred to under ‘Enforcement of Orders’ on page 17 of the Bill. Some people did not necessarily recognise these traditional leaders in terms of how they dealt with matters of the law. What the Committee did not want was a situation like that involving King Dalindyebo that had resulted in him ending up in prison because of enforcing a decision that he had made a ruling on from his court. When it had been undermined, he ended up pursuing some other avenue.
Therefore, the question was, when it came to the issue of enforcement of the Bill, how far were the limitations, because the Committee did not want an unwarranted way of doing things.
The Chairperson thanked the Department for their presentation. She thought the Committee had raised more questions than the answers the Department was able to provide.
She said she also sat on the budget committee, which meant she always had questions about where the feasibility study was, or where the finances were if finances were needed. Where were the funds going to come from, because money did not fall out of the sky. For her, the most important thing about any piece of legislation was being shown the numbers, and this had been lacking in this presentation.
She did not know what the other Houses in Parliament had done in order to interrogate the finances of this particular matter, but she thought that provinces would have to ask the very difficult question of how much was needed. The Department would have to break the figures down to the finest detail. In the same way that a court in the normal sense would give its cost, this should also be costed.
Another situation that she needed clarity on was whether the Bill had an opt in or opt out situation. The reason why this was not clear was because in the presentation on page four, the founding value of customary law and its application was accessible to those persons who voluntarily subjected themselves to that set of laws and customs, and then the Department further spoke about opting out. In her view, when a person voluntarily subjected themselves to a law, that was opting in, because that was the person saying that they wanted to be part of the particular set of rules and regulations. However, opting out technically meant that it applied to everyone, and one would have to deliberately say that they did not want to be part of it. A simple example was of someone at a university residence. Sometimes people would tell the students what was done on the different days of the week in the orientation programme, and if they do not want to be part of it they would have to let them know – that was opting out. But if people said these were the things they could take part in, or would want to be included in – that was opting in. This was what was causing the confusion, because it was unclear as to whether this would generally apply to everyone, or if people could decide whether they wanted to be part of it.
Quoting Mr Bassett, the Chairperson said that the Department had spoken about the magistrates court being the appeal authority to the traditional court, but in schedule 2, it lists the matters that traditional courts were competent to deal with. Were all those matters listed in schedule 2 matters that the Magistrate court could hear? She was asking this question because she was not sure about every particular one, and if if the magistrates court could not hear an appeal, where did the matter go for appeal?
Mr Bassett had previously indicated that complainants could approach the Constitutional Court for a particular matter, and aligning it with her understanding that the Constitutional Court was the highest court for all matters, irrespective of what court had made a decision, it raised the need for some clarity on what roles these courts had, as well as the Constitutional Court.
Following up on Mr Xego’s question regarding the Khoi-San, she wanted to find out whether the leaders of the Khoi-San were recognised by the members of the Khoi-San community.
The Chairperson said Mr Bassett had mentioned the word ‘pledge,’ saying that those who adjudicated on matters would have to make a pledge that they would uphold the laws. She asked what the difference was between what the Department considered a pledge, and an oath or affirmation. When was admitted to the court, she either had to take an oath or affirmation to become an advocate. Also, when she was elected as a Member of Parliament, she had to take an oath or affirmation to uphold the laws of the Constitution. Therefore there was a need to understand what a pledge was, because to her a pledge was something that should still be in light of constitutional provisions.
There was also mention that no legal representation was allowed. Looking at schedule 2 and the matters that would be dealt with in terms of what was detailed in sub-section (c), how would the court determine what was, or was not, grievous bodily harm? She was using that clause as an example, because it stood out for her, and if legal representation was not allowed, would it then be allowed during the appeal process in the magistrates court?
Schedule 1 prevented the six different types of conduct of the nature that could lead to those particular things. In the Constitution, there were other rights and freedoms that were not in schedule 1. For example, that there was nothing about gender in general, and matters that one may discriminate on were not reflected in schedule 1.
The Chairperson asked what the requirement for the person adjudicating a dispute was in terms of qualifications. What type of qualification was needed for adjudicators to hear matters? The reason for this question was because under normal court circumstances, one would have to go through certain criteria, like studying towards a law degree, or writing a board exam, or doing pupillage and getting a fiduciary certificate, if one was going to represent someone.
Regarding clause (g) in schedule 2, she asked who the advice was being given to -- was it advice to the complainant/applicant, or was it advice to the court, or advice to everyone? She did not really understand the meaning of the sentence.
Referring to page 18 of the presentation, in line with clause 15 of the Bill, the Chairperson felt that the term ‘in good faith’ was a very broad statement. For example, there was a law that says one was not allowed to leave South Africa with jewellery that was valued at a certain amount, but a person’s ignorance of the law did not mean that the person would not be liable. If something happened, the law still applied. Therefore how did one argue that it was in good faith or not? How did it align to the current principles in the law at the moment?
Responding to the question raised by the Chairperson about the finances, Mr Bassett said that he would need go back and get more information to be able to respond in greater detail.
On the opt in and opt out issue, it was broadly accepted in customary law that traditional courts operate on the basis of community involvement of a voluntary nature, and that was why there was an opting out clause. In the introduced Bill, a person could indicate that they did not want to go through that process in the court. That had been taken out in the National Assembly proceedings, and clause 12 had been put in so that it created a situation where, if a party was not happy with the end result, they could take the matter on appeal.
About the appeal authority, Mr Bassett said that the magistrates court was able to hear all the matters listed on appeal, as it was within their jurisdiction. All the matters in schedule 2 were matters where the magistrates court certainly had authority and jurisdiction to deal with them.
On the role of the Constitutional Court, Mr Bassett said a situation could arise where a matter started in a traditional court, got taken on appeal to a magistrated court and eventually went further up to a higher court as far as the Constitutional Court. The possibility of a matter ending up in the Constitutional Court existed, and was not excluded. Disputes had found their way into the Constitutional Court, and the Department was busy with legislation currently that dealt with that.
Mr Bassett agreed that an oath was different to a pledge. The pledge that the Bill made reference to, was going to be a prescribed pledge, meaning that the wording of the pledge was still going to be formulated in terms of the regulations, because it was going to be prescribed by the Minister. The wording of the pledge was still going to be debated. Perhaps it was a good idea to consider a pledge strong enough that maybe the adjudicators would need an oath, and that was something the Department could consider.
Legal representation could not be denied, and there would certainly be legal representation in the magistrates court when a matter was taken on appeal.
Mr Bassett said that no qualifications were being prescribed. Traditional leaders got to their positions by birth, and grow up with customary law. The Bill was not intended to prescribe minimum qualifications because that would be changing customary law, and there was no intention to do that.
Advice in schedule 2 refers back to clause 4(3). If anyone approaches the traditional court, although a traditional court cannot make an order about ukuthwala or customary law marriages, the Bill allows the traditional court to give advice to a party. The Department did not want a situation where the court takes a decision and that decision is imposed on a party coming to the court for advice. The Department wants the courts to deal with matters relating to the status of the person, for instance, in respect of marriage. The aim of the provision was to try and enhance access to justice.
He said it was not unusual to include a clause that states that omitting in good faith would be taken into consideration for all matters requiring a decision, and he did not know how one could narrow it down. Circumstances would dictate whether it was done in good faith. The provision in clause 15 was a provision found in statutory bodies, that anything done in good faith did not attract liability.
Responding to Mr Xego’s follow up question about land boundaries, Mr Bassett said that traditional courts should not be dealing with that as they did not have the jurisdiction to deal with matters of that nature.
Although schedule 1 did not contain anything about gender discrimination, it was included in the Bill. The schedule was just put in to highlight some of the things that happen in traditional courts. Again, this could be something the Department could look at to reinforce gender equality, and put something of that nature into schedule 1.
Regarding the enforcement of orders, the Bill relied on the voluntary nature coherent in customary law, and subscribing to the practice of customary law. The Bill was about restorative justice and social coherence. It was about getting both parties to come to an agreement. It was not so much about retribution, but about getting the parties to talk to one another. In the enforcement, if an order was imposed, bearing in mind what type of orders may be imposed which were restorative in nature, the compensation may be anything like apologising, counselling etc. Failing that, the Justice of the Peace would be given the powers as set out in terms of the Act by the Minster in future, when the Bill was implemented.
Mr Xego said he was concerned about the response that Mr Bassett had given on qualifications. In a situation like this, they were dealing with people who had their own customary law, which was not written anywhere, whereas the Constitution was a written document. These adjudicators were mandated to make determinations about disputes that emanated from communities, and nothing in the Bill was set out to give even the most basic training on the Constitution to ensure that whatever decisions they took regarding their own customary law did not infringe the Constitution. Adjudicators needed to be taken through an understanding of the Constitution, so that whatever they were deciding on would not have a negative impact on it.
Referring to clause 14, which dealt with the transfer of disputes, Mr Xego said he did not understand the applicability of this clause. If a dispute was already in the magistrates court, could it be referred back to the traditional court? In being able to do that, did it mean that a person who was not satisfied in court could refer back to the people who knew nothing about the Constitution, or who had no legal background whatsoever? He felt that people who might want to sidestep any legal implications they had in court, could run back to them. He felt that this was regressive, rather than progressive.
The Chairperson reminded the Committee that they were just having an informal discussion and that should the Bill be referred back to them, they would have a formal discussion about whether or not the Committee supported it or not.
Mr Dugmore said that leading on from what Mr Xego had raised earlier in relation to the Khoi-San and traditional leadership, what was important for the Committee was to establish before the next discussion was the relationship between this Bill and the one to be signed by the President -- the Traditional Leadership and Governance Framework Bill. Both the National Assembly and the NCOP had passed the legislation regarding the Khoisan and Traditional Leadership Bill. Some of the issues captured in this were definitely going to be applicable to the leadership of the Khoi-San traditional leaders.
Mr Bassett said that he had heard what Mr Xego had said about qualifications, and although he had responded to this question, he would like to highlight and bring to the Committee’s attention clause 17 (k) and (l) in the presentation. This alluded to the fact training was a vital part of the implementation of the legislation. However, he acknowledged the concern that had been raised.
A transfer from the magistrates court to a traditional court under clause 14 could happen before an accused had pleaded to a charge -- before the case actually starts. If a magistrate or commissioner of the Small Claims court, presiding over a civil matter, was of the opinion that the matter would be better dealt with in terms of customary law in a traditional court, and if the court had jurisdiction as set out in schedule 2, then the presiding officer or prosecutor could facilitate transfer of the matter to the traditional court. They would have to notify the parties to the dispute. He said this was already happening in practice in some parts of the country, where there was a minor dispute and it might be better for the matter to be resolved in a restorative justice manner in a traditional court, rather than in a retributive criminal environment.
Mr Xego sought clarity about the transfer of disputes, and asked if the Department was saying that a matter could only be referred by the court itself on the merits of the case, to which Mr Bassett said ‘yes.’
The relationship between the Bill and traditional leadership was something that the Department would get back to the Committee about.
The Chairperson said she hoped that the next time the Department came, COGTA would also be there so that the two departments were in sync, and could deal with questions where the Department of Justice did not have a mandate or was unable to assist
The meeting was adjourned.
- Committee Report on Department of Premier 2018/19 Annual Report; Draft Committee Quarterly Report; Traditional Courts Bill: briefing by NCOP Permanent Delegate 2
- Committee Report on Department of Premier 2018/19 Annual Report; Draft Committee Quarterly Report; Traditional Courts Bill: briefing by NCOP Permanent Delegate 1
- Parliament Research Unit: Amendments to the Traditional Courts Bill B version 2017