The Committee met to discuss the Traditional Courts Bill against the backdrop of public hearings previously conducted regarding the Bill. The Committee noted that at the public hearings, the effectiveness and implementation of the Bill in the Western Cape Province, where traditional leadership was divided, had been questioned.
The ANC said that the President had signed the Traditional and Khoi-San Leadership Act recognising traditional leaders in South Africa. It proposed accepting the bill, stating that the situation of divided leadership in the Western Cape should not impede its development.
However, for this and other reasons, including the fact that the Bill did not receive enough public participation and granted unlimited powers to traditional leaders, the Committee decided not support it.
Traditional Courts Bill: Negotiating mandate
The Chairperson expressed concern over the National Council of Provinces’ (NCOP’s) communication regarding the submission dates for the negotiating mandate on the Bill. He then invited Members of the Committee to make comments on the matrix of public hearings on the Traditional Courts Bill.
Ms P Lekker (ANC) expressed concern regarding the effectiveness and implementation of the Traditional Courts Bill in the Western Cape Province, where there was no structured traditional leadership compared to other provinces such as KwaZulu-Natal (KZN). She asked what the negotiation mandate was regarding this issue.
The Chairperson said that this had previously been raised at the public hearing meetings. The participants at the meetings had suggested that there should be a workshop on the Traditional Courts Bill with the traditional leaders that were going to be affected by the Bill. This was to ensure proper input and public consultation.
Ms Lekker said that the President had signed the Traditional and Khoi-San Leadership Act recognising traditional leaders in South Africa. For that reason, the situation of divided leadership in the Western Cape should not impede the development of the Traditional Courts Bill. She said this must be addressed at the provincial level through adopting a provincial bill clearly identifying the Western Cape’s traditional leadership.
Mr R Allen (DA) said the Traditional Courts Bill had been amended but was still not in line with some constitutional provisions. For that reason, it was difficult to support it.
Ms Lekker said the ANC supported the Bill on the basis that the President had already signed the Traditional and Khoisan Leadership Act.
Ms W Philander (DA) said the Bill was questionable with regard to women’s rights, and therefore she was not supporting it.
The Chairperson said that he did not support the Bill for the following reasons:
- The Traditional and Khoi-San Leadership Bill had been signed, but it still did not give effect to traditional leaders in the Western Cape. In addition, the Traditional and Khoi-San Leadership Bill had not yet been implemented, which made it illogical to sign and implement the Traditional Courts Bill.
- The Traditional Courts Bill had not received public participation. He said the Constitutional Court had made rulings which had emphasised that public participation was key in South Africa’s lawmaking process.
- The Traditional Courts Bill gave traditional leaders unlimited powers which consequently placed them in autocratic positions. The Chairperson stressed that this was unconstitutional.
- The Traditional Courts Bill was silent on the mechanisms to guide and to monitor the relationship between the traditional courts and the South Africa Police Service.
- Section 73 of the Traditional Courts Bill indicated that traditional courts must be impartial, but there was no oversight on such impartiality.
- The Traditional Courts Bill did not stipulate how conflicts of interest would be monitored and managed by external parties, which left a loophole for exclusion and corruption.
- The requirement that a compelling reason must be submitted before a matter could be allowed to be withdrawn or abandoned was unconstitutional.
- Section 7 of the Bill relating to fees payable to traditional leaders might fuel corruption and block justice to those that could not afford the fee.
- The Bill did not provide criteria for the assessment of traditional leaders qualified to serve on the traditional courts. One simply needed to be a traditional leader to become appointed to serve on the traditional courts.
- Section 75 provides that court proceedings must be open to the public. Be that as it may, subsection 8 of the section provided that customary law of procedure and evidence applied. This was inconsistent with legislation that protected the rights of children to provide testimony in camera, and for sensitive measures to be in closed court. The Chairperson stressed that Traditional Courts did not have the capacity to deal with this.
- The negotiators of the Traditional Courts Bill may have lacked a proper understanding of customary law.
Ms Lekker suggested that the Committee make recommendations on highlighted issues, and proceed to support and accept the Bill.
The Chairperson said that the Committee was considering the Bill as it currently stood, without recommendations.
Ms Lekker said that the ANC supported the Bill, with the proposed amendments.
Mr Allen said that the DA did not support the Bill.
The Chairperson said the Standing Committee did not support the Bill for written reasons that it would furnish.
The meeting was adjourned.
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