Traditional Courts Bill: Negotiating Mandates & Department’s response; with Deputy Minister

NCOP Security and Justice

21 October 2020
Chairperson: Ms S Shaikh (ANC, Limpopo)
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Meeting Summary

Video: Select Committee on Security and Justice (NCOP) 21 Oct 2020

In this virtual meeting, the Committee received the negotiating mandates on the Traditional Courts Bill (the Bill), as well as the proposes amendments and responses thereto. Eight f the provinces supported bill and mandated their permanent delegate to negotiate in favour thereof. Of the eight provinces, the Northern Cape, Free State, Mpumalanga, Eastern Cape, Limpopo, and Gauteng Province proposed amendments to the Bill. The Western Cape Province did not support the Bill with substantiating reasons.

The Department of Justice and Constitutional Development (DOJ&CD) presented a summary of the recommendations or submissions from all nine provinces, as well as the responses from the DOJ&CD with regard to the proposals raised by the provinces.  

The Parliamentary Legal Advisor highlighted several issues for the Committee’s attention: These were: an explanation of the status of traditional courts; Legal representation together with opting-in and opting-out of the Bill; Mechanisms of the Bill that sought to protect and advance the protection of vulnerable groups that participated in the customary system; Clause 13(1)(h) regarding the meaning and use of pledge, oath and affirmation; and a Summary of the necessary amendments.

The Committee noted that it had run through the concerns that had been raised by the provinces in the functioning of traditional courts. The Bill did not seek to establish traditional courts but sought to regulate the functioning of the courts in line with the prescripts of the Constitution. It was therefore important to be satisfied that the court’s functioned in a manner that takes into account the rights of all persons who need to realise such courts. The Bill did respond in a manner that addressed gender equality and people with vulnerabilities. Besides the urgency for regulations because it affected the implementation of the Bill, the Committee also needed to bear in mind that there were also a number of issues highlighted by the provinces that should also find expression in the regulation. These regulations, in terms of the current Bill, would also come back to Parliament. In terms of the procedure, the next Committee meeting would then look at a C list of amendments which would be compiled by the Office of the State Law Advisor in consultation with the DOJ&CD and parliamentary legal advisor.

Meeting report

The Chairperson worked through the formalities of the meeting and thereafter welcomed everyone. Mr John Jeffery, Deputy Minister of Justice and Constitutional Development (DOJ&CD), had said that he would be in and out of the meeting as the DOJ&CD was having a Strategy Planning meeting. Ms Theresa Ross, State Law Advisor: DOJ&CD, and Mr Dingaan Mangena, State Law Advisor: DOJ&CD, would also be joining the meeting. Ms Suraya Williams, Chief State Law Advisor: DOJ&CD, was also present. All provinces were invited to the session and were provided with the necessary documentation. Ms Phumelela Ngema, Parliamentary Legal Advisor, was also present. Mr T Dodovu (ANC, North West) was currently on a flight and would join the meeting the moment he landed.

The last time that the Committee had received a briefing on this Bill was on 9 October 2019. At that meeting, provincial legislatures were also invited to the briefing and five provinces were physically present. At that meeting members were informed that the object of the Bill was to create a uniform legislative framework regulating the roles and functions of traditional courts in the resolution of certain disputes and in accordance with constitutional imperatives and values.

The Bill is intended to improve access to justice by enhancing the effectiveness, efficiency, and integrity of traditional courts for the purpose of resolving disputes with the view to promote social cohesion, coexistence and harmony. Given that the Bill was a Section 76 Bill, it had been referred to provincial legislatures to engage in public participation and for provinces to send their negotiating mandates to the Committee. During the course of the current year, the Committee had received the negotiating mandates together with information pertaining to the public participation processes that were undertaken by provinces – all of this documentation was also provided to Members of the Committee. She stated that Members were to note that all of the negotiating mandates were received signed. Members were also provided with a document indicating the DOJ&CD’s responses to all of the issues raised in the submissions or negotiating mandates from provinces – which had also been circulated to Members for their perusal before the meeting. The meeting would be started by formally receiving the negotiating mandates from the nine provincial legislatures. The DOJ&CD will then take the Committee through their responses to the issues that had been raised in the negotiating mandates. Ms Ngema would then be allowed to highlight issues for clarity or mention anything left out.

Deputy Minister Jeffery indicated that he would be attending a departmental workshop. He asked if he could be excused and that Ms Ross and Mr Mangena contact him if there are any issues that he needed to come back and respond to. 

The Chairperson said that the Deputy Minister could leave and he would be informed if and when the Committee required him. She wished him luck with his strategy planning meeting.

Ms N Nkosi (ANC, Mpumalanga) asked to be recused early as she was at the airport and would be flying. 
The Chairperson said that Ms Nkosi would be allowed to leave. The DOJ&CD had already responded to all the comments and would take the Committee through this. She requested provinces to indicate the status of the mandate that they had received and given to the permanent delegate in the National Council of Provinces in terms of negotiating on the Bill. She asked that Members not go into the issues as the Committee would get an extensive presentation from the DOJ&CD that covered this.

Negotiating Mandate meeting: Traditional Courts Bill [B 1B - 2017]

Eastern Cape
Mr T Matiwane (ANC, Eastern Cape) said that the permanent delegate was delegated to negotiate in favour of the Bill as per the mandate.

Free State
Mr G Michalakis (DA, Free State) confirmed that the mandate received from the Free State province was that the provincial committee had raised four concerns but supported the Bill subject to the amendment of clause 3(a)(i) and had proposed an amendment to the wording of the clause.

Mr E Mthethwa (ANC, KwaZulu-Natal) confirmed that KwaZulu-Natal mandate was in favour of and supported the Bill.

The Chairperson said that Limpopo had also delegated the permanent delegates to negotiate in favour of the Bill. There was a report in which they had made certain proposals as submission to the NCOP for consideration.

Ms N Nkosi (ANC, Mpumalanga) said that the Portfolio Committee on Human Settlements, Cooperative Governance and Traditional Affairs, after considering the Bill, conferred on the permanent delegate representing Mpumalanga provincial legislature in the NCOP the mandate to negotiate in favour of the Bill without any proposed amendments and taking into consideration the views of community members as contained in the attached report.

Northern Cape
Ms M Bartlett (ANC, Northern Cape) said that the provincial committee adopted the negotiated Bill duly signed by the chairperson of their committee. The committee mandated the permanent delegate to participate in the deliberation and negotiating stage, and to support the Bill. The Northern Cape thus supported the Bill.

Western Cape
Mr I Sileku (DA, Western Cape) said that the negotiating mandate he had received from the Western Cape was not to support the Bill. They had attached 16 reasons as to why the Western Cape did not support the Bill.

Mr K Motsamai (EFF, Gauteng) said that the Gauteng provincial legislature was in support of the Bill subject to a few recommendations.

The Chairperson concluded that in terms of the support to negotiate in favour of the Bill, eight provinces were in support thereof.

Department briefing on its response to the Negotiating Mandates
Revised Summary of TCB Negotiating Mandates 15 October 2020
Ms Ross introduced the DOJ&CD. Mr Mangena presented a summary of the recommendations or submissions from all nine provinces, as well as the responses from the DOJ&CD with regard to the proposals raised by the provinces.  

Preamble: Northern Cape recommends an insertion of the words “… and to apply the accepted practices and customs applicable in those communities”. The DOJ&CD did not support this, as the proposed words add nothing new and empirical research was not done to determine the level of acceptance of practices and customs.

Clause 1 (Definitions): Northern Cape proposed “traditional leader” be defined to recognise king or queen, principal traditional leader, senior traditional leader or headman or headwoman and include regents, acting traditional leaders and deputy traditional leaders. The DOJ&CD had no objection to revising the definition. Limpopo proposed that “customary law” be defined. The DOJ&CD did not support the proposal as customary law is largely unwritten and providing a definition would lead to disagreement regarding its meaning. Limpopo also proposed that the definition of “restorative justice” be shortened. The DOJ&CD said that the was necessary for completeness.

Clause 2 (Objects): Northern Cape submitted that a traditional court and institution of traditional leadership is not a voluntary association and should be accorded the status and respect of a competent court. The DOJ&CD said that the Constitution already recognises traditional courts, which continue to function in terms of applicable legislation. Gauteng asked for monitoring mechanisms to be put in the Bill to ensure consistency with the constitution. The DOJ&CD said that there are number of provisions in the Bill that ensures traditional courts are monitored.

Clause 3 (Guiding principles): Gauteng proposed that the training and development of traditional courts be extended to include members of traditional courts in and outside traditional communities. The DOJ&CD said all members will need training on the application of the Bill; however, training must be focused all persons who need it to deal with disputes and develop customary law or who are instrumental in applying the Bill. An attempt to train everyone will result in wasted expenditure. Gauteng also suggested Clause 3(2)(e) be rejected as it allows voluntarism to approach the magistrate’s court when an offender should not have the option while Eastern Cape expressed similar sentiments. The DOJ&CD said that the traditional justice system is voluntary in nature and Clause 3(2)(e) reinforce this.

Clause 4 (Institution of proceedings in traditional courts): Northern Cape said the Bill is silent about who investigates the allegations and that Traditional leaders and clerks should be entitled to manage lawlessness (especially drug-related cases). The DOJ&CD said that the Bill does not aim for traditional courts to change how they have been practising custom. Police played no role in traditional courts unless matters were referred to them. Drug and drug trafficking is governed by statute and traditional courts are unable to impose sentences, so such matters should be reported to the police. Limpopo suggested that all offences be triable within area where offences are committed. DOJ&CD said the concept of jurisdiction should be avoided. Mpumalanga proposed that “anyone who resides within the area of jurisdiction of that traditional council is bound by the laws of that area” be added in Clause 4(2)(a)(iii). The DOJ&CD said this was problematic because customary law is voluntary and entrenches Bantustan boundaries. Mpumalanga also proposed the imposition of fines where a person ignores a summons. The DOJ&CD said traditional courts should not have the power to impose retributive sanctions as it does not resonate with restorative justice. Western Cape said that the Bill has potential to unconstitutionally vest powers of the legislature, executive and judiciary in traditional leaders and place them in an autocratic position. DOJ&CD said the Bill does not seek to concentrate the power to resolves disputes on the traditional leader as a judicial officer as the aim is for participatory justice. 

Clause 5 (Composition and participation): Gauteng stated that there should be gender parity of 50/50 representation in traditional courts. The DOJ&CD said that the imposition of quotas for representation of women will be an impediment to their participation. Free State said that traditional leaders should not be subject to taking a pledge. The DOJ&CD said that the pledge was necessary as it amounted to taking an oath of office whereas the oath is found to be impracticable. Free State also said that Clause 5(5) is not clear in terms of who is responsible for administering the pledge. The DOJ&CD said that it is advisable that members make a pledge every time the court is convened. The Northern Cape proposed that Clause 5(1) be amended as where there is a conflict of customary laws, the traditional court must apply the customary law of the presiding officer who will be the traditional leader. The DOJ&CD did not support the proposal as it would impose foreign systems to parties. Mpumalanga suggested that Clause 5(3)(b) be amended to require the National House of Traditional Leaders (NHTL) to report to parliament on the participation of women and promotion of gender equality in traditional courts. The DOJ&CD said that the Commission for Gender Equality is best placed to report to parliament as per its mandate, with the input of the NHTL.

Clause 6 (Nature of traditional courts): KwaZulu-Natal proposed that Clause 6A be amended to include “(2) other disputes the king or queen’s court may have jurisdiction on”. The DOJ&CD said that the Bill is pitched at the level of the traditional leader and does not aim to change customary law, so the king and queen’s court should deal with appeals the way they have been and could be best dealt with in its own piece of legislation. Mpumalanga stated that the Court of a Principal Traditional Leader must be provided for in Clause 6(3) by insertion of the level. The DOJ&CD has no objection to revising the clause and said that the Traditional and Khoisan Leadership Act provides for this level.

Clause 7 (Procedure in traditional courts): Eastern Cape stated that legal representation in the traditional court is required. The DOJ&CD said that legal representation is unsuited for dispute resolution in the traditional justice system. Traditional courts are meant to provide easy access to justice which can be frustrated by legal arguments, thus Clause 7(4)(a) allows a person to be represented by any person of their choice. Limpopo echoed the Eastern Cape so that court’s rulings can be appealed. The DOJ&CD said that nothing precludes a matter being escalated to the magistrate’s court after exhausting the traditional court system appeal procedures. Free State and KwaZulu-Natal suggested that no legal representation conflicted with the right to a fair trial. The DOJ&CD said that there is no trial in the traditional court system as it is restorative in nature, and that legal representation would impede access to justice. North West did not support the prohibition on legal representation and said women and children must be empowered in traditional court proceedings. The DOJ&CD reiterated their previous sentiments and added that the Bill provides measures to be put in place to promote the representation and participation of women and vulnerable persons. Western Cape said that Clause 7 is inconsistent with legislation protecting the rights of children to testify in camera. The DOJ&CD said that vulnerabilities of persons must be taken into consideration when applying the Bill, and that the Bill envisages a role for paralegals and interns to assist and guide the court in dealing with vulnerable persons. Persons who implement the Bill will also be trained on the rights of persons with vulnerabilities.

Clause 8 (Orders that may be made): KwaZulu-Natal proposed that the Bill allow the imposition of fines to serve as a deterrent. The DOJ&CD said that the imposition of punitive sanctions vitiates the nature of traditional courts. Western Cape suggested that fees payable to traditional courts will enable corruption and limit access to justice. The DOJ&CD argued that the fee would be minimal. Mpumalanga said that traditional courts should be able to grant the orders in (a)-(c) in favour of any party to the dispute as well – not just in favour of the party who institutes the proceedings. The DOJ&CD said that the orders are specifically to mitigate the complainant’s loss. Mpumalanga sought clarity on whether experts are allowed in proving financial loss but the DOJ&CD said that the disputes which traditional courts deal with do not require expert assistance. Mpumalanga added that an order directing parties unable to provide financial compensation to perform unremunerated service was an infringement of section 13 of the Constitution which prohibited servitude or forced labour. The DOJ&CD said that the order was based on consent and was known in customary law. Northern Cape proposed that Clause 8(3) be amended to allow a traditional court to order payment to an injured person and bring an action in any court to recover damages for injury. The DOJ&CD said that this would amount to punishing a person twice for the same conduct and is not permitted by natural justice rules.

Clause 9 (Enforcement orders): Limpopo said that permitting appeals to magistrate’s courts would undermine traditional courts. The DOJ&CD said permitting appeals was a necessary safeguard in the protection of individual rights. KwaZulu-Natal stated that it was not clear how the enforcement of orders would be dealt with where there is noncompliance due to the court being undermined. The DOJ&CD clarified that the Bill provides that a party who is summoned to appear before the court and fails to do is in contempt of court. The clerk of the court would have to make this determination and refer the matter to a justice of the peace.

Clause 10 (Provincial traditional court registrars): Mpumalanga proposed an insertion ensuring that all districts have a regional registrar who will report to the provincial registrar, while clarifying the duties of the new position. The DOJ&CD said that personnel in the office of the provincial registrar could be looked into once an evaluation of the work is done.

Clause 11 (Review by High Court): Limpopo said that there is no need for the Bill to provide for a review process and that the High Court’s involvement is unnecessary. The DOJ&CD said that the provision offered a remedy to a party aggrieved by the manner in which proceedings were carried out and the right to have a decision reviewed was a constitutional right. Northern Cape proposed that Clause 7(6) be amended as “The proceedings of the traditional court were not open to all members of the extended Kruiper community”. The DOJ&CD said that the Bill could not prevent access to the court. Mpumalanga suggested that, to be consistent with the voluntary nature of customary law, the Bill should be reconfigured to require both parties to expressly opt in and that there should be grounds for review where an opt-out mechanism is included. The DOJ&CD said that Clause 12 allowed an aggrieved party to refer their matter to the magistrate’s court and that the Bill did not provide for an opt-out mechanism so it could not be a ground for review. Mpumalanga also said that an explicit duty should be imposed on the clerk of a traditional court to inform all parties to court proceedings that it is their choice to participate in proceedings. The DOJ&CD said that the clerk’s duties were administrative and they would be acting beyond the confines of the Bill.

Clause 12 (Referral of maters): Eastern Cape and Limpopo submitted that the Bill should provide for an appeal structure within the traditional courts system to avoid referring matters to the magistrate’s court. The DOJ&CD said that the Bill did not prevent parties from escalating matters to different levels within the traditional courts system. Traditional courts should be able to deal with appeals as they have been. Referral to magistrate’s courts cannot be avoided as parties have the right to have matters adjudicated by any court. Free State said that the clause allowed for the referral of matters to the magistrate’s court by an aggrieved party after all traditional court appeal procedures are exhausted, which could further frustrate an aggrieved party who did not want to be party to the civil system. The DOJ&CD said that the provision was beneficial to a party who did not want to their matter to be dealt with in the traditional court by providing another forum to adjudicate their matter. Mpumalanga added that all traditional court orders should be reviewable by a magistrate’s court even if all traditional court systems have not been exhausted. The DOJ&CD responded that dispute resolution at other levels would not result in review, as it is only where an order is made at the traditional court level. It was possible for a party to take their matter to a traditional court without starting at other levels. Mpumalanga also suggested that each traditional court should have assessors who are qualified to ensure that the rights in the Bill of Rights are not transgressed in court proceedings. The DOJ&CD said that traditional leaders act in concert with other people, based on which a traditional court system does not lend itself to the use of assessors. Court members would be trained on the application of Bill and the Bill of Rights. 

Clause 13 (Record of proceedings): Limpopo submitted that the provision relating to the taking of a pledge must be deleted from the Bill. The DOJ&CD replied that saying the pledge was necessary.

Clause 14 (Transfer of disputes): Western Cape said that there were no mechanisms in the Bill to guide and monitor relationships between traditional courts and the police. The DOJ&CD said that there should be no involvement of the police in traditional courts but that nothing precluded the court from summoning the police if a crime is committed and the court has no jurisdiction. Mpumalanga was of the view that it was not clear whether normal magistrate’s court procedures would be followed once referred. The DJ&CD responded that Clause 14(1)(b) provided that if a matter it transferred, the magistrate’s court must commence the proceedings afresh and apply its applicable rules of procedure.

Clause 15 (Limitation of liability of traditional court members): Limpopo proposed that “limitation of liability” should be substituted with “indemnity”. The DOJ&CD said that the Bill provided a form of limitation of liability and not indemnity as an accountability measure.

Clause 16 (Code of Conduct): Gauteng and Mpumalanga suggested an amendment requiring the Minister to consult with ordinary people about the content of the Code of Conduct. The DOJ&CD said that regulations are ordinarily consulted with all interested parties, including members of the public and those directly affected by the Code of Conduct. North West said that the Bill should provide for the screening and vetting of those who will preside over traditional court proceedings. The DOJ&CD said that traditional leaders preside in traditional courts because of their recognition as such under the Traditional Leadership and Governance Framework Act, which included processes dealing with traditional leaders who are guilty of misconduct. The Code of Conduct would apply to all those who had a role to play in the traditional court. Eastern Cape submitted that “after consultation” be substituted with “in consultation” in Clause 16 and 17. The DOJ&CD said that it was critical that Clause 16 be worded in this manner and that, in terms of Clause 17, regulation making is the function of the Minister and requiring the Minister to only make regulations after consultation would delay the process. Northern Cape stated that the amount of compensation in terms of the clause should be clearly specified but the DOJ&CD said that this would problematic as the legislation would have to be changed every time the amount changed and, in addition, compensation was linked to damage suffered which would vary.

Clause 17 (Regulations): Limpopo submitted that the Bill should provide for a minimum of five persons of a traditional council to be identified for training. The DOJ&CD said that every person who applied the provisions of the Bill is required to be trained as per the Bill.

Clause 18 (Transitional provisions and repeal of laws): KwaZulu-Natal proposed that Clause 18(2)A be inserted to read as, “All matters or cases that were dealt with under section 12 and 20 of the Black Administration Act of 1927 by a traditional leader before the commencement of this Act shall be regarded as valid.” The DOJ&CD said that there was no need to include such a provision as finalised cases were not covered in the Bill and can only be dealt with in terms of the applicable law at the time of finalisation.
Schedule: Northern Cape and Gauteng submitted that the monetary jurisdiction of R15 000 should be increased to allow traditional courts to deal with stock theft and serious offences. The DOJ&CD said that the Bill aimed to empower traditional courts to only deal with minor disputes which do not warrant a person acquiring a criminal record. Western Cape said traditional court should have jurisdiction to hear matters pertaining to ukuthwala, initiation, custody or guardianship, maintenance, and other customary law practices. which are inconsistent with the Constitution. The DOJ&CD responded that the Bill did not enable the court to deal with ukuthwala but the court could give advice or opinions when adjudicating on the other matters – which would be similar to expert evidence.

Presentation by Parliamentary Legal Advisor
Ms Ngema had five matters that she wanted to substantiate or supplement in terms of what the DOJ&CD had already presented to clarify some of the issues that they had spoken to.

The first matter sought to explain the status of the court. It was important to recognise and realise that Chapter 12 of the Constitution, especially Section 211(3), which concerned the existence of traditional courts as well as the status of the courts. The Constitution appreciated that the courts were already in existence so the Bill did not seek to establish this afresh. The Bill sought to regulate what was already in place but gave the legal certainty that was necessary. Section 211(3) of the Constitution says that courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically relates to customary law. Both customary law and customary courts are recognised as a legal system within the pluralist legal system that is in South Africa and in light of the Constitution being the supreme law of the country. Even though it may not be explicit, it was clear that the intention of the Bill did not necessarily seek to locate the traditional courts under Chapter 8, which dealt with the judiciary. Even though the Certification judgment indicated that when the Constitutional Court dealt with the certification of the constitutional provision, it indicated that traditional courts may be able to fall within Section 166(e) of the Constitution as any other court that is established and regulated in terms of national legislation. It was implicit in the details of the Bill that what was intended was that the structure or courts become a Section 34 structure or forum which facilitated or became some form of dispute resolution that was at the ground where people were and which was easily accessible to everyone. The status of the courts was very clear and it could be said that is was pitched as being a Section 34 rather than being a Chapter 8 court.

The second matter concerned legal representation and it was hoped that the DOJ&CD had definitive clarity. The issue was raised as a constitutional right if it arose out of Section 35(1)(f) of the Constitution. This was more of a restorative justice system that sought to bring easy access to people – it was not necessarily adversarial and the conventional criminal justice system where, if one was implicated it meant that one’s rights were further implicated, the Constitution required that persons be given legal representation. In this context the implicit opt-in or opt-out expression was taken out at other stages of the Bill. It was still clear that, if looking at Sections 30 and 31 of the Constitution, being involved in a cultural life was still a voluntary exercise in one’s private life and lifestyle that one chose to live. The issue of legal representation, together with opting-in and opting-out and it being made voluntary and express in the Bill, even though the expression that was given impact was taken out, if one read the provisions of the Bill as they stood it was very clear that one could still exercise the rights in Sections 30 and 31 of the Constitution.

The third matter related to the mechanisms of the Bill that sought to protect and advance the protection of vulnerable groups that participated in the customary system. In terms of the Traditional and Khoisan Leadership Bill, that was now an Act as the President had assented to it, what has still not happened was the determination of the date of when it was to commence and come into operation. If considering the changes and proposals that had been effected through the enactment, one had to look at Sections 36 and 38 of the Traditional and Khoisan Leadership Act together with clause 5(3) of the Bill which called for the incremental utilisation and promotion of participation of women and other vulnerable groups. It was submitted that clause 5(3) be looked at and considered in light of what the DOJ&CD presented to consider the inclusion of the Commission for Gender Equality, South African Human Rights Commission, and Commission for Cultural and Language Rights. In terms of considering how to look at the mechanisms, the submission was thus whether a provision could not be made in this Bill (or in any other manner) that sought to direct how they could ensure and mandate participation in terms of legislation to make sure that it happens –  as well as include the Minister in the Presidency’s Office responsible for women, youth and persons with disabilities.

The fourth matter related to clause 13(1)(h) regarding the use of pledge, oath and affirmation. There needed to be appreciation of the definitions and ordinary meanings of these words. Pledge spoke to a solemn promise or undertaking which a person made on their own without the need to involve anyone else to effect the need of the undertaking. An oath was also a solemn promise, often invoking a divine witness regarding future conduct. Affirmation did not have the implications of a divine involvement and future conduct but was an affirmation that, when the task was to be begun, one’s conduct will be aligned with whatever needs to be complied with.

The fifth matter was a suggestion or summary of, after having listened to the DOJ&CD and looking at the provisions itself, what needed to be the necessary amendments as Members were deliberating further. Clause 5 and Clause 1’s definition in respect of the reference to the Traditional Leadership and Governance Framework Act and new Traditional and Khoisan Leadership Act needed to be looked into. In terms of Clause 5, the suggestion was a mechanism to give effect to the advancement of ensuring that vulnerable groups are protected in this system and that legislation spoke to it. Clause 3’s suggestion was related to the new enactment, the Traditional and Khoisan Leadership Act, where Clause 6(3) would need to be looked at to ensure that there is a reference to the leadership of the Khoisan in the way that it is outlined in the Traditional and Khoisan Leadership Act. In terms of Clause 11, it was necessary to look at cross-referencing and whether Clause 4(3)(f) that one of the legislatures had pointed out was meant to refer rather to Clause 3(3)(a), 4(2)(a) or 3(3) in general.

For purposes of amendment, Clauses 16 and 17 needed to be looked at in terms of the implication of after-consultation and in-consultation. In-consultation was meant for situations where both parties need to find one another, and there should be no need for a stalemate until they found one another. After-consultation was the function of the Minister, and eventually the Minister had to make the regulations i.e. consultation would happen but should it happen that there is still a stalemate on other issues, the Minister would then be vested with the final decision to say what provision must go into the regulations. Clause 16(5)(a) looked at whether either the National House of Traditional Leaders or the Minister of Executive Council should deal with the non-compliance of the Code, needed to be looked into by the Committee to provide the DOJ&CD direction. Clause 18 did not specify but it was suggested that the Committee consider whether, in this Bill, the still-existing Section 12 and 20 of the Black Administration Act should be repealed, which were the provisions that had given effect to the continued existence of the traditional courts other than when the Constitution came into effect. The DOJ&CD was to explain to the Committee their understanding in respect of Clause 8(1)(c), regarding whether what was envisaged may not amount to slavery contrary to Section 13 of the Constitution if there is a lack of oversight and monitoring.

The Chairperson thought that the DOJ&CD’s presentation had been very elaborative yet necessary in terms of their responses. Ms Ngema had also raised quite a few issues which, to some extent, she thought that the DOJ&CD might also want to respond to. She asked if Members had any questions on clarity or their concerns – especially in terms of the responses received from the DOJ&CD in relation to all the issues raised by the provinces.

Ms Bartlett was happy with the outcome of the presentations and the mere fact that eight out of nine provinces supported the Bill. She did not see that there was anything to add, except for Members to go back and sit down as the Committee.

The Chairperson thought that in terms of the Bill when it dealt with the issue of gender equality and the participation of women, the concern was around women in rural communities who might also be discriminated against. Clause 5(3)(b) gave the Commission for Gender Equality the responsibility of monitoring whether gender equality and participation of women is adhered to in the proceedings of the court. In terms of the DOJ&CD’s response in the document, where the Northern Cape noted that various categories of vulnerable groups are not included in those listed by the Bill and recommend that these groups be included in the Bill, the DOJ&CD seemed to agree with the proposal. She asked that the DOJ&CD expand on this suggestion regarding the additional vulnerable groups in the Bill. Clause 17 of the Bill also spoke to the regulations and, in terms of the explanations that came from the DOJ&CD, the regulations gave effect to the content of the Bill as well as implementation. What would be the timeframe for the DOJ&CD to draft the regulations after it is passed? She thought that the amendments that were proposed in the Bill by the DOJ&CD dealt with the alignment of the Traditional and Khoisan Leadership Act. She said that if Members did not have any objections to the proposed amendments they would probably be taken. The matter raised by Ms Ngema in terms of Clause 11(1)(a) of the Bill which referred to Section 4(3)(f) was that when going to the Bill and looking for this section it is not in the Bill. Could this possibly be a drafting error? If this was so, it needed to be rectified. She took it that Members were comfortable with the responses.

Ms Ross said that the DOJ&CD noted the issues raised by the parliamentary legal advisor. She understood them as mostly comments. What interested her more was the areas where the DOJ&CD needed to relook at for amendment purposes. The reference to Section 4(3)(f) was a typo that just needed to be corrected because she had also gone through the Bill and could not find it. Some of the areas where it was proposed that amendments needed to be effected were stuff that had already been agreed to, even in the DOJ&CD’s responses. In terms of the pledge vis-à-vis the oath, this had always been a problem. It was argued that it would be difficult to take an oath because an oath had to be taken before a Commissioner of Oaths. One could imagine where this functionary would be found in a deep rural area because Commissioners of Oath are normally attorneys etc. The traditional leaders themselves, during the consultation process, were not amiable to taking the oath.
In terms of a pledge, it was also said that the membership of the court changed from time to time and, at any given time, there was no composition that one could say was the traditional court. This then made it easy for a member to take a pledge because it would just amount to reading the pledge to remind one of their responsibilities in terms of the Bill and the Constitution. She mentioned that this was just a middle ground that was found. She was not too sure about bringing the other Chapter 9 Institutions into the Bill with regard to the participation of women in courts and the rights of women. If the Minister had to report to Parliament as well as the Commission on Gender Equality and all other functionaries, her fear was that there may be challenges of inconsistencies or no proper accountability. Even if it were done, the Commission on Gender Equality was consulted and her other concern was that all of the functionaries would have to be met with again and consulted with. This was something that needed to be taken back to the principles.

The Chairperson interjected to say that it was not just about women per se. She thought that the fact that the Commission for Gender Equality was also brought into the Bill was quite a progressive thing. In terms of other vulnerable groups, the Bill as it stood required the DOJ&CD to put measures in place in order to promote and protect vulnerable persons. What does this actually mean? If this could be unpacked it might become clearer for Members.

Ms Ross understood that it would be necessary to have some protection for other persons with vulnerabilities in this scope. The thinking was that, without bringing in the report or monitoring in terms of Clause 5(3) of the Bill, the Bill envisaged a role for paralegals and interns in traditional courts so that they could assist the court – particularly in relation to the observance of the Bill of Rights. Clause 5(3) envisaged the Minister to bring in and come up with mechanisms for the protection of women and persons with vulnerabilities. This was more to look into the regulations such as when the court is dealing persons with vulnerabilities and what should be happened, without necessarily having to include it in the Bill. Regarding the DOJ&CD’s timeline for the regulation, initially, and due to the history of the Bill, the DOJ&CD envisaged for the drafting of the Bill and drafting of regulations to run parallel. However, because of the history of the Bill and without pre-empting what the Bill would eventually look like, this was why the drafting of the regulations had not taken off. The aim was that once an idea of what the final Bill was going to look like, the DOJ&CD would then accelerate the preparation of the regulations – which was something that also needed extensive consultation with Department of Cooperative Governance and Traditional Affairs, the National House of Traditional Leaders, and working together with the DOJ&CD, because various things needed to be brought into consideration. This was something that needed to be accelerated as the Bill had a long way coming.

The DOJ&CD agreed that the amendments were needed. With regard to Clauses 16 and 17, the DOJ&CD needed to apply its mind but this would not take long as it was just a question of whether the Minister making the regulations should be in- or after-consultation. The DOJ&CD’s view was that if it was in-consultation this ran the risk of having the process being hamstrung, which the DOJ&CD was trying to avoid. With the regulation for example, this was a duty placed on the Minister. Whether the consultation brought a stalemate or not, the Minister still had to do so irrespective of the stalemate as it would be a statutory power placed on him with the consultation taking place as a matter of course – especially where it is on a subject of customary law, this needed the assistance of a person with an understanding of how the system worked. On the issue of the orders of the court with regard to Clause 8(1)(c) and whether the order would not amount to slavery, this had always been an argument.
As the Bill was pitched to be a Section 34 type of forum, the parties agreed and all the parties were interested in the resolution of the dispute so that at the end of the day there was social cohesion and maintenance of peace within the community. In most cases this referred to people in rural areas where it could be found that a person did not have the means for compensation. However, where the court orders that one performs some service in lieu of the compensation then the relations of the parties are restored because it is placed on the same level as the party having being restored to the position they were in before. While this was strongly objected to in the first Bill, this was particularly because there were blurred lines between what was criminal and what was civil. In this case, as it was clearly restorative and the parties were also interested in restoring their relations, there were no disagreements around this type of order.

She said that she was not very clear what Ms Ngema had said about the repeal of Sections 12 and 20 of the Black Administration Act. This was something that the DOJ&CD would need to go back and go through with a fine toothcomb because those sections had already been repealed and were just sunset clauses. It was not necessary that it be said that these sections are repealed in the Bill because they were repealed in any event. If the Bill became an Act it would also repeal the sections wholly and finally. She added that the DOJ&CD would go through all of the comments thoroughly and ensure that everything is covered.

The Chairperson was not sure whether Ms Ross had covered the issues relating to non-compliance with the Code in terms of Section 65(a).

Mr Mangena added on to the aspects relating to Clause 8(1)(c), where Ms Ngema was concerned about the slavery aspect. During consultations and the drafting of the Bill, this was raised at some point, a rider was included to say that such services should be undertaken under the supervision and control of a person or group of persons identified by the traditional court and which service should not be provided to the traditional leader. An example was given that maybe a service in this regard would be to the benefit of a common interest within the community e.g. an old-age home, but not for the benefit of a traditional leader. This was because, at a particular point in time, the concern was that the traditional leaders were going to abuse the system. The rider was then put in place to safeguard the aspect of ensuring that it would truly be for the benefit of no one other than the person or community concerned.

The Chairperson asked if all of Ms Ngema’s issues were responded to.

Ms Ngema confirmed that she was covered.

The Chairperson asked if any other Members wanted to raise issues on clarity or had any comment that they liked to make.

She took it as though Members were comfortable with the responses by the DOJ&CD and that the Committee could then move forward with the process. In terms of the discussions and what had come through, there were proposals in the document by the DOJ&CD, especially in terms of the definition of ‘traditional leader’ and aligning this to the Traditional and Khoisan Leadership Act so that there is agreement. The level of the court a quo principal traditional leader in Clause 6(3) was also an alignment issue with the Traditional and Khoisan Leadership Act. Clause 11(1)(a) had to be relooked at in terms of there being a drafting error or typo. Clauses 16 and 17 needed to be looked at, especially in terms of in-consultation and after-consultation. In terms of Section 12 and 20 of the Black Administration Act, her understanding was that these sections were being kept alive until legislation was passed in terms of the Bill. However, she thought that this needed to be relooked at. On regulations and urgency thereof, a lot of matters that also related to vulnerable groups and the DOJ&CD ensuring and putting measures in place, would come out clearly in terms of the regulations – there was thus urgency in terms of these matters.

She asked if there were any other issues that Members felt needed to be looked at before the Committee looked at the C list of amendments.
Ms Z Ncitha (ANC, Eastern Cape) confirmed that the Committee was covered. The issues that were raised by the provinces had been clarified. All of the issues that had been highlighted as issues to be followed up were expected to be relooked at. She asked that the Committee receive feedback before they had their meeting.

The Chairperson took the Members’ silent as consent. She concluded by indicating that the Committee had run through the concerns that had been raised by the provinces in the functioning of traditional courts. The current Bill before the Committee did not seek to establish traditional courts but sought to regulate the functioning of the courts in line with the prescripts of the Constitution. It was therefore important to be satisfied that the court’s functioned in a manner that takes into account the rights of all persons who need to realise such courts. The Bill did respond in a manner that addressed gender equality and people with vulnerabilities. Besides the urgency for regulations because it affected the implementation of the Bill, the Committee also needed to bear in mind that there were also a number of issues highlighted by the provinces that should also find expression in the regulation. These regulations, in terms of the current Bill, would also come back to Parliament. In terms of the procedure, the next Committee meeting would then look at a C list of amendments which would be compiled by the Office of the State Law Advisor in consultation with the DOJ&CD and parliamentary legal advisor. She added that the Committee Secretary would also be quite central to the process. This would serve in the next meeting of the Committee for adoption and it would then be sent to provinces for a final mandate. She thanked everyone for their participation in the process. Members would be informed of when the next Committee meeting would take place and after the adoption of the C list of amendments the provinces would then get the document for their final mandates.
The meeting was adjourned.

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