Land Court Bill; Traditional Court Bill: Judges & Magistrates remuneration, with Deputy Minister

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Justice and Correctional Services

07 June 2022
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video

Land Court Bill working doc – No working document done on this day - Vhoni

In this virtual meeting, the Deputy Minister of Justice and Constitutional Development briefed the Committee on the determination of salaries of judges and magistrates. The Independent Commission for the Remuneration of Public Office-bearers recommended a 3% salary increment, with effect from 1 April 2021 and endorsed by the President. The Committee was asked to approve this determination. The two recommendations and accompanying reports were agreed to.

Members had a robust debate on the legal opinion received concerning the Traditional Courts Bill. Some had agreed with some aspects of the legal opinion and there was some disagreement with some aspects of the legal opinion.

Members of the ANC noted that after having gone through the legal opinion and the Bill, Traditional Courts had been in existence and would continue to exist without or without this Bill. The members of the ANC were not convinced by what was being raised in the legal opinion. The legal opinion was not able to give the Committee enough context on the issue of the separation of powers.

Members of the DA said the bill was fatally flawed and did not support it. The absence of the opt-out clause rendered it unconstitutional. In its view, this Bill would be successfully challenged and made women’s access to real, practical, everyday justice much more difficult than it already was now.

Following the debate, the Committee had to whether it agreed with the recommendations from the NCOP or not. If it did, then the Bill goes through for the President to accept or to return it back. If the Committee did not agree, then it would be sent to a mediation committee for consideration. The Committee was divided and the majority view prevailed: the Committee supported the NCOP amendments to the Bill.

The Committee was briefed on proposed amendments to the Land Court Bill. One of the amendments was to clause 3, the ‘Establishment of the Court’. The ‘Land Court is hereby established as a court of law and in matters arising from the application of the Restitution of Land Rights Act or any other legislation expressly providing thereof, as a court of law and equity’. An amendment to clause 22 was also proposed as this related to evidence. Clause 22(1) stated that the ‘Court may, in the case of the claims under the Restitution of Land Rights Act admit evidence, including oral evidence, which it considers relevant and cogent to the matter being heard by it, whether or not such evidence would be admissible in any other court of law’.

Members reminded the Department about some of the issues that were raised in the previous meeting that it needed to respond to with an opinion, and if necessary further amendments to the Bill. The members were happy that the court of law and equity was now being regulated and was currently a component of the legislative framework. The issue around who was to serve as arbiters and whether the members of the judiciary may be entrusted with arbitration and mediation had not been addressed in the presentation. A question was asked if the State was creating too many (appeal) layers which would make this process unaffordable.

Meeting report

The Chairperson welcomed Deputy Minister John Jeffery to the meeting. The Deputy Minister would brief the Committee on the remuneration of judges and magistrates. Thereafter, the Committee would deliberate on the Traditional Court Bill. The Committee would end the meeting with the Land Court Bill.

Briefing on the determination of salaries of Judges and Magistrates

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, briefed the Committee on the determination of salaries of judges and magistrates. The judiciary and the independent constitutional institutions were entitled to such remuneration, salaries, allowances, and benefits as determined by the President from time-to-time by notice in the Gazette after taking into consideration the recommendations of the Independent Commission for the Remuneration of Public Office-bearers. The notice by the President must be submitted to Parliament for approval or disapproval, whether in whole or in part. That was what was being asked for today. On behalf of the Office of the President, the Deputy Minister presented the determination by the President for the remuneration of judges and magistrates with effect from 1 April 2021. The Commission gazetted its report on the remuneration of all office-bearers only on 30 March 2022, in terms of the Act. Usually, this was done before the end of the financial year but unfortunately, the Commission had been late. The Commission considered, amongst others, the submissions from the various stakeholders, the fiscal condition of the State, the State’s wage bill, the impact of the salary increment of the state’s office-bearers on the fiscus, and the general economic status of the country, as affected by the Covid pandemic, and the affordability of the fiscus. The Commission recommended a 3% salary increment to the President and all public office-bearers for the 2021/2022 financial year, with effect from 1 April 2021. On 26 May 2022, the President after having considered the gazetted report of the Commission submitted his determination in respect of the remuneration of judges and magistrates to both Houses of Parliament. The President agreed with the recommendations of the Commission and was intending to determine a 3% salary increase across the board for all ranks of judges and magistrates, subject to the approval of Parliament. On 30 May 2022, the Speaker referred the determination for judges and magistrates to the Committee. In terms of the report of the Remuneration Commission, the judges submitted that their salaries had diminished due to the below inflation or no increases in salaries. The judges referred the IRC to section 176(3) of the Constitution which provided that the salaries, allowances, and benefits of the judges may not be reduced. They raised a concern that their salaries were eroded by over 20% over the past five years. They further submitted that the erosion was unconstitutional. They proposed that the IRC should consider the salaries of judges separately from other office-bearers. They also wanted a cost-of-living allowance. That the IRC should consider implementing progress steps aimed at addressing the 20% deficit and grant an adjustment that was above the CPI or no less than 8%. According to the report of the IRC, the Lower Court Remuneration Committee submitted on behalf of the magistrates that the remuneration levels had consistently been reduced over the past 11 years. They also recommended a cost-of-living adjustment. They wanted a cost-of-living adjustment of 5.3%. It was recommended that the Committee consider and approve the notices by the President of the 3% increase for all ranks of judges and magistrates, from effect 1 April 2021.

Discussion

Mr W Horn (DA) expressed concern and said the true independence of the judiciary was that the remuneration of members of the judiciary could not be diminished. However, the submissions around this matter needed to be considered within the current context. The context indicated unmanageable pressure on the public purse. The context indicated that the salary increment was not necessarily aimed at the judiciary. Everyone who was concerned about the independence of the judiciary needed to be very worried about the risks associated with the inability to ensure that members of the judiciary received proper increases. It was clear that there were specific risks involved in that situation. In the current context, the Committee might be forced to confirm the proposals as recommended by the Independent Commission and submitted by the President. One proviso that needed to be added is that this had become a trend and it needed to be arrested before it poses material risks to the independence of the judiciary.

Ms N Maseko-Jele (ANC) agreed with Mr Horn. Repeating him word by word would be wasting time. She had looked at the presentation and the recommendations of the Independent Commission and the risks associated. She was also worried. It was important to consider this matter and endorse it. One thing she noticed was the concerns of the Treasury and the Minister of Finance. However, the issue of the risk that came with not endorsing this could not be overlooked. She agreed with Mr Horn.

The Chairperson asked if there was any member who disagreed with the two members who had spoken in support of the Committee agreeing to the recommendation. There were none. The two recommendations with respect to the judges and magistrates were agreed to. The reports were ready for the Committee to adopt and then to send to the House for approval. The Chairperson allowed the members some time to read and consider the report before the Committee adopted it. 

Consideration of the Report of the Portfolio Committee on Justice and Correctional Services on the Draft Notice and Schedule determining the rate, with effect from 1 April 2021, at which salaries, allowances and benefits are payable to Constitutional Court judges and judges annually, dated 7 June 2022

The Chairperson read through the report.

Adv S Swart (ACDP) moved for the adoption of the report.

Dr W Newhoudt-Druchen (ANC) seconded the adoption of the report.

The report was adopted by the Committee.

Consideration of the Report of the Portfolio Committee on Justice and Correctional Services on the Draft Notice and Schedule determining the rate, with effect from 1 April 2021, at which salaries, allowances and benefits are payable to Magistrates annually, for approval by Parliament in terms of section 12(3) of the Magistrates Act, 1993 (Act No.90 of 1993), dated 7 June 2022

Ms Maseko-Jele moved the adoption of the report.

Adv Swart seconded the adoption of the report.

The report was adopted by the Committee.

The Chairperson said that the report would be transmitted to the National Assembly and debated in due course. The Programming Committee would guide as to when the report would be debated and approved by the House.

Deliberations on the Traditional Court Bill

Ms Phumelele Ngema, Parliamentary Legal Advisor, Constitutional and Legal Services Office, briefed the Committee on the legal opinion obtained by Adv Masuku SC, on 12 October 2021, on the constitutionality of the Traditional Court Bill. The legal opinion discussed whether the Bill embodied the principles of the Traditional Courts System and the implications of section 34 of the Constitution.

What is the implication of section 34 on Traditional Courts?

  • Are these courts a court under chapter 8 and section 166(e) of the Constitution or section 34 appropriate place for a fair public hearing?
  • What about the principles of the separation of powers and independence inherent to the court’s powers and which are non-existent for Traditional Courts?

Conceptual issues

  • The Traditional Justice Systems had been evolving, continued to exist and so Parliament should decide on ensuring certain features of their independence and impartiality on their legislated formation, purpose and composition ensuring the injunction of section 39(2) of the Constitution.

Summing up position on legal representation

  • The Advocate cautions that the Committee should be wary and mindful of the preoccupation with the western jurisprudence and procedural mode that has no place in traditional South African Courts.
  • Exclusion of legal representation can be maintained and lawfully permitted in certain settings as seen in the Small Claims Court and CCMA which were informal institutions and not courts of a western nature per se, as would be the case in traditional courts.

Conclusion

  • Judicial power given to traditional leaders as the Bill does in its current form is displaced and constitutionally invalid.
  • The opt-out principle could on its own promote disregard for the equality before the law principle.

(See Presentation)

Discussion

Mr Horn said in respect of the last comments the opinion could not lead to any other conclusion. If the opinion was accepted, then on the basis of the probable failure to pass Constitutional muster this Committee was now confronted with very serious issues. He would park any comments on the way forward. He assumed that the Committee first wanted to discuss the content. The opinion, even though it was phrased very carefully, pointed out very clearly the themes and clauses within the Bill that was problematic from a Constitutional point of view. He noted the separation of powers principle, the equality before the law principle, and the opt-out provision that was not there. A careful reading of the opinion must lead to a conclusion, on the Committee’s part, that these matters were fatal to the constitutional validity of this Bill. That realisation needed to inform the Committee’s discussions on the way forward.

Ms Maseko-Jele said that there were a lot of things that had been raised by this opinion that really had to be considered. A lot of things raised in the opinion were of concern to the members who were not experts in the field and who came from African traditions. She was not sure if the Committee would be able to deal with the content of the opinion in detail. There were issues of concern that the advocate had alluded to, in particular, the separation of powers and legal representation. She did not want to be seen like she was criticising now. The Committee should not compare the formal legal system and the legal system of the Traditional Courts. Those two were different. How the Committee handled them should reflect that they were indeed different. She was cautious of some elements of the formal legal system penetrating into the traditional one. She was cautious about the section of the Constitution that related to this. All of these issues took interpretation into consideration. There were so many points where the opinion also said this Bill might cause some problems if it was challenged in the courts. She agreed with some of the points that the opinion raised. She was not sure if the Chairperson was going to give the members a lot of time, maybe the next day, to go into details. The opinion did not make one comfortable when it came to African tradition. She did not want to get into details. She noted the comparisons between issues in the Traditional Court versus the issues in the Small Claims Court. She had a different view on that matter. She had a different view on the issue of legal representation. When speaking about legal representation, it was bringing a different element into the tradition. Originally, it was not supposed to be like that. She agreed with the opinion where it said that the Committee needed to apply its mind carefully when it dealt with the issues in the Bill.  She would pause and wait for the opportunity when the Committee got into the details so that the members could support some of the points raised in the legal opinion.

Deputy Minister Jeffery said that he was glad to see Mr Horn was so much in support of Mr Zuma’s advocate. He hoped it would extend to other issues that Mr Horn argued.

The Deputy Minister raised his overall problem with the opinion. Traditional Courts were Traditional Courts. They were created by tradition in terms of African customary law. In terms of that tradition, it was led by traditional leaders. It differed according to different parts of the country. It was usually chaired by a traditional leader, or a traditional leader appointed a panel, as was happening in the North West. Adv Masuku wanted there to be Traditional Courts without traditional leaders. That was his fundamental problem with the legal opinion. How was that possible? He noted that this Bill was passed by both Houses of Parliament. The issue before the Committee was accepting or rejecting the NCOP amendments. This was going a lot further than that. The main issues that the Committee at the time had problems with were the issue of legal representation and the absence of an opt-out clause. On both of those issues, Adv Masuku had not found any problem with the wording regulating those.

On the opt-out clause, Adv Masuku goes even further to say it would be unconstitutional to have an express opt-out clause. He was not sure if he agreed with that aspect. What was the Committee meant to do? The President had the power, if he believed that a Bill may be unconstitutional, to refer it back to Parliament. Procedurally he was not sure if the Committee wanted to follow Adv Masuku’s proposals. One remedy is for the President to refer the Bill back if he felt it was unconstitutional. Then there would be greater scope for Parliament. The main problem he had with the opinion was that he did not see how it was possible to have Traditional Courts without traditional leaders. The South African Judicial Education Institute Act was passed which set up a council for judicial education to remain independent. On that council sat a representative of traditional leaders. That person sat on the council with the Chief Justice because the issue was that traditional leaders needed training in running traditional courts. That issue that Adv Masuku raised had not been raised before. This Bill had been subject to extensive public comment. The points that Adv Masuku raised, he did not recall them being raised before. It was Adv Masuku’s view and everyone was allowed to have a view. Issues could be argued in the Constitutional Court, but it did not mean that one person’s view was the correct view. His main problem was Adv Masuku wanted Traditional Courts without traditional leaders. Were they then Traditional Courts?

Mr Q Dyantyi (ANC) said that it was one thing to have a well-articulated presentation but that a well-articulated presentation did not automatically mean that it passed constitutional muster. There was an attempt to take the Committee through these matters so that the members understood. So that when the members had to criticise, it was well-informed why they had to criticise a point. He appreciated the presentation, but he noted that he might make comments that did not necessarily go into the corners that Ms Ngema went to. It needed to be understood that this Committee had a diversity of views and discussions. The starting point was that the Committee had a legal view before it. It was an opinion. That needed to be the Committee’s starting point. He made a point in reference to Mr Horn. Mr Horn had been very uncharacteristic today. He knew him as somebody who got into the issues. The way Mr Horn started today surprised him because he raised a flag that said, ‘do not go this way’. He was not sure if that was a smart way of influencing debate in that way. Mr Horn was indicating that there was one decision the Committee should take. He did not know if he agreed with that approach. Mr Horn had said that the presentation took the Committee to one conclusion. He had a different view on that. He raised the point, after having gone through the legal opinion and the Bill, that Traditional Courts had been in existence and would continue to exist without or without this Bill. He wanted to emphasise that point. Traditional Courts had been in existence and would continue to exist with or without this Bill. That should say something about the issues that had been raised in this legal opinion by Adv Masuku. He would have wanted Adv Masuku to have gone further and assisted in making the views that he was making whether the Bill was consistent with the Constitution. He did not think that Adv Masuku would have gone that far. He agreed with the sentiments of the Deputy Minister. He made the analogy of wanting a chicken but without its eggs. It was such a contradiction that the Deputy Minister had pointed out in the legal opinion in front of the Committee. Traditional justice did affirm the values of restorative justice. There was this ownership by people who were experiencing and interacting with this form of restorative justice. It was happening currently. There was large ownership. People believed in it. People practiced it and were directed by it. It was present in a number of provinces. It was important that the Traditional Justice System got to be understood within the customary law paradigm. Traditional Courts were a unique feature that was unlikely to be done away with because the legal opinion suggested that. He noted the issue of the separation of powers. He was not convinced by what was being raised in the legal opinion. The legal opinion was not able to give the Committee enough proper context on the issue of the separation of powers. He noted the issue of legal representation. There were examples that exist that could be pointed to, like the Small Claims Court and the CCMA. He found no reason not to support what the NCOP determined in supporting the Bill. He urged that the Committee go along that route. He was in support of the NCOP endorsement of the Bill.

Mr Horn said that Mr Dyantyi had given the Committee his full spiel. Mr Dyantyi’s comments indicated that the ANC of pre-2019 in this Committee seemed to be back. The commitment to constitutionalism and the rule of law today was put on the backburner. He would substantiate his opinion. He was not sure if the Deputy Minister operated on a basis that the law was a clear science. He always believed that one should look at arguments rather than personalities.

He discussed the argument of the Deputy Minister that the portion of the legal opinion around the separation of powers and the positioning of Traditional Courts or tribunals, and that the Committee should ignore that part because it had never been part of the deliberations and arguments around this. The Deputy Minister was wrong. When this Bill was deliberated on during the previous Parliament, a significant amount of time and argument was spent specifically on this issue. It was the narrow-minded obsession of the majority of the Committee during that period which insisted that in order for Traditional Courts to be put on the same level as courts of common and statutory law that in no way could these courts be deemed to be tribunals and they must be courts. It was absolutely not true that this specific issue was not at the centre of discussions and oppositional views. The advocate had pointed out that this provision was very problematic.

He discussed another problematic aspect that was hampering the way forward in respect of the regulation of Traditional Courts. It could not be that the Committee turns a blind eye to the Constitutional provision to the effect that customary law was incorporated into the body of law as far as it is consistent with the Constitution, Constitutional values, and principles. It was somewhat intriguing but also very problematic that some colleagues tend to hold the view that whilst the rest of the body of law was subject to a constant process of transformation in order to enrich it with Constitutional values and principles that in respect of the problematic aspects of customary law should be left untouched and not be transformed in order to ensure that constitutional muster was met.

Mr Dyantyi did not agree with this legal opinion and was very happy with what the NCOP had proposed. That might be the instruction the ANC study committee received. That did not take away from the problematic aspects that have been part of this Bill right from the start. For the Committee to even consider turning a blind eye to the issues pointed out by the legal opinion, which the Committee asked for, because at that stage everybody in the Committee shared the sentiment that there were issues around this Bill and possibly the constitutionality of the Bill. If the majority wanted to turn a blind eye to it then the DA would not be part of it. The issues remained. Ultimately, when this Bill is passed, at the insistence of the majority, it would be struck down and turned back on the basis of constitutionality then the majority would have to take ownership of that.

His reading of the comments of Adv Masuku around the opt-out clause was not the same as that of the Deputy Minister. While Adv Masuku did not go into great detail on the issue and argues that an opt-out clause in principle would not be unconstitutional, he also makes it very clear that ultimately the failure to deal with the disputes around the applicability of the customary law in specific circumstances and a dispute as to whether the Traditional Courts were to be used. The failure of this Bill to address this in any way or form also leads to a problem that may lead to a successful legal attack. This was also the product of the narrow-minded obsession of the majority component of this Committee in the previous Parliament. The arguments went to the effect of, even if someone was travelling through a geographical area where a Traditional Court might have authority that person must be subject to the court without any recourse or appeal. The failure to deal with this and the way the Bill treats this issue like a blunt instrument must ultimately also lead to very specific issues that could work into the validity of this Bill. The Committee was faced with a simple choice of whether it accepted the amendments made by the NCOP to this Bill or not. If the Committee did not accept it then there was a procedural requirement for a dispute committee to be set up. All the members knew irrespective of whether they were going to try through verbal gymnastics to varnish over the serious fatal deficiencies in the Bill that those deficiencies were there. The responsible way forward for legislators who swore an oath of allegiance to the South African Constitution would be for the Committee to say that it could not give its concurrence to the Bill in its current format. The dispute committee process should begin. The Committee needed to give effect to the fact that this Bill was Constitutionally fatally flawed. If the majority decided to go another route it would not be with the DA’s blessing.

Ms Maseko-Jele agreed with the Deputy Minister. What were Traditional Courts without traditional leaders? The Committee was talking about the functionality of these courts. Why did the Committee want to leave behind the people who came up with the idea originally? These were the leaders who came up with this idea. The Committee understood that it needed to be guided by the Constitution. She felt that the Constitution covered these leaders when it came to the matter of recognition. She believed that the Committee should accept what came from the NCOP. She agreed with Mr Dyantyi on the issue. She discussed what was happening around Africa in terms of these issues. She provided an example from Botswana. The rule was explicit that no legal representation was allowed in Traditional Courts. This was inclusive of cases where the matter went on appeal to the Magistrates’ Court. She provided an example from Zimbabwe. In Zimbabwe, legal representation was not allowed at all. The presiding officer was supposed to conduct the proceedings in a loose and simple fashion. The Bill today was not the end of it. She noted that because of democracy and the transformation taking place in the country, that Parliament would work on the issues that people felt they were not satisfied with. The Committee should allow the Bill to pass. The members had looked into all those issues and appreciated the work done by Adv Masuku. However, members still had to bring their own opinion on this. She supported Mr Dyantyi. The Committee should agree with what came from the NCOP. This was not the ANC of the past as Mr Horn indicated. This was the ANC of the Sixth Administration. The members had analysed all of these issues and looked into them. The members should agree with the NCOP on this matter.

Ms Ngema clarified the issue of wanting the Traditional Courts but without traditional leaders. It was not her interpretation or reading of the legal opinion that Adv Masuku was stating. What she understood from the legal opinion in respect of that point was that he was saying, Traditional Courts exist, and traditional leadership exists. However, as the Constitution currently stands for a Traditional Court to align itself with the provisions of the Constitution the legislation needed to be clear on the appointment, whether it was confirming how it was done or if it was dictating another way, which would ensure that appointment of the same traditional leadership into being officers in the judicial system and the judicial court. Adv Masuku was making that point. The appointment processes must be legislated clearly. If it was left as it was then it may continue the uncertainty and the issue of promoting the argument of lack of judicial independence and the required independence. The legal opinion did not say that traditional leaders should not sit as the presiding officers in the courts as the system currently was. Adv Masuku was saying that there was a need to legislate and be clear on that matter.

She discussed how Adv Masuku had argued on legal representation. Adv Masuku made references to case law that confirmed what other members had indicated that there was no room for representation in customary traditional law. Section 35(5) was there in the Constitution. However, in light of the manner in which Traditional Courts were run, room for legal representation could not be made an argument to say that it made the Constitution and the existence of Traditional Courts invalid. They may continue to exist with the provision that legal representation was not granted directly and was not required for Traditional Courts. Adv Masuku was not really saying that there should be no Traditional Court without traditional leadership. Adv Masuku was saying that the appointment thereof must be very clear and align itself with what the Constitution dictates.

Mr Dyantyi said that the Committee normally had an approach where a presenter was given a chance to respond at the end. Maybe there was something drastic that needed to be explained because the Committee had listened to Ms Ngema for an hour. He accepted the clarity she made but he expected that the Committee would still give her a chance to speak because he did not want there to be an impression that she was very involved in the legal opinion and creating a distance in what she was presenting. The members were raising their own views and discussion about the matter. He heard the clarity she provided and had no problem with that. However, members needed to be allowed to get into their discussion and she would have been given space to make her comments.

He noted the comments made by Mr Horn and found the comments uncharacteristic. The members had different views on matters. There was no amount of talk that could get members to agree with a particular conclusion. There was no amount of blackmailing the members back into 2019. Some of the members were not there and did not know what happened. There was no context brought into this. The way Mr Horn went about it was that the ANC members should feel so ashamed. Mr Horn was accusing the ANC of trashing the Constitution and doing certain things in 2019. He was not sure if that helped in terms of this debate. The members correctly had concerns and asked for a legal opinion. Like any other legal opinion that the Committee had asked for, there was nothing that dictated that because it asked for the legal opinion that the Committee had to agree with it in total. The Committee had done this before. The members were sharing different opinions and views about what had been presented. The members could not be put into a corner because the Committee asked for a legal opinion. He did not agree with Mr Horn’s insinuation that the ANC members were carrying an ANC caucus position. He did not think that the Committee should go into that space. That was not how this Committee operated. The Committee was a melting pot of vibrant ideas. It had always been like that. Mr Horn was very harsh in saying that there was a ‘narrow-minded obsession’. Because Mr Horn did not like the views the ANC members were carrying he felt it necessary to give them such labels. He did not agree that because of the opinions and views of certain members their allegiance and the oath taken were under question. The Committee was present today to comment. To either agree or not agree on the amendments, technical or otherwise, that were done by the NCOP. The ANC members were in support of the amendments made by the NCOP.

Adv G Breytenbach (DA) said that in the DA’s view the Bill was unconstitutional. The absence of the opt-out clause in this piece of legislation rendered it unconstitutional. Women in South Africa were seriously marginalised and always have been. Women were still marginalised in the deeply patriarchal society. This Bill instead of uplifting women, instead of increasing their options, instead of allowing them the opportunity to take control of their own destiny entrenches this patriarchal and unfair approach. She had the highest regard for customary law as a legal system. There must be an equal place for it in the South African legal framework. This was not an attack on customary law. This Bill wanted to entrench deeply patriarchal and unfair positions of women that could not be justified. This Bill would be passed at the expense of women and women’s rights. She could not agree to that on any level. The DA’s interpretation of an opt-out clause has always differed quite sharply from that of the Deputy Minister. The Bill in its current form was an affront to women. This Bill would make women’s access to real, practical, everyday justice much more difficult than it already was now. It was already extremely difficult now. This did not apply to women who wore business suits or drove fancy cars in the cities. This applied to women in rural areas who already had a struggle to access justice. This would make it harder. It was unconscionable. That was not the job of this Committee, and it was not the job of legislation in South Africa. Concentration should be on increasing the access to justice for people who currently did not have access. This Bill would do nothing to achieve that. It would only entrench the difficulties. It would make it harder. It treated women as second-class citizens. It made them out to be children. She could not and would never agree with it. If this Committee rammed this Bill through Parliament, it would be delivering a severe injustice to all the women of South Africa. She would remind the Committee of what she had said. If this bill, in its current iteration, went through Parliament the Committee would be delivering a severe injustice to the women of South Africa. The Committee would be telling them again that they were less than equal. It could not be right. It left her feeling severe disquiet. The DA would not agree with this Bill in its current iteration and completely distanced itself from this approach. The DA did not support this Bill and held the view that it would not pass constitutional muster. The DA wanted no part in passing unconstitutional legislation. This was a flawed piece of legislation and should not be inflicted on the South African public. This Bill should be withdrawn and should be continued to be worked on. The Committee should find a way to make it acceptable to everybody. This rushed process of passing it was not going to help. When it came back as unconstitutional, she would not be able to help herself and say, ‘I told you so’. It left her feeling that the Committee had failed the women of South Africa if this Bill passed through Parliament. It did nothing to improve the position of women. It did nothing to increase their access to justice. She was not talking about women in the cities. She was not talking about people like herself and people like Ms Maseko-Jele and Dr Newhoudt-Druchen who could access justice at the drop of a hat. She was talking about people who already had a daily struggle to access anything at all. Now the Committee wanted to make it harder for them to access justice. For those women who needed it most, the Committee would let them down. The DA would have no part of it and did not support it.

Deputy Minister Jeffery said that this Bill was not creating Traditional Courts. Those Traditional Courts were there. They existed. They dispensed justice on a regular basis. There had been many attempts on the Bill. This version came as a result of engagement with traditional leaders, National Houses, Provincial Houses as well as civil society. There was also the establishment of a reference group that had actually helped draft the Bill. The Bill that came to Parliament was a product of that reference group. He reminded Adv Breytenbach because she seemed to have forgotten that that Bill had an express opt-out clause which the Committee removed but made other changes as well. Previously in the Bill introduced, there was no appeal to Magistrates’ Courts which there was now. There was just a review to the High Court which was unaffordable for most people. He agreed with Mr Horn that constitutional law was not an exact science. There could be two constitutional lawyers and probably three constitutional opinions. It was ultimately the Constitutional Court that would define how the Constitution should be interpreted. There may be times that they did not always get it right. There could be the High Court or the SCA saying that something was unconstitutional, and the Constitutional Court would disagree with that.

There was an opinion and the Committee needed to consider that opinion. He had a concern with that opinion and disagreed with the legal advisor. Currently, Traditional Courts were established by and fell under traditional leaders of a particular area, who were appointed because they were traditional leaders in terms of the Traditional and Khoi-San Leadership Act. Adv Masuku wanted a different process to select people to preside over Traditional Courts. Adv Masuku also had a problem with traditional leaders presiding over courts because they were combining executive and judicial powers, which in terms of a reading of the Constitution was not correct. However, how could there be Traditional Courts without traditional leaders? Then they would not be Traditional Courts anymore. Until the Bill became an Act there was no real regulation of Traditional Courts. The fundamental issue of a lot of people who opposed this Bill was that they did not want Traditional Courts. Sometimes they were afraid to say so because it may not be politically correct but that was ultimately the position of a number of people opposing Traditional Courts. He agreed with Mr Horn that it was not an exact science. This was one opinion and he disagreed with that opinion. He noted that the issues being raised were not any of the issues that were raised in a substantial way in the process of making the Bill. The Department had consulted traditional law academics and none of them raised these issues. These issues had not been raised in any substantial manner. The concerns of the Committee in terms of seeking the legal opinion were around the constitutionality of not having an express opt-out clause. There was actually nothing in the Bill that forced people to participate. There was a provision that if a person did not pitch up then it went to the registrar, or whoever the equivalent was. They could then decide to refer it to another court. He understood that happened in many areas where people did not want to be subject to a Traditional Court. He noted the issue of legal representation. Those were the issues that the DA was opposing before. The legal opinion did not support the DA, so they were also not in agreement with Adv Masuku’s opinion on those aspects. It needed to be acknowledged that the DA was never going to support this Bill, for whatever reason.

He responded to Adv Breytenbach’s comments on women. Clause 5 of the Bill, which dealt with the issue of women, was something that was unanimously supported in the reference group. The provision said that a Traditional Court must consist of men and women pursuant to the goal of promoting the right to equality as contemplated in the Constitution. It was a requirement now that there had to be the representation of women. Traditional Courts must promote and protect the representation and participation of women as parties and members thereof. To ensure that it was not just words in a law, there was a requirement for the Minister of Justice to put measures in place to promote the representation of women because in some communities there might be women, from a traditional perspective, not wanting to participate in traditional courts. In other areas, there would be a woman as a traditional leader. It was for an annual report from the Minister of Justice to report on how women were being advanced. There was also a provision for the Commission for Gender Equality to report to Parliament every year. Traditional Courts must promote and protect the participation of women and the Bill went a lot further than that. Adv Breytenbach completely ignored that. Maybe Adv Breytenbach wanted to continue with the current situation because there was no regulation because there was no statute. This was a difficult Bill. This was a Bill that nobody liked because it was a compromise Bill. He had told the reference group that it would not be surprising if the Department produced a Bill that not everyone or anyone liked. The aim was to produce a Bill that people could live with. He appealed to the Committee that this issue had been going on for a long time. The issue before the Committee was to accept or reject the NCOP amendments and not all the other issues raised. He reminded Ms Ngema that Parliament had twice certified this Bill as being Constitutional. There was an opinion from the Parliamentary Legal Advisors to this Committee that the Bill was constitutional and that it did not require legal representation or an express opt-out clause. The opinion sought by Parliament needed to be considered because Parliament did respect the Constitution. It was agreed that traditional law needed to be subject to the Constitution. Adv Masuku had spoken about a quagmire produced by the Constitution. Ultimately it would have to be for the Constitutional Court, not individuals, to determine what was constitutional and what was not constitutional. He wanted to make those comments in response to Mr Horn and Adv Breytenbach.

Prof C Msimang (IFP) said that he would be brief because the Committee had been dealing with this Bill for years now. He supported the proposal by Mr Horn that there should be a dispute committee. All stakeholders should be included so that unanimity could be achieved. He commented on the non-alignment with the Constitution that it was not amenable to transformation. He raised a point on the Zululand Territorial Authority. The Zulu Government took this code and amended it radically. It still needs amendment. It was amended radically in a way that was acceptable to the modern Zulus. It was not true that customary law was not amenable to transformation. He commended Adv Masuku for his report. Adv Masuku touched on many challenges in the present Bill. Especially on the matter of harmony with the Constitution. If the Committee could find answers to the questions that he left unanswered then the Committee would almost be there. He noted that traditional leaders were members of a district committee. Women felt that it gave power to men to turn them into slaves. Traditional leaders had a suspicion that the Government was out to destroy the institutions of traditional leaders. If traditional leaders could sit on committees like this one, they would see that there was a lot of support for traditional leadership. Traditional Courts were alive in the rural areas. People turned to it because it was the only option that was there. They knew nothing about Roman-Dutch law. They felt that Traditional Courts answer their problems. If all the stakeholders were present, then the Committee would be close to the completion of tis work.

Dr Newhoudt-Druchen said that Mr Dyantyi had twice said that the Committee should support the amendments made by the NCOP. Ms Maseko-Jele had also supported that. The ANC supported the NCOP amendments.

Ms Maseko-Jele responded to the comments of Adv Breytenbach. The issues of women were covered by this Bill. She responded to Prof Msimang. The issue he spoke about was people knew nothing about this Bill in rural areas. Maybe that issue could not be placed in today’s discussion. That was supposed to be addressed by education. The Department needed to come up with programmes and campaigns to assist with education on Bills. There was sometimes a lack of information in people accessing this information and knowing about their rights as to what was applicable to them, in terms of the law. She noted that women were accommodated in the Bill. The Bill allowed both men and women to be represented before a Traditional Court. It allowed men and women to be assisted by whoever they pleased. They were allowed to present their issues. It also required that a Traditional Court must be open to all members of the community, including vulnerable persons and persons who were subject to discrimination due to their sexual orientation or gender identity. This clause resonated with the equality provision of the Constitution and the diversity in the appointment of judicial officers. Women did not have to worry because the Bill accommodated them. It was not an issue at the moment. 

The Chairperson said that the Committee had had a robust debate on this Bill. The Committee had considered the legal opinion. Some had agreed with some aspects of the legal opinion and there was some disagreement with some aspects of the legal opinion. The Committee needed to come back to what it was expected to do. There were only two responses that were expected from the Committee. The Committee was to say whether it agreed with the recommendations from the NCOP or not. If it did, then the Bill goes through for the President to accept or to return it back. If the Committee did not agree, then the suggestion by Mr Horn and Prof Msimang would kick in of a mediation committee. The Committee was quite split, but the majority was of the view that the Bill should go through and that the Committee should support the recommendations of the NCOP. The report would be written to reflect that. There was some strong opposition from some parties that were opposed to the passage of this Bill. However, based on the majority views the report would say that this Bill should go through and debated in the National Assembly and accept the recommendations of the NCOP. The Committee would be able to adopt the report by tomorrow. He thanked the members for having a robust debate while also having respect for one another.

Deliberations on the Land Court Bill

Adv Henk du Preez, Senior State Law Advisor, Department of Justice and Constitutional Development, briefed the Committee with a second working document on the Land Court Bill. The document detailed new proposed amendments in light of the previous discussions with the Committee. One of the amendments was to clause 3, the ‘Establishment of the Court’. The document stated that the ‘Land Court is hereby established as a court of law and in matters arising from the application of the Restitution of Land Rights Act or any other legislation expressly providing thereof, as a court of law and equity’. Another general amendment was the removal of the word ‘prescribed’ from the Bill. An amendment to clause 22 was also proposed as this related to evidence. Clause 22(1) stated that the ‘Court may, in the case of the claims under the Restitution of Land Rights Act admit evidence, including oral evidence, which it considers relevant and cogent to the matter being heard by it, whether or not such evidence would be admissible in any other court of law’.

Dr Newhoudt-Druchen asked Adv du Preez to include the highlighted bits both in grey and yellow so that the Committee could see the changes that he had made when he emailed the document.

Mr Horn said that he noted the Department, in respect of some matters, was still having an in-house debate. That was well and fine. He reminded the Department of some of the issues that were raised by members and there was an agreement that the Department would come back with an opinion, and if necessary further amendments to the Bill. He was happy that the court of law and equity was now being regulated and was currently a component of the legislative framework. He noted another issue that members had raised but that he did not see advice or comment on in the presentation. This was the issue around who was to serve as arbiters and whether the members of the judiciary may also be entrusted with arbitration and mediation. If that was the case, what other regulatory provisions had to be built into the Bill to give proper effect to this. Once the Committee received the updated version of the Bill there might be other issues that the Committee would want to raise.

Ms Maseko-Jele said that she was not part of the discussions. She had two clarity-seeking questions. There were families where an uncle raised a child and the family all passed away. Only children were left behind. Those children knew about the previous place where their parents lived but they were removed. Due to other circumstances, they were not able to claim. Was the person who knew about that land and had information able to go to the court and make a claim? If that provision was in the Bill, was there anything that that person had to present to the court? She noted that there were people who stayed on farms. Their parents and grandparents had stayed on those farms. The people who were chased off the land, did those people have the right to go to court and present the matter? There might be some challenges when it came to that. How was this court going to help those people? Did this Bill cover people in those situations?

The Chairperson asked if there was the Land Appeal Court, the Supreme Court of Appeal, and the Constitutional Court, was the State not creating too many layers which would make this process unaffordable? Was the State not making too many layers that were going to be costly for the litigants?

Adv du Preez responded to the question regarding arbitration. There was still a lot of work to be done there and possibly a bit of research. There was a challenge in the Department accessing its virtual resources. The Department would come back to the Committee. They were near finalising a note that would be submitted to the Committee. The issues that had been raised would be addressed in the note. The issues would not fall by the wayside.

He responded to the question regarding families and second or third generations that would like to claim restitution in land rights. The aim of the Bill was only to replace the Land Claims Court with the Land Court. The example given has been something regulated in terms of the Restitution of Land Rights Act since 1994 and still will be even after the implementation of this Bill. The first port of call of the Restitution of Land Rights Act was not necessarily to the Land Court. The Land Claims Commission would assist persons with their claims and investigate the claims.

He responded to the question of persons staying on farms. It was regulated in terms of substantive law. It was regulated under the Security of Tenure Act.

He responded to the question about there being too many layers of appeal. That was something that the Department also wanted to include in its note for consideration by the Committee. This was the second time that this question had been raised. It was also raised the previous week. There were three layers, and the Bill was fairly in line with appeals in the High Court. The Department would respond to the Committee in the note and address all the statutory provisions so that the Department could prove to the Committee that the intention was not to create additional layers of appeal if compared to the High Court.

Mr Makubela Mokulubete, State Law Advisor, Department of Justice and Constitutional Development, reminded the members of the Committee that the Land Court was constituted before one judge. The Judge President was entitled to appoint two judges on the bench. This would not be an ideal situation, but a provision had been made for that. From the Land Court, the matter would go to the Land Court of Appeal which would be presided over by three judges. That was the structure of the courts in terms of the Bill. With the introduction of the Supreme Court of Appeal, it would mean that the matter from the Land Court of Appeal, which would have been presided over by three judges, it would go to the Supreme Court of Appeal. In terms of the Superior Courts Act, the Supreme Court of Appeal was presided over by five judges. However, the President of the Supreme Court of Appeal could decide the number of judges to be more than five or less than five. That structure was similar to the current structures applicable in the High Courts. The matter would be heard by one judge as a starting point and may go to the full bench of the High Court and then to the Supreme Court of Appeal. He responded to the question about whether the Bill accommodated the bringing of a claim when the parents had passed on. That was a substantive matter. It would fall under a restitution claim. The claim would be lodged with the Land Claims Commission which would conduct the investigation. They would want information that would be necessary to enable them to come to a conclusion that there was a valid claim that could be processed. That was a matter of substantive law as contained in the Land Restitution Act. However, if the matter came to court clause 22 would come into play. The court would admit hearsay evidence that was relevant to enable the court to come to a conclusion that would be fair in the circumstances of that case. The weight of the evidence that would be presented before the court will be of assistance to the court. However, those claimants were not left in the woods. They would be covered in terms of approaching the court.

The Chairperson said that it would still be important for the Department to further apply itself to this issue of too many layers as it related to access to justice for litigants. It was important as the State was beginning to create new courts that people applied their minds to the question, how would access to justice be realised? Did all the layers assist in ensuring that access to justice was realised in as far as affordability was concerned? 

Adv du Preez said that he would submit the document presented today to the Committee Secretariat. The highlights would be visible on the document. The grey highlights were the issues discussed last week and the yellow highlight was the new proposed amendments.

The Chairperson said that the Committee needed to allow the Department time to do the work that it needed to do. The Department would come back when the Committee came back from recess.

The Committee agreed that that would be in order.

The Chairperson thanked Adv du Preez and Mr Mokulubete for the work done and asked for the document to be circulated as agreed. The Committee would see the Department in August when it came back from recess.

Adv du Preez asked the Chairperson, for the purposes of planning ahead, if the Committee planned on also going back to the Hate Crimes Bill?

The Chairperson responded that the Committee would deal with it in August. The Committee planned on finalising both the Land Court Bill and the Hate Crimes Bill. There were a number of other Bills that had not yet been introduced but had Constitutional Court deadlines. The Committee would need to see how it went about finalising them. The Land Court Bill and Hate Crimes Bill needed to be finalised in the next term. The Committee Secretariat had circulated a letter about the National Council for Correctional Services (NCCS). The Committee had spoken about it last year. The Minister had to appoint a certain number of members in concurrence with Parliament, which would be the Committee and the NCOP. The term of the NCCS was coming to an end very soon. It was advisable that the Committee assist the process and speedily finalised the appointment in concurrence with the Minister. He was not sure how members would suggest that the Committee would handle this matter. The CVs and documents had already been circulated to members. Should the Committee come back and discuss it the next day so that the Committee could plan a way forward? He asked the members how they would suggest the Committee should handle this matter?

Mr Dyantyi said he had no problem with the Committee dealing with this the next day. This was one of the items that were presented to the Subcommittee on Friday. It had been presented by the Chair, Judge Mashile. Judge Mashile took the Subcommittee through the entire document and presentation. There were no concerns or problems recorded by the Subcommittee on the issue. He had no problem with the Committee reflecting on that tomorrow and taking a decision of endorsement or otherwise.

Mr Horn said that as a point of departure the Committee should reflect on the responsibility of Parliament in respect of this matter. It was not necessarily to disagree with Mr Dyantyi, although it was very easy to disagree with him. He suggested that the Committee carefully look at the specific wording in the Act. This thing had a history and a context. In the past, the Committee was confronted with a decision that had been finalised and was asked to endorse. He proposed that the content advisors could advise tomorrow on what they believed would be the proper way for the Committee to go about this.

The Chairperson noted that the Act said the Minister must appoint in consultation, not after consultation, with Parliament. The issue was what would be the process in ensuring that the ‘in consultation’ was done properly.

Mr Horn said that he did not want to pre-empt it. The Committee may take advice. The way he understood it ‘in consultation’ required a meeting of the minds. He did not know whether the Minister merely giving the Committee CVs and that those were the choices he made would satisfy the ‘in consultation’ requirement. He did not want to be unnecessarily difficult.

Mr Dyantyi said that it was not after consultation but in consultation with the Committee. He supported Mr Horn that the Committee should get that advice. The Minister had already started that ‘in consultation’ process. The Subcommittee had already received a presentation. It was for the Committee tomorrow to have a view about the issue. He did not want to anticipate that discussion. The Committee needed to be tight on its processes and needed to have clarity on the kind of things that it did. It would be proper that the Committee have time tomorrow to have that shared with it. 

The Chairperson said that tomorrow’s meeting would be about having a clear legal process in place. Once the Committee agreed on that process it would process the issue either tomorrow or soon thereafter. The Committee needed to have a process that would clearly satisfy the ‘in consultation’ process. The Committee Secretariat and the content advisors needed to work on that so that they could lead the Committee tomorrow.

The meeting was adjourned.

 

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