Traditional Courts Bill B15-2008: Department of Justice Briefing and Public Hearings

Meeting report

Chairperson’s introduction
The Chairperson welcomed all those who were to give presentations and explained the way in which the Committee would operate. He realised that time for comment had been fairly short, although it was well within what was required by the Rules. Advertisements had been placed calling for comment. The Parliamentary Unit had made this available in different languages. Any person wishing to make a written submission could submit it right up to the time of the final debate, and all submissions would be considered. Public hearings would take place today and the following day, and again on the following Tuesday. He commented that the researchers had done a good overview of the bill and the DOJ would be expected to reply to these points.

Traditional Courts Bill [B15-2008] (the Bill): Briefing by Department of Justice (DOJ)
Mr JB Skosana, Chief Director, Policy Coordination, Department of Justice, noted that he would give a brief overview of the Bill, including the general policy framework to the Bill.

He noted that the traditional justice system was of ancient origin, pre-dating the colonial era. The Black Administration Act (BAA) had regulated the system from 1929 onwards. The main feature of that Act was that there be a separate dispensation for Africans and whites. At the heart of the system were specialised courts to serve Africans, including Commissioners' Courts that were the counterpart of Chief's Courts, and both the Chief's Courts operated under the oversight and supervision of the Commissioner's Court. In 1986 the Commissioners Courts were abolished but the Chief's Courts were left intact, after there had been recommendations for alignment. Sections of the BAA remained in operation, and provided for selective jurisdiction, relating to African blacks within traditional communities. Until 1993 the Magistrates Courts could confirm the sentence of traditional leaders. However, the system was abolished by the Constitutional dispensation. Mr Skosana noted that the whole system, from inception, was established to promote restorative justice and conciliation; it was never intended to be punitive in nature.

The current policy framework under the Bill now sought to revive the elements of restorative justice, reconciliation and social cohesion. It moved away from the retributive nature of the courts. The accused person, as perceived in the Traditional Court, stood in a different position from an accused in the Magistrate's Court. That was the reason why there was the stated difference from those conventional Courts established under Chapter 8 of the Constitution.

This must therefore be seen as an evolving system to resolve and manage disputes under Section 34. It must deal with matters which ordinarily would not go to a formal court, but which would be resolved by alternative dispute resolution methods, and, once adjudicated upon, would end. There had been discussions whether a party in the traditional courts should be able to opt out and go to another court, but the policy was that these courts were not part of the mainstream court system.

The Bill was also seeking to ensure standardisation and uniformity. Separate pieces of legislation currently applied in separate parts of the country. The preferred policy was to regulate administration of justice at senior traditional leader level, and the role of the Headmen / women and family heads must be recognised. This covered fair processes, sanctions and other matters.

Mr Skosana explained that in customary law, If a senior traditional leader was not able to resolve matters, then the community would be invited to participate in discussions, during which the leader might act as facilitator. A traditional head could be assisted by an adviser.

The recognition given to customary law also sought to identify those areas of customary law that might be inconsistent with the constitution, and these might include aspects such as gender equality, children's rights and so forth. What was perceived as contradiction between customary law values and the Constitution should therefore be seen as areas for development. For example, in the Moseneke case, the Courts ruled out the customary law rule that allowed inheritance only through the male line. There was another case pending where a woman was challenging her right to take the throne.

After 1994 the Courts must apply customary law if it was applicable. This was a challenge because many of the existing judicial officers were not schooled in customary law. Those who were scholars or had experience in systems should be able to assist judicial officers, perhaps as assessors. The Bill was addressing this challenge also.

The Bill also dealt with the concept of traditional leaders. It proposed that kings and queens (who would ascend to the throne through their birth lineage) must be designated by the Minister, to allow for functions to be carried out under this Bill. Training programmes would be offered prior to designation and those not complying with the Bill would have recognition withdrawn. The royal family would identify and choose traditional leaders. was a code of conduct, administered by provinces. A training programme would be developed by Justice College, and would be prescribed in or after consultation with structures of traditional leaders.

Mr Skosana said that criminal and civil jurisdiction was a contentious aspect. Traditional courts were to have jurisdiction over all races, and would also deal with less serious criminal cases that did not warrant incarceration – which could include petty theft, malicious damage, assault, damage by strayed animals and the like. The customary law did not distinguish between civil and criminal matters in the same way as the Magistrate’s courts, but looked at conduct that infringed the rights of others. The Bill would not remove that. The new courts could help to relieve that pressure, and to deal with those minor criminal cases that were often withdrawn simply because it would be too costly in terms of time and human resources to pursue them through the Magistrate’s Courts. Mr Skosana stressed again that the Courts would not imprison people, nor give corporal punishment. There could be reconciliatory or self imposed orders or community service sanctions. The fines could amount to R2 000.

Eight of the nine provinces had traditional communities. The Department did not believe that there should be an issue around "opting out" and had been cautious to use the wording "The Court may...".
 
Mr Skosana then moved to the issues of reviews and appeals. The concept of appeal was not known in traditional law, although review could not be excluded as it was contained in the Promotion of Administrative Justice Act (PAJA). Officers would be assigned to serve notices and in other ways assist and support the traditional courts. There was a need to revive the messenger function of traditional police.

Mr Skosana finally said that there had been requests that the Department build court buildings. The Minister had said that if there were requirements in this regard, then National and Provincial governments should liase to ensure that there was support. The provinces had the mandate to provide resources and administer.

Discussion 
Adv L Joubert (DA) raised the Constitutional principle of separation of powers. He thought the Traditional Leaders were more to be regarded as part of the executive.

Mr Skosana said that Traditional Leaders occupied an integrated status. In the context of this Bill they were not judicial officers, but were acting as leaders of the community. This must be seen as a system of governance rather than a judicial system.

Adv Joubert asked who would decide who was to go to the Courts, and whether a person would decide this himself.

Mr Lawrence Bassett, Chief Director: Legislation, DOJ, noted that Clauses 5 and 6 dealt with civil and criminal disputes. The Bill said that the traditional Courts may hear criminal offences occurring in their jurisdiction. There was no reference to race. The same applied to civil disputes that arose within the area of jurisdiction.

Adv Joubert noted that the Court would have to keep a verbatim record. He asked what would happen on appeal, and whether witnesses would have to be heard again.

Mr Skosana stressed that this Bill did not seek to change customary law. Customarily an appeal would not happen, because the judgment was given by the people, not by one judge. The concepts of appeal and review were used interchangeably in the customary law. The wording used in the relevant clauses suggested that there would be recourse if decisions were erroneous or procedurally wrong, or if the sanctions were inappropriate.

Adv Joubert asked who would have right of appearance and who would prosecute.

Mr Bassett said that this was in Clause 9 of the Bill. No party to any proceedings may be represented by legal representatives but a party to an action could make use of a representative who would normally assist in terms of customary law – such as a husband, wife, family member or neighbour. The procedure must be in accordance with traditional law and custom but the Minister had the power to prescribe regulations.

Adv Joubert asked what would happen if a person did not comply with a sentence of the Traditional Court; he noted that normally a prison sentence was given as an alternative to enforce compliance with a fine. 

Mr Bassett noted that this was in Clause 11, which dealt with enforcement of sanctions. If a person did not comply with a sanction, then the person would be brought back to the court and an enquiry was held to find out the reasons for non compliance. The Court would make an appropriate order to assist the person to comply with the sanction. In those cases where there was deliberate non compliance the Court could deal with the matter according to customary law, including a further sanction. If all processes were followed the Order of the Traditional Court had the same effect as a judgment in a Magistrate’s Court.

Adv Shireen Said, Chief Director: Promotion of the Rights of Vulnerable Groups, DOJ, said that there would be difficulties in trying to view the entire system of traditional justice against the premise of the current adversarial court system. Clause 7 set out the nature and procedures of the courts, and this showed that restorative justice was very different to the current adversarial system. In the traditional system, the principles centred around restoration of dignity and promotion of peace. Where there was no compliance, the response in the traditional system would be completely different. In traditional law there was an attempt to integrate the offending person into the community rather than remove or punish them.

Mr J Jeffery (ANC) said that it would be useful to get a summary of what changes were being made to the current system in traditional courts by this Bill.

Mr Jeffery asked about the costing. Mr Skosana had spoken of buildings, but the memorandum merely referred to training programmes. He asked if that was in fact all that it would encompass.

Mr Skosana replied that the training programmes and capacitating officials to assist the courts had been costed out. The issue of buildings had been raised, but DOJ felt that this was a matter for liaison with Provincial government.

Imam G Solomon (ANC) said that uniformity of application of the law was important. Adv Skosana had seemed to suggest that customary law was monolithic, but Imam Solomon understood that there were large differences across the systems and that different sanctions could possibly be given for the same offence.

Mr Skosana noted that sanctions were normally uniform across all traditional courts. There were, however,  differences in the customs and traditions. In one area a son might be able to marry until his father had finished paying lobola, whereas in other areas this was not so. In one culture something might be an offence, whereas it would not be so in other cultures. The scope of jurisdiction of the traditional courts was now being increased. The Bill said that where there were different systems, the parties should try to agree upon the customary law that would apply. If this was not possible, then the customary law most closely connected with the dispute would be used.

Adv C Johnson (ANC) noted that Clause 5 excluded only certain matters. She asked whether domestic violence and maintenance issues were covered. Many submissions had felt that the Bill was entrenching patriarchal systems and was not satisfactorily addressing gender matters.

Mr Bassett said that the Domestic Violence and Maintenance Acts provided that those issues would be dealt with in the Maintenance Court. The Department would have to give further consideration to these issues. In regard to the patriarchal complaint, this had been addressed.

Mr B Magwanishe (ANC) asked what consultation there had been, and particularly the level of consultation with the South African Law Reform Commission (SALRC), who had done substantial work around the issues.

The Chairperson noted that there was an obligation to consult before bringing the matter to Parliament. He wondered if there had been sufficient consultation with the public. Ideally the Bill should be gazetted, and he noted that the principles of consultation would have to be discussed at a later stage within the Committee. He noted that there were organisations in the areas, and bodies such as the Commissions on Gender Equality and Human Rights, and asked whether they too were consulted.

Mr Skosana stated that the SALRC had commenced with the process many years ago. They had held consultation, had published papers, and were to initiate a Bill. The Executive had then felt that there were some points to be clarified, but did not believe that the Department must reinvent the whole procedure. The Department had then taken over what had been done already. The Minister established a Task team, which did include representatives of SALRC, to go back and revise some of the issues. Essentially there needed to be consultation only on the new issues. The SALRC had suggested a formal court structure, parallel to mainstream courts, and that differed in this Bill now produced. The support structure issues were also new. The DOJ had harmonised the report with processes under the governance framework. Other submissions were considered, as those making the original submissions were invited to give their views when the policy was revised.  Both the Gender Commission and Human Rights Commission were included. The consultation was focused on those areas needing further refinement.

The Chairperson said that it was important for the public to be able to ask questions.

Mr Magwanishe wondered if it was not demeaning to the status of a royal that a King should take an oath before a Magistrate, who might be his subject.

Mr Skosana said that the point had been considered whether a judge should not attend to the swearing-in. However, it was feared that this could lead to delays, and the Magistrate was adopted as the more pragmatic alternative.

Mr Magwanishe asked why so much of the new legislation was left to regulation, instead of being encompassed in the main body of the Bill.

The Chairperson agreed although this was framework legislation, the point of regulations needed to be debated. Parliament felt that the Executive had for too long been given too wide powers.

Ms Nomboniso Gasa, Chairperson, Commission on Gender Equality, noted that there were many issues that she would raise in her oral submission later. However, she asked at which point customary practice would apply at familial level between two or three families. She believed that lobola was a family issue, and asked when a traditional authority would become involved in these discussions. Her submission would also address in what circumstances customary law would apply. For instance, would a “crime” be one that was considered a crime in both customary and Roman Dutch systems. Interpretation issues were of concern. She did not believe that the differences between custom, traditional and family beliefs as determined by clan were being considered. She was also concerned about vulnerable groups and wondered where the Bill stood on the issues of gender.

The Chairperson noted her points, but said that some of the issues had already been covered before Ms Gasa arrived at the meeting. Other issues must stand over until the Commission gave its formal submission.

Mr Skosana said that the matters to be dealt with would be contained in a Schedule.

Ms Gasa also queried whether the DOJ had done sufficient consultation. She asked where were the voices of the people to whom the Bill would apply.

The Chairperson suggested that if there was not reasonable consensus by the end of the public hearings, it might be possible to have representatives for amakhosi and civil society present during further deliberations, to continue dialogue, similar to the procedure followed on the Child Justice Bill.

Professor Ben Cousins, University of Western Cape, noted that he had been researching issues in Kwazulu Natal. He asked how many traditional courts there were per community He said that in some areas the matters would come to the chief's courts only as a final step, having passed through other stages first.

Prof Cousins asked how the area of jurisdiction was defined. He noted that many of the boundaries were under dispute. This raised the issues of different groups, some of whom had been placed under the jurisdiction of larger groups with different systems in the past.

Mr Skosana said that there were 1 665 headmen, 860 traditional leaders and 12 kings or queens. He said that complaints would be dealt with first at a family level. He noted that the DOJ was acting in consultation with Department of Provincial and Local Government (DPLG). The Minister must recognise the jurisdictional areas, as there was an attempt to avoid conflict.

The Chairperson suggested that Prof Cousins make a written submission.

A law student from UCT said that the Domestic Violence aspects needed to be clarified. She noted that the traditional leaders did not purport to function as judges. Chapter 8 of the Constitution dealt with administration of justice. She asked then how Section 165 of the Constitution would apply to traditional courts.

Mr Skosana said that section 165 regulated dispute resolution by judicial officers. He pointed out that it was not only judicial officers who mediated to resolve disputes and this could include teachers, community leaders and others. Traditional leaders should have power to resolve certain kinds of dispute, and that was the reason for the distinctions being made.

Ms Aninka Classen, Consultant, Legal Resources Centre, noted that the SALRC had recommended that the courts should be recognised at the level of headmen. They had also recommended that land be excluded. However, the Department had now decided to recognise courts at the level of council and not to exclude land. She asked why this decision was taken.

Ms Gasa echoed the concerns of Mr Magwanishe around the swearing in process. If traditional leaders were recognised by communities, she did not believe that it was necessary for a judge to swear them in. If the system was to be coherent, then the question was why a different legal system must be imposed. This went to the heart of the questions around traditional legal systems.

The Chairperson said that this was an issue of policy to be debated later.

Mr Jeffery said that this would fall into the broader category of the traditional courts and magistrates.

The Chairperson believed that there was much to commend a traditional system of justice, but he personally thought it was quite idealistic. He asked what was happening on the ground. His constituency was largely rural. Many times he had gone to meetings and heard negative experiences from his constituents about the Traditional Courts. When the Traditional Governance Framework was under discussion, similar comments had been made. He asked how much of the power of traditional leaders had been conferred upon them by the apartheid system, and how much was really reflecting customary law. He asked that the policy framework be made available by the Department of Justice.

The Chairperson did not expect answers to all questions now, but he wanted to introduce issues into the debate. He commented that the researchers had done a good overview of the bill and the DOJ would be expected to reply to these points.

The Chairperson noted that the Black Administration Act had been extended to end June 2008. Because this Bill was Section 76 Bill, and in terms of the Rules of Parliament, it could not be fast-tracked before June, nor was it desirable to try to do so. There would be a drawn out process in the NCOP and this Committee would hope that the NCOP would hold public hearings in each province. Therefore the Committee would have to pass yet another extension extending the clauses of the Black Administration Act.

Judicial Officers Association of South Africa (JOASA): Submission
Ms Judy van Schalkwyk, President, JOASA, noted that JOASA was a voluntary association of judicial officers. JOASA supported the Bill as traditional courts were best positioned to dispense justice in values and systems that were recognised as traditional communities. JOASA welcomed the shift from questioning of the traditional system to beginning to perfect it. The traditional courts did not begin to mirror conventional courts and had to be recognised for both what they were and what they were not.

JOASA submitted in relation to the designation in Clause 4 that there should be a panel of presiding officers, because the friends and relatives of kings, queens and traditional leaders, could be involved in matters, and it would lead to perceptions of bias should there not be others to hear these matters. In addition it must be  recognised that kings, queens and traditional leaders might also have many other tasks to handle that could affect their availability for court purposes. A way had to be found whereby offences committed by kings, queens or traditional leaders could also be handled by the Courts.

JOASA also suggestion, in relation to Clause 8, that a royal Council or formation should decide on the time and place of the courts. This would deal with situations where there were vested interests.

JOASA suggested that issues around family law and domestic violence cases should stand over for discussion at a workshop. It did not support an approach that would remove these cases from the traditional courts.

JOASA suggested that the houses of traditional leaders should have a role in processes pertaining to traditional courts, and that the Minister should make regulations in consultation with the House of Traditional Leaders.

Ms van Schalkwyk noted that there were no backlogs in traditional courts and JOASA urged that the traditional courts should not become subject to delay and negative impact.

Mr Vincent Ratshibvumo, Magistrate, JOASA stressed that there was a need for training, but urged that this should be covered in the Bill, not just in the regulations, and thus supervised by the legislature. At the least, the regulations should be submitted to Parliament before being gazetted. It was suggested that Parliament could approach academic institutions to deal with a new diploma or qualification.

Clause 5 of the Bill gave the traditional courts jurisdiction in certain civil disputes. The Bill did not say which disputes would go to traditional courts and which should go to Small Claims Courts. JOASA suggested that there should be an indication in the Bill of who could choose where to institute action, or how else this would be determined. .

JOASA also raised concerns around concurrent jurisdiction with Magistrates' Courts. JOASA did not understand how crimen iniuria could be measured by monetary benefits. Issues of equality before the law had been dealt with in prior discussions. A teenager could be arrested and appear before the Magistrate's Court and face the possibility of imprisonment for a minor theft, such as a bar of soap, in an urban area. A teenager who had committed stock theft to a greater amount who was tried by a traditional court in a rural area would not be faced with imprisonment. The question was raised whether the complainant or victim would choose which law enforcement agency to approach. The question was asked also if alternative and special pleas that were competent in Magistrate's courts would apply to traditional courts. It was noted that a traditional court case could not be taken on appeal.

The Chairperson at this point ruled JOASA out of time, and Mr Ratshibvumo stated that further submissions were contained in the written document. He did however stress that JOASA was also concerned with language problems in appeals and reviews, stating that this must be addressed.

Mr D Oberholzer, National Secretary, JOASA concluded by remarking that implementation should be pre-costed. A mind shift was necessary for magistrates who would be involved in work in traditional courts. The Bill, if properly implemented, should assist in easy, affordable and prompt delivery of justice. It was felt that perhaps some centres must also be set up in urban areas to save on costs.

Discussion
Mr Jeffery noted that the DOJ had suggested that training and capacity building were necessary. He suggested that written submissions be made around training.

Royal Bafokeng Nation: Submission
Mr Bruno Seabela, Royal Bafokeng Nation Corporate Governance Executive, noted that an extensive written submission had been made. The Bill was seen as creating more problems than solutions, including a minefield of matters around access to justice. This Bill covered the ideal traditional justice system to link customary law with constitutional imperatives. It also brought courts into the fold of restorative justice. It was suggested that it was necessary to include the notion of restorative justice in the preamble. There should also be cross references in definitions to the Communal Land Rights Act and Traditional Leadership and Governance Framework Act, as this would deal with jurisdiction and territory.

In relation to jurisdiction, it was suggested that this Bill specifically define the law as based on traditional law.
Customary law jurisdiction must be properly established and developed. This would require every traditional community to have a traditional court and structures and processes dealing with the customary law peculiar to it. Traditional courts should be properly streamlined and their jurisdiction recognised. When considering the legitimacy of courts and their authority to deal with matters, there was a need to review levels of sentence and punishment. Powers of punishment similar to district courts should be given that would eliminate the double standards under Clause 10 of the Bill. It was felt that the limitations in clause 10(1) eroded the legitimacy of the Courts.

The traditional Court structure should be aligned with the current system and should not be confined to traditional law and custom, but also have jurisdiction over other matters. In regard to civil jurisdiction, there was an implication that traditional courts could not deal with matters arising from common law, and that the parties could decline jurisdiction. It was felt that this view encouraged forum shopping. The definitions should be clearer. Small claims court jurisdiction should be conferred upon these courts. This would enable traditional courts to assist in the extension of services rendered. Magistrate's courts should still be courts of first instance in respect of appeals and review.

In regard to customary succession, it was noted that there was a Bill dealing with this topic, and it was therefore suggested that this position be made clear and that and the bills be cross referenced.

Mr Seabela submitted that the referral case mechanism must be reviewed, as it was felt that judicial officers had too wide a discretion to refer. The referral processes currently resulted in lack of accountability between traditional and Magistrate’s courts.

The point about legal representation had been raised already and Royal Bafokeng felt there was a danger of a constitutional point being raised. The right to legal representation was subject to limitation, but the question was whether the Bill would be of general application - and it was submitted by Bafokeng that it should be. It was submitted that paralegals, public defenders, candidate attorneys and even junior prosecutors could be asked to assist.

Other possible Constitutional issues related to the structure of the Courts and their positioning. It was submitted that they should be regarded as an integral part of the construction of the courts. The phrase “distinct from Courts referred to in Section 166" should be deleted from the Bill. In relation to the administration of fines to be imposed by traditional courts, and the accountability for such funds, there was reference to the Traditional Leadership and Governance Framework Act only. This might differ from the provincial governments' administration. There should also be a reference to the various provincial and leadership governance acts.

In relation to interface, it was submitted that various government departments must be catered for in the Bill. There might be unintended consequences if they did not deal with matters in the same way. Ministries of Safety and Security, Agriculture and Land Affairs, Provincial and Local Government and the like must all be taken into account.

Discussion
Imam Solomon noted that the Royal Bafokeng had a court operating currently, and that it was regulated in a certain way. He asked if this Court was in line with this Bill.

Mr Bassett noted that the transitional provisions set out how these complex issues would be dealt with.

Mr Jeffery again asked how this Bill, if brought into operation, would change what was already in existence.

Mr Seabela said that over the years, the Bophuthatswana Traditional Courts Act had applied, but had not been amended or improved for a long time. The jurisdiction in terms of amounts was so minimal that a decision was taken not to hear any civil matters, and it had been asked that the Magistrate's court assist with extension services as a small claims court. It was only possible for the traditional courts to deal with matters involving low quantums and low fines. There was therefore a move to mediation and restorative justice. This was why it was suggested that certain practices had abrogated over time. The Bill would assist with this situation and would give resources, such as tribal police, to support the courts, which was the reason that the written submission had stressed the need for collaborative efforts, which would also settle questions of accountability. A safer approach would be to move towards the way in which current courts were assisted by SAPS.

Mr Jeffery summarised that JOASA, in its submission, had questioned whether what was intended was a court or tribunal He asked if it was fair to say that up till now the Bafokeng traditional court had effectively been operating as a tribunal.

Mr Seabela said that in effect it was regarded in the law as a court, but for reasons of expediency a decision had been taken to move into matters that were similar to those of a tribunal. In law the court would have a level of enforcement, with powers also of arrest and detention. Although these had not been removed, there were areas that had not been dealt with for some time.

Mr Jeffery thus confirmed that the legislation governing the Bafokeng did provide for a Court, but those powers had not been enforced.

Prof Ben Cousins, University of Western Cape, asked JOASA whether, in recommending that in addition to a presiding officer there be a council to ensure that other voices were heard, they had given attention to the area of checks and balances already existing in a traditional system. He pointed out that the customary law did not operate within a separation of powers, as did the common law. He suggested that accountability worked at customary law level because power was vested across levels. The Bill was seemingly creating a centralisation of power that was undermining the checks and balances that were integral to the true traditional system.

The Chairperson suggested that the DOJ should give an answer in writing.

 Ms Claasens said that the SALRC had consulted extensively, It had not suggested that there be one centralised court, but had specifically considered the representation of women. If the DOJ had taken into account those recommendations, she asked on what basis it had decided to ignore the debate around the model and the structure of different levels.

Mr Skosana said that some elements had been taken into account. The DOJ had decided as a policy to align the systems as now done in the Bill. The traditional leader should provide leadership, and that could be assigned.

Mr Jeffery asked if there were customary law precedents supporting the submission of JOASA in regard to the panel

Mr Ratshivumo noted that on the question of precedent, this Bill must be seen as ushering in a new era for traditional courts. In most courts, the decision did not lie with one individual but a group of people. JOASA had therefore suggested that instead of training one chief there should be wider training, so that there would be a pool to be able to do the work.

 Mr Skosana commented, in relation to designation of other people to a pool, that the Minister was empowered, under Clause 4, to nominate others as alternative officers. This Bill did not change customary law. There was no vacuum; for purposes of accountability, senior traditional leaders were public office bearers. The conduct of everyone was subject to the Constitution and there were limitations to the power. That was the reason for an oath of office, which was basically an oath to the Constitution. Mr Skosana pointed out that a person must be properly mandated by this system to perform the functions.

Ms Cele said that the Commission on Gender Equality had not discussed this matter. However, to her mind the reference to the “Minister may, at the request…” raised the question of checks and balances. She understood that in traditional matters the individual leader would have to work with a council, and she thought it would be a problem to impose power on the individual exclusively. Requiring the taking of an oath was already shifting the point of reference. She believed that this was not consistent with customary law. Africans did not work on the wisdom of an individual. The Council was a body of people with experience in the system, who might hold divergent views. Already there had been instances where abuses of power by individuals had been cited. Prof Cousins had raised a very valid point. She personally would not be comfortable with this Bill until the land question and traditional leadership had been sorted out. She was worried about the implications on vulnerable people. She pointed out that the entire system of customary law had been corrupted by apartheid. The Minister was being given substantial power, and she would like to see the power being devolved to Parliament.

Mr Seabela said that land was an important issue. The reference to land in the written submission spoke to areas of jurisdiction, where the traditional courts would have domain.

The Chairperson noted that tradition and custom did change. He suggested that this Bill could be an advance on what was currently in the system.

Mr Seabela concurred and said that it would be necessary to look at how various traditional communities were structured in terms of governance. He agreed that there would be differences between communities.

The morning session was adjourned.

After lunch, the various groups and organisations that submitted their views and opinions on the Traditional Courts Bill made it clear that they do not support this Bill. They stressed that this Bill would empower Tribal Authorities even more through the regulations contained in this Bill. These organisations stressed that parliament failed to inform rural communities about the public hearings on this Bill and that the Committee need to visit rural communities nationwide to obtain further submissions.

Mr M Nokonyane (ANC) said that not all Tribal Authorities should be deemed as “rotten apples” and said there was a need for the Traditional Courts Bill as it would address the historical imbalances of the passed.

Mr Y Cassim (ANC) noted that there were contentious issues that need to be addressed first before this Bill could pass and that it could not be scrapped in its entirety.
 
The Committee agreed that more consultation with rural communities was needed and that the NCOP would be asked to assist the Committee in this regard.

Commission on Gender Equality (CGE)Submission
Ms Nomboniso Gasa, Chairperson, Commission on Gender Equality, noted that the Commission had prepared a written submission, but wished to work on it more before submitting it.

Ms Gasa noted that the Bill was part of an important contribution to addressing the historical inequalities created by Apartheid. However, she submitted that the Bill in its current form should not be put through the legislative process.

Culture was in the domain of everybody, not limited to the Kgosi/King or the Nduna alone. It was important that the patriarchal hierarchies should accept that women and children could also play an important role as entities of knowledge and that they be empowered to fulfill this function, within a framework that recognised that knowledge could be sourced from anywhere.

She added that if cultural groups ignored change as a social tool then they would cut themselves off from modern realities and norms. It was on this premise that the CGE urged all role players to look at other mechanisms to recognize the diversity of South Africa, within the context of change.

The fundamental question arose as to of whose traditions this Bill was addressing. It was necessary to look at the definition of “Court” contained in this Bill. It was imperative to consider a system that would assist South Africans in dealing with the historical inequalities as well as modern issues. She noted that South African Courts were never empowered to deal with Customary Law. She said the problem with this Bill was also that it would aim to re-entrench Apartheid systems by classifying people into different geographical areas. It must be borne in mind that African people lived in rural and urban areas, so a more coherent system was needed.
She suggested that a Tribunal be created that would empower South Africans from all walks of life and that the South African court system be an open space that are flexible and fluid.

Ms Phindi Gwebu, CGE, added that vulnerable groups, including women, who approached this court should be protected against adverse influence.

M T Moshitoa: Bakone Development Forum: Rakgwai: Limpopo: Submission
Mr Monoko Thomas Moshitoa noted that he was a political activist during the 1980s in the former Bantustan of Lebowa, during which time he was a strong advocator for women rights, reduction of excessive tribal levies and abandonment of forced labour policies that local Chiefs practised. The forced labour policy had a detrimental effect on women who were required to work under harsh conditions even if they were pregnant. He added that in his area women were not allowed to inherit land and that the qualifying age to inherit land was 40 years old.

Mr Moshitoa noted that he and his contemporaries questioned the validity of these practices and concluded that they were not in line with African Customary Law. When their views became know to the Chief, he summoned Mr Moshitoa and his allies, threatened them and treated them in an inhumane manner, including making them stand in the sun for several hours.

In 1986 the Chief informed the villages that that the title to their land was transferred to the tribal authority and the title deeds would be kept by the Chief himself. The villagers were outraged by these developments, but the Chief paid no attention to the concerns that were raised. Mr Moshitoa said that his village had its own headman and kgoro that acted in a democratic way, but the decisions made on land allocation were undermined and overturned as the Chief began interfering in the affairs of their village.

Mr Moshitoa stated that Clause 10 (1) of the Traditional Courts Bill took the country right back to forced labour practices of the oppressive eras in South African history and that it paved the way for greater abuse of power by Chiefs. He expressed his disappointment at the Bill, as well as concerns about the lack of communication about this Bill to rural communities, considering that rural people fought so hard for equal rights in South Africa. He suspected that Chiefs who did not have the full support of their people were behind this Bill. In his view, the Bill had nothing to do with culture and customs and would add nothing to effective functioning of the customary courts..

P Mashego:Letebejane Village: Limpopo: Submission
Mr Patrick Mashego said he too was devastated that a Bill that had a direct impact on the lives of rural people was not communicated to rural people, nor were their views canvassed. He added that his village had experienced serious problems with tribal levies imposed on them by their Chief, and that the Traditional Courts Bill would exacerbate this problem if enacted.

Mt Mashego said that in 1986 villagers demonstrated against the excessive levies that were imposed on them by the Chief, who was also the Minister of Finance for the Lebowa Bantustan. The core reason for this uprising was that these villagers believed that rural people should not have to pay dual taxation.

In 2004, under the current democratic dispensation, the Kgosi demanded that the 23 villages under his chieftaincy had to pay a R50 levy per household to enable him to buy a car. A further R20 levy was imposed to cover the cost of the 50^th year celebration of the tribe arriving at Rakgwadi. This was a sore point due to the fact that the Chief’s father colluded with the Apartheid regime. Villagers refused to pay and said that it was unconstitutional. Upon hearing about this the Chief summoned them for a meeting, where he too had threatened them and treated them inhumanely.

Mr Mashego noted that the Limpopo Premier’s Office were asked to investigate this matter, but refused to act as they stated that they could do nothing about the excessive demands Kgosi Matlala had imposed. This lack of action by the Limpopo provincial government emphasised the leniency of government towards traditional leaders.

He added that rural Chiefs had no legal background and that this Bill would provide for nepotism and corruption, given the fact that the funds charged by these courts would never reach the National Treasury.

Makuleke Property Association Submission
Mr Gibson Makuleke, Chairman of the Makuleke Property Association, said that in 1906 all traditional leaders had been on an equal footing, but that the apartheid authorities changed this by colluding with certain Chiefs. In 1969, Mr Makuleke’s tribe was forcibly removed from their land and placed under the chieftaincy of a different Chief who colluded with the Apartheid regime. Their own Chief was declared as a headman and was tasked with the administration of three villages. This enraged the Maluleke clan.

In 1995 the Maluleke clan instituted a successful land claim and started various successful enterprises. In 1998 the Ralusha Commission ruled in the Maluleke clan’s favour to have their Chief properly recognised once again. In 2005 the Maluleke clan approached the Nhlapo Commission, which was mandated to hear cases where there was doubt as to whether a traditional leadership position was established in accordance with customary law, or cases where the title of an incumbent traditional leader was challenged, or claims by communities to be recognized as traditional communities. Its terms of reference also included cases questioning whether any establishment of "tribes" was legitimate; disputes around traditional authority boundaries and the resultant division or merging of "tribes"; and any other relevant matters. He noted that since making the submission the Maluleke clan had had no response from the Commission

Mr Maluleke said that he was disappointed at government for “allowing traditional leaders to draft the Traditional Courts Bill” and said that the Bill would boost the powers of those people wanting to enforce their own regulations and agendas. He added that some Chiefs had colluded with the apartheid government and that it seemed that parliamentarians and the Executive were on the side of the Traditional leaders. He noted that since his people started becoming successful there had been many attempts by the greedy apartheid-backed Chief to get his hands on their money.

Rural Women Movement Submission
Ms T Zondi, Organiser: The Rural Women Movement, gave her experiences to the Committee. She noted that she had been married to a Chief and bore him six daughters. When her husband died, 57 men from the community had advised her that she would not be receiving her husband’s inheritance due to the fact that she had no male children. She eventually had to call the police to assist her in obtaining the family assets. The recourse that she took was condemned by the King. She urged Parliament not to pass this Bill as it was not in the best interest of women.

Makgobistad Community Committee Submission
Ms Charlotte Mokgosi, Chairperson of the Makgobistad Community Committee, said that customary law was an important part of her identity as a rural black woman, as it kept communities together. However, in her area, this system of community inclusion and consultation on communal affairs came to an abrupt end upon the inauguration of the new Chief who called himself “owner of the soil”, a title that was never claimed by his predecessors. The Chief was currently facing legal action, as the community took him to court over allegations that he paid community finances into his personal bank account. The community was divided on whether the Chief should be permitted to pay back the misappropriated funds and the action would be dropped, or whether the action must continue. He also stood accused of not consulting the community on important matters that concerned their well-being, and the sale of land to people who was not part of the community.

Various letters were sent to newspapers, especially the Mail and Guardian, which documented the abuse of power by the Chief. To date none of these grievances had been published.

Ms Mokgosi stated that rural people were being sold off like slaves and questioned the character of the people behind the drafting of this Bill. She called on Parliament not to pass this Bill in its current form.

Kalkfontein B and C Community Trust: Submission
Mr Stevens Tongoane, Secretary: Kalkfontein Community Trust, said that their forefathers of diverse ethnic backgrounds grouped together in 1921 and 1923 to purchase land in terms of the exemption in the old Natives Land Act. The then-Minister of Native Affairs held the title to the purchased land on their behalf.

The Kalkfontein land was subsequently incorporated into the then Kwa-Ndebele Government, who, in 1986,  included Kalkfontein within the jurisdiction of the Ndundza Tribal Authority. The Kalkfontein residents requested that a community authority be established to exercise authority over Kalkfontein, but this request was turned down by the Kwa-Ndebele Government.

The newly created traditional leader, Daniel Mahlangu, treated the Kalkfontein land as his personal property and sold part of it to over 1,000 outside families. This action led to the Kalkfontein community taking action that resulted in violence and disturbance. This led to a Commission of Enquiry, and repeated litigation in the Transvaal Provincial Division and ultimately the Land Claims Court. The Land Claims Court granted the Kalkfontein community full title deeds to their land in terms of the land in terms of the Restitution of Land Rights Act 24 of 1994.

Mr Tongoane said that apartheid legislation imposed the Ndundza Pungutsha Tribal Authority on the people, and that due to this they had suffered devastating effects on their security of tenure and property rights. He added that they did not recognise the legitimacy or authority of this Tribal Authority.

Having given this background, Mr Tongoane noted that the Bill relied substantially on the Traditional Leadership and Governance Framework Act (TLGFA) that defined a traditional community, a traditional council and a traditional leader. The TLGFA automatically recognised a tribal authority who had been appointed by previous apartheid legislation as a traditional authority in terms of the TLGFA.

This was problematic for the Kalkfontein community, who were subsumed within imposed traditional council boundaries that undermined the status of their rights as land owners (which had been recognised by the Land Claims Court) and also undermined their identity as a separate group of people.

Mr Tongoane said that people who lived in erstwhile homelands had no choice as to the system of law governing them, and that this Bill would further entrench the supreme authority of Chiefs. He proposed that a Community Authority be established, instead of the Traditional Courts system proposed by parliament.

Discussion
Ms Gwebu (CGE) asked what the unique matters were that could not be heard by Magistrate’s courts.

Mr JB Skosana said that anyone could take a dispute to any court under the Constitution, and that Traditional Leaders would be given specific disputes related to their regions. The Bill itself did provide for certain issues to be dealt with. He added that South Africa had several specialised courts. A different legal framework was applicable to land disputes and there was an ongoing discussion on what the role of Traditional Leaders would be in this regard.

He noted that Traditional Courts should not be seen as a mechanism to oppress people, but as agents of change, and that it was never envisaged that Chiefs should act in isolation as they always traditionally had advisers to assist them.

Ms Gasa asked the DOJ to clarify the definition of a Court.

Mr Skosana replied that the details of the definition of a Court were contained in the Bill, and that the Court was broadly speaking regarded as a forum that resolved societal issues or disputes.

Ms Shireen Said added that the principles were captured under Clauses 7 and 9 of the Bill and that many factors had been taken into consideration when this Bill was drafted.

Adv Johnson said that women’s issues needed to be adequately addressed in this Bill.

Ms L Ngwenya (ANC) stated that historically women were not allowed to attend meetings or legotlas held by Chiefs and that it would be difficult for women to approach these traditional structures. She asked how women would be encouraged to attend these courts, especially if they were under threat of isolation by the  community. She suggested that a meeting should be held with the Rural Women Movement to discuss these concerns, and that the Department should look at including provisions that would allow for Chiefs to be named and shamed in public if they did not adhere to the regulations.

In reply to the submissions made by the various entities, Mr M Nonkonyane (ANC and President of the Congress of Traditional Leaders) said that the Congress of Traditional leaders would present their submission in due course.

Mr Nonkonyane said that the current system of Roman Dutch Law did not adequately address unique issues inherent to customs, traditions and culture. Many South Africans did not have the financial means to access regular courts. He said that it was insult to suggest that Roman Dutch Law was better then the proposed Traditional Courts’ law, as it was an imposition of the apartheid regime.

He noted that the traditional system in South Africa had been seriously undermined. He thought there should be an enquiry into the agenda of those groups who had briefed the Committee and who their benefactors were.

Mr Nonkonyane believed the proposed Bill was a step in the right direction as it would restore dignity to traditional authorities and that entities should not generalise.

He added that the suggestion made by Ms Ngwenya was welcomed, as “our” women needed to be given a voice.

Mr Magwanishe noted that parliament paid the traveling costs of the entities who were giving submissions.

Ms Gasa said that the CGE understood that indigenous practices were oppressed by the former regime, but dialogue was needed to address the fundamental problem of the alienation of African practices, as South Africa was a multi-cultural society.

She added that she was dismayed at the comments made by Mr Nonkonyane, who referred to women as “our” women. Women came to the public hearings as equal citizens, not as “our” women, and those in power needed to realise that they must respect people, regardless of gender or race. Mr Nonkonyane’s comments did not befit his office and position in society.

Ms Gasa noted that part of the problem with society, and with this Bill, was that those presiding over traditional institutions were the people that abused their power, hence the need for a system of checks and balances to govern this court.

Ms Janet Love, National Director, Legal Resources Centre (LRC),  said that the Traditional Courts Bill dealt with issues that would affect the fundamental living conditions of people. The fear was that this Bill had the potential to create a structured forum that could be abused by the traditional authorities, hence the need for a separation of powers and an assurance to the people that abuses would not occur. She added that the issues of property, women’s and children’s rights should be adequately addressed. Furthermore many people would not be happy to have such a Court, as ethnicity determined automatic conformity.

Ms Love stressed that this Bill would create substantial inequality on people living in a certain geographical area, due to the colonial and apartheid policies. She said the inherent question that had to be answered was what would happen to “non-African” people under this Court.

Ms Gwebu urged the Confederation of Traditional Leaders to submit a detailed report on the prevalence of ‘kangaroo courts”. She added that these courts should be infused within the existing judicial system in South Africa and that people should be trained to deal with traditional issues.

Mr Magwanishe said that the CGE could not prescribe to other entities on what to include in their submissions.

Co-Chairperson Mr Carrim said that it would not be in the interest of South Africans to scrap this Bill in its entirety, and that the two systems need to be reconciled as they could be of mutual benefit. He added that some of the issues raised fell outside of the mandate of this Portfolio Committee but that he would refer these matters to the relevant committees for further consideration.

Chief Ngangomhlaba Matanzima, Chairperson: Eastern Cape House of Traditional Leaders, said that the various speakers had raised serious and important issues that need to be addressed by Traditional Leaders. He conceded that some traditional authorities abused their positions by acting in bad faith, but that African people should not forget their origins. He reminded the meeting that during the previous regime traditional authorities were attacked and corrupted by the apartheid government. He welcomed the Traditional Courts Bill as it would address the problems that these authorities faced.

He emphasized the need for a Code of Conduct as part of the regulatory framework, to secure a system of checks and balances. He expressed his disapproval at the conduct of some traditional leaders and urged parliament to engage with rural people in the legislative process by visiting rural areas for submissions. He said that complaints about traditional authorities in the Eastern Cape should be directed to him.

The Deputy Chairperson of the Limpopo House of Traditional Leaders thanked the Department of Justice for drafting this Bill. He said that Traditional Courts were constituted in a democratic manner as people could give their input and that this Bill would have a restorative affect that would assist in addressing severe problems faced by rural communities.

Mr Carrim said that clearly more debate was needed on this Bill, and urged the various entities to constitute a representative sub-committee that could act on their behalf. He said he would engage with Kgoshi Mokoena, Chairperson of the Select Committee on Safety and Security, in relation to getting submissions from rural communities in the nine provinces.

He expressed the view that civil society organisations had to be informed that there was a difference between the Executive and the Legislature. He stressed that the ANC recognised that previous wrongdoings need to be rectified, hence this Bill had been drafted. The legal framework was the Constitution, which enshrined the system of traditional leaders was enshrined within the South African constitution. He noted the call for a code of conduct and felt that academics from rural areas should be asked for their opinions on the Bill.

The meeting was adjourned.