It was announced that the Committee would vote on the Jurisdiction of Regional Courts Bill on the following day. The Committee then continued to hear submissions on the Traditional Courts Bill. The Women’s Legal Centre noted that South Africa must comply with international and domestic obligations around the rights of women. The Bill should make specific reference to the application of customary law within the context of the Constitution. It should deal with the problems of patrilineal succession, which meant that women were not represented consistently in all courts. It was submitted that jurisdiction maintenance and domestic violence issues be clarified. The Centre disputed that the jurisdiction should be territory-based, stating that customary law should only be binding on those who recognised its authority. The separation of power was raised, and it was suggested that the Bill must prevent coercive powers being exercised against vulnerable women, and active steps be taken to prevent abuse. The Department of Justice responded that the Bill could give further clarity on maintenance and domestic violence, which should be dealt with by special courts set aside for that purpose. Clarification was given on the extent to which the courts had traditionally dealt with aligned issues. There was discussion over whether people should be allowed to “opt out”, and the Women’s’ Law and Legal Resources Centres supported that they should, whereas it was clarified that this suggestion had been a major point of contention amongst traditional leaders at the time the South African Law Reform Commission (SALRC) Report was challenged. The territorial basis of jurisdiction was highlighted by several commentators as problematic. Discussion ensued on the dynamics of the changing customary law and the need to try to reach uniformity.
Professor Ben Cousins summarised the results of some of his research into land administration and customary law issues, particularly in Kwazulu Natal. He said that the current application of customary law operated as a decentralised system, at several levels, and the tribal court often acted as a kind of appeal court. This system had various checks and balances, including to the cultural norms informing the restorative principles, the broad presentation of views, good understanding of the context and meaning of behaviour, a fully consultative process, and the possibility of appeal to a Magistrate. This was not reflected in the Bill. He noted that this was the ideal and did apply in some areas, but in others women were precluded from speaking or from receiving allocations of land (although this was gradually changing), the so-called traditional law was heavily distorted by colonial or apartheid law, and some had been recognised as traditional leaders not through proper entitlement but through their willingness to support the colonial systems. This could and did sometimes lead to abuse of power. He believed that the Bill did not have adequate checks and balances. The judicial function was too centralised and did not recognise the processes at other levels. There were few provisions to directly address the issue of gender and the problems that women faced, other than a very general statement in the guiding principles. The state of living customary law was not recognised and nothing provided for adaptation and change. Too much was being left to regulation rather than being contained in the main body of the Bill. Centralisation was inconsistent with the core features of traditional law. Members called for clarity on the hierarchical structure, and a comparison of the systems, including problems raised with imposition of fines, procedures, and whether the decisions were reached after consultation, and also sought comments on whether legal representation should be allowed. There was discussion around the apparent inconsistency between patriarchal customs and promotion of gender equality, and it was pointed out that customary law could and should change and grow.
The Congress of South African Trade Unions called for withdrawal of the Bill on the basis that there had not been wide enough consultation with civil society, and due to its fundamental opposition to a dual system. It further criticised several clauses in the Bill, and was concerned that gender equality and human rights could potentially be violated. It suggested that civil society should be involved in the appointment of judicial officers, that there were not sufficient limitations and qualifications set out in clause 5(2), and questioned the wording of clause 6 and the drafting of the Schedule of offences. COSATU would support the right to opt out. The power of the traditional court in relation to fines and compensation would need to be reconsidered. Clause 10 should possibly include community service as a competent order, provided that forced labour was not imposed, but it was concerned about the potential for abuse in orders depriving people of benefits. COSATU also believed that too much had been left to regulation, and that there needed to be greater clarity in regard to training, that there must be more stringent requirements to attend training courses, and that the Minister’s powers both to make regulations and to delegate were too wide. Members called for clarity on the duality argument. The Chairperson stated that he could not support the request for a total withdrawal of the Bill but pointed out that there would be broad consultation by the Committee and that the Bill in its final form might be substantially different.
The Legal Resources Centre believed that too much power was being given to chiefs, and that this was already causing concern in certain areas. The system of appointment must be addressed and the possible candidates reconsidered. There was a need to provide explicitly for the candidature of women, and it was questioned why only one of the options suggested by the SALRC in relation to appointments had been brought forward in this Bill. Concerns were expressed also by the Centre around the training and the lack of effective sanctions for failure to attend. Clause 7 must be clarified in relation to the status and nature of the courts. Clause 10 was criticised as being too widely cast, particularly since it could include sanctions of forced labour or evictions. Clauses 12, 13 and 14 impacted on the opting out, which the Centre suggested should be included in the Bill.
The National House of Traditional Leaders explained how traditional councils worked and emphasised their participatory nature. After the passing of the Traditional Leadership and Governance Framework Act the community authorities were disestablished and replaced with the ward committees (wall to wall municipalities). The House responded to questions raised around domestic violence. It was proposed that the local Houses of Traditional Leaders in the various areas could be considered as appeal mechanisms. Input would be made into the Bill by the Houses of Traditional Leaders and the traditional Councils. Members raised questions around costing, whether traditional leaders were likely to call for additional remuneration, called for clarity on the traditional council and traditional court, and on the position of the Paramount Chiefs. It was indicated that the practicalities and realities must be addressed, including the fact that the council advising the Chief was comprised of conservative elderly males, which perpetuated the systems.
The Department of Justice responded briefly to some of the issues, with a fuller response to be made the following week
Traditional Courts Bill: Continuation of Public Hearings
Women's Legal Centre (WLC) Submission
Ms Noluthando Ntlokwana, Attorney, Women’s Legal Centre, noted that the Centre in particular addressed various women’s issues. It had worked on the Constitutional Court case challenging primogeniture. The obligations of the Convention on Elimination of All Forms of Discrimination against Women (CEDAW), the African Charter on the Human and People's Rights on the Rights of Women in Africa and the Constitution all required South Africa to have regard to women's rights. Therefore any legislation must also try to enshrine these values and concepts. Customary law was capable of development and the Bill should be an opportunity of developing the Court system.
WLC believed that the customary law was tainted by colonial law. The Preamble should state clearly that customary law should be applied within the context of the Constitution. The Objects clause suggested that development of customary law by traditional law should take into account current social practices and women’s rights. The Constitution did not seek to restore traditional principles but was constantly developing to take into account the Bill of Rights. The Courts should take into account women and children. The Bill did not make it clear that the customary law was to be subject to compliance with the Bill of Rights>
Traditionally, because of patrilineal succession, women would not form part of the customary courts. Women presiding officers were in a minority. They would be allowed at court only when they were a party to the case, but the case and arguments would be brought by the senior male family member; often the women were not permitted to be where the court proceedings were taking place. The Bill did not deal with this, not did it allow for women to be appointed to the Council. The contravened South Africa’s obligations and went against the imperative to develop the law in line with equality.
WLC was concerned about jurisdiction in maintenance and domestic violence matters. These were issues where protection of the Courts was needed. It was submitted that maintenance should be excluded from the Bill. The Domestic Violence Act (DVA) stated that it could only be enforced in the Magistrate’s Courts and yet it had not been expressly excluded from the Bill. The customary law precept that allowed for physical chastisement of women was not in line with the Constitution.
In respect of jurisdiction, the Bill started from the premise that it was based on territory, not people, and anyone within the territory was subject to the jurisdiction of the traditional court. Customary law, however, usually was binding on those who recognised its authority and WLC believed that the jurisdiction should be stated on the same basis.
In regard to the separation of power, it was noted that traditional authorities and courts operated in a changing environment. The process of change was responsive to challenge and dispute. There was a continuing debate about the role of women and authority. Although Ms Ntlokwana was not attempting to attribute bad faith to those holding power, there was nonetheless the risk of abuse of power, and women, in their gradual move from marginalised positions, were vulnerable. One of the possible ways of abusing power was through the coercive powers which were proposed by the Bill. It was necessary to take steps to prevent this. The mere provision of remedies where abuse had taken place was not enough as a positive prevention of abuse was required.
Members commented favourably on a very clear submission.
The Chairperson asked if the SA Law Reform Commission (SALRC) Report of had been distributed to the Committee, and the Department of Justice confirmed this had been provided that morning.
The Chairperson asked for comment from the Department of Justice (DOJ) on issues of domestic violence.
Mr Lawrence Basset, Chief Director: Legislation, DOJ, said that the intention was hat Traditional Courts should not deal with these matters. The governing legislation for both domestic violence and maintenance matters said that they must be dealt with in courts set aside for that purpose, and this should perhaps be set out more clearly in this Bill.
The Chairperson asked if these matters would, before introduction of the Court systems, have been dealt with under traditional law.
Mr JB Skosana, Chief Director: Policy, Department of Justice, said that many such issues were dealt with; particularly in regard to maintenance. However, there was a difference in approach. Where a woman had been impregnated, compensatory damages would be payable to the family of the woman, and this would normally be dealt with by discussions between the two families. If these talks collapsed, then the matter would move through the headman, traditional leader and ultimately could reach the mainstream Court. However, the claim was not for maintenance for the child. The Magistrate's Courts would have to deal with maintenance and support of the child born from the impregnation.
Mr Skosana noted that there was a process in matters involving domestic violence, in which the National Prosecuting Authority (NPA) had been involved. There was a system of assistance that would be given to the abused person (usually a woman) whereby the tribal authority would assist in referral to a police station so that proper protection could be given, and the remedy would then lie under the Domestic Violence Act.
The Chairperson said that even if these matters were excluded, he would imagine that there would still be advice given at traditional court level. He was concerned that traditional leaders would simply continue to deal with matters, not advising their subjects that they were no longer permitted to do so. Therefore both citizens and traditional leaders would have to be well informed of the new system. At the end of the day, if a person still chose to go to the traditional leader to seek recourse, he queried if anything could be done. Democracy could not force a person to take a certain route.
Kgosi M Nonkonyana (ANC) responded to the points about opting out. The Bill was capturing a certain principle. If a South African were to go to Botswana, he could not "opt out" of the Botswana system if involved in a legal dispute. He pointed out that all laws were by their very nature coercive. A good point had been made about the participation of women in the Courts, but he noted that there were already some courts in which women presided. The reason that the male head of a family must represent the woman in legal disputes was that the responsibility for paying the fine or damages rested on that male head.
Ms Ntlokwana responded that she could give a practical example which was perhaps more appropriate than that of a South African citizen in Botswana. A Xhosa female would not recognise the custom of virginity testing. If she were to move to Natal, where every girl was subject to virginity testing, she should not be subjected to that testing, as the customary law there did not apply her own customs. She should be able, by the same token, to opt not to go to the court which applied a customary law that was not her own, and instead to opt to go to the Magistrate’s Court and apply the common law.
The Chairperson said that this point had emerged in several submissions. He believed that the analogy concerning Botswana was not a fair one, as that involved a sovereign country. He asked if a person should be permitted to opt out of the system in general.
Mr Nonkonyana stated that a person moving areas should be paying allegiance to the local rituals. On the other hand the traditional leaders should not deny a person the ability to go to the Magistrate’s Court.
Ms Ntlokwana said that the issue was that of choice - whether to go to the traditional, Magistrate's or High Court. She did not believe that jurisdiction based on geographic residence in that area was correct.
The Chairperson said that the examples given so far were not those that would usually come before the Court; they would deal with matters such as stocktheft, so the arguments were not entirely practical.
Imam G Solomon (ANC) said that the Bill should make it clear that traditional courts could enforce law against those who lived under traditional norms. If a person did not choose to live by the traditional norms, he agreed that the traditional law should not be enforced against that person. Clearly if the person were to commit a crime, then he would have to be dealt with.
Imam Solomon asked if the implementation of laws concerning maintenance and domestic violence were effective in remote areas; and whether traditional courts should deal with the matters because of lack of access to other courts in certain areas.
Ms Aninka Claasens, Consultant, Legal Resources Centre (LRC) stated that there had been the suggestion of opting out in the South African Law Reform Commission report, and that was the main reason why the traditional leaders had rejected that Report. They felt that the ability to opt out was undermining their authority. This Bill was territorially based. The areas of jurisdiction conformed with the jurisdiction of Traditional Councils The Traditional Leadership and Governance Framework Act (TLGFA)deemed certain traditional councils. Clause 20 said that any person (and that would include not one living by the customs of that community) would have to attend a court proceeding of a traditional court if summoned to do so. The issue of consensus was a key feature of traditional law, and the overlaying of a territorial basis completely changed the situation. For instance, the Makuleke were under the Minga Tribal Authority, although they did not recognise his jurisdiction. Nonetheless they could be stripped of entitlement and forced to do hard labour. The model was based on the Bantustan authority. Historically it had been recognised that many living in the former homelands did not have a primary tribal identity. Every South African lived within one or other tribal authority boundary, and this meant that all South Africans were now deemed to be tribal citizens, even if they themselves would regard their primary identity as that of a South African citizen. If this Bill was not territorially based, it would be a very different piece of legislation.
Mr Henk Smith, Attorney, Legal Resources Centre, noted that the WLC submission addressed the way forward. Opting out would allow for checks and balances on abuses and could address the possible constitutional challenges on the Bill. No other submission in writing had addressed the way forward in these terms. He said that opting out had been dealt with in Chapter 7 of the SALRC Report. It was necessary to look at the Policy Framework provided by the Department of Justice. Paragraph 6.7.4. that said that there should be exclusive jurisdiction in limited customary, civil, and certain criminal matters. There were no known customary law crimes separate from those in common law. The applicable law was the law of the area of the traditional community. Jurisdiction was a major challenge, and it was necessary to consider carefully how to address that to ensure compliance, and compatibility with the proposed single court system.
Ms Ntlokwana made the point that if a person did not want to be part of the traditional Court they should not be forced to do so.
The Chairperson said that the amakhosi would no doubt argue that this was the common law of the area, which had preceded Roman Dutch Law.
Ms Ntlokwana retorted that the Constitution was now the supreme law of the Country, and no other law could override it.
The Chairperson agreed with the observation that law in general was coercive. The difference was that laws in a democracy could be changed through mass participation and voting by the public. Parliamentarians were accountable to the people, and the people would simply not vote them back into power if they did not agree with the laws they had passed.
Kgosi Nonkonyana made the point that the customary law did change because society was dynamic. If given the correct space, customary law would develop. Anything oppressive to women would be discussed and dealt with.
Ms Ntlokwana said that the WLC was not opposed to participation of male senior family members in court, but was opposed to women not being allowed to go into the court.
The Chairperson said that in his limited experience, in certain areas, women were indeed allowed into court and he had been impressed by their participation and self-confidence.
Ms Ntlokwana suggested that the Bill should prescribe for uniformity, and should allow women to be present, to be able to speak for themselves and to be part of the proceedings.
Professor Ben Cousins, University of Western Cape (UWC) Submission
Prof Cousins said that he was currently doing research, primarily in Kwazulu Natal, on land administration and land rights, and this involved disputes over land, and how they were being resolved. In the course of his research he had had dealings with customary law and traditional courts, and noted that his findings, although at this stage only preliminary findings, might be useful.
The Chairperson congratulated Prof Cousins on his written submission, which had been prepared only after the meeting the previous day.
Prof Cousins said that day to day administration was mostly carried out at local level, between families, neighbours or between the wards that constituted key sub-units. It was largely a decentralised system and the Chief did play a role only in certain well defined instances. The tribal court was often acting as a kind of appeal court. The tribal courts met weekly and there were a large number of disputes being referred to the Courts. They were sometimes presided over by the chief nduna. In large tribes, and in the case of those who had lived as labour tenants on other farms in the past, there were several courts being presided over by chief ndunas. There was some decentralisation, even at the highest court.
The system had checks and balances. A major check was the widespread agreement and adherence to the cultural norms and balances informing the key judicial principles of restorative justice. This applied at local level and upwards. It was important to have cultural understanding. There was an opportunity for all those affected by a dispute to present their views at local level. Local actors were well informed of the context and meaning of behaviour in question. The higher voices were represented by the ndunas. The whole process was key to the final decision.
The presence at the tribal courts of ndunas and councillors, who were charged with assisting, mediated and constrained the powers and decisions of the presiding officer. This was not adequately provided for in the Bill. Lastly, in the current system, there was the possibility of appeal to the Magistrate’s Court. He gave the example of a nkosi who, disliking a certain person, refused to allow his burial in an area. The family of the deceased appealed to the Magistrate, who had overruled that refusal.
Prof Cousins stated that he had given the idealised model. In practice this would not always work. There were deficiencies in the model. In some areas women were not allowed to speak, although they did so at more local levels. Their participation was evolving in regard to their views, and there were also changes with regard to land allocation. Sometimes single women with children would be allocated land. The laws and practices must reflect adapting and changing custom.
Customary law could change because of widespread acceptance of the democratic values enshrined in the Constitution, which was influencing the way that people would understand their rights. Change was often brought about by different people at different times and across different groups, and customary law should be dynamic and adaptive. There was a contrast between what academics called "the official customary law" and what was in fact happening on the ground. Under colonial law, there had been recognition of distorted versions of customs and traditional leaders were often put in place according to their willingness to accept certain rungs of power, with consequent abuse of power. The customary law on the ground had norms, values, practices and institutions that originated within a culture respecting humans, which constrained the power of leaders through checks and balances and mechanisms of downward accountability.
Prof Cousins said that there were three key questions: Did the Bill provide adequate recognition of the checks and balances in customary systems; did it address the problems of uneven acceptance and gender equity by some men and put adequate protection in place for women; and did it give expression for many voices to be heard in the traditional judicial processes, so that living customary law could reflect the changing needs and values. He stressed the need for discussion and debate in the process of resolving disputes. He would state his provisional answer in the negative. The checks and balances were inadequate. The judicial function was too centralised and did not recognise the processes at other levels. There were few provisions to directly address the issue of gender and the problems that women faced, other than a very general statement in the guiding principles. The state of living customary law was not recognised and nothing provided for adaptation and change.
This Bill aligned itself with the TLGFA and Communal Land Rights Acts, which relied on centralisation of power; as evidenced by the confirmation of tribal authority boundaries and no provision being made for opting out. Centralisation, in his view, was inconsistent with the core features of social and political organisation and tradition.
Adv L Joubert (DA) asked for an explanation of the hierarchical structure.
Kgosi Nonkonyana explained that the head of a family had no power to adjudicate but merely to mediate. In the locality all the heads of families would approach the nduna. From there, a matter would be referred to the headmen, who were in charge of various localities, then the Chief, and finally the King.
Prof Cousins said this could vary across the country. At the local level, the head of an extended family would play a key role. In some areas there might be sub-headmen. Whatever the details, he stressed that there was a layered system with power and authority, not only power concentrated at the top, and this was what was consistent with democracy; hence the need to reinforce those features.
Kgosi Nonkonyana asked if there had been consideration of the fundamental difference between the judicial system under Roman Dutch law and the system under indigenous law.
Imam Solomon said that the social system was more complex than this brief explanation indicated. A small part of the social life of the person who chose to be governed by these norms and standards would be affected by this system. He asked whether the system was working.
Prof Cousins said that customary law set out to reconcile people, and that sanctions were not the main focus. Where a sanction was imposed this was specifically aimed at restoring the balance between disputing individuals. Any fines must be appropriate to the behaviour in question, and to the socio economic status of the people involved. If a traditional court were to impose a heavy fine on a person who could not pay, this had the potential to cause more social problems. In practice there had been problems where some traditional courts were handing down fines out of proportion to the offences and there was a suspicion that sometimes the nkosi were appropriating part of the fine for themselves, rather than compensating the person who was the claimant. The heavy fines and those subject to the suspicion were controversial, as they were considered not in line with custom. This reinforced his concerns around the checks and balances, and related to the query raised by Imam Solomon. Many people, living in urban situations, had adapted seemingly to the globalised environment and economy, yet he had discovered that culture had not been discarded and was taken very seriously. Consideration must be given to how traditional systems aligned to the modern ones.
Kgosi Nonyonkana said that it was crucial to understand the different systems. The rules of procedure in the Courts were different. Parties in the traditional courts would be given the opportunity to discuss the matter before the final decision and the decision was one of the whole Council, not of one traditional leader only.
The Chairperson noted that this was the theory, but that there had been many complaints that this was not happening in practice.
A Committee Researcher noted that it had been argued in Swaziland that appeals were consistent with the traditional court system. He asked Prof Cousins’s view.
Prof Cousins responded that he did not know a great deal about the Swaziland system. However, when disputes were not resolved at the lower levels, there was a kind of appeal process. He thought that there could be referrals upwards
The Researcher asked for Prof Cousin's view on not permitting legal representation.
Prof Cousins was not sure that legal representation was necessary, but he would like to give further thought to it. The features of customary law did provide for checks and balances and could allow for other voices to be heard. If these checks and balances were supported he did not think that it was necessary to have legal representation.
Adv Kamraj Anirudhra, Parliamentary Officer, Commission on Gender Equality (CGE), noted that the traditional legal system, customs and norms would inform the system. A system that was patriarchal could thus be further entrenched and enforced. However, Section 9 of the Constitution said that any discrimination based on gender was unconstitutional. He believed that the practice of patriarchal customs would give rise to inconsistency. He asked what was the thinking of the drafters in relation to this inconsistency.
Prof Cousins said that this was a fundamental dilemma, but perhaps it was not insurmountable as society was adapting and shifting and support should be given to changes in the right direction. This Bill perhaps did not do enough. He agreed that there should be more substantive measures to support the evolutionary processes promoting women’s involvement. Traditional Councils were supposed to have at least 30% representation by women. Insufficient as this representation was, it was effective as on some Councils, the women participating were taking the issues of land much further. However, in other areas the Traditional Councils were not meeting at all, so women were effectively not involved, and there was no oversight and corrective action being taken by the local departments of Traditional Affairs. There must be consideration given to the practical effect of the law and it was vital to enforce implementation. He thought that far too much was being left to regulation.
Congress of South African Trade Unions (COSATU) Submission
Ms Prakashnee Govender, Parliamentary Office Coordinator, COSATU, apologised that no written submissions had been made. COSATU had been battling with the deluge of Bills from Parliament and was concerned that this was compromising the consultation process. In addition the time frames were very short. There were problems with the drafting, which might have been caused by a hasty drawing of the Bill and a lack of full consultation.
COSATU had looked at the Memorandum and consultation process. Public consultation must be taken seriously and the nature and content of the Bill must be taken into account, especially where there were implications for people on the ground. It was mainly State role players who were consulted. While COSATU supported the consultation with Commissions, it felt that there should have been submissions taken from civil society. COSATU therefore was suggesting that the Bill be withdrawn and submitted back to the Department for further public processes.
Ms Govender said that COSATU had commented on other legislation relating to traditional leadership. Its position on the role of traditional leaders was informed by the way in which the Constitution acknowledged their role. However, it did not support duality in the form of forming a separate arm of governance, whether at Executive or Legislative level. This further supported the call for withdrawal of the Bill.
Moving to the content, it was noted that emphasis should be placed on restorative justice, a dispute resolution mechanism closer to communities, and more flexibility. These principles had not been emphasised enough in the legislation and policy so far. There was a need to expand mechanisms.
COSATU believed, in general, that the implications for gender equality and human rights must be addressed and was of the view that the Bill, even if this was unintended, introduced potential violation of these principles.
COSATU objected to the designation of traditional leaders as judicial officers in clause 4, and suggested that civil society should be involved in the consultation process. COSATU was critical of the current system of appointing judicial officers that did not allow for community participation. If the idea was to move dispute resolution closer to communities, it would fail because it was not being sensitive enough to the communities.
On the question of the settlement of civil disputes, Ms Govender noted that Clauses 5(2)(e) and (f) did place certain limitations on the orders in relation to property, including the amounts and categories. COSATU did not believe that these qualifications were adequate. In rural areas the economies of scale were smaller and it was difficult to determine whether fines were unduly punitive. These matters would be clearer if there had been consultation with communities.
Ms Govender wondered why the wording of Clause 6 referred to “criminal disputes instead of "prosecution" or "trial”. Whatever wording was used, the right to a fair trial must be enforced. COSATU was opposed to extension of jurisdiction to these courts, particularly in relation to assaults. The implications of the DVA had apparently not been fully considered, specifically the implications of “domestic” as including relations between all those in the same household, which could include domestic workers.
The drafting of the schedule of offences was also problematic. The schedule noted assault "to the extent to which it did not involve infliction of grievous bodily harm"(GBH). The situation where there might have been intent to cause GBH was not addressed.
Ms Govender agreed that there should be right to people to opt out, not just in relation to customary law, but also to any particular tradition or culture. There was no need to impose traditional law in a formal way that did not exist in practice.
On the question of sanctions and orders, Ms Govender said that the power of the Court to impose fines or compensation for damages needed to be reconsidered in the light of her earlier comments on economies of scale. The unintended consequences might well render the Bill challengeable.
In relation to Clauses 10(2)(g) and (h) COSATU suggested that community services should be a competent order, but that care must be taken to avoid situations where forced labour was imposed. Clause 10(2)(i) related to an order depriving benefits, and COSATU was concerned of the potential for abuse in relation to property rights, particularly of vulnerable groups.
Clause 21 dealt with regulations. COSATU submitted that the regulations, particularly in relation to training programmes, were too broad and it was unclear what the training entailed – questioning whether it would encompass constitutional or customary law, orientation training, and the involvement of the community in development. COSATU fully supported the principle of training but stressed that the content and outcomes must ensure that the functioning of any judicial officer would become closer and more relevant to the Constitution.
Clause 22 was criticised by COSATU as being too wide, not only in the power to make regulations but also in relation to the levels of delegation, and the fact that policy making functions could be delegated.
Ms Govender reiterated the call for withdrawal of the bill, and for a proper consultation process on both content and policy, based either on a totally new approach or at the least on the SALRC results.
Legal Resources Centre (LRC) Submission
Mr Bongunumsa Sibiya, Candidate Attorney, LRC, expressed the LRC view that the Bill in its current form, gave too much power to the Chiefs, including the power to interpret and make law unilaterally. He referred to examples relating to fines given by Prof Cousins and a delegation from Limpopo, on the previous day. The Limpopo Traditional Leadership Institutions Act apparently allowed a traditional council to levy rates, but any taxpayers failing to pay could have fines imposed, which they could not pay, and then be deprived of certain entitlements.
Adv Nobahle Mangcu, LRC, commented that Clause 4 created a pool of candidates from which presiding officers could be drawn, including Kings, queens and traditional leaders. It reflected what was set out in the TGLFA, and could also reflect the excesses of power that could result from it. She suggested that the Bill should find a way of purging the system of appointment and re-examining the possible candidates. The SALRC Report had mentioned headmen’s’ tribunals but this was not taken forward in this draft. That Report had also said that there should be express provision for candidature of women. Although some women sat on some councils, LRC believed the Bill should be explicit on this issue. The SALRC had further held wide consultation around the issue of appointment of councils, and had suggested that there were three options: either to have the whole community to appoint members of the council; or to have a list of elected members, with the Traditional Leader appointing from that list; or for the Traditional Leader to make the election to Council. This Bill had selected only one option, but with no explanation either in the Bill or the policy framework for this. She submitted that the system needed to be more fluid and flexible but the Bill seemed to miss the opportunity to make it so.
Adv Nobahle Mangcu noted that there was no incentive for people to attend training, nor were there serious consequences should they fail to; the Minister “may” (not “must”) revoke in the case of non attendance, and only if the failure to attend was not the person’s fault. It was inconceivable that a person could sit as a presiding officer without having attended training and due weight should be attached to it.
Clause 7 suggested that the traditional courts were removed from the realm of the Constitution, as they were "distinct" from courts referred to in the Constitution. It was a strange provision that did not clarify whether these courts were courts or something else. It must be clarified that everything emanating from those courts was also subject to constitutional scrutiny.
Clause 10, dealing with sanctions and orders, was cast widely and referred to "any appropriate order". Clause 10 (l) included "any other order that the traditional court may deem appropriate" and that could include forced labour, which may be against international conventions, or evictions. The sanctions power must be properly structured, especially in view of the geographical nature of the jurisdiction.
Ms Mangcu named clauses 12, 13 and 14 as further of concern. They impacted on the opting out, which LRC supported as a principle, as had the SALRC Report. SALRC had included as one ground for opting out the undue delays in resolving matters. She noted that opting out should be included in the Bill in terms. The common law grounds for review were presented as a closed list, and she suggested that the Bill be more open, that lawfulness and the rule of law should also be named, and the application of the Promotion of Administration Justice Act (PAJA) considered. Further points were made in the written submission. Finally she urged that a wide consultative process be used.
National House of Traditional Leaders (NHTL) Submission
Kgosi Pholopontsho Maubane, Deputy Chair, National House of Traditional Leaders, commented on some of the issues raised the previous day. He noted that the NHTL believed that customs and traditions were worthy of protection and preservation for future generations and this included the traditional courts., which played a vital part in harmonisation of the life of traditional people.
Kgosi Maubane said that the Traditional Council comprised of elected councillors, ndunas representing villages, and 30% women. Some were appointed by the Chief. The procedure in most areas was that cases emanated from the family to the sub village of a nduna or elected Councillor, and would then be referred to a traditional Court, where the nduna would introduce the case. Everyone was permitted to participate in such courts. The presiding officer, in this case the Chief, would not speak until the end of the deliberations, when he would, in consultation with senior elders or councillors, pronounce the verdict or judgment of the court. He stressed the communal nature of the court.
Questions around community authority were raised the previous day. These existed through the Bophuthatswana Act of 1978 and co existed with the traditional community areas. They did not necessarily observe the system of customary law. After the TGLFA the community authorities were disestablished and replaced with the ward committees (wall to wall municipalities).
He touched upon domestic violence, stating that traditional leaders had dealt with such cases. There was currently a project of the NPA which trained traditional leaders on domestic violence. Members of the traditional court could summon a perpetrator, who would then be dealt with, as he would be considered to have violated the traditional respect that was given to mothers. The purpose of this court was to reconcile the parties and practice restorative justice. Records of proceedings were kept in most courts by the traditional Council officials, some of whom were seconded by government, and in cases of appeal those records could be called for.
Kgosi Maubane noted that there was a new level of traditional law provided by the Local Houses of Traditional Leaders. He proposed that these could be considered as appeal mechanisms, because they comprised senior traditional leaders who were presiding officers in their jurisdiction, and were familiar with each other's peculiarities and customs.
Kgosi Maubane noted that the National and Provincial HTLs were busy making input, spearheaded by the Committees, and that the traditional Councils had also been asked to make input on the Bill. These inputs would be consolidated. He called for improved communication with the Portfolio Committee so that traditional leaders could come and present their case.
Mr Jeffery asked the NHTL to comment on the issue of costing, noting that the Department had mentioned that the costs would centre around training and the possible provision of buildings. He asked whether there was any suggestion that the leaders in the traditional courts would want to be remunerated for their work, over and above what was covered by the Moseneke Commission.
Kgosi Maubane said that it should be necessary to build new courts; they currently held their hearings in traditional council offices. It was not anticipated that there would be any change in the job description of the leaders as it was only the legislation that would be new, so he did not expect that there would be calls for increased remuneration.
Mr Jeffery asked for suggestions as to where appeals and reviews should go.
Kgosi Maubane suggested that the local houses of traditional leaders could be considered as appeal houses. Where there was a king, the King's Council or the King's Court could be used as an appellate division.
Ms Mangcu said that LRC would support appeals to the Magistrate's Court. This was considered by the SALRC who suggested that there be an inbuilt appeal to a higher authority. That issue was not resolved. The choice to go to a Magistrate's Court would be a check on the powers of the traditional Courts. She noted that this was a simplified answer to a question that had some complex underlying issues.
Prof Cousins suggested that the recent report by the Human Sciences Research Council, which had dealt with the functioning of the TGLFA and traditional courts, would be useful to read. It had highlighted uneven practices and he warned that there was danger in generalisations.
Mr Bassett asked for clarity on the role of the traditional council and the traditional court.
Kgosi Maubane noted that the traditional council presently functioned as a traditional court, due to the various Bantustan pieces of legislation. This new legislation could separate the court and council, but at the moment there was dual work being undertaken.
Imam Solomon asked COSATU whether it was perceived that there would be a dual system of laws running. He had understood that there should not be a parallel system but one rather of assistance in local and traditional matters.
Ms Govender said her remark referred to the tiers of government. Historically, COSATU did not support duality and separate legal systems.
Ms Lydia Ngwenya, (ANC,) noted the remarks of Kgosi Maubane, but said that the practicalities must be addressed. Women, not having traditionally participated, would not gain full participatory status immediately. The senior council that advised the Chiefs was comprised of senior males, which perpetuated the patriarchal system. Chiefs, even if well educated, were unable to take decisions themselves and must rely on conservative views of others, which maintained a system where women had no rights to override male-dominated decisions. She asked how this system would be changed. She also pointed out that even if a woman were to call for assistance from friends or neighbours, they would be likely not to know how women
could pursue their rights and appeal. She noted that there was no suggestion that women on the ground be given training how to access the courts and they would not be empowered to defend themselves.
Kgosi Maubane responded that the aim of the exercise was to transform the institution. It could well be a long process.
Co-Chairperson Mr Magwanishe summarised the issues that the Department had been asked to consider. He noted also that the paramount Chiefs were not mentioned. Although it would not be possible to have full responses to these weighty questions now, he asked for a brief response, with a full response to follow after the conclusion of the hearings.
Department of Justice (DOJ) Response
Mr Skosana welcomed all submissions, which had enriched the process. The Department had taken note of the comments around consultation. In relation to the calls to withdraw the Bill, he noted that the current law was governed by the Black Administration Act, which was highly discriminatory, and he quipped that this Bill was definitely the better option. He pointed out that this Bill was not giving power to the chief, but to the traditional community, as defined in the TGLFA. It was fully recognised that a community could choose to be governed by certain rules and principles, and to have the forum of a traditional court. The people would resolve matters, similar to the position as it now pertained in the Community Courts of the USA and Canada.
Mr Skosana said that the Bill would give space to those who chose to exercise their right Opting out would be dealt with more fully by the Department in later responses.
In relation to appeals, Mr Skosana said that all courts were obliged to apply customary law where it was applicable. Therefore any magistrate or judge could adjudicate on such issues. He pointed out that the system adopted in Botswana had collapsed and it was feared that such a system could lead to duality.
The proposed model would allow the DOJ to establish courts in Bellville, for instance, where the community could deal with matters that affected it locally.
Chairperson’s closing remarks
Co- Chairperson Mr Carrim invited Ms Ngwenya to participate fully in this Committee, and noted that she would be advised of the dates of meetings.
He remarked to COSATU that he would not support the withdrawal of the Bill from a practical point of view. He suggested again that representatives from civil society and the interest groups should be present when the Committee deliberated; alternatively Parliament, through the two houses, should foster wide public participation. The final Bill being voted on might be very different from this version. As flawed as this text might be, it must be used as a basis for the deliberations, and he did not believe that there was merit in the proposal to start afresh. He pointed out that the DOJ had in fact held far more consultation than was stated in the Bill. The SALRC had engaged with a wide variety of stakeholders, and representatives of SALRC were included in the participation process of the Department. However, he took the points around participation.
The Chairperson noted that The Bill was only given to the NHTL the previous week, but appealed to the House not to use the full 30 days but rather to expedite the comments.
He commented that the public hearings would resume the following Tuesday. The report of the HSRC would be circulated. He suggested that further research bed done on comparative systems, particularly in Africa.
He stated that the transition from a feudal to a modern society, and the unevenness of development, were focus areas of the Bill. Some of the arguments, in his opinion, were untenable and some suggestions were not feasible. South Africa was not a fully modern society and there was a need to be realistic. Many people were dismissive of the progressive aspects of traditional systems. However, for their part, traditional leaders should recognise that South Africa was in the 21st century and should not clutch on to the past. There was scope to find common ground. Finally he pointed out that there was in fact no absolute requirement that the Bill be passed before March 2009, and that this Committee could work on the process, including consultations and reports, and give an exit report for use by the incoming Committee.
The meeting was adjourned.
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