Renaming of High Courts Bill [B5-2008]: Public Hearings & Traditional Courts Bill: deliberations

Meeting report

Traditional Courts Bill: Public hearings: SA Human Rights Commission (SAHRC) submission
Adv Tseliso Thipanyane, CEO, SAHRC, noted that a written submission would be sent later this week.

He noted that the main concerns of the SAHRC on the Traditional Courts Bill (the Bill) were around advancing human rights, and maintaining an appropriate balance between custom and the Constitution. Colonialism had had devastating effects on cultural matters, including falsification of history, and chipping away at values, and languages. The Freedom Charter of 1955 had included references to use of indigenous language and development of indigenous cultures and customs. That, in due course, had resulted in the inclusion, in the Constitution, of clauses respecting diversity, and the rights of cultural, religious and linguistic communities, as well as the Chapter stipulating that indigenous law must be part of the law of the country. The challenge was how to ensure that rights that had been oppressed in the past were now being addressed and recognised within a modern context.

Mr Thipanyane acknowledged the work done by the Department of Justice (DOJ) in drafting this Bill. However, SAHRC was concerned over consultation, and was not sure that this had been broad enough. The UN Declaration on the Rights of Indigenous Peoples (UN Declaration) stated that states must consult with indigenous people to obtain their free, prior and informed consent before adopting legislative measures that may affect them. Lack of proper consultation could result in Constitutional challenges.

The objectives of the Bill were not entirely clear. In particular it was not apparent whether the traditional courts were on the same footing or status as small Magistrate’s court. He said that Lesotho had adopted a dual legal system and the challenges in this were apparent from many judgments, some of which pointed out the anomalies of trying to look at indigenous law from a Western perspective.

The Minister had the power to designate a judicial officer, but there was no indication whether this would be done in or after consultation with the people who would be affected. SAHRC wondered also what guarantees there would be, in making the designation, on gender issues. Although the Bill did not say that women could not be designated, there was also no mention that issues of gender advancement would be considered. SAHRC would like to see a commitment that a certain number of presiding officers would also be women. He reminded those present that indigenous law must also be subjected to the Bill of Rights.

The issue of the oath and affirmation created challenges. There might be no problems in the headman taking an oath before the Magistrate, but it would be entirely different to require a King to do so, from the point of view of status. The question was also whether it was correct to take the oath in front of a Magistrate, who might not understand traditional values.

The issue of appeal was further raised. If a presiding officer, who was a headman, made a ruling, an appeal would go to a Magistrate, and the effect would be to override the decision of the community, with whom the headman would have consulted. The same would apply to review.

Adv Thipanyane noted that the proceedings would be recorded, which was acceptable. However, he asked what would be done by the Department about keeping of precedents, and a precedent system to ensure that there was consistency.

SAHRC then moved to comment on the training requirements. There was no provision in this Bill that Magistrates be trained in customary law, which they might be applying. However, presiding officers in the Traditional Courts would have to be trained. Presiding officers in the Equality Court (a specialised court) had to undergo training and there was no reason why training should not be required for magistrates who were to deal with specialised traditional matters. In the past customary law had been insufficiently or incorrectly applied due to lack of knowledge. Merely putting in advisors was not the answer.

It was not clear whether this Bill was supporting customary law, or was moving to a formalised system. The question of legal representation was in point. Since no legal representation would be allowed in the traditional courts, the question was whether this was a justifiable limitation to the Constitutional right to legal representation. This was particularly so when dealing with the criminal matters outlined in the Schedule and matters affecting children.

Adv Thipanyane noted that both Lesotho and Swaziland had adopted a dual system. This Bill seemed to suggest that indigenous people living in indigenous communities, or where there was a traditional court, had no choice but to pursue matters through this court. In other countries, there was choice of whether to opt in or out of the system. If opting out was allowed, the impact of this choice, insofar as the Chief’s reaction to that person opting out, must also be considered.

South African Catholic Bishops Conference (SACBC) Submission
Adv Mike Pothier, SACBC, said that many of the points raised by the SAHRC would also be touched on in his submission. The Catholic church spoke of subsidiarity, which was a principle that the national government should not take over initiatives and responsibilities that could be carried out at lower or local levels. This Bill seemed to uphold that principle, and seemed to suggest that a local community, where possible, could resolve disputes and dispense justice. That was supported by SACBC. He agreed with the SAHRC that there was a need to uphold and enhance traditional systems that had been undermined and neglected for many decades. However, SACBC questioned the jurisdiction of these Courts. There was nothing in this Bill nor the Traditional Leadership and Governance Framework Act (TLGFA) that explained how  jurisdiction would be established over an individual. It was not enough to say that the individual lived in a place, nor that the nature of the case was such that it could be dealt  with in this forum. He asked what would happen if the individual chose to adhere to some traditional practices, but not to others, or did not recognise the jurisdiction of the Traditional Court. If a person was summonsed to appear before a Magistrate's Court he was not able to decline jurisdiction. Nothing was said about what would be the result if a person chose not to appear before a Traditional Court.

Clause 5 of the Bill attempted to explain this but did not bear much analysis. Adv Pothier asked what were the limits to "arising out of customary law and custom" He pointed out that there could be situations of overlap. There was also the geographical element of "where the dispute occurred". He asked what would happen if one of the parties was not indigenous person, and he noted that there was no definition of “an indigenous person". The Cape Gateway website attempted to explain customary law as being used by a headman when one African brought a case against another African. However, there were disputes around the meaning of "African" and as long as these definitions were not settled, the jurisdiction question could also not be settled. The Bill would be unworkable if a solution could not be found.

Adv Pothier said that the provision that there should not be a right to legal representation was probably unconstitutional, particularly because of the criminal jurisdiction. A person brought before a traditional court to answer charges on a criminal offence would be regarded as "an accused person" and would normally have the right to legal representation. There was also a question whether it offended the principles of legal representation at the states' expense.

In relation to clause 10(2)(g), on sanctions and orders, Adv Pothier said that the Court could require that the parties to a dispute, "or any other person" should perform a service. The question was how far jurisdiction should extend. In the ordinary course, the Court could not make an order against a person other than an accused in a criminal case, or a party to a civil case, and he pointed out that a recent attempt by a Court to impose an order on the father of the accused was overturned. There must be an indication of where that jurisdiction emanated, over whom it would be, and its limits.

Adv Pothier endorsed the points made by the SAHRC about lack of training for magistrates. It was incongruous that a district magistrate could overrule the decision of one who was well versed in customary law. Furthermore he pointed out that Clause 4, relating to designation and training of traditional leaders, said that a traditional leader, although required to undergo training, could nonetheless act as a presiding officer for up to twelve months without undergoing that training. Surely the training should be a prerequisite.

Discussion
Co Chairperson Mr B Magwanishe (ANC) asked the SAHRC if it had been involved in the consultation process.

Adv Thipanyane said that he himself had not been invited to comment, despite making numerous submissions. It was possible that some of the provincial managers may have been invited.

Mr Magwanishe said that the Committee would pursue that.

Mr J Sibanyone (ANC) commented that although a number of concerns had been raised, no solutions had been proposed. He asked, for instance, on the objections to taking an oath before a Magistrate, whether it was proposed that no oath at all be taken. He asked also what would be the suggestion in respect of appeals, and whether there was another forum that was considered more appropriate. He also asked if it was recommended that all magistrates be trained, or that only those with training should be allowed to hear an appeal.

Mr Sibanyone asked for greater clarity on whether SAHRC would wish there to be legal representation.

Adv Thipanyane said that SAHRC understood that indigenous systems did not require or allow lawyers to be present, as the presiding officer’s “ruling” was essentially based on the consensus of people appearing in the lekgotla, and that anyone could cross examine and question the parties during the hearing. However, he noted that the lack of legal representation was possibly open to challenge either in terms of the UN Declaration, or in terms of the Constitution, unless it was shown as a justifiable limitation. It was not the view of the SAHRC that the lack of representation was automatically unconstitutional.

In relation to the training question, Adv Thipanyane believed that there should be training, along the lines of what applied in the Equality and Promotion of Access to Information Acts. One of the reasons this was so important was that different tribes had different customs and cultures, and an issue might be regarded very differently amongst different people. In relation to the oath, he admitted that this was a complex issue. In the past, the presiding officers had never been required to take an oath. An oath was essentially a concept in a Western system. The question arose whether a King could or should take an oath before his junior. There were a number of sensitivities. He stressed that although the SAHRC supported the spirit of and principles behind the Bill, it could not support the current wording.

Mr Tumisang Bojabotsheha, Committee Researcher, asked for clarity on the question of gender equity and advancement. He pointed out that the Minister would surely be designating those who had been traditional leaders already. Requiring a gender quota might discriminate against existing leaders.

Adv Thipanyane said that customary law was not static. It was also to be subjected to scrutiny under the Bill of Rights. There was a pending court case to decide whether women could be appointed as traditional leaders, if they were first-born. The UN declaration noted specifically that rights were guaranteed equally to male and female. In some places women were allowed to act as regents. All systems in the world had originally reserved high offices to males only, but that had changed over the world, and therefore could change here. The views of the people must be taken into account. If this Bill were not to make provision for gender issues, he believed that it could be problematic, and this was why he had suggested that in the designation process some presiding officers must be female. Considerations of employment equity and ensuring transformation were also to be taken into account.

Co Chairperson Mr Y Carrim (ANC) asked for details of other countries that allowed a person to opt out.

Adv Thipanyane said that Lesotho had a dual system, but the tests for determining whether a person was subject to traditional law were ridiculous, and he pointed out that a person might have difficulty in deciding whether he would primarily regard himself as a member of one tribe or religion or culture.

Mr Carrim asked that if the SAHRC was aware of any other information about opting out, they should send it to the Committee. He also said that he would be prepared to allow more time for the written submission if needed.

Adv Thipanyane noted that his written submissions would amplify on the points made today, and would incorporate further recommendations.

Mr Carrim noted that this Bill had been a long time in the making. The very fact that so many points were now being made before Parliament raised questions about the quality of engagement prior to the drafting of the Bill, by the Executive in general. He made the point that when the relevant Portfolio Committee had considered the Infraco Bill, most of the submissions addressed issues that should have been thought out properly by the Department of Public Enterprises (DPE). Some of those suggestions had been rejected by the DPE but were eventually supported by the Committee. He would have expected the presentation by the DOJ to have noted what points were made during submissions, and why they were accepted or rejected. He knew that Mr J Jeffery did not necessarily agree that the Executive was obliged to consult, but he thought that it would obviate the divergence of views.
 
Mr Magwanishe noted that many policy issues had been raised, which would be deliberated upon by the Committee. Those issues on which the Department must respond would include the question of opting out, the definitions of "arising out of customary law" and "an indigenous person", and the time period between adjudication and attendance of the training course, as well as the questions around precedent. The policy matters for consideration by the Committee would include questions around oaths, training of magistrates, legal representation and gender.

Mr JB Skosana, Director:Policy, Department of Justice, said he would respond in more detail after receiving the written submission. He appreciated the debates on the Bill. In respect of the designation, he said that the Bill moved from the premise that there was already a traditional system in existence, with traditional councils configured in terms of the TLGFA. Prior to that, however, there were already structures involving consultation. The Traditional Councils required women’s representation. These concepts would all be considered when making the designation. It would not be correct to specifically designate a woman, if she was not already recognised as a traditional leader, and the function could not be seen outside the Traditional Council. An identified leader would be designated. This was certainly an improvement on the current system, under the Black Administration Act, where the Minister conferred a certificate on a person (not necessarily an identified leader). It must be recognised that the community would have agreed on the person to be designated.  The purpose of the designation was not so much to “choose”, but to introduce checks and balances. The taking of the oath was to be seen in the same light. He pointed out that the President took an oath before the Chief Justice (a judicial officer) as did other judges and magistrates, and DOJ believed that a similar process should be followed for Traditional Leaders assuming a judicial function. The DOJ had considered whether the oath should not be taken before the Judge President, but eventually it was decided that a Magistrate was likely to be far more accessible and this was the more practical option.

Mr Skosana said that, in respect of civil jurisdiction, this was limited and therefore it was not cost effective nor necessary to allow legal representation. The criminal matters under the jurisdiction of the Traditional Courts were of a very minor nature. In addition, these Courts would not be using a litigious or adversarial approach. They would be more akin to dispute resolution systems. Many civil

The use of the word “may” was used deliberately, to allow for use of whichever system was more appropriate. A person would be able either to approach the Traditional Court, where there would be no legal representation, or elect to appoint a lawyer and go to the Magistrate's Court. Many civil matters, however, decided upon by Traditional Courts had no basis in Roman Dutch law – such as questions of lobola, impregnation of a daughter by a man not introduced to the family, and similar issue. He could give more detail when the written submissions were received. 

Mr Magwanishe said that there were other matters arising from previous hearings on which the Department also had to respond, including the lack of definition of the Paramount Chief. He noted that the issue of consultation was a recurring one. This was highly contentious, and he would like to hear detailed comment on this. Even the Gender Commission, who were listed as having been consulted, had noted their opposition to several issues of principle.

Mr Carrim noted that the formal part of the public hearings would end the following Tuesday, when the DOJ gave its response. However, the Committee would contact all those who had made submissions. He noted that it would be useful for Professor Nhlapo to be heard (he had been out of the country) and that the Committee would continue to receive letters from and possibly hear anyone else who wanted to make submissions.

Mr Carrim reiterated that he would like to discuss the obligation on the Executive to consult. Last year the Parliamentary Legal Advisors had expressed their view that there was an obligation. The Minister of Public Enterprises had conceded that a greater level of consultation could have been conducted prior to the Bill being drafted. This would have saved several hours of reading, presentations and argument. The Committee would need to look at the Rules of Parliament. He believed that even if the Executive had a responsibility, Parliament was primarily the forum for consultation. The NA would need to engage with the NCOP and see how best to take this Bill into the remote communities. The Home Affairs Portfolio Committee had done something similar with the Civil Union Bill. However, there was a need to be realistic, bearing in mind the Committee’s workload, and it might be necessary to consider whether to defer this Bill for the next five-year term. Whatever the decisions on passing or deferral, he believed that there should be a subcommittee, consisting of representatives of civil society and the amakhosi. This should, firstly, consider whether to proceed with the Bill. If it decided to do so, then it should consider how to do so. Even if this Committee did not finish this Bill, the public hearings would be the basis of the ongoing deliberations.

Mr Carrim pointed out that he respected and appreciated the views of society, and believed that there was much of value in the customary system, including values of restorative justice. The system of traditional courts and of application of the customary law was enshrined in the Constitution. Although at some future date the law might become fully aligned or integrated, it was far too early to consider this now. The TLGFA had been the framework, and some provinces had swung in favour of traditional law when fleshing out that Act. He did not agree with COSATU’s submission that the Bill should be withdrawn.

Mr Carrim noted that the Bill prepared and consulted upon by the South African Law Reform Commission (SALRC) differed in several respects from the current Bill. There was perhaps a tenuous connection between the consultations and this Bill. However, the question was whether the DOJ should necessarily consult from scratch after the SALRC had done so. He was of the view that there had been consultation, but perhaps the representative nature of that could be called into question. The Commission on Gender Equality had appointed new commissioners, so clearly they had not been consulted personally, but it was a matter between former and current commissioners as to what had been conveyed.

Mr Magwanishe agreed that the sub-committee would be useful, as the Committee alone should not decide what was to be done.

Adv L Joubert (DA) believed that the Bill needed a lot of work

Mr Magwanishe proposed that perhaps there should be a conference around the issue, which might include presentations from bodies and people from various areas, similar to the Colloquium when it was decided to process the superior Courts Bill.

Renaming of High Courts Bill (the Bill) B5-2008: Department of Justice (DOJ) Briefing
Mr Carrim noted that only two submissions had been received on the Bill, and that neither party was present. He congratulated the Committee Researcher on her excellent summary.

Imam G Solomon took over as Co-Chairperson.

Mr Nelson Matibe, Principal State Law Advisor, DOJ, noted that item 6 of the Schedule to the Constitution said that as soon as practicable after 1994, all courts, structuring, function, and jurisdiction should be rationalised to establish a suitable system. It  also made provision for provincial divisions. This was a comprehensive and ongoing process. The DOJ had realised that the enactment and implementation of all aspects of rationalisation would require more time. However, there was a concern that the “old” names of certain High Courts were still being used, and this gave rise to confusion, and had been criticised. This Bill sought to address these concerns and to bring about certainty on the names.

The Bill contained a long title, setting out what the Bill sought to achieve. The Preamble set out the Constitutional provisions on which it was premised. Clause 1 provided for the renaming, and gave a table of the high courts and their new names. Clause 2 contained the short title and operational date.

The Bill was presented to Judges President at a meeting in February, and was fully supported. The Judicial Services Commission (JSC) had, in April, also confirmed their support for the Bill. Following this approval, one proposal had been received in respect of the description “North West High Court, Mmabatho”, to the effect that there be a space inserted between “North” and “West” and that Mmabatho should be changed to Mafikeng. The DOJ acceded to this.

Discussion
Adv Joubert asked about jurisdiction, and asked whether the four High Courts in the Eastern Cape had concurrent or their own jurisdiction>

Mr Deon Rudman, Deputy Director General: Legislative Development, DOJ, said they had their own jurisdiction.

Mr Skosana added that there were, however, certain areas where Parliament had approved concurrent jurisdiction, relating to the former homeland states. The current position would continue.

Adv Joubert asked why the province was included in the name, instead of merely referring to it by the centre of the Court.

Mr Rudman said that both wordings had been considered, but DOJ decided that reference to the Province would give greater clarity.

Imam Solomon asked if this was not also linked to the view that each Province should have a high court.

Mr Rudman said this was correct. When the rationalisation was finalised, there would be a single High Court with provincial divisions of that court.

Adv Joubert asked where the court was in Mpumalanga.

Mr Rudman said it was still coming.

Ms M Mahlawe (ANC) asked for more clarity on the insertion of the province into the title, asking why it was necessary to change the name if it was merely an interim measure.

Mr Rudman clarified that eventually it was envisaged that there would be single High Court, with provincial and local divisions. This Bill was indeed interim legislation, but aimed merely to change the names that still reflected the pre-1994 position. Once the rationalisation process was finalised, and the policy framework finalised, then the Courts would be renamed again. This option to include the provincial names was chosen as rationalisation would follow more smoothly. The change was being made now because Cabinet and others were unhappy that the Courts still retained their old names, including the “Bophuthatswana High Court”.

Adv Joubert thought that the Regional Court descriptions also retained wording such as “of the Northern Transvaal”.

Mr Skosana noted that the Regional Courts' titles had been changed in terms of a government notice.

Mr Carrim noted that the policy framework was still being finalised. He asked how much consultation was necessary around this change, and whether there had been broad consultation with heads of court, the law societies and similar bodies.

Mr Rudman said that there had been consultation with the Heads of Court and the JSC.

Mr Magwanishe asked why there was no reference to the consultation with the JSC.

Mr Rudman said that the DOJ had consulted with the Chief Justice, who was also the head of the JSC. It was possible that the consultation with the Chief Justice might have taken place after the Memorandum to the Bill had been drafted, but he could confirm that consultation did take place.

Mr Rudman added that the jurisdiction issues were not being addressed by this Bill, but that during the rationalisation process serious consideration would be given to the matter.

Ms Gillian Nesbitt, Committee Researcher, noted that a Cabinet statement last year had included the comment that this was approved, subject to the review of two High Courts in Gauteng.

Mr Rudman clarified that this point related to the rationalisation process itself.

Mr Rudman then noted that there had been a submission by the Middle Village Community who had complained that the Bill was violating Section 34 of the Constitution. The dignity of the High Court meant that High Courts should not be referred to by individual names, tribe or race, and the operation of the Courts should proceed without their names being changed. Although he did not quite understand the reasoning, the crux of the submission was that the dignity of the High Courts must be respected, and there was in fact no move away from their operation or functioning.

Imam Solomon asked about the renaming of Mmabatho to Mafikeng.

Mr Sibanyone said that Mafikeng was the original name and Mmabatho had been imposed during the homeland years.

Mr Lawrence Bassett, Chief Director: Legislation, DOJ, confirmed that the town’s name had been changed back to Mafikeng.

The meeting was adjourned.