Renaming of High Courts Bill & Traditional Courts Bill: Deliberations

Meeting report

Renaming of High Courts Bill
The Chairperson noted that the Renaming of High Courts Bill proposed the scrapping of apartheid-era and old provincial names for the High Courts, substituting new names that specified the seat of the Court and the correct provincial names. This was listed in a Schedule to the Bill. The Bill consisted of a preamble and a single clause.

The Chairperson noted that there was some question whether the name “Mmabatho” or “Mafikeng” should be used, but that this was not something that the Committee could vote to change, as the official name of that place should be used.

The Committee would vote on the Bill at a subsequent meeting.

Traditional Courts Bill
The Chairperson indicated that the objects of this Bill were to reaffirm the values of the traditional justice system, based on restorative justice and reconciliation, in order to align with the Constitution. The Bill would further affirm the role of traditional leadership in promoting social cohesion, and peace and harmony in traditional communities, and aimed to enhance access to justice by providing a speedier, less formal and less expensive resolution of disputes. The Bill aimed to create a uniform legislative framework for customary law.  

The Chairperson pointed out that it would be impossible to pass this bill by June and outlined several options that were available. The Committee should extend the operation of the Black Administration Act (BAA) to cover the situation. He proposed the formation of a sub-committee to deal with the various issues raised.

Mr JB Skosana, Chief Director: Policy, Department of Justice, addressed the Committee on the consultation process that been undertaken by the Department of Justice (DOJ) as this was one of the main issues that was raised during the public hearings. The DOJ had consulted with the traditional leaders at national and provincial level and with the South African Local Government Association (SALGA). Further provincial workshops were held with provincial houses of traditional leaders and SALGA, during which there was also participation by the South African Human Rights Commission (SAHRC), the Commission on Gender Equality (CGE), magistrates and prosecutors.  The policy was broadly supported.

Furthermore, comparative legal research was undertaken and the status and application of customary law in the neighbouring countries of Botswana, Lesotho and Swaziland was considered, and the problems they had experienced were noted.

Mr Lawrence Bassett, Chief Director: Legislation, DOJ, noted that the DoJ was in the process of responding to submissions made, and would present its response to the various comments and objections shortly. He emphasised that the purpose of the Bill was not to interfere with customary law. However, Section 2(3) of the Traditional Leadership and Governance Framework Act 2003 stated that traditional courts must adapt and transform to conform to the principles set out in the Bill of Rights.  He also referred to concerns that the Bill seemed to apply only to senior traditional leaders, and confirmed that this Bill was pitched at that level.

Mr Skosana confirmed that land disputes were dealt with under the Communal Land Rights Act and further stated that formal training programmes would take place in justice colleges.

Adv L Joubert (DA) enquired whether, in the LLB degree, customary law should be one of the compulsory courses.

An ANC Committee Member requested details on the Botswana model. He also said that jurisdiction was juxtaposed with allegiance and pointed out that the mere fact that someone was living within a particular area did not mean they had allegiance to a particular area,

Mr Skosana responded that this was one of the most complex issues that the Department had to deal with. Jurisdiction of the courts would not be necessarily determined by geographical limits, but this issue would have to be resolved. However, a traditional court would not be able to call a person to appear before it who resided outside the geographical area.

Mr J Jeffery (ANC) stated that an 18-month extension to the Black Administration Act would last until December 2009 and this would allow the new parliament six months to find their feet and to deal with this matter to conclusion.

Kgosi W Mavundla, Chairperson: Legislative Committee, National House of Traditional Leaders (NHTL) stated that there had been confusion from the outset as to how the traditional structures would operate. He noted that many objections to the Bill revolved around the issue of land. He pointed out that the issue of land allocation was not a function of the court but an administrative task, and that disputes over land would not be dealt with in a traditional court.

He said that there were some “grey areas” in the Bill and that the NHTL was in the process of drafting a proposal regarding these “grey areas”, which included issues around review and appeal. This would be submitted in due course.

The meeting was adjourned.