Renaming of High Courts Bill & Traditional Courts Bill: Deliberations

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Justice and Correctional Services

20 May 2008
Chairperson: Mr Y Carrim (ANC)
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Meeting Summary

The Committee dealt briefly with the Renaming of High Courts Bill, noting that the Bill, which consisted of only two clauses, proposed to substitute the current names given to the High Courts, with names that reflected the seat of the Court and the correct provincial name. The new names were set out in a table. The Department of Justice was confirming the correct name for Mmabatho / Mafikeng. The Committee would formally vote on the Bill at a later meeting.

The Committee discussed certain aspects of the Traditional Courts Bill, which aimed to affirm recognition of the traditional justice system, and provide for its structure and functioning in line with the Constitution. The Department was still considering and formulating a full response to the submissions made during the public hearings. However, it was noted that the process had included consultation 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. Comparative legal research was done into systems in Botswana, Lesotho and Swaziland. The purpose of the Bill was not to interfere with customary law, but to align it to the principles of the Bill of Rights. The Bill was pitched at the level of senior traditional leaders. It would not deal with land issues. Members suggested that perhaps customary law should be considered as a compulsory subject for the LLB degree. The question of jurisdiction of the Courts needed to be addressed. The National House of Traditional Leaders would shortly be submitting its comments.

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.

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