ATC121129: Report of the Select Committee on Security and Constitutional Development on the Traditional Courts Bill public hearings held in Parliament 18 to 21 September 2012, dated 28 November 2012.

Report of the Select Committee on Security and Constitutional Development on the Traditional Courts Bill public hearings held in Parliament 18 to 21 September 2012, dated 28 November 2012.

1. BACKGROUND

1.1 The Minister for Justice and Constitutional Development, in November 2011, requested the introduction of the Traditional Courts Bill in the National Council of Provinces (NCOP) , in terms of NCOP Rule 186. The Select Committee on Security and Constitutional Development then formally introduced the Bill in the NCOP on 25 January 2012 in terms of the said Rule.

1.2 The JTM, in terms of Joint Rule 160(6), classified the Traditional Courts Bill [B 1 – 2012] , as a section 76 Bill and as a Bill falling within the ambit of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No 41 of 2003).

1.3 An explanatory summary of the Bill and prior notice of its introduction was published in Government Gazette No 34850 of 13 December 2011. The Select Committee received 57 submissions on the Bill from NGO’s, civil society and communities. The initial 2008 Bill was also referred to the National House of Traditional Leaders (NHTL) for comment which was received on 14 March 2012.

1.4 The Select Committee received a briefing on the Bill from the Department of Justice and Constitutional Development on 7 March 2012, and with agreement of the special delegates and permanent delegates, referred the matter to the legislatures for public hearings.

2. COMMITTEE PROPOSAL TO HOST FURTHER PUBLIC HEARINGS ON THE TRADITIONAL COURTS BILL

2.1 The Select Committee received eight negotiating mandates from provinces and one request from the Mpumalanga legislature, addressed to the Chairperson of the Council, to postpone the Negotiating Mandate meeting for three months to assist it to conclude its public hearing process.

2.2 The Select Committee considered the Mpumalanga request for extension, a request for a meeting by the Minister for Women, Children and People with Disabilities, national stakeholders and interested parties that had not had an opportunity to present their concerns on the Bill, and agreed to request the Chairperson of the Council’s consideration to extend the deadline of the Traditional Courts Bill, in terms of NCOP Rule 240(3). The extension was aligned with the statutory deadline of 30 December 2012 by which the legislation envisaged by the Bill should be enacted to repeal the Black Administration Act.

2.3 The Committee advertised for further submissions on the Bill and, after short listing, held hearings in Parliament from 18-21 September 2012.

3. SHORTLISTED STAKEHOLDERS

3.1 The Committee had short listed the following stakeholders to make oral submissions:

a. Department of Justice and Constitutional Development

b. Department of Women, Children and People with Disabilities

c. National House of Traditional Leaders

d. Submission No 1: Ms SE Mthimkulu

e. Submission No 2A,B,C: Association For Rural Advancement (AFRA)

f. Submission No 3: Rural Women’s Movement

g. Submission No 4: L Maluleke Traditional Community & CPA

h. Submission No 17: Silwanendlala Ubuntu Farmers Agricultural Co-op

i. Submission No 18: Women’s Legal Centre

j. Submission No 19: Law, Race and Gender Research Unit (UCT)

k. Submission No 20: South African Human Rights Commission

l. Submission No 21C: Vulamasango Singene Mnquma District Estern Cape

m. Submission No 24: Law Society of South Africa

n. Submission No 27: Manyeleti Community Land Claim Mpumalanga

o. Submission No 28: Mary de Haas: Independent Kwazulu Natal

p. Submission No 36: The Lesbian and Gay Equality Project

q. Submission No 51: Community Law Centre University of the Western Cape

r. Submission No 52: Mr P Mahashe: Tseseng Witsieshoek

s. Submission No 63: Peotona: Independent submission

t. Submission No 64: Sonke Gender Justice Network

u. Submission No 67: Land Access Movement of South Africa (LAMOSA)

3.2 The following additional stakeholders were granted time to present at the hearings:

a. Legal Resources Centre

b. Council for the Advancement of the South African Constitution

c. Commission for Gender Equality

d. EC National House of Traditional Leaders

e. The National Union of Metalworkers of South Africa

4. THEMATIC SUMMARY OF ORAL SUBMISSIONS ON THE TRADITIONAL COURTS BILL

4.1 The Department of Justice and Constitutional Development

i The proceedings began with a presentation by the Department of Justice and Constitutional Development (the Department), which outlined the Bills history and the processes that had been followed to date.

ii The Bill had gone through numerous stages of development such as:

a. the South African Law Reform Commissionprocess in 2003;

b. a Policy framework formulation and approval by Cabinet in 2008;

c. introduction of the Bill in the National Assembly in 2008 followed by parliamentary hearings;

d. withdrawal and reintroduction of the Bill in the NCOP in December 2011; and

e. provincial and parliamentary hearings in 2012.

iii The Department’s presentation noted that the time, money and public emotion spent to reach this stage of the process argued “against any decision to reinvent the wheel”. [1]

iv Due to this the Department presented a list of amendments for the Committee’s consideration to address the concerns raised by the public and are included in the themes discussed at the public hearing and summarised in this report.

5. INTENTION OF THE BILL

5.1 The National House of Traditional Leaders (NHTL) noted that traditional courts were a part of customary law, are in existence and would continue to function whether the Bill was withdrawn or not. The NHTL argued that the Bill’s primary function was to promote uniformity and regulate proceedings of the informal traditional courts currently in existence. The Bill could not address unacceptable customary practices such as ukuthwala as there were other avenues available to deal with these practices.

5.2 The Department noted that its intention was always to create a framework within which traditional justice could be dispensed, and a vehicle through which customary law could find expression and development as envisioned by the Constitution. [2]

6. INTERNATIONAL OBLIGATIONS

6.1 The Women’s Legal Centre (WLC) noted that the Convention on Prevention of Elimination of all forms of Discrimination against Women, placed an obligation on South Africa to promote equality with regard to women in terms of:

i establishing equality with regard to legal capacity,

ii right to fair trial and public hearing by a competent, independent and impartial tribunal,

iii according women the same rights in civil matters, as was accorded to men, and

iv treating women the same as men at all stages of courts and tribunals.

6.2 The WLC cited the Protocol to the African Charter on Human and People’s Rights that required South Africa to:

i eliminate harmful cultural and traditional practices,

ii reform existing discriminatory laws,

iii establish equal representation of women in the judiciary and law enforcement services, and

iv establish gender representivity in the determination of cultural policy.

6.3 The South African Human Rights Commission (SAHRC) agreed that the Bill would not assist in adhering to the obligations South Africa had under international law. It noted that everyone had the right to a public trial, as enshrined in the Constitution, but, without legal representation this could not be enforced. The SAHRC stressed that South Africa , being part of international bodies was bound by international obligations. The International Covenant on Civil and Political Rights set out the rights of accused persons and stipulated the right to legal representation and assistance regardless of their traditions.

6.4 The Commission for Gender Equality (CGE) noted that certain instruments, such as the SADC Protocols, required South Africa to ensure equal treatment of men and women in traditional courts. The CGE explained that certain provisions of the Bill were in conflict with these protocols and with the Constitution. The absence of a right to appeal, lack of legal representation and imposition of jurisdictions were cited as examples.

6.5 Recommendation

i The SAHRC proposed the Committee analyse whether the Bill complied with international conventions and laws placing obligations on South Africa to reform customary practices and establish judicial equality with regard to women.

7. ISSUES PERTAINING TO WOMEN AND THE PROMOTION OF EQUALITY

7.1 Representation of women in Traditional Councils and promotion of equality

i The NHTL representatives argued that it was not correct that women were excluded, discriminated against, or were not represented in the NHTL or Traditional Councils. The NHTL pointed out that one third of all traditional leadership positions were reserved for women. The NHTL acknowledged that parity had not yet been reached but that this was a matter that Parliament had to take a stronger stance on with the existing structures in place as Parliament had the duty to do oversight and ensure accountability. The NHTL pointed to the reconstruction of the Traditional Councils and the need to fund transformation in areas such as Limpopo as examples where Parliament had to accept responsibility and ensure accountability.

ii The Women’s Legal Centre (WLC) noted that, although the Traditional Councils were composed of one third women, that this was misleading in the context of Traditional Courts as the Bill currently did not stipulate that Traditional Courts would be run through the Traditional Councils nor did it stipulate a gender composition for the Traditional Courts. The WLC felt that gender representation should not be mere tokenism or setting of quotas but should address the real needs of empowering women.

iii The Department Women, Children and People with Disabilities (DWCPD) led by Minister Xingwana, presented the equality clause in the Bill of Rights as super-ceding traditional, cultural and religious laws. The Minister argued that equality before the law included equality in terms of the administration of that law and that the Bill had to specifically enable the participation of women in traditional courts. The Minister agreed that progressive male traditional leaders existed, but noted that there were also traditional courts where women were not allowed to speak let alone represent themselves.

iv Mr Peter Mahase, a Headman from the Eastern Free State, described the workings of the Traditional Courts and Traditional Councils in the Eastern Free State and noted that the Traditional Councils resolved many disputes in the area. He further noted that women were assisted in presenting their case by the head of the family or by another person with the traditional right to support that family.

v Ms Emily Tjale a representative from the Land Access Movement of South Africa (LAMOSA) described her life experience with Traditional Courts in her community. She explained that women were not permitted to approach the chief directly for access to land but had to do so through a male representative. Due to this the interpretation would often become distorted. She felt that women should be able to represent themselves in the Traditional Courts.

vi The Sonke Gender Justice Network (the Network) felt the Bill had done nothing to ensure that the equality of women had been taken into account. It noted that South Africa was still a patriarchal society and that the Bill would entrench this misogynistic view. The Network expressed the view that there should be one law for one country and equality for all.

vii Ms Samantha Waterhouse from the Community Law Centre, University of the Western Cape (CLC) noted that although the Bill had tried to address representation, in reality it paid lip service to it and that would not ensure real equality.

viii Ms Nosama Ndlovu an attorney from the South African Women Lawyers Association who spoke as a guest of the EC NHTL (SAWLA) stated that the Bill did protect the rights of women. She directed the committee to cultural practices in the Eastern Cape where women played an important role in decision making.

7.2 Recommendation

i Gender representivity

a. The Department proposed that there should be a quota for women with public participation to ensure there is sufficient gender representivity in the courts. Traditional leaders should also be democratically elected with a quota of posts reserved for women in the structure.

b. The Department further proposed that Traditional Councils should determine the quota of women who must participate in the traditional court and outline their specific roles during a court sitting.

c. The DWCPD proposed an amendment to clause 15 to read, “a traditional leader, or woman, or man of good standing recommended by the Community as a designated presiding officer of a traditional court”.

d. The Sonke Gender Justice Network felt that the call for equality should be exactly that and called for 50% representation of women in the traditional courts. The DWCPD supported this and also called for 50% representation of women in Traditional Councils and the traditional courts. The Minister noted this would be in line with the Women’s Empowerment and Gender Equality Bill.

e. Mr Mahatlani expressed his support for women to be involved in Traditional Councils.

f. LAMOSA requested the Bill to clearly stipulate that women must represent themselves and be granted equal rights and opportunities.

8. FUNCTIONS OF TRADITIONAL COURTS

8.1 Punitive versus restorative remedies

i The NHTL was in favour of empowering traditional leaders to enforce their own judgements but stressed that judgments were always imposed to rectify and restore relationships rather than punitive sanctions.

ii The South African Human Rights Commission (SAHRC) differed in their view and noted that the Bill did not clearly emphasize whether it was based on a court system or a dispute resolution mechanism. The SAHRC made reference to Chapter 12 of the Constitution and its intention with regard to courts whilst the Bill noted that it aimed to assist with dispute resolution and restoring healthy relationships. The SAHRC noted that references to “service without remuneration” in the Bill referred to forced labour and that this would be in conflict with the UN Convention on Forced Labour. The SAHRC argued further that any imposition of sentence should not inhibit the constitutional rights of any persons, but that the Bill did not clearly define how the Traditional Court would measure this function.

iii The Commission for Gender Equality (CGE) was similarly opposed to sanctions that included forced labour and advised that evictions would not pass constitutional muster.

iv Mr Peter Mahase had explained that traditional courts followed the approach of reconciling communal difference rather than imposing punitive sanctions. He stressed that apologies were an important part of the process.

8.2 Bill does not recognise different tiers of dispute resolution

i The Law Race and Gender Equality (LRG) submission expressed concern that the Bill mainly focussed on the Court as the only arbiter of dispute resolutions in the community. The LRG explained that most disputes were successfully settled through tiers involving heads of families or other community leaders before it came to traditional courts.

ii The Peotona submission agreed that other dispute resolution mechanisms exist in traditional communities and should be incorporated into the traditional court system. Peotona stressed that dispute resolution began at the grassroots level before it ever escalated to the court arena.

iii Mr Peter Mahase submitted that a proper customary law system followed a hierarchy of dispute resolution and operated through consultation with heads of families and leaders before a dispute escalated to the court.

8.3 Legal representation

i The South African Women Lawyers Association (SAWLA), presenting on behalf of the Eastern Cape National House of Traditional Leaders, noted that the public’s concerns regarding the lack of legal representation in traditional courts was unfounded as the Small Claims Court did accept legal representation either.

ii The Association for Rural Advancement (AFRA) was concerned that by not allowing for legal representation the Bill would be in conflict with the Constitution as the right to a fair trial was an imperative.

iii Peotona expressed the same concern that without legal representation women would be left without the ability to effectively contend for their rights.

iv The SAHRC noted that due process and legal representation were not required by the Bill and that this would be in conflict with the provision of the right to a fair trial.

v The Law Society of South Africa (LSSA) agreed that without legal representation the Bill would be problematic. The fact that legal representation was excluded from criminal matters infringed upon the right to legal representation. The LSSA argued that a legal representative served the function of ensuring that the accused or a complainant was not prejudiced in any way. The fear is that rural communities would be denied the right to a fair trial.

vi The Legal Resources Centre (LRC) supported the call for legal representation noting that its exclusion infringed on the rights of individuals to a fair trial.

8.4 Appealing decisions of traditional courts

i The Manyeleti Community Property Association and Land Claim (Manyeleti CPA and LC) submission outlined their personal experience with the unilateral decision of the Traditional Council to evict the community from their land. The Manyeleti CPA and LC feared that the Bill while allowed for the imposition of sanctions, such as the eviction from land, and having an inadequate appeal system, would continue the apartheid practices of land evictions the Manyeleti community had been subjected to in the past.

ii The Land Access Movement of South Africa (LAMOSA) lamented the inadequate appeal system noting that the traditional courts would have to deal with complex issues related to land claims and rights.

iii SAWLA EC NHTL acknowledged the appeals system contained in section 9 noting it would confer greater accountability on the current systems.

iv The LRC disagreed arguing that the appeal structures were inadequate and that the proper structures would strengthen the development of customary laws.

v The CGE agreed that a proper appeal structure was necessary for the development of any legal system.

8.5 Opting out or in to system of traditional courts

i The submissions from Afra, Peotona, DWCPD, CLC, CASAC, the LRC, the LRG, Mrs M De Haas and the SAHRC amongst others all supported an opt-out clause.

ii The Law, Race and Gender Unit of the University of Cape Town (LRG) argued that for customary law to develop and be effective it required the buy in of the community to uphold the customary laws and be its custodian. If people were not happy with the system it had to provide the option of opting out of the system.

iii The SAHRC noted the Bill had defined jurisdictions in terms of apartheid era geographical boundaries and that due to this communities would again be subjected to laws it did not necessarily support.

iv The Council for the Advancement of the South African Constitution (Casac) strongly opposed the fact that people could not opt out of the traditional court system. Casac pointed out that the segregation of communities along ethnic and tribal identities was a contradiction in terms of the founding principles of the South African Constitution. Casac further stressed that traditional leadership had been tainted by colonial and apartheid systems and the Bill, by defining jurisdictions in terms of geographical boundaries, entrenched the effects of these systems. It was especially disconcerting to Casac that rural citizens had no ability to opt out of the system.

v Mrs De Haas supported this argument by referring to the history of the colonial and apartheid era’s influence on the institution of traditional leadership and posited that traditional leadership had been a construct of these systems. She supported the need for communities to have the ability to opt out of the system but similarly to buy into customary systems.

vi SAWLA and the EC NHTL did not support the notion of opting out of the system, and pointed out that none of the submissions denied the existence of the traditional justice system. SAWLA felt that any system would always have dissatisfied parties or grievances with procedures of the court. However, SAWLA conceded that there was a need for communities to affirm the traditional justice system and its values.

8.6 Matters pertaining to Children

i The NHTL, in relation to section 5 of the Bill, supported the Traditional Courts jurisdiction to hear marital disputes, custody and guardianship matters arising from customary marriages.

ii The DWCPD argued against this pointing to the existence of traditional practices such as ukutwala that were harmful to women and children. The Minister noted that these practices promoted domestic violence because in many instances domestic violence was used as a tool to prevent women from escaping. These customary marriages were often practiced on girls as young as nine years old. Furthermore, the Minister was concerned that the Bill made no mention of the equality of children and did not afford children protection from these harmful practices. She concluded that the Bill contravened children’s right to equality as these harmful practices of early marriages impact negatively on the child’s right to education, health and development. The Minister urged the Committee to consult with disability organisations and children’s sector groups to weigh the impact of the Bill on these vulnerable groups.

iii The CLC pointed out that the Bill conflicted with other legislation that regulated children in conflict with the law and that were aimed at protecting children. The CLC also urged the Committee to consult with the Departments of Health, Social Development, Education, NGO’s, and with children themselves

8.7 Recommendations:

i Amendments to the Short Title / Definition and Long Title

a. The Department of Justice and Constitutional Development (the Department) submitted that the Bill required transformation, taking it from a Traditional Court to an alternative dispute mechanism and proposed the title should be amended to: “Resolution of Certain Disputes by Traditional Councils Bill, 2012”

ii Move from retributive sanctions to restorative awards

a. The DWCPD proposed that reference to forced labour in section 10(1)(a) be removed as a possible sanction.

b. The DWCPD further proposed that Traditional Courts should review the feasibility of the sanctions imposed and that the sanction should also take cognisance of the aggrieved party’s level of vulnerability.

c. The SAHRC advised that evictions would contravene sections 25 and 26 of the Constitution.

d. The Department submitted that in redressing a situation the court must be aimed at restoring harmed relations between parties to a dispute or imposing compensation that is aimed at the restoration of harmony in the community itself.

e. The following awards or directives were proposed:

· Compensation (in monetary terms or livestock);

· an apology;

· an order to discontinue the harmful act;

· a reprimand;

· an order to keep the peace;

· any form of training, orientation or rehabilitation consistent with customary law and the Constitution and is aimed at enhancing reconciliation (Ubuntu); and

· guidance, counselling or advice.

iii Enforcement of awards

a. The Department proposed that f ailure to comply with an award or directive of the Traditional Court should result in criminal prosecution .

b. The Department proposed that an appeal to a court of law should not be permissible.

iv Integration of traditional courts with Traditional Councils

a. The Department proposed that Traditional Courts should also be integrated into the Traditional Councils, which are democratic institutions where all sectors of society are represented.

v Recognition of tiers or levels of dispute resolution

a. Peotona proposed that a multi level system of dispute resolution should be incorporated into the Bill.

b. The Department recognised the different tiers of dispute resolution in customary law and acknowledged that dispute resolution starts at the family and if it is not resolved at this level moves to the headman/woman. If the headman/woman could not resolve the matter it is then escalated to a senior traditional leader.

c. The Department noted the Traditional Council may use its discretion to refer a matter to these levels before dealing with the matter.

vi Regulating procedures of the court

a. The Department proposed the Bill must provide for procedures that regulate proceedings before a Traditional Council sitting as a court, including the manner of arriving at a decision by the Council sitting as a court for purposes of the envisaged integration.

vii Addressing concerns of “opting out” of the system

a. The Department proposed that a person given notice to appear before a Traditional Council must attend but may provide reasons, in writing, for not submitting to the authority of the Council.

b. The matter would be heard in their absence and the court may provide such assistance or advice as is required to assist the aggrieved party.

c. The Department submits that the court should not take a decision that is legally binding on the absent party.

viii Absence of legal representation

a. The Department’s proposals to integrate the Traditional Court in the Traditional Council and the move away from retributive sanctions to restorative sanctions is seen by the Department as addressing the need for legal representation as this would be necessary under a retributive system.

b. The CGE did not agree that Traditional Courts should be allowed to deal with criminal matters, as the lack of legal representation meant that a fair trial was not guaranteed.

ix Appeals

a. The NHTL was in favour of appeals to an independent court.

b. Ms M De Haas supported the individual’s right to appeal.

c. The SAHRC acknowledged the right to an appeal system and proposed that the Magistrate’s Courts should develop the competency to adjudicate customary law appeals. The SAHRC noted the absence of an integrated appeal system within the Traditional Councils.

d. CASAC supported the SAHRC to refer appeals to the Magistrates Court .

e. The Department of Justice and Constitutional Development was opposed to an appeals system as it felt that the formal justice system imposed a different value system to that of traditional courts. The Department stated that appeals as applied in courts of law should not be equated with the referral of a dispute from one layer to another within the traditional justice system. An appeal to a court of law should not be permissible.

x Marriage, Children and Divorce

a. The CLC believed that traditional courts should not deal with any matters affecting children, including property, living arrangements, custody, marriage and divorce and criminal matters, or, if this was not accepted, then the list of matters should be severely limited.

b. The DWCPD proposed that all cases affecting children, guardianship, custody and maintenance must be decided in line with the existing legislation and that marriage and divorce should remain in the civil courts.

c. Mr Peter Mahase advised that all procedures should be open and transparent so that members of the community were aware of the processes followed and decisions taken.

9. ADMINISTRATION OF TRADITIONAL COURTS

9.1 Recording of proceedings of Traditional Courts

i SAHRC believed that proper recording of meetings was a requirement and procuring the proper equipment would assist the courts.

ii SAWLA EC NHTL noted the calls for mechanical recordings and agreed with the suggestions but cautioned that problems of interpretation could still arise as each culture interpreted the application of customary law differently.

iii The LSSA also proposed the introduction of mechanical recordings.

9.2 Training of presiding officers and officials

i The NHTL requested training for all court officials and not merely seconding officials to fill gaps.

ii The LSSA agreed that judicial officers and court officials needed priority with regard to training.

9.3 Payment of fines

i The NHTL requested that the payment of fines should be made to a trust account held by the Traditional Council.

ii The DWCPD proposed that fines or taxes paid by rural communities to Chiefs should be regulated, audited and should be used for rural development and scholarships for rural children.

iii The Vulamasango Singene Mnquma District agreed that fines and taxes should be regulated and that these funds should be paid into a social fund that would assist rural people to improve their situation.

9.4 Recommendations

i Training of traditional leaders, members of Traditional Council

a. The Department acknowledged that training is an important element of the traditional justice system and should be extended to all people involved in the traditional justice system including the development of customary law.

b. LAMOSA proposed that traditional courts should be subject to the same checks and balances as other courts, and the same training should be in place. Traditional leadership must be accountable to Parliament and oversight structures.

c. The DWCPD felt that the presiding officer should not necessarily be a senior traditional leader, but could also be any woman or man of standing in the community, appointed in consultation with the community.

d. The CASAC requested recognition of mediators who were elected for their wisdom and experience as not all disputes were resolved at a traditional leader’s level.

e. The SAWLA EC NHTL requested that any training curriculum should be designed by traditional leaders.

ii The need for national legislation to ensure uniformity

a. The Department agreed that there is a need for uniformity and standardisation of processes, whilst at the same time recognising the diversity and peculiar nature of the different cultures and customs is a matter that must be borne in mind.

10. SUBMISSIONS DETAILING UNCONSTITUTIONAL PROVISIONS OF THE BILL AND OTHER MATTERS OF CONCERN

10.1 Principle of separation of powers

i The LAMOSA noted the fact that there would be no separation of powers between claimant and presiding officer would be unconstitutional.

ii The LSSA stated that there were insufficient checks and balances in the Bill. It explained that the Bill fostered power without accountability and blurred the separation of powers by giving Chiefs the power to act as administrators, legislators and judicial officers.

iii The LRC submitted the failure to observe the separation of the legislative, judicial and administrative functions of the Bill would render it unconstitutional.

iv The CGE and PEOTONA presentations agreed that the separation of powers was not observed and could be challenged as it allowed traditional leaders to pronounce upon, impose sanctions and enforce them.

10.2 Perpetuation of apartheid boundaries

i The Law Race and Gender Unit (LRG) of the University of Cape Town noted the following:

a. The Bill was linked directly to the Traditional Leadership and Governance Framework Act, which entrenched apartheid boundaries making it fundamentally flawed.

b. There were 1 322 disputes that had already been registered in relation to Tribal Council boundaries that had not yet been resolved.

c. The Bill created a second-class of citizenry by segregating the legal systems and subjecting these citizens to that system.

ii Mr Mahatlani referred to the apartheid era forced removals that established the present boundaries that were the basis for the Bill and noted that this perpetuated the colonial injustices of the past.

iii AFRA raised a similar concern noting that the failed to break with the colonial past and confined people to tribal authorities that many did not recognise.

iv The SAHRC concern centred on the lack of an “opt out” clause as the Bill was reliant on geographical boundaries that were no longer recognised.

v CASAC stressed that the Bill entrenched existing leadership that perpetuated the apartheid system and that the notion of segregating communities against ethnic and tribal identities made a mockery of the Constitution. CASAC noted this was especially disconcerting when there was no option to opt out of the system.

10.3 Perpetuation of misogyny and patriarchal society

i The Sonke Gender Justice Network that, contrary to the excellent provisions of the Constitution, the Bill perpetuated misogyny and a patriarchal society.

10.4 Right to a fair trial

i Many of the submissions noted the Bill was in conflict with the Constitution as it did not allow for legal representation that, could be argued, would not lend to a fair trial.

10.5 Retributive sanctions

i The SAHRC advised that land evictions would contravene sections 25 and 26 of the Constitution.

10.6 Discriminatory nature of Bill

i PEOTONA saw the Bill as unconstitutional as it was discriminatory and non-inclusive in nature

10.7 Perpetuation of harmful practices

i The DWCPD noted the Traditional practices and customs that were harmful to women and children but were condoned by some chiefs, including ukuthwala, ukengena and witch killings that contravened the Constitution.

10.8 Recommendations

i Jurisdictions and old apartheid boundaries

a. The Department of Justice and Constitutional Development proposed that a revised Bill should avoid the concept of “jurisdiction” as defined by boundaries as much as possible.

11. ADJUDICATION OF LAND CLAIMS

11.1 Land Access Movement of South Africa (LAMOSA)

i LAMOSA informed the Committee that the Constitutional Court had had declared the Communal Land Rights Act unconstitutional and had ordered that new legislation be promulgated to fill the void. This new legislation was not finalised and meant that the Traditional Courts Bill would operate in a legal vacuum with regard to land claims.

ii LAMOSA further felt that no transformation of the land system could take place if power was centralised under the presiding officers.

11.2 Makuleke Traditional Community

i Mr Makuleke noted that the Bill did not define a community property association or its relationship to the tribal authority. He feared that the Bill would leave the matter open to abuse as chiefs, during the apartheid era, supported forced removals if it enlarged their own power base. He stressed that the Bill would cement apartheid-conferred powers and would inevitably lead to further abuse of power.

11.3 Recommendations

i LAMOSA recommended that traditional courts should not deal with any land matters until a proper legal framework was in place.

ii AFRA proposed that tribal authorities should not have authority over community property associations.

12. MARITAL PROPERTY AND WIDOW’S RIGHTS

12.1 The Commission for Gender Equality (CGE) informed the Committee that it had received many complaints from widows who were not treated fairly with regard to contested property claims. The CGE expressed concern that the Bill made no provision to protect marital property.

12.2 The LAMOSA noted that the Bill failed to address the administration of marital property and matters of succession still remained a problem.

12.3 The DWCPD requested the Committee to specifically provide for the protection of widows with regard to property rights.

12.4 AFRA and CASAC, amongst others, expressed concern that women’s interests with regard to property, particularly widows’ rights, were not protected.

12.5 Recommendation

i The DWCPD proposed further consultation with rural women and women’s interest groups to determine the extent of the problem and their proposals to amend the situation.

13. LESBIAN AND GAY COMMUNITY

13.1 The Chairperson of the Free Gender Movement (FGM), Ms Funeka Sidao, submitted that most traditional leaders simply ignored gay and lesbian people but that there were traditional leaders who actively persecuted gays and lesbians. This type of behaviour included condoning abuses such a “corrective rape”. In some instances people were forced into marriages, or had to endure slurs and insults against them and their parents in the community. The traditional leaders claimed that gays and lesbians were unnatural and they were enforcing practices in the name of culture.

13.2 The Sonke Gender Justice Network registered its concerns regarding the high levels of violence against gay and lesbian people.

13.3 Ms Mary De Haas also expressed her concerned that it would be highly unlikely that lesbian and gay people would get a fair hearing in any Traditional Court .

13.4 The CGE submission expressed its concern that it was unlikely that gays and lesbians would be treated fairly by traditional leaders who were already biased against them.

13.5 The SAWLA and EC NHTL did not agree with presenters that gays and lesbians would receive unfair treatment at the hands of traditional leaders.

13.6 Recommendation

i The Sonke Gender Justice Network and the FGM urged the Committee to conduct public hearings, with all marginalised groups present, to address the discrimination against them and to respect their constitutional rights.

14. FURTHER MATTERS RAISED FOR CONSIDERATION

14.1 Whether non tribal land owners would be subject to tribal authority

i The AFRA questioned whether white landowners, who owned land in the traditional areas of authority, would be subject to the traditional leaders and expressed their concern that it would be a continuation of apartheid divisions if they were not.

14.2 Customary law tainted by apartheid

i The Women’s Legal Centre (WLC) submitted that during the apartheid era customary law had been reduced to writing but had been “tainted” through traditional leaders interpreting matters to suit their own agendas. The WLC reported that the Constitutional Court , when considering how customary law should be applied, had commented that the current systems had been tainted. The Constitutional Court promoted the adherence to living customary law as practiced in communities. The WLC stressed that living customary law was practiced in communities and evolved through their interpretation and generational use. The WLC urged the Committee to recognise this and incorporate living customary law into the system.

ii The CASAC also noted that the traditional leaders were not the custodians of African customary law. CASAC stated that it did not reject customary law or the system of traditional leadership and recognised that traditional leaders played an important role in customary law but stressed they were not the custodians of customary law. CASAC explained that it was the communities who believed in the customs, who practiced the customs and upheld the customs that were the custodians of customary law. CASAC noted that traditional leaders could not enforce customary law if the people did not believe in it. CASAC urged the Department to rethink its approach to regulating customary law.

14.3 Role of NHTL

i The NHTL proposed the following:

a. A definition of kingship and kingship councils be formulated,

b. There must be recognition given to the role that the provincial and local Houses of Traditional Leaders play,

c. The Minister should consult with the NHTL when making regulations on the Traditional Courts Bill, and

d. Besides Premiers the local Houses of Traditional Leaders should also be consulted.

14.4 Abuse of power by traditional leaders

i The presenters provided examples of abuses that they had suffered at the hands of certain traditional leaders. Their fear was that the Bill would entrench corrupt traditional leaders who would perpetuate abuses for their own gains.

14.5 Recommendations

i Removing reference to traditional leaders as presiding officers in the Bill

a. The Department proposed that the provisions in the Bill dealing with the designation of traditional leaders as presiding officers be deleted in their entirety.

ii Election and recognition of Traditional Councils

a. The LRG noted that the election procedure of Traditional Councils was still legally problematic and raised concerns about the statutory authority vested in Traditional Councils.

b. The elections should be held in public and be composed of 50% women.

iii Accountability of presiding officers

a. The NHTL proposed that oaths of office should be taken before a Judge President.

b. The Department agreed with this proposal and suggested the Bill must strengthening accountability through an oath of office.

c. Ms M De Haas noted that the accountability of presiding officers would be further strengthened if decisive action was taken against abuse.

iv Independent commission to determine the fitness of presiding officers to hold office

a. The NHTL proposed that an independent commission composed of senior traditional leaders; deal with the incapacity of presiding officers as expressed in clause 16 of the Bill.

v Removing presiding officers and chiefs from the political sphere

a. Ms Mary De Haas recommended removing traditional leaders from politics. Ms De Haas believed that a conflict of interest existed when traditional leaders were involved in politics and believed their removal from politics would benefit communities.

b. The DWCPD echoed the sentiment and proposed that chiefs should not be involved in political parties if they were to be presiding officers.

vi Opt out system and legal representation

a. Various presenters insisted that an opt out system and legal representation would allow for more protection of an individual’s rights.

vii Code of conduct for presiding officers

a. The DWCPD proposed that a Code of Conduct should be developed for traditional courts and presiding officers similar to the code that guides the judges.

viii Vagueness of jurisdiction and sanctions of Traditional Courts

a. The SAHRC noted that jurisdiction and sanctions were directly linked to the power of traditional leaders. The SAHRC noted that the reference to any appropriate order was too vague and could lead to potential abuse.

b. The Department indicated that the Bill must provide for Traditional Councils to adjudicate over disputes that arise within their local communities. The law must determine the jurisdiction or the type of disputes that may be adjudicated upon by Transitional Councils sitting as a court.

15. CALL FOR FURTHER CONSULTATION AND WITHDRAWING THE BILL

15.1 The Vulamasango Singene Mnquma District submission called for the Bill to be referred back to councils and ward councils for further consultation.

15.2 The NUMSA wanted the Bill withdrawn and another way found to incorporate customary law into a unified system.

15.3 The Sonke Gender Justice Network expressed the need for more consultation considering that women’s rights were not taken into account.

15.4 AFRA noted that the Department of Justice should have done a thorough consultation process and called for further consultations on the Bill.

15.5 The DWCPD requested the Committee consult with women, especially those in rural areas. The DWCPD proposed the Bill be redrafted and rewritten in consultation with rural women and marginalised groups. The DWCPD proposed extending the existing dispensation to fill the legal vacuum until the Bill was finalised.

15.6 The CLC noted that the development of customary law had to involve a process of meaningful and participatory consultation. It raised concern that during provincial hearings women were intimidated by traditional leaders and marginalised groups were not consulted.

15.7 Mr Mmuthi Pilane urged the Committee to consult the people most affected at grass roots level as provincial government was not addressing their problems. He pointed out that in many instances people in the rural areas were not aware of the Bill and were not aware of the impact on their lives.

15.8 The Manyeleti Association suggested the Bill be scrapped and proposed that the Bill be rewritten after consultation with communities at grass roots level.

15.9 The Women’s Legal Centre noted the Bill fell short of certain standards and had to be withdrawn and redrafted after consultation with women.

15.10 Hosi Sibisi Mahatlani recommended withdrawing the Bill and starting afresh.

15.11 The Makuleke Community called for the withdrawal of the Bill and Parliament to engage the private sector and non-governmental organisations and community based organisations.

15.12 The CLC believed the Bill could not be panel beaten into shape as it was fundamentally flawed and called for its withdrawal.

15.13 The Babanango Community was opposed to the Bill and requested further consultation with rural communities.

15.14 The SAHRC stated it was essential that rural communities be consulted, that the abuse reported is researched, and that the operation of the courts is investigated to ensure a Bill that complied with the Constitution.

15.15 CASAC requested the Bill not be withdrawn and amended but that it be completely scrapped and the process started afresh.

15.16 The LSSA did not agree that the Bill should be scrapped as a legal vacuum would exist if customary law were not recognised. The LSSA agreed with the Department of Justice proposal to confer judicial power on Traditional Councils with right of appeal and review applied in Magistrates courts.

15.17 The Bafokeng submission also called for the scrapping of the Bill, pointing to unconstitutionality aspects contained in the Bill.

15.18 The CGE noted that the Bill should be abandoned if amendments could not bring it in line with the Constitution.

16. RESPONSE TO THE CALL TO WITHDRAW THE BILL

16.1 The Department had attempted to address the public’s concerns regarding the inadequate consultation process in their presentation and had noted that the consultation process had excluded the majority of stakeholders who would be affected by the Bill. The Department noted the public’s call for the Bill to be withdrawn on this basis and, after proper consultation and redrafting, re-table the Bill in Parliament. The Department, however, proposed an alternative remedy to referring the Bill back to the Department’s drawing board and alluded to Parliament’s Constitutional position and legislative powers as the preferred vehicle to make law out of a Department initiated Bill.

16.2 The SAWLA EC NHTL opposed the scrapping or withdrawal of the Bill and urged the committee to take it forward with the necessary amendments to improve it.