ATC190306: Report of the Portfolio Committee on Justice and Correctional Services on the Traditional Courts Bill [B 1 - 2017] (National Assembly – section 76), dated 6 March 2019

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the Traditional Courts Bill [B 1 - 2017] (National Assembly – section 76), dated 6 March 2019

The Portfolio Committee on Justice and Correctional Services (the Committee), having considered the Traditional Courts Bill [B 1 -2017], (the Bill) referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 76 Bill, reports the Bill with amendments [B1A-2017]. The Committee, furthermore, wishes to report as follows

1. The Traditional Court Bill [B1-2017] was tabled and referred to the Committee for consideration and report on 30 January 2017.

2. The Committee was briefed on the Bill and advertised it for public comment. Public hearings were held at Parliament in March 2018. The submissions received highlighted a number of issues, including concerns relating to the adequacy of the measures contained in the Bill to protect vulnerable groups and promote equality within traditional courts. There were also arguments for and against the requirement that parties against whom proceedings are instituted in a traditional court must consent to the matter being heard in that court.

3. The Committee is cognizant of the fact that although traditional courts already form an integral part of the delivery of justice in our country, it is a constitutional imperative that they be transformed to suit the new constitutional dispensation. At present, Traditional Courts are still governed by the Black Administration Act 38 of 1927, which is entirely unacceptable.

4. New legislation regulating traditional courts is, therefore, required to:

• Replace the remaining provisions of the Black Administration Act, 1927;

• Ensure alignment with the rights contained in the Constitution;

• Regulate the role and functions of traditional courts in the administration of justice; and

• Facilitate greater support of these courts by the State.

5. Two earlier versions of the Traditional Courts Bill precede this Bill:

In 2008, a Traditional Courts Bill was introduced but lapsed because of a shortened parliamentary programme ahead of the general elections in 2009. The Bill was revived in the National Assembly at the beginning of the Fourth Parliament but was withdrawn. Later, in 2012, the Bill was re-introduced in the National Council of Provinces, where it eventually lapsed.

6. The main object of this Bill is to create a uniform legislative framework regulating the roles and functions of traditional courts in the resolution of certain disputes, in accordance with constitutional imperatives and values.

7. The Bill is also intended to increase access to justice services by enhancing the effectiveness, efficiency and integrity of traditional courts for the purposes of resolving disputes. The thrust of the Bill, therefore, can be aligned with the National Development Plan’s vision of realising a developmental, capable state and broadening social cohesion.

8. The Bill repeals all existing legislation of the former homelands that continues to regulate traditional courts, as well as sections 12 and 20 of the Black Administration Act, 1927.

9. The Bill, as introduced, specifically referred to the principle that customary law is based on voluntary affiliation and the right to freely and voluntarily elect to or elect not to abide by the various applicable practices and custom and provided that a Traditional Court may only hear a matter if the person against whom the proceedings are instituted has consented to appearing in that court. The Committee, however, does not support a right of such person against whom proceedings are initiated in a Traditional Court to “opt out” of appearing before that Court, as this undermines the role and importance of these courts to the delivery of justice services in traditional communities.

10. To address concerns raised during the course of deliberation should the so-called “opt out” clause be removed, the Bill now provides that a party who is aggrieved by a decision or order of a traditional court on grounds may, after exhausting all the traditional court system appeal procedures that the Bill makes available, refer that decision or order to the magistrate’s court having jurisdiction, in the prescribed manner and period.

11. The Bill includes provisions that seek to promote the right of equality within traditional courts: Traditional courts must be made up of women and men pursuant to promoting the right to equality as contemplated in section 9 of the Constitution.; traditional courts are required to promote and protect the representation and participation of women, as parties and members of the courts; and the Minister and the Commission for Gender Equality to put measures in place to promote gender equality in these courts and to report annually on these to Parliament. Furthermore, Schedule 1 of the Bill lists conduct, which infringes on the dignity, equality and freedom of persons. The listed conduct is prohibited and the State must, where appropriate, ensure that legislative and other measures are taken to address these.

12. Further safeguards are contained in the Bill for the protection and assistance of vulnerable groups. The Bill requires, for instance, that all court proceedings must be open to all members of the community at a place which is accessible to members of the community, proceedings must be conducted in the presence of both parties and both parties must be able to participate fully in the proceedings without discrimination on any of the prohibited grounds referred to in section 9(3) of the Constitution. Failure to comply with these important procedural aspects can result in the matter being taken on review to the High Court. Provincial Registrars are required to assist unhappy litigants to take their matters on review. Parties in proceedings before a traditional court are; furthermore; allowed to be assisted by any person of their choice in whom they have confidence although legal representation is not allowed.

Report to be considered