Traditional Courts Bill: Department of Justice and Constitutional Development media briefing


23 Jan 2017

The Department of Justice and Constitutional Development held a media briefing to provide insight on the revised Traditional Courts Bill. Previous versions of the Bill drew much criticism but the briefing provided information on important aspects of the Bill including participation by and representation of women and vulnerable groups, the right to opt out of the system of traditional justice, legal representation, cases to be dealt with by the courts, jurisdiction and appeals. The briefing was attended by the Deputy Ministers of Justice and Constitutional Development and Cooperative Governance and Traditional Affairs and other senior officials from both Departments.

The statement was read out by the Deputy Minister of Justice and Constitutional Development.


Questions and Answers:
Journalist: I am much more interested in the technicalities. Regarding, for example, the use of lawyers in these traditional courts – will people be allowed to use lawyers to represent themselves? And also regarding punishment, previously there were complaints that the punishment metered out at these courts were too excessive. People were, for example, stripped of land and property and in other instances there had been cases of forced labour. How far does the Bill go as far as this is concerned? Lastly regarding the judgments, my understanding is that the previous Bills had said you can not appeal at these very same traditional courts – will people now be allowed to appeal cases at the same court or should they now go to your conventional courts to try and seek an appeal?

Journalist: I just want clarity, although you say legal representation is excluded, the system does allow assistance for women and other vulnerable members of society. Can you just explain exactly what this assistance entails? Would someone from the community assist them if they are not allowed to bring in outside legal representation?

Journalist: I may have missed it in the statement but is the Bill clear that it was optional if you want your case to be heard in a traditional court? Is it optional or is it not?  If not then perhaps there needs to be an explanation there. The assumption was that there ought to be one law for one nation and the supreme law of the country is the Constitution.

Deputy Minister Jeffery: The Bill does not allow for legal representation. In previous versions of the Bill, the courts had criminal jurisdiction but now they don’t. In customary law there isn’t really any distinction between civil and criminal and they are effectively dispute resolution courts. Reflecting on the outcome of the stakeholder engagement, the general view would be because the traditional justice system is essentially consensual and voluntary in nature, legal representation is undesirable. The traditional justice system is geared towards achieving conciliation between the parties in a non-adversarial manner unlike the courts, it was argued there was no need for legal representation and that a party within the traditional court should be presented by any person of his or her choice including a family member whether a male or a female, a friend or a counselor. The discussions pointed sharply to the fact that these courts operate in a manner which is entirely different to that applicable in other courts and the introduction of legal practitioners would take away the benefits of a speedy, cheap and accessible system so the general view was that legal representation was not suited for the traditional justice system and the Bill therefore provides that no party to any proceedings before a court may be represented by a legal practitioner acting in that capacity. You can represent someone but not acting as a lawyer. If you look at small claims courts, they don’t have lawyers and don’t have any legal representation – the moment you bring them in, what is meant to be a quick, expeditious way of resolving a dispute, would get dragged out with all kinds of technicalities. On the issue of appeals, previously under the colonial system, in terms of the layers of courts, you had the traditional courts sitting under the magistrate’s courts so the magistrates, especially under the apartheid system, had to make sure the traditional leaders behaved. That linkage had been removed. The Bill recognised that in different customary systems in South Africa, one size does not necessarily fit all – people in different communities do things differently and they need to be given that space to do that according to their customs and traditions. The provision largely is that if someone is unhappy with the decision of a traditional court, they can make use of internal customary systems of appeal. However, any matter can be taken on review to the High Court and review is linked up to procedural aspects. The penalties issue was dealt with in the statement but just to repeat it, it’s basically compensation, not a fine, to the person who has brought the case to the court which may be expressed in monetary terms or otherwise including livestock for payment of damages suffered. There is a condition that the order for damages may not exceed the value of the damage in question or the Minister of Justice will be able, by way of regulation, cap an amount from time to time in the government gazette. Other orders include an order prohibiting conduct, that an apology be made, an order requiring a party to keep the piece and all the orders suggested in the Bill are of a restorative justice nature. The Bill does permit an order of community service on condition that it is for benefit of the community as a whole and not a specific individual. Whether it’s compulsory, it is in the statement that the traditional courts are of a voluntary nature. 

Adv Skosana: Maybe just to add on to that one, yes any person can opt out if they do not want to participate in the traditional court system or arrangement. However that opt out must be right at the beginning of the proceedings where you indicate I don’t want to go through this particular process. Not in the middle when the mater had already been allowed to proceed maybe because then you could see it was not going your way and in the middle of nowhere you say I am opting out now – you have to do it right at the beginning and I think that’s what the Bill says that its voluntary and you have got the right to opt out. Then you can go to the small claims court, to the other magistrate’s courts and so on. The matters that the Traditional Courts Bill will also deal with outline that civil and criminal matters will not be entertained because those are automatically of a criminal nature, rape and murder and assault.

Deputy Minister Jeffery: Maybe just to add, you can’t just ignore, so if you get called to the court you can’t just ignore it. All you’ve got to do is to inform the clerk of the traditional court that you don’t want the court to hear the case. You don’t have to give reasons – there was quite a long debate around that because if you require people to give reasons it may cause more disunity in the community. The clerk is meant to check whether another forum could deal with the matter but you can’t ignore – all you’ve got to do is say no, I don’t want my matter heard by this court.

Official: With appeals, matters get escalated to the next level or other forums etc – the Bill does not change customary law but basically provides for a mechanism for customary law to be implemented and enhanced to contribute to restorative justice. Customary law by its own nature is representative – when matters go to courts they are reported to uncles so when someone receives a summons to go to court it is inherent that they will be accompanied by someone in the family to provide whatever assistance they require especially children and women – this was the nature of the customary law system.

Journalist: My question centers around what section of the Constitution these courts are established. Previous traditional courts bills were silent on this – are these courts in line with section 166 of the Constitution like, for example, the small claims court? Are you concerned all aspects of unconstitutionality, which bedeviled previous drafts, have been taken care of? Can you categorically say these community orders are not equivalent to the forced labour that was contemplated in the 2012 and 2008 Bills which would contravene section 13 of the Constitution? Are you confident the non-permissibility of legal representation did not violate section 35 of the Constitution? I have a question especially on women and women’s participation in the courts – there are some traditional communities where women have not participated. It’s not across the country but there are traditional communities where women are not allowed to speak – what does the Bill do should women choose to opt into customary law? Are you confident that women will not draw the short stick, so to speak? If you could perhaps also give some commentary, one of the concerns raised previously was that traditional leaders in their role as leaders and administrators of their communities, if they get involved to head traditional courts would then basically straddle both the executive and the judiciary arm, for want of a better terminology, and that contravenes the separation of powers that we have in our Constitution? Perhaps on a lighter side, the Bill dropped off the agenda 2014. There was a Committee meeting in February but it did not go anywhere. Last March, the Minister of Justice promised that the Bill would be introduced by the end of that year. Can you give us any insight on what had taken this long?

Journalist: Mine is a very short question, I just want to know, can you give us some examples of the matters these courts will deal with since it’s not going to handle any civil or criminal matters.

Deputy Minister Jeffery: I think we’ll start again maybe with the process, the previous drafts generated a lot of controversy and it requires a simple majority in Parliament to pass legislation, one could have probably got the Bill passed but it would not have united people. So what we did was, at the end of 2015, convened a consultation with, firstly, traditional leaders from the national and provincial houses, then a consultation with civil society and then consultation putting traditional leaders and civil society together. From that then arose this idea of a reference group, or advisory group, from people from civil society, not really a representative because a representative would need mandates and things like that, it was more, as I said, an advisory group and the national house and provincial houses sent people as well and over the course of last year there were extensive discussions on the Bill. I mean the issues are pretty complex. In fact we even at one point agreed to set up smaller teams for more detailed work because the reference group was a bit big again having representation again from both traditional leaders and people from civil society. So that’s really why it took long. We hope we produced a Bill that has created support. I think the issue would be, because of the controversies around the Bill and the whole issue of customary law, where it sits in a modern society or industrialised society, that probably no one is going to be particularly happy with the Bill but we want a Bill that at least people can say they can live with on all sides. Look, with the provision, I think Mr Skosana can talk more about what are they but this reference to customary law in Chapter 12 of the Constitution, is there. I mean in the interim Constitution there was specific recognition of traditional courts as courts of law in the schedule in the interim Constitution. From the way the question was phrased, there is almost a sort of imposition of European jurisprudence into a traditional system. Just also to be clear, it’s not saying that they don’t deal with civil or criminal but in terms of customary law there isn’t a distinction so you can actually deal with a dispute which may have arisen from a criminal act – someone may have assaulted a family member. You take that to the traditional court and nobody gets punished in terms of sjambok or sentenced to imprisonment or deprived of their rights to land but there is compensation and the orders of the court are, as I’ve raised in the statement, linked to restorative justice. As far as legal representation goes, look, what we didn’t want to do was sort of create a new system. We wanted to regulate the existing system of traditional courts and make it consistent with the Constitution. Legal representation, look as I’ve said, there’s no legal representation allowed at the small claims court. I don’t think that has been tested under this Constitution but there have been cases related to legal representation at the CCMA which were not successful. I mean, the court agreed there shouldn’t be legal representation at the CCMA. The attorneys were not particularly happy about that one – I’m sure they would rather see legal representation in traditional courts as well.  The issue relating to gender is a difficult one because we’ve got, on the one hand, the Constitution and Section 9 and on the other hand, the reality of the practices taking place on the ground. So, the Bill is general in terms of the need for Section 9 of the Constitution to be complied with and then effectively measures to be taken by the Minister and the Gender Commission in an annual report on ensuring that the position of women is being advanced in traditional courts.

Deputy Minister Bapela: I just want to say to South Africans, obviously there will be a question, do we really need this legislation or not – I will say to South Africans yes we really need this legislation because this practice is still going on. Families are still going to traditional courts as we speak and they are not banned. What we are trying to do is to regularise them so that norms and standards will emerge and also to ensure that all the fundamental freedoms that people are supposed to be doing throughout the country are equally enjoyed and the regularisation is there to ensure these freedoms is there. People believe in a communal system of life, they adhere to it and they still respect traditional leaders as the custodians of the culture, traditions and customs. We even have a body, a Chapter Nine institution called the Commission of or the Protection and Promotion Cultural, Religious and Linguistic Communities throughout the length and breadth of our country, throughout the deep rural areas. So we are just regularising the traditional courts, what happens in it so that we do not have infringements and we do not have violations of the rights of the individuals whilst there. This legislation will go a long way in trying to address some of the outcry that had been raised by communities themselves and were subjected to terrible, in some instances, but not always, types of situations where they were deprived of the right to land and so on and so forth and part of punishments and so forth. We live in a democracy, yet we also embrace our culture, traditions and customs but that is then why we are coming up with this piece of legislation to really regularise and ensure the fact that the Bill of Rights, as obligated on us, is universal rights enjoyed by everybody while still being able to practice their traditions, the culture and customary. I just wanted to answer whether we need this piece of legislation – I’ll say definitely, yes.

COGTA DG, Charles Nwaila: Traditional leaders do not have legislative nor executive powers so the issue of separation of powers does not arise in this context.

Official: The Bill has a schedule that basically provides for matters that would fall under the jurisdiction of these courts. These could be related to theft, malicious damage of property where the amount had been set. I think the Bill is currently set at R5000 as a threshold for these matters. There are specific provisions in the Constitution that reference traditional courts – one is Chapter 12. Customary law is equated as part of the legal system not as in the past when it used to be part of a subsidiary system.

Adv Skosana:  The jurisdiction of the court has been removed because in the previous Bill, obviously, it was one of the criticisms that we are entrenching apartheid Bantustans at the time. So when you then see courts in urban areas or so forth, they may be allowed to and obviously those practicing traditional settlements of issues would have to get authorization or permission, for lack of a better word, from the traditional leader to deal with disputes that arises as a result of the clashes or issues that arise from traditions and customs. Therefore, the jurisdiction aspect has been removed for one common standard throughout the country.

Official: There was one question raised around the failure to provide for legal representation, in that section of the Constitution, legal representation is brought up especially in the context of an arrested/accused person. Traditional courts do not have arrested persons or prisons – they are basically avenues to resolve disputes in a more conciliatory and mediated way. There are no police in traditional courts. People would be assisted by those who are interested in resolving the dispute – not by those people who conduct a business of lawyering.

Journalist: We were talking about the types of cases heard at the traditional court and some of them are more criminal than civil. I want to know, you know you get those communities where there are disputes regarding witchcraft, where someone accused another of witchcraft. Does the traditional court cover that and does the court grant interdicts to stop someone from spreading such rumours?

Journalist: I’m sitting here and wondering does a person in the rural areas, will they actually understand they have a right to opt out of these courts? Also, are these courts not open to abuse by traditional leaders?

Journalist: In the same vein as my colleague has said, are these courts not open to abuse by traditional leaders? For example, what if a traditional leader is known as being corrupt or favours a particular grouping over others for particular reasons? Do we assume these traditional leaders, or whoever will be heading the courts, are people who are in the straight and narrow? Also more importantly, the issue around gender representation, in your statement you are quite clear, the courts are meant to promote and protect the representation and participation of women as parties and members of the courts. It is required for the Minister and the Commission for Gender Equality to put measures in place to promote gender equality in these courts. The Deputy Minister then says the issue of gender is difficult because in practice, things are seen as general. What measures are going to be put in place to ensure the equal participation of women in these courts?

Journalist: I wanted to pick up on the issue of gender equality, Minister Bapela, you said the Bill would promote equality – will it enforce equality or only encourage it? Is there anything that would be used to enforce and ensure women have absolutely equal rights even in areas where that might be difficult? I’m trying to get a handle on the area of jurisdiction, so if you’re talking about an extreme case where someone from a traditional community felt that I have offended them, could I be summoned to a court of that community? And on the issue of opting out, does one have to appear in person to opt out or could one opt out by email? Do you have to go there and say I’m not playing? I know it seems silly but obviously it is difficult for some people to actually go up to the great place and say I don’t want to play by your rules – it’s a lot harder than doing it more remotely so I’m just wondering what kind of rights people have in that regard? And if the courts are removed from the old homeland boundaries, which is excellent, how would one be summoned? According to what kind of rural definition? How is that dealt with?

DG Nwaila: The issue of witchcraft, these are some of the things that happen within particular communities where you have such allegations such as these. If the allegation of witchcraft arises in that particular community, yes you can report it to the traditional court because the role of the traditional court is to build social cohesion and to ensure there is stability in communities because if nothing is done about it, it may escalate and become something bigger where people hurt each other. I also want to make a point that these courts were in existence since time immemorial, even before conquest, so they’ve dealt with all these matters for a long, long time. We also have something called corporate memory of the law of succession where you have, in terms of traditional leadership, you would have people that take over generations and so on so they carry that corporate memory and so on. They have been dealing with all these matters that affect the community.

Adv Skosana: The issue of the people and the abuse of the courts by traditional leaders, obviously it is a concern and we will have to generate a lot of public awareness and education across communities and also within the sector of traditional leaders.  Also to emphasise the rights of individuals and that they know to report abuses so that we can deal with them as these courts are running so indeed we will have to go through that particular programme and agenda. However as you said, individual characters, from time to time, play themselves out and I would not rule out those incidents where once in a while there would be a traditional leader that behaves that way. When it comes to training, Deputy Minister John Jeffery will then deal with the package of training to ensure that those are running. There has been a programme that was running to ensure there were tools and that we all adhere to the constitutional rule of this country. With the issue of encouragement of equality, yes we will have to encourage equality. We have to through education and awareness, and all other means, ensure whoever are the players and participants, is all about achieving social cohesion and encouraging and ensuring the equality of life and so forth including the issue of encouraging women participation not enforcing because you may found, why I said complex, in certain communities, even though the women have the rights, it is them who say I decline, I don’t want to and you can not just force everybody but encourage everybody to say now the space has been opened for you, go in there and participate so that as society evolves we can see more and more women participating and no longer this resistance or declining. This was why we use the word encourage but not enforce because encouragement will say things are changing, society is evolving, women participation is now the norm and we want to see more and more women participating in the lives of the communities and also in the leadership structures of their own communities.

Deputy Minister Jeffery: Just one aspect which is new in the Bill and was not in earlier versions as far as the conduct of people running traditional courts, there is provision at the end of the Bill, clause 16, for the Minister of Justice, in consultation with the Minister of Traditional Affairs, and after consultation with the House of Traditional Leaders, to compile a code of conduct for all persons involving in the functioning of traditional courts. There is provision there through the provincial MECs, if there is a breach, for apologies, reprimands, written warnings, compensation, appropriate counseling, attending a training course or any other appropriate corrective measure so that is one element. The second one I want to refer to is that the Law Reform Commission drafted a proposal, which we have taken up, is the provision of provincial registrars who would have to basically collect information relating to traditional courts which includes compiling and maintaining of registers of all traditional courts in the province, referring and reporting on cases of public interest to the High Court having the jurisdiction for a review. So the provincial registrar would be meant to be monitoring, if necessary, to bring a review about on a matter and then assisting parties who would like to take a matter on review and so on. That is another innovation. There would also then be training, particularly for traditional leaders, the South African Judicial Institute Act which sets up the body which trains judicial officers, judges and magistrates, also has representation from traditional leaders with the intention that that would help train traditional leaders. Obviously people in South Africa have a lot of rights but many people don’t know about their rights particularly marginalized communities. Yes as government we’ve got to do more to educate people about their rights but we can only do that within limited resources, in partnership with civil society as well. The opting out provision, by email, I’m not quite sure how many but you are basically indicating to the clerk of the court that you don’t want to participate. Just as far as the gender question, as my colleague has said, some traditional courts would be a council, a specialized body of people. Some traditional courts would be the whole community and anyone who wants to come and participate so if you started saying 50/50, what happens if on a particular day two more men or women pitch up than the other gender? Should those two men be told to go and that they can’t sit there?  As has been said there is the problem of how women feel when they have to behave according to tradition so the provision says that members of a traditional court must consist of women and men to pursue the goal of equality in accordance with the Constitution. There is a specific provision around traditional courts to promote and protect the representation and participation of women as parties and members and then, as I’ve said, there is a requirement for the Minister of Justice to put in measures to promote and protect the fair representation and participation of women as parties and members in order to create an environment that facilitates and promotes meaningful and voluntary participation of women in accordance with the constitutional value of non-sexism. There is also a reference relating to vulnerable people. The Minister must then report to Parliament on the 30th of September every year giving information about the measures that have been taken. The Commission for Gender Equality must also report to Parliament on the participation of women and the promotion of gender equality in traditional courts and may present and make recommendations or other measures.

Official: I just wanted to amplify also on the question of witchcraft. Firstly we have a law - the Suppression of Witchcraft Act - so the traditional courts would not have jurisdiction to deal with that but if there are allegations and so on, that can be dealt with by the traditional courts. In fact not only witchcraft, once any matter is in contravention of a law, statute law and the police had initiated an investigation, the traditional courts can not deal with it. I just wanted to amplify that. As long as there are allegations but once it develops, it becomes a complex matter for the courts to deal with.

Deputy Minister Jeffery: The Bill provides also for a schedule of what matters traditional courts will be competent to deal with. Number one is theft but because the traditional courts are not criminal courts it would have to be a dispute that something was stolen or there was malicious damage to property. If you want to go the criminal route then you will have to go to the police and the magistrate’s court. There is also provision for the courts to give advice on certain matters – there has been quite a bit of discussion on customary law marriages and custody and guardianship of children and generally traditional courts have been precluded from making rulings on that and that has largely been through concern of patriarchy. Now the Bill doesn’t provide that they can make rulings but they can give advice. So if a divorce court is dealing with the custody of children from a traditional community or the marriage was in a traditional community, the traditional court can give advice to that divorce court or regional court as to what their view is which the regional court could consider but doesn’t have to follow. With the process from here, the Bill was approved by Cabinet in December for introduction into Parliament. There were certain rules that have to be complied with, some of them I think have been in terms of notice of intention to introduce the Bill. A copy of the Bill has to be sent to the Speaker of the National Assembly and the Chairperson of the NCOP. It has to go to the state law advisers for their views on the Bill and then it will be introduced. We hope to expedite that as soon as possible, hopefully by the end of the week or early next week after the concerns of us giving deadlines and then not keeping to them, all I can say is we’ll do our best to have it introduced as soon as possible. There is a version of the Bill on the website – that is not necessarily the version to be introduced to Parliament. The state law advisers may want certain technical amendments but I think they will be largely technical. The version in Parliament will have a Bill number and then it is for Parliament to process the Bill. It will be introduced into the National Assembly. As a statutory requirement they will be required to conduct public consultation and I know they are very eager to. The Bill is still tagged a section 76 Bill, a provincial competency Bill so once the Bill is passed by the National Assembly it will then go to the National Council of Provinces and there will be further hearings with more of an emphasis on provincial interest with each province giving a mandate on the Bill and then obviously if they amend it, it will be back to the National Assembly again. From here, the process will really be a parliamentary one. Because this Bill is controversial we’ve found that people who have a particular view on the Bill often run to the media first with that view and how terrible the Bill is so we wanted to give a total overview to the media first and then obviously everybody is free to comment on the Bill but the reality is that traditional courts are there, they exist in many parts of the country and they are running. They are providing access to justice and dispute resolution to many people. Even your magistrate’s courts in your small towns are too far in many of the rural areas. There are also problems with many of the traditional courts so the idea of the Bill is to recognise what is already there, not to reinvent anything but then to provide for regulation in terms of the Constitution. When we had our first engagement with civil society, everybody came along to that and recognised the importance of traditional courts and that the legislation needed to be passed as soon as possible but then the sense we got from some sections was that they actually didn’t want the traditional courts because they didn’t really want traditional leaders and they were just afraid to say that or didn’t want o publically say so. But we hope that we can work collectively on this Bill to come out with a Bill that is accepted by people in South Africa particularly people in rural areas.