Traditional Courts Bill: public hearings (day 4)

Meeting report

Traditional Courts Bill: public hearings (day 4)
Ms Sibongeli Mthimkuli submission
Ms Sibongeli Mthimkuli, through a translator, noted her comments on the Traditional Courts Bill (the Bill). It was oppressive to women. Women would not be able to hire attorneys, and the position was worse for widows. Tax money was being charged, and people were confused as to what was happening on the ground.

Mr Thokozane Ndawo, another member of the Babanango community, agreed with the comments expressed earlier, and was opposed to the Bill. This community had faced several years of harassment and suffering. They had tried a number of avenues to seek help, including the offices of the Premier, and the Public Protector, but to no avail. The community faced loss and death of animals, and other species had been introduced on to their farm land, including snakes. The Bill was likely to remove people from their land as the powers of the traditional leaders would be increased and this was harassment. Many of the traditional leaders had left and there were riots and people were dying.

A member of the audience took issue with the translation and noted that this was not reflective of what had been said.

Mr Ndawo continued, and said that there was a need to put in place exemplary leaders, although at the moment there was oppression, and the Bill must be stopped.

Mr Bongani Ntombela, another member of the Nobamba Kataza Community Property Association, said that leaders in his area had moved people forcefully to certain places, allowed strangers on to their land, and interfered with meetings. Complaints made to the South African Police (SAPS) would simply be referred on to the Land Claims Commission, who would in turn pass the matters back to the Magistrate’s Court. Government departments failed to respond. Dockets had gone missing from those courts, and money had to be paid for missing cattle. The main objective of the CPA was to farm and do business. The area was no longer governable as the traditional leaders were telling people that their title deeds were not valid. He questioned whether people must die before the matter was sorted out, and said the community was opposed to the Bill. The majority of people were not educated, and received their information from the radio. He had been assisted by Association for Rural Advancement and the Rural Women’s Movement. Government should go back to grass roots level. He was concerned that at the moment, government was merely taking decisions without informing the people. He stressed that his community was not completely opposed to traditional leaders in principle, but was concerned when they acted as parasites and forced people out.

Ms Magwaza, Resident in Babanango, said that she had a problem with the game reserve in this area, which included animals such as snakes, but she was born in the area and did not want to be forced out. Development in her area was not happening. It seemed that the Bill would result in even greater oppression, and she hoped that God would help the community.

Discussion
Mr D Bloem (COPE, Free State) asked if written recommendations on the Bill could be submitted.

South African Human Rights Commission (SAHRC) submission
Ms Anthea van der Berg, Senior Researcher, South African Human Rights Commission (SAHRC), said that customary law was integral in South Africa but there were several challenges, as it had to survive the test of constitutionality, and it must uphold values of human equality, non-racism and non-sexism. The debate was not about the court system, but how it should reflect a democratic approach.

SAHRC had a key concern that the Bill was unclear on whether it was actually speaking of a court system, or a dispute resolution mechanism. Chapter 12 of the Constitution recognised the rights of traditional leaders, and the transitional provisions recognised the TCs, so the intention seemed to relate to a court, but the Objects clause noted that the Bill aimed to assist with dispute resolution and restoration of healthy relationships. The Bill did not speak to all of the TCs. SAHRC said it was imperative to go back and consult with communities, do research into the abuses that were being perpetrated, as well as how courts were operating, and understand the real concerns facing women.

The Bill further lacked clarity on jurisdiction and sanctions, and it must be remembered that these were linked directly to the power of the institution of traditional leaders. Clause 10(2) referred to the TC being able to make “any appropriate order in the circumstances”, which was far too broad and vague, and raised the potential for abuse. The Bill’s jurisdiction was reliant on geographic boundaries rather than membership of a customary group, and there was concern that people were subject to a court system that they may not recognise, without being able to opt out.

Another difficulty lay in the attempt, in the Bill, to merge a customary and Western system. There was a necessity to look at disputes arising out of customs and those arising out of non-customary situations. There were confusing provisions around criminal jurisdiction. TCs did not seem to have to observe due process, there was no provision for legal representation, yet they were supposed to reflect norms and standards of the Constitution. SAHRC pointed out that whatever model was adopted must be constitutionally compliant.

There was uncertainty whether children, or their parents, would be held liable for actions of the child. In terms of the Constitution, everyone had the right to a public trial, but it was unclear whether this could be exercised, given the lack of legal representation. SAHRC pointed out that, furthermore, South Africa was bound by international obligations, and the International Covenant on Civil and Political Rights set out clearly the rights of accused persons, including being informed of the charges, and have the right to legal representation and assistance. Article 14 contained some guarantees that all parties must respect, regardless of their traditions. The Bill spoke of “service without remuneration” as a possible sanction, but this was akin to forced labour, contrary to the UN Convention on Forced Labour. No sentence should inhibit the rights in the Constitution. There was currently no yardstick for fines, and in fact the sanctions were probably more aligned to the common law. It was unclear if the complainant’s view would be taken to account, and the fact that sanctions could be imposed against those who were not present was contrary to the Constitution’s right to a fair trial. No evictions should be allowed as a sanction, as this would contravene sections 25 and 26 of the Constitution.

The Bill spoke of appeals to magistrate’s courts, but not to a TC appeal system, which should be incorporated. In addition, Magistrate’s Courts would have to develop expertise in customary law. Sound equipment should be required to keep adequate records of proceedings, and there would need to be adequate financial arrangements for translations, transcription, costs of training for clerks and presiding officers and building of new courts. It was not clear in what numbers, and where, the TCs would be set up.

Ms van der Berg quoted examples of some other customary law systems. The Nigerian system had unlimited civil and criminal jurisdiction in some areas. Botswana had a dual system where customary courts functioned in parallel with the civil courts. In Canada, magistrates presided over TCs. In Malawi, there had been a process followed of going out to the communities and finding out the challenges from women in particular. A system must be found that was unique to South Africa and its particular challenges. Gender equality and representation would be fundamental to the constitutionality and international compliance of this Bill.

Ms Judith Cohen, Parliamentary Officer, SAHRC, added that SAHRC had already raised this issues when the Bill was before the NA. Many of the issues around the ambiguities and conflict with the Constitution raised then had still not been addressed, and although there was apparently some consultation, nothing concrete had changed in the Bill. She said that customary law systems appeared to have been perverted and the Bill had resulted in an attempt to impose Western court systems. She reiterated that the fundamental question remained whether the Bill would create courts, or dispute resolution systems, and once that question was answered, there was a need to analyse whether it complied with the Constitution and international law obligations.

Discussion
Mr J Gunda (ID, Northern Cape) noted a recommendation, in the written submission, that the Khoisan needed to be included in the scope of the Bill, but asked how this would be done when its recognition as a traditional community was still outstanding.

Ms Cohen said that whenever the SAHRC could, it would stress the Khoisan debate, and whilst no formal recognition had yet been given, SAHRC remained of the view that work was needed to afford the Khoisan and their systems full recognition.

Mr Bloem asked if the SAHRC thought the Bill would offend human rights, and whether it regarded the Bill as unconstitutional.

Ms Cohen said that the written submission stated that because of the various ambiguities, the Bill would be in conflict with rights enshrined in the Constitution. Whilst South Africa had waited many years for this Bill, the issues had to be debated thoroughly, to avoid this Bill being declared unconstitutional, as the Communal Land Rights Act had been.

Mr D Joseph (DA, Western Cape) noted that a number of comments had been raised about bad practices in some of the systems. He asked how the SAHRC would define a court system, and what the differences were between this and a dispute resolution mechanism.

Ms Cohen said that there were many constitutional issues. If the Bill covered a dispute resolution system, it would have to be completely re-written to ensure that it did reflect this properly. She pointed out that by its very nature, dispute resolution mechanisms (DRM) must be by consent, so an opt-in clause was required. Much more work had to be done to see whether the Bill could be aligned with that, and what further features must be added. SAHRC would support that principle for communities, provided the mechanism was Constitutionally sound.

Mr Joseph said that SAHRC seemed to be saying that the fact that no legal representation was allowed ran counter to a court system. In a DRM, the person in charge was more of a facilitator than a presiding officer.

Mr M Makhubele (COPE, Limpopo) asked for clarity on the statement that the Bill was geographically based.

Ms van der Berg explained that the Bill should not have attempted to define jurisdictions by the old apartheid borders.

A Member of the Eastern Cape Provincial Legislature asked whether developments in other African countries seemed to be an “Africanisation” of traditional courts, and whether this was likely to establish a dual system in the country.

Ms van der Berg said that whilst research could be done on other countries, a model that answered South Africa’s specific needs was required. The main question was how access to justice would be guaranteed. If the Bill was imposing a court system, then all international obligations around these systems had to be guaranteed, and all customary courts had to be taken into consideration and must align with constitutional imperatives.

Mr Makhubele asked what the “something” was that SAHRC suggested had to be done.

Ms Cohen answered that the Committee must determine how to take the Bill forward, having consulted widely and heard the views of traditional communities. SAHRC believed the first decision was whether the DOJ wanted to legislate for courts in terms of section 166 of the Constitution, and once that was decided, then the road ahead would be clearer. Parts of the Bill might possibly be capable of being saved to set up a court, but fundamental issues that SAHRC had outlined must be addressed. If the Bill was intending to create a DRM, then a decision was needed on what type of mechanism was being created, and if it was constitutional compliant. At the moment, the Bill seemed to be trying to use the language of the Western legal systems to try to describe something that may not be applicable to the traditional system. The Bill seemed to have “lost something in translation”.

Mr Joseph noted the suggestion that appeals should be allowed, and said this suggested that the Bill was setting up a court system.

Ms van der Berg replied that it was important to have appeals, as pertained in other countries, and a customary court system of appeal had to be clarified.

A Member of the KwaZulu Natal provincial legislature asked about the opt-out clause.

Ms Cohen explained that the hallmark of an alternative DRM was that people would consent to use that system. A person subpoenaed to answer criminal charges was obliged to attend, but people should not be obliged to submit to the jurisdiction of a TC. Very few people had the resources to approach Western courts, and choices were needed on alternatives to settle disputes. This Bill presented the ideal opportunity to build social cohesion by creating DRM in line with the Constitution and it was necessary to explore how this could best be done.

Ms van der Berg said that although SAHRC had presented some recommendations, it was clear that there must be a return to the drawing board after full consultation with people on the ground.

Council for the Advancement of the South African Constitution (CASAC) submission
Ms Nombonisa Gasa, Representative, Council for the Advancement of the South African Constitution (CASAC), said that it was very important to have members of rural communities present at the meeting.  She would not repeat what had been said to date, but wanted to focus on possible options. Although forced removals and laws that disrespected people had ostensibly been scrapped these were in reality still happening. She commented that although the Zulu translation of the Babanango Community had not come across well, their plight was horrendous.

The process of making laws must be informed by people’s real experiences. MPs did not know of these, and that raised the question – for another debate – of where the constituency offices were, and who they were serving.

CASAC rejected the Bill in its entirety. She outlined that CASAC had been formed to promote and advance the Constitution, and to protect its values. It regarded the Bill and the traditional leadership and government legislation, as unconstitutional. The Department of Justice and Constitutional Development (DOJ) seemed to be very confused about the Bill as although it was presented as an attempt to promote, affirm and give recognition to customary law, within Constitutional parameters, the Bill was in fact not about customary law, but about recognition of traditional leadership and its role in a democracy.

CASAC was not rejecting the system of traditional leadership, nor of customary law. Traditional leaders had a role to play in customary law, in traditional justice and in African culture broadly, but they were not the custodians of African customary law. The community believing in the customs was the custodian of the law, and nothing could “enforce” living customary law if the people did not believe in it. She urged the DOJ to go back to the drawing board and think carefully about what it wanted to do. It could regulate the existing courts and problems, but if it wanted to deal with customary law and systems then a different process was needed.

CASAC stressed that the very notion of segregating communities against ethnic and tribal identities, especially if the people had no ability to choose, made a mockery of the founding principles of the South African Constitution. The institution of traditional leadership had been deeply tainted by colonial and apartheid systems, and this Bill sought to entrench constructs of the apartheid dispensation.

CASAC felt that if widows were not taken into consideration in drafting the law, then they would continue to be treated in an “incidental” fashion. The experiences related to this Committee represented only the tip of the iceberg. CASAC was not even suggesting that the Bill must merely be withdrawn, given that this could result in it simply be re-introduced later, but insisted that it must be scrapped altogether. In the interim, DOJ must find people experienced in the intricacies of customary law and traditional leadership, to help it understand customary law. In her own clan, traditional leaders were not needed to resolve disputes. There was a need to debate how and when the court systems would operate.

There had been much discussion around illegitimate traditional leadership. Although this Committee could not deliberate on those issues, CASAC urged the Committee to think carefully about whether it really wanted a Bill that would confer so much power to an area of leadership that was highly contested. She noted the previous comment on NGOs’ roles and said that they did not speak for the people, but with the people. CASAC, for instance, consisted of esteemed legal experts but also those with direct and relevant experience on the ground. Had the NGOs not become involved, there would probably never have been any investigation into the textbook crisis in Limpopo. Parliamentarians had to be clear on whether they wished to proceed on their own, or wanted everyone to come together, and the role of civil society, and its right to intervene, must be recognised.

Ms Gasa said that the Bill’s adoption of a dual system was unfortunate and unconstitutional. She commented that even the SAHRC seemed not to be fully understanding of the situation in Botswana because it did not contrary to popular assumption, have a homogenous system.

The Chairperson asked Ms Gasa to talk to her own submission, and not comment on submissions of other organisations.

Ms Gasa pointed out that whilst the Constitution required recognition and promotion of customary law, and other traditional laws, rights, beliefs and culture, it did not say that separate systems should be set up. CASAC suggested that a person ought to be able to approach a Magistrate’s court to ask that a dispute be resolved, in that court, in terms of customary law. There must therefore be integration of systems and experts appointed to deal with it. The lack of the ability to opt out was seen by CASAC as a “non-starter”. There were examples of people being victimised when they called the police. Customary law, like every other belief systems, must be depended on whether the person wanted to opt in to the system.

CASAC said that the scrapping of the Bill would not, as some had suggested, result in any legal vacuum. If the DOJ wanted to affirm customary law, then it must do so. All that this Bill did was to give powers to traditional leaders that would enable them to continue to commit abuses, with the protection of the law. CASAC had long been lodging complaints about the abuses, but had been told that there was no evidence of this, and only in the last few days did the DOJ change tack and admit that it had recognised abuses. Instead of rushing to pass this Bill, DOJ must do its work properly, and where abuses were reported, the necessary actions, including criminal charges, must be taken.

Ms Gasa called upon Members to apply their minds carefully as to how to move forward. She cautioned that the Bill, by enforcing and entrenching a system based on colonial boundaries, in the face of serious contestations about traditional leadership, seemed to herald a return to the 1980s, when tribal authorities in the Matanzima area had become involved in cases that had nothing to do with custom, and this was still happening in other provinces. The Bill was contrary to the spirit of traditional justice. In some areas, for instance in Cala, it was not the tribal authorities who attended to disputes, but mediators who were recognised and elected for their wisdom and experience.

Discussion
Mr Makhubele commented that this was a comprehensive submission, and asked that it be sent through in writing to the Committee.

Mr Bloem asked Ms Gasa what the difference was between scrapping the Bill, and withdrawing it.

Ms Gasa was adamant that the Bill could not be panel-beaten, and it would never pass constitutional muster in its present form. In 2008, everyone had asked that it be withdrawn, and that was done, only to be re-introduced later. A total scrapping of the Bill, that would not allow for any re-introduction, would ensure that no more taxpayer’s money would be wasted. She was not sure how much money had already been spent on the Bill, but did know that various study tours were carried out, although the value of those was questionable, since they had included countries such as India, where the unequal caste system was rife, China, where customary law had long since been subsumed into the Communist party. Nobody should be comfortable with forced ethnic identities, in the same way that people who did not subscribe to those beliefs would be comfortable with imposition of Sharia or Judaic law. CASAC urged that instead of this Bill, the state must regulate abuses that were occurring, and state clearly what powers traditional leaders could have, as those abusing their power were bringing the dignity of traditional leadership into disrepute. South Africa was not the only country with traditional leaders, but it was not possible for a democracy to include monarchies that interfered with the lives of people on a daily basis. CASAC recommended that the state needed to recognise the powers of Chiefs, but that they could have a symbolic role, based on respect, but no substantive role that could adversely affect other people.

Mr Bloem noted on the previous day, the Minister of Women, Children and People with Disabilities had recommended that full consultation must be held, with sufficient time and space, and called for comment.

Ms Gasa reiterated that now that government had heard of the abuses, it had to consult with women and do something about them. The Traditional Leadership and Governance Framework Act was highly problematic, and segregation already existing should not be deepened.

A Member from the Eastern Cape Provincial Legislature member asked if CASAC was suggesting that the Bill actually blocked transformation, and whether CASAC was suggesting transformation of the current judicial system. He noted that some traditional courts were effective, yet there were abuses in other areas. He asked if CASAC saw a need to regulate practices, even if new legislation was developed.

Ms Gasa said that she believed that this was needed. People must be able to get access to justice, in a system that they chose to use. She stressed that part of the debate around transformation of the existing Western system was that it should be integrated, so that a person should be able to ask the Magistrate’s Court to try her case according to customary law. A definition was needed of what “transformation of the judiciary” must entail. CASAC did not want the independence of the judiciary to be subsumed to the whims of the ruling political party.

Mr Joseph asked if the Bill should not deal with both traditional leaders and customary law.

Ms Gasa noted that traditional leaders had hereditary powers, but currently they also derived their power from other issues. Reducing customary law to recognition and empowerment, at the expense of communities, was problematic, and that was what the Bill was doing.

Mr Joseph asked for clarity on the suggestion that people should opt into the system, not opt out

Ms G Swaartbooi, Member of KwaZulu Natal Provincial Legislature, wondered if this Bill was seeking to develop a fourth tier of government.

Ms Gasa repeated earlier concerns that when traditional leaders also could preside over a court and develop the customary law, this was in reality conferring an enormous amount of power on them as judicial, executive and legislative officers, despite their claims that they did not act alone. In some African cultural law systems, no inkhosi could sit when people led evidence and merely reviewed it. However, others followed a different route. The DOJ did not understand what prevailed on the ground at the moment. She agreed that there were three tiers of national, provincial and local government, but the Bill also condoned traditional leaders’ actions of assuming control over development, which they were doing by imposing levies and controlling land, which should be the role of the local government council. At the moment, in Eastern Cape, there were huge conflicts around the right to determine boundaries.

Ms Swaartbooi asked if CASAC was suggesting that a person charged with a criminal offence could ask that the case be heard in the Magistrate’s Court.

Ms Gasa responded that a woman living in a rural area was already isolated, and it must be recognised that a person should only be subject to a system that she recognised. Although DOJ spoke of the “dynamism” of customary law, it had in fact defined a customary law that was frozen in time. Under strict customary law, a person would be entitled to use legal representative, although it was not described in this form, and it would be ideal to have trained representatives.

Law Society of South Africa submission
Ms Martha Mbhele, Chairperson, Gender Committee, Law Society of South Africa (LSSA), said that the LSSA appreciated the efforts by Parliament to repeal the remaining sections of the Black Administration Act, but felt that the Bill was not the right way to do so, as it would confer too much power in traditional leaders and make it difficult to regulate their activities.

A question must be asked as to what level of training would be needed to make the traditional leaders experts in customary law, and what would enable them to understand the rules of natural justice. The attitudes of some traditional leaders also needed to change. Clause 12 of the Bill conferred enormous power on traditional leaders, and the decision of the TC was final. Furthermore, any order made by the TCs would be given the effect of a civil court judgment and be enforceable in the same way. She was concerned that no provisions were prescribed for proper recordal of cases, which made it very difficult to follow a proper appeal process, and the decisions had serious potential, including loss of property.

Ms Zenobia Wadee, Committee Member, Law Society of South Africa, said that the Preamble recorded the resolve to build an open and democratic society in which every citizen was equally protected, and clause 1 of the Bill took this further. However, the rest of the Bill did not reflect these intentions. LSSA was concerned about clause 5, empowering TCs to deal with civil and criminal cases. There were insufficient checks and balances. The Bill fostered power without accountability and blurred separation of powers, since unilateral powers were given to Chiefs, who would act as administrators, legislators and judicial officers. Rural dictators could reign supreme.

Clause 9(3)(1), which denied the parties the right to legal representation, was problematic and lawyers would not even be able to participate in criminal matters, which infringed against the right to legal representation. It was the duty of a legal representative to ensure that the client was not prejudiced, and many uneducated and indigent people would be denied the right to a fair trial. Clause 18, whilst making provision for recording a summary of the facts, did not require the keeping of a mechanical record, and this would make review proceedings difficult. Legal representation would have enhanced access to justice, since legal practitioners had a key role to play also in helping the court develop customary law and ensure its harmonisation with the framework.

Clause 19 provided for transfer of cases to the Small Claims Court or Magistrate’s Court, but only at the discretion of the presiding officer, and the parties could not decide to have their cases heard in the mainstream courts. It would be unjust if people were compelled to adhere to a traditional system that they regarded as illegitimate.

Careful consideration would have to be given to a training model for the TCs. Teaching by way of a manual was not always appropriate and material had to be created to resemble real life situations. In summary, the Bill had several clauses that could erode freedoms and South Africa must ensure that it abided by commitments in the Constitution.

Mr Busani Mabunda, Committee Member, LSSA, said that the LSSA felt that totally scrapping the Bill was not an option because South Africa had to take positive steps to repeal the vestiges of the Black Administration Act. However, he agreed that there were numerous problems with the Bill, and mechanisms must be found to ensure that the Bill aligned with the Constitution and its own stated objectives. In relation to the concerns about such wide powers being bestowed on traditional leaders, he suggested that one possibly workable solution would be that judicial powers instead be conferred on traditional councils, which would also address the concerns about representivity. It was possible to align customs with the rules of natural justice. From a jurisprudential point of view, South Africa was saddled with a court model that was based on the Roman-Dutch, English and common law. The Constitution was clear that customary law had to be given recognition and be on par with the dominant Western legal framework, and a more expansive approach was needed to ensure infusion and recognition. One way to do that would be to run customary law through the Traditional Councils, but to afford the right of appeal and review, as well as afford anyone the right to access the Western courts as well, which in turn would require the latter courts to make adjudications on customary law. This would probably have to be at High Court level. This would allow a new judicial ethos to be built, from a Traditional Council court, with the right of legal representation, recognition of audi alteram partem, and mechanical recordings, up to High Court level for determination of constitutional issues. The doors of access to justice should never be closed, as it was a moot point whether the current system affected rights and in fact resulted in restorative justice.

A critical point was the use of the word “court”. It should not be restrictively interpreted, and all rights currently enjoyed under the current model must be respected.

Discussion
Mr Joseph asked for an explanation of why mechanical recording was suggested.

Mr Mabunda responded that if “proper recording” was inclusive of mechanical recording, then LSSA would be satisfied. It wanted to emphasise that mechanical recording should be used for purposes of appeal or review, because hand-written notes could be manipulated.

Mr Bloem asked for further clarity on whether LSSA felt that the Bill should be scrapped or corrected.

Mr Mabunda said that ways had to be found to brainstorm and deal with the issues of what “customary law” meant. The customary law itself could not be scrapped, and no legal vacuum must be created. If the Bill were scrapped, this would extend the life of the BAA and the dominant laws of South Africa (Western laws) whereas there was a need for jurisprudence to be developed that was in line with the Constitution, and recognition of the fact that custom would evolve. He felt that the limitations of the Bill could possibly be addressed to ensure that the rights of people were not adversely affected, in line with the LSSA’s written submission. He agreed that if the Bill were to be withdrawn, there was a danger that it could still be reintroduced. He pleaded that sanity prevail, and people must be asked what they believed would be constitutional and exercise legitimate rights.

Mr Joseph wanted clarity on the “corrective measures” and asked how LSSA suggested that the NCOP should move forward.

Mr Mabunda said that some other institutions were already protecting vulnerable people, and the LSSA did not get involved in that work, but had suggested amendments. He reiterated that scrapping the Bill would still create a vacuum around customary law and would not address the colonial past.

Mr Joseph agreed that Parliament must do something to replace the BAA.

Mr M Madlala, Member of the KwaZulu Natal Provincial Legislature, said that some amakhosi were doing their job well, and were not necessarily as bad as suggested by some presenters. He asked for further comment on the potential loss of property mentioned by LSSA.

Mr Mabunda replied that if the decisions of the TCs were to have a similar effect to a Magistrate’s Court judgment, that could include sales in execution of property (but obviously not trust property).

A Member of the Eastern Cape Legislature commented that he was concerned that for Ms Mbhele to suggest that traditional leaders might be untrainable was insulting to traditional leaders as well as to herself as a black person.

Ms Mbehele apologised if her statement had been misconstrued, and said that her concern was that the Bill did not prescribe what the training would be. She believed that a short training period would not be sufficient to enable any judicial officer to fully appreciate the constitutional implications, the rules of natural justice, and court procedure. In relation to attitudes, she said that numerous examples of amakhosi exercising their powers abusively had been given, and said that furthermore attitudes must be changed to ensure that women and other marginalised groups, such as gays, did get fair treatment, and it was necessary also to encompass broader awareness into the training.

Mr Bloem emphasised that training would be important, and confirmed that Ms Mbhele had clearly posed a question as to what the training would be.

The Eastern Cape Member suggested that assessors and communities could be used to further the transformation agenda.

Mr Mabunda said that this was an idea that could be considered further. Judges were expected to have knowledge around customary law, and to dispense justice on any area. Consideration must be taken also to the oath of office.

Eastern Cape House of Traditional Leaders submission
Nkosi Zolile Bumo-Ncameshe, Deputy Chairperson, Eastern Cape House of Traditional Leaders, said that the State had a duty to create institutional arrangements that would promote the cosmopolitan character of society. The Bill was seen by the Traditional Leaders as an important instrument that would dovetail modern and traditional systems, as affirmed by clauses 2 and 3. An important feature was that restorative justice was emphasised against punitive systems, and this was important to counter the disintegration of society. The promulgation of this Bill would not only enhance traditional communities but also restore the integration of social institutions, especially families. Colonialism had made a total onslaught on the traditional systems and the courts had gone against the system of justice.

He read out Schedule 6 of the Constitution, noting that every existing court, including the courts of traditional leaders, should continue to function and exercise jurisdiction. Therefore the Bill was not proposing anything new, and instead customary law must be seen as work in progress. He emphasised that traditional leaders functioned through Councils, not as individuals. Clause 4 of the Bill would enable them, either as members of the Royal family or the Traditional Council, to exercise their functions with a reasonable degree of fairness, as envisaged in clause 7. They would be adequately capacitated, over and above the capacity bestowed by traditional, culture and heritage of their own community. The fact that a person was a traditional leader did not mean that he was less able to be trained or educated.

He said there were three main perceptions that had to be addressed. In relation to the opt-out clause, he questioned why the rights of the transgressor should carry greater weight than those of the victim who chose to recover through the traditional court. Secondly, the Bill did recognise the rights of women. The jurisprudence underpinning the Bill had to be understood within a broader context. Culturally, women played a pivotal role in decision making, and he did not understand why people were saying that women were discriminated against or their rights placed under threat by this Bill. Thirdly, he noted the concerns expressed that gays and lesbians would not get a fair hearing and said that TCs, like all other courts, were compliant with sections 33 and 34 of the Constitution, and no citizen’s sexual orientation was considered when dispensing justice. It was simply the rights of the parties that were considered, and the case of a gay or lesbian would be heard without prejudice.

The Eastern Cape House of Traditional Leaders supported the Bill as an important instrument to enhance the customary law, and said that it represented an opportunity to restore the pride of the nation, and represent the norms and values of the nation.

Ms Nosama Ndlovu, Attorney, South African Women Lawyers Association (SAWLA), said that she could not understand why the Bill was being queried. Firstly, in relation to the appeal systems, she noted that the decisions of the Small Claims Court were final, yet this had not resulted in an outcry. SAWLA applauded the DOJ for taking these steps to recognise the status of TCs. The Bill noted the need to “affirm” recognition of traditional justice systems and values. None of the speakers had denied the existence of the traditional justice system. In any system, there would always be dissatisfaction with procedures.

Ms Ndlovu claimed that appeals were possible, and said that the requirements of clause 9 that receipts must be issued was applauded. She noted the calls for mechanical records to be kept, but said that even if this was done, there could still be difficulties, as there might be lack of understanding on the nuances of language, or mis-translations, or inaudible gaps.

The Bill was about recognition of people who had chosen to live their lives according to the traditional systems and it sought to regulate practices, said that the rules of natural justice must apply, provided for certain procedures and there would be measures against those acting corruptly.

SAWLA did have some concerns about training. The country was “infested” with many Western values, including systems that were not even South African, and the training for the TCs must emphasise the local way of living and presiding over cases, with the curriculum being designed by the Traditional Leaders themselves, who were the only experts in the field. Traditional Courts must be made to operate better rather than Magistrate’s Courts systems being imposed. If the Bill was about access to justice, it should not be criticised as something from the colonial past. Various experts and traditions must be included in the training programme.

Ms Ndlovu reiterated that no legal representation was allowed in the Small Claims Court. It was also not allowed in the Commission for Conciliation, Mediation and Arbitration. In the TCs, family representation was allowed, so that people were indeed allowed to set out their viewpoints. SAWLA urged that the Bill be taken forward, with the necessary amendments that would improve it further.

Discussion
Mr Joseph noted that everyone agreed on the need to recognise customary systems and structures. However, he remained concerned that many practices were not considered reasonable, and the rights of women were not given full recognition. He asked if SAWLA had never experienced abuse of power over women, and excessive power being exercised by traditional authorities. He pointed out that many people were not opposed to the system, but the way it was being applied.

A Member of the Eastern Cape Legislature raised a point of order, saying that this question was asking about the presenter’s personal experiences and was irrelevant.

Mr Gunda asked if SALWA thought the Bill was regarded as constitutional, especially as it seemed to be in conflict with constitutional rights of children.

The Chairperson noted that it was incorrect for Mr Gunda to say that the Bill was unconstitutional, since the Constitutional Court had not made a ruling on this point.

Mr Gunda rephrased his question, and asked if the presenters believed the Bill to be constitutional.

The Chairperson said that the presenters should not be required to answer that question..

Mr Gunda asked if the Eastern Cape Provincial Legislature had been satisfied on the degree of consultation that had taken place.

The Chairperson ruled that the presenters should not respond to that.

Mr Gunda asked if only traditional leaders could be trained as presiding officers.

Ms Ndlovu responded that in order to preside in the TC, the person would have to be a traditional leader.

Mr Bloem asked for the views of traditional leaders on gays and lesbians.

The Chairperson ruled that this had been addressed in the presentation.

Mr Bumo-Ncamashe responded that the TCs would be dealing with citizens who had contravened sections of the law, or transgressed another citizen’s rights. The question of sexual orientation was irrelevant in this context. In an evolving developmental state, people were subject to different influences, and therefore most of the challenges required extensive engagement by society, which must say how it wanted to deal with “features within the context of human rights and all other instruments that sought to ensure that there was harmony, peace and order”. People should not be narrow-minded and subjective, but exercise a degree of maturity that would determine the legacy for those in the future.

Ms Ndlovu added that traditional leaders were presiding over human beings. The question may be raised as to what the custom was.

Mr Bloem noted that a number of lawyers had contradicted each other, during the hearings. He asked if it was suggested that there was a corollary between the Small Claims Courts and the TCs, in relation to legal representation.

Ms Ndlovu said there was not, because the law applied was different.
 
Mr Bloem wanted to hear more about SAWLA’s view on the right to appeal.

Ms Ndlovu said that the right to appeal was set out in the Bill. The accountability clauses were important, since this Bill, for the first time, prescribed requirements for records, receipts and so forth. The Bill sought only to formalise what had been in place for many years, and to regulate existing practices. SAWLA did accept that there was a need to refine the Bill but supported it.

Mr Bloem said that the Minister of Women, Children and People with Disabilities had called for the right to appeal. He also noted other suggestions by that Minister in relation to rural taxes, training and a possible Code of Conduct for judicial officers, and called for comment.

Mr Gunda asked if SAWLA was disagreeing with the Minister’s call for amendments.

The Chairperson noted that the presenters could not comment on the Minister’s views. 

Mr Peter Mahase submission
Mr Peter Mahase, Headman, Eastern Free State, said that customs and traditional values had to be practiced, valued and elevated, as well as aligned with the Constitution. He stressed that under a proper customary law system, when laws were implemented, there must be prior consultation with heads of families and leaders, and nothing must be ordered that was opposed to customary laws. He agreed that there were some traditional leaders who contravened the very same laws that they claimed to uphold, but urged that this be seen as individual conduct, and not indicative of the whole institution. Most of those who contravened the laws were apprehended, and in most cases, shown where they had gone wrong.

Customs and tradition should be honoured and be respected at all times. Traditional leaders should be given the respect that they deserved, and if this was done, matters in communities would proceed smoothly, as any disputes or concerns could be taken through to the leaders, and resolved in a transparent way, with community involvement. Every clan deserved the same kind of respect. Family disputes would have to be reported to the head of the family, and proposals would be made on how the issues could be resolved. The process could then be elevated, if necessary to the Heads of Traditional Leaders, Chief of the area, and Principal Chief. When traditional leaders made decisions, this would be announced to the whole community, so that everyone would know the new way of practicing within that culture group. The deliberations were open and transparent so that members of the community were aware of each and every step throughout. Traditional Councils would not sentence anyone to imprisonment, but would only advocate for reconciliation.

Mr Mahashe said that another important aspect was that a wrongdoer would be given the opportunity for introspection, to approach the person wronged, to apologise, and sort out the matter. If any damage had been incurred, the perpetrator would have to give restitution.

Mr Mahashe stressed that in practice, many matters were resolved at the Traditional Council. Women were given proper and sufficient support, either by their partners, who were heads of the family, or another person with the traditional right to support that family. Those with disabilities were supported in the same way. Children would be reprimanded by their parents. Both the complainant and the alleged perpetrator would be given the chance to speak and question each other, and would receive a fair trial. The language that was used was not abusive to any person. All of this was known to the community. The head of the family, the headmen, traditional leaders and the head Chief all must be considered, as all carried responsibility and the mandate of keeping peace and order within the community.

Mmuthi Pilane, representing Motlhabe Community: submission 
Mr Mmuthi Pilane, Chairperson of Motlhabe Village Traditional Clans, said that he was also a representative of a traditional leader, and was saddened to hear how some speakers’ experiences differed from his own. His father, a recognised Chief, passed away in 1999. The pretender to the Chieftainship was Chief Nyalala, who, at one stage, had been found guilty of misusing R42 million of community money, yet was given only a five-year suspended sentence. Government knew very well about the situation, but kept on working hand in hand with him. Various offices had been approached to lodge complaints, including SAPS and the Commissions of Inquiry, and a Constitutional Court case was pending in relation to various claims, yet there had been no positive results on the problems. If this Bill was passed, Chief Nyalala would have the right to ban him from the village.

He briefly summarised that a land claim had been launched over land that was gazetted in 2005, but a mine had been in operation for five years. In the last two months, there had been a report that Chief Nyalala had sold mineral rights of the community without consulting with the people of that area. President Zuma had been asked to intervene, but without success. Chiefs in the North West were “nothing but corrupt”. Chief Nyalala, who was related to him, claimed the title, but had no land and no right to the title, and even though he had told the Land Claims Commission that his own claim could be proven by him pointing out his ancestors’ graves, they had not asked him to do so.

Mr Pilane was requesting that there should be new consultation, and that government return to the drawing board. He was concerned that the provincial public hearings required people to come into the urban areas, although rural issues were involved. The consultation should be directly with the people and many people did not understand what the Bill was about. The Committee must come and see what was happening. Provincial government was not working It was a matter of great sadness to him that his farm, on which all his ancestors had been born, was being claimed by another person.

The Chairperson asked him to confirm how these statements related to the Bill.

Mr Pilane said that he wanted to demonstrate that abusive actions by the Chief had been ongoing for some time, and the passing of the Bill would make his own position even worse. In theory, all problems should be referred to Headmen and then to the Traditional Court, and the Chief should be working with the community, but there had been no consultation with his community by the Chief, which was why the matters had ended up in the Constitutional Court. His community was concerned about lack of consultation.

Discussion
Mr Makhubele asked for clarity how the Chief managed to get that status, when he did not have land.

Mr Pilane replied that he had referred to Chief Nyalala as “the so-called Chief”. There were doubts about his status. Effectively he had hijacked himself into that position. The rightful leaders were from the royal family.

Mr Bloem advised the presenter to approach the Petitions Committee, to follow up all the allegations.

Legal Resources Centre (LRC) submission
Mr Sheldon Magade, Attorney, Legal Resources Centre (LRC), referred the Committee to both the detailed submissions and the shorter document that he tabled. He gave a short background to the Centre, noting that much of its work was focused on representing poor and rural communities, including Mr Pilane’s village.

LRC firstly commented on the constitutionality aspects and said that section 8 of the Constitution said it would apply to all law and that any law or conduct inconsistent with the Constitution would be invalid. The Bill could not pass constitutional scrutiny, for a number of reasons. Firstly, it failed to allow those who did not wish to be subject to the TCs to opt out. The prohibition on legal representation could not be justified, as it infringed the rights of accused.

Even if it was possible to “panel-beat” some provisions of the Bill, there would remain two other major constitutional difficulties that could not be overcome. Firstly, the Bill failed to separate  the legislative, judicial and administrative functions, since the TCs would be the exclusive forum in which the disputes would be determined. Where there was a dispute concerning the nature of the custom to be applied, the presiding officer would be determining the law, and that was in direct conflict with the concept of separation of powers. It was unclear how courts, tribunals or forums must “develop customary law” to promote the objects of the Bill of Rights. In Western systems, the appeal structure allowed for legal development, and if restrictions were placed on the right to appeal, this in turn limited the possibility of the law developing. If customary law was not allowed to develop, it would forever remain the “stepchild” of the legal system. In addition, the prohibition against legal representation would make it difficult to allow for development of particular issues of customary law, and unless there was more clarity on the sanctions the Bill would not pass scrutiny. This was addressed in more detail in the submissions already made in writing.

Discussion
Mr Gunda commented that LRC had suggested that the Committee had not received sufficient information to allow it to evaluate the Bill properly, and asked how long it might take to get all the information before the Committee.

Mr Magade said that it would be difficult to give an exact time. There was a need for consultation with rural people. Mr Pilane had noted that many people did not even know about the Bill. Consultation with some interest groups, but not others, and not with the communities who would be called to appear before the TCs, could not be regarded as proper consultation. 

Mr Gunda asked for clarity on the comments on section 39 of the Constitution.

Mr Magade clarified that LRC believed there to be two primary reasons why the Bill was unconstitutional. Firstly, the Bill did not allow for legal representation, and this issue had formed the subject of a case dealing with regional court appearances in the former Transkei. Secondly, the Bill failed to provide equal protection to all citizens under the law, and that was a more fundamental principle. Then, there were problems with the separation of powers – and this would persist whether the decisions were made by the TCs or Traditional Councils.

Bafokeng Land Buyers Association submission
Mr Thusi Rapoo, Secretary, Bafokeng Land Buyers Association, said that this might be the only opportunity for the Bafokeng to speak about its problems. The Bafokeng Land Buyers Association (LBA) was an association of communities and people who resided within the Bafokeng tribe, which consisted of 29 villages. From 2006 the tribe had been worried about the way in which the Bafokeng Chief and his Traditional Council were dispensing authority. He noted that the LBA was involved in a land claim dispute, and played a short video clip from the UK Channel 4 outlining the problems.

Mr Rapoo said that there was not a good enough understanding of the dynamics behind Bafokeng. It was not a homogenous tribe. The area was divided into a number of farms, with about 61 of them being registered. The claims of individual families dated back to 1906. Communities were also settled on farms, and they claimed to have bought their land separate from the farms, but they did not have user rights for grazing on some of the land. The communities had their own lekgotla, and one community included people of Ndebele origin who observed their own cultural practices, whilst others were very different from the Bafokeng who were originally from Lesotho.

Over the years, the community councils had been effective in resolving disputes, and some disputed the authority of the Bafokeng Chiefs to allocate land. The LBA had, in 2008, expressed its concerns about the Traditional Leadership Governance and Framework Act, to the North West Provincial Legislature. Mr Rapoo emphasised that without the historical land claims and disputes being first resolved, that Act should not have been passed, and he stressed that the Traditional Councils were themselves fraught with problems. For this reason the latest proposals by the Department of Justice would not solve the problem.  A number of Bafokeng did not regard themselves as subservient to the Bafokeng Traditional Council.  60% of councillors were nominated by the Chief, and clearly not impartial, and even some of the other 40% elected by the community could have their own interests at heart. The problems inherent in the powers conferred by the Bill would not be corrected if the judicial power was moved to the Traditional Councils.

Many people were not comfortable in raising complaints against the Chief, and over time this had been internalised by the communities. Currently, the mining companies rather than the State were using the tribal authority to advance control over the areas, and this was apparent in the fact that tribal police were being used to demolish shops in the village, but complaints to the SAPS resulted simply in a referral back to the Chief, whilst the local municipality insisted that permission had to be sought from the Chief, not the municipality, for any marches, including protests against the Chief. Some violent demonstrations had led to arrests, with young girls, in particular, being arrested for no reason and being held for up to two weeks in holding cells in the local police station. The influence of the Traditional Council and Chiefs, including into organs of state, was huge and had to be limited.

Mr Rapoo said the position of foreigners had to be considered. In his area, backyard buildings were being rented out to mine labour, who not only hailed from different ethnic clans but sometimes from different countries, and these people should not be subjected to either the TCs or Traditional Council. He concluded that the Bill would be a veil for rural oppression. He agreed with Mr Lamson Maluleke that many Chiefs were simply waiting to seize more power if the Bill was passed, and would use the tribal police to enforce their views and sanctions. It was not outlined how they would be regulated. The Bill failed to take account of the family and community council levels of dispute resolution, which had worked well for many years. The Bill was distorting true customs and traditions.

Mr Rapoo noted the concerns about the Bill expressed by the majority of presenters. He agreed that the Bill must be scrapped. It should not be withdrawn, for fear that it would again be re-introduced, and it was not capable of being brought into shape by amending some clauses. The NA had already noted that it was unlikely to pass constitutional muster. The very substance of it was grossly flawed. He requested that anyone in Parliament who may have spoken out against it in 2008 should ensure that it must be scrapped.

Commission for Gender Equality (CGE)
Mr Mfanazdwe Shozi, Chairperson, Commission for Gender Equality, noted that the CGE had been involved in the processes on the TC Bill since 2008, and was dismayed that CGE had been excluded from the processes of the public hearings.

The Chairperson said that the CGE could not dictate to the Committee how it should shortlist those from whom it wanted to hear oral presentations.

Mr Gunda supported the Chairperson, adding that the Committee had tried to ensure a fair representation of views. He furthermore pointed out that although the CGE in fact had not been shortlisted, it was being allowed to present, and he did not appreciate the attitude displayed.

Mr Shozi proceeded with his presentation. The SADC Protocol required South Africa to put in place legislation that would ensure equal treatment of all in TCs. However, any legislation must pass constitutional muster and protect rights of both women and men. The CGE acknowledged the role of the TCs, but believed that they must pave the way for transformation. Although clause 3, the guiding principles, said that the Bill was aligned with the Constitution, some clauses were actually contrary to it. These were the lack of a right to appeal, the fact that no legal representation was allowed, the fact that jurisdiction was imposed on individuals, and the failure to take into account the full range of structures. The fact that presiding officers may be exempt from training meant that differential treatment of presiding officers was given, and this must be revised.

CGE had received many complaints by widows deprived of their matrimonial property by the family of her deceased spouse. These were unlikely to be settled fairly by traditional leaders, who were mostly men. There were severe concerns about the conflicts and lack of recognition of the principle of separation of powers. The fact that TCs would be allowed to judge disputes of a criminal nature violated individuals’ right to a fair trial, particularly since no legal representation was allowed, which meant that the same offence could be treated differently in the TCs and magistrate’s courts. The fact that sanctions could include forced labour and deprivation of benefits that may accrue under customary law was also problematic, as it could impose a further burden on those already impoverished and disadvantaged.

Mr Shozi said that clause 9 prohibited legal representation and he said that even though one spouse may represent another this did not translate to gender equality. The inclusion of a penalty clause to ensure compliance would be useful. CGE was also concerned about whether gays and lesbians would be fairly treated. Since many traditional leaders regarded them as “ unholy”, there was a strong likelihood of bias and at the very least a clause should be inserted that would protect their rights.

CGE concluded that whilst it appreciated that legislation was a Parliamentary prerogative, it wanted to place on record that despite being hotly contested in 2008, and then withdrawn, this Bill had never been corrected. He urged that the committee should exercise all its powers to overhaul and amend the Bill substantially, and if it was not able to do that then the Bill must be abandoned. South Africa had signed a number of international instruments which could be used as a tool to assist in the re-drafting of a law that would be Constitutional and observe all the international obligations.

Discussion
Mr Bloem asked what the CGE would regard as the “requisite qualifications” to which it had referred.

Mr Shozi suggested that legal qualifications would be desirable, particularly if matters were referred on to other courts.

Mr Bloem referred to the statement that gays and lesbians were perceived as “unholy” by certain traditional leaders, and asked for examples.

Mr Shozi said that although he could not mention names now, the CGE could provide illustrative examples, and he had evidence that gays and lesbians had been beaten.

Mr Joseph wanted clarity on the term “forced labour”. More than one organisation had referred to that, although he was not sure that it was included in the Bill.

Mr Shozi noted that in traditional communities, a woman who was convicted of an offence and could not pay a fine would be told instead to work for the traditional leader. This would impact only on the poorest sectors of the community.

Mr Bloem asked for clarity on appeals.

Mr Shozi said that the Bill did provide for approaches to the Magistrate’s Court but appeals would, in practice, be very difficult for women to pursue.

The Chairperson thanked everyone who had made a presentation and he said that the Committee would be meeting to discuss all submissions before coming to a conclusion.

The meeting was adjourned.