Traditional Courts Bill [B1B-2017]: consideration of C-List of amendments

Meeting report

The Chairperson welcomed everyone in attendance. She stated that all negotiating mandates from the provinces have been received and a meeting will be convened to deal with the Recognition of the Customary Marriages Amendment Bill.

Presentation of C-List amendments

Ms Theresa Ross, State Law Advisor, Department of Justice and Constitutional Development (DOJ&CD) presented the C-List of amendments to the Traditional Courts Bill in a clause-by-clause fashion.

[See attached document: Proposed Select Committee Amendments to Traditional Courts Bill[B1C-2017]

Clause 1 & 6

Omits “Traditional Leadership and Governance Framework Act” and to substitute “applicable legislation providing for such recognition”.

By doing this, it will include other legislation such as the Traditional and Khoi-San Leadership Act 3 of 2019. This goes for the amendments of clause one and six. Although the Traditional and Khoi-San Leadership Act has not yet been implemented, it outlines different levels of leadership. Clause six of the Traditional Courts Bill needs to include these different levels of leadership such as herdsmen, senior leaders, king and queen etc. 

Clause 11

Makes a correction to a reference that was incorrectly referenced.

Clause 16

Provides for a code of conduct for traditional leaders and persons who play a role in the traditional court. It requires the Minister to compile this code of conduct in consultation with the National House of Traditional Leaders (NHTL). Should the Minister act in consultation, it means the Minister would need to consult before reaching a decision. The risk is that the Minister may be hindered from carrying out his/her statutory functions. However, if the clause states after consultation, it means only due regard must be taken of any person with whom the Minister is required to consult with. The Minister will not be required to obtain agreement from the person whom the Minister consults.

Clause 16 has been amended to change the breach of code of conduct from the Provincial House of Traditional Leaders to the Member of the Executive Council. This is to prevent the Provincial House of Traditional Leaders being the judge in its own court.

Clause 18

Makes it clear that once this Bill is enacted, section 12 and 20 of the Black Administration Act is repealed. The Traditional Courts Bill does not provide for this. Clause 18 therefore makes it clear that section 12 and 20 of the Black Administration Act will be repealed by the enactment of the Traditional Courts Bill.

Clause 19

Corrects the reference to the short title of the Bill. It reflects that should the Bill be enacted, then it will not be a Bill of 2019 but rather of 2020.

Ms Suraya Williams, Chief State Law Advisor, DOJ&CD, stated that she was in agreement with what was presented by the Department regarding the proposed C-List of amendments to the Traditional Courts Bill. In terms of clause 18, it is important that the repealed law be explicitly stated and not abstractly documented or assumed.

Consideration of amendments and adoption of Bill

There were no questions of clarity and Members expressed that the proposed amendments were clear.

Ms M Bartlett (ANC, Northern Cape) moved to adopt the Bill

Ms Z Ncitha (ANC, Eastern Cape) seconded the Bill.

Mr I Sileku (DA, Western Cape) stated that the DA is abstaining from this vote.

The Chairperson said the amendments will go to provinces for conferral of their final mandates. The abstention from the DA is noted.

Consideration of Committee minutes

Minutes dated 21 October 2020

The minutes were adopted.

The meeting was adjourned