Traditional Courts Bill: public hearings (day 2)

Meeting report

Traditional Courts Bill: public hearings (day 2)
Land Access Movement of South Africa (LAMOSA) submission
Ms Constance Mogale, Director, Land Access Movement of South Africa (LAMOSA), wanted to address issues of land and agrarian reform, and the implications of the Bill on women and land rights. She noted that the Constitutional Court, after it had declared the Communal Land Rights Act unconstitutional, had ordered Parliament to write new legislation, but that had not happened, so there was currently a legal vacuum. That judgment was overlooked when writing this Bill. The centralising of judicial power under the presiding officer of the Traditional Court (TC) and the Minister meant that there would not be transformation of the land system.

The National Traditional Affairs Bill, which attempted to rectify some issues of the Traditional Leadership Governance and Framework Act (TLGFA). The Minister of Rural Development and Land Reform was busy with the Green Paper on Land Reform. Land included all resources – and the Departments of Environmental Affairs, and Mineral Resources were also involved. She questioned how the Traditional Courts (TCs) could preside over all these cases, and whether current family law would be taken into consideration. LAMOSA feared that the Bill could exacerbate problems of land ownership and occupation. The TCs would potentially have to deal with a host of complex issues.

LAMOSA believed that there was an inadequate appeal system and without legislation covering Communal Land Rights, magistrates would be empowered to refer matters back to the TCs. This did not provide any comfort to those who had little confidence in the traditional systems.

Ms Mogale commented that the Bill did not respect the separation of powers, as a claimant dispossessed of land would have to lodge a complaint against a tribal authority who was interested in the land himself. An appeal to the Minister was in reality not accessible to most women, and this ran contrary the assertion that the Bill would bring customary law in line with the Constitution. Communal Land Rights were open to serious conflicts of interest.

Ms Emily Tjale, Representative, LAMOSA, speaking through a translator, outlined some of the practical problems facing women. Women were unable to work with the TCs. Women should be given the chance of being presiding officers. A woman was not permitted to approach the Chief directly, to request land, and her request would become distorted in translation. There were also problems around marriages and entitlement to land and grazing rights. The Bill should set out clearly what needed to be done. Women must be able to represent themselves, and be granted equal opportunities. LAMOSA felt that at least 30% women should preside in courts. The Bill should be withdrawn and reconsidered.

The Acting Chairperson noted that the Bills mentioned by Ms Mogale would be dealt with by the National Assembly (NA), and not this Committee. The Bill had, however, been presented to the NCOP. The public must assist the MPs to deal with the Bill in the correct way. This would be done through the provinces expressing their views and giving their representatives in the provincial legislature a mandate. He stressed that the Bill could not be withdrawn at this stage, because it had already been introduced into Parliament.

Several representatives of organisations expressed unhappiness at this statement.

Ms Mogale concluded that the Bill should not be able to deal with any aspects of land until a proper legal framework was put in place. There must be a coherent framework for customary law. TCs must be subject to the same checks and balances as other courts, including review and scrutiny by the Constitutional Court and Chapter 9 institutions. All office bearers in the TCs must have the same training as the Magistrate’s Court officials. It was undemocratic for the Minister to be the sole decision maker on several issues. Clear checks and balances must be included to ensure that presiding officers did not discriminate. This could include training women community leaders, allowing women to sit as presiding officers, and according priority to women’s access to justice, political empowerment, and access to property. Traditional leadership must be accountable to Parliament and oversight structures, and work to eliminate gender discrimination.

Discussion
The Acting Chairperson asked Members to confine themselves to asking questions of clarity.

Mr D Bloem (COPE, Free State) said the recommendations would assist the Committee. He asked that these be submitted in writing. He noted that on the previous day the National House of Traditional Leaders (NHTLs) had claimed that women did preside over some cases, and he asked for comment from LAMOSA on that point, in light of its plea for empowerment. He also questioned how the Bill affected succession rights.

Mr L Nzimande (ANC, KwaZulu Natal) wanted to follow up on the remark of Mr Matila, by setting out the context of the Bill. At the moment, Parliament was in the middle of the process. The process had begun with the Department of Justice and Constitutional Development (the Department) formulating policy, and the Bill was referred to the NCOP in January 2012. Public hearings had been held in the majority of provinces. The hearings this week in Parliament would add to what the provinces had already done. Provincial legislatures would come together after this process, to present their negotiating mandates, would hear further from their representatives, and then present their final mandates to the NCOP.

Mr Nzimande asked for clarity on LAMOSA’s comment about the legislative vacuum.

Mr Nzimande asked if LAMOSA was able to participate in the provincial hearings.

Mr V Manzini (DA, Mpumalanga) commented on the question of division of marital assets that did not take into consideration the woman’s responsibilities for her children, and the fact that women were disadvantaged. He asked for further comment on lobola, and said that consideration was in fact given to the relative wealth of the parties on divorce.

The Acting Chairperson noted that at the Commonwealth Conference, South Africa was applauded for having 50% representation of women in Parliament. He wanted this to be clearly seen against the comments that women were suppressed, and in light of the requirement also for 30% representation on Traditional Councils. He asked for further comment on the concept of “equality”, saying that it was not so much to do with women, as people who would deliver properly.

Ms Mogale asked the Acting Chairperson to listen carefully and to facilitate questions of clarity, rather than putting his own position.

Ms Mogale assured Mr Nzimande that she clearly understood the process. However, it must be remembered that LAMOSA did not have a chance to speak during Committee meetings, and this was the only opportunity that she would have to plead that the Bill be scrapped.

Ms Mogale informed Mr Bloem that all the recommendations of LAMOSA were already in writing and had been submitted to the Committee.

Ms Mogale noted the NHTL comment but doubted whether there had ever been concrete proof provided that at least 30% of the structures were comprised of women, as prescribed by the TLGFA.

Ms Mogale clarified that her question relating to the legal vacuum asked how it would be possible for TCs to adjudicate on land accesses, when there was no Communal Land Rights Act against which to measure.

Ms Tjale answered the question on the marital property rights. The Bill noted that TCs could not consider custody matters. However, she was of the view that the Bill also needed to cover succession matters, since women were often unable to write their own wills, and the traditional passing on of land was either not happening, or there were issues between siblings.

Mr Manzini asked a further question around payment of lobola, and the position on divorce. He suggested that the financial position of the husband had to be considered, and not only one side.

Ms Tjale responded that women were currently required to approach the Magistrate’s Court for an order dividing the joint estate. The Bill should perhaps relax the system to deal with the matters at TC level.

Mr T Mofokeng resumed the Chair at this point.

Mr A Matila (ANC, Gauteng) reminded the meeting that the public hearings should be concerned with what was in the Bill, and not with the processes of customary law. He thought that it would not assist the meeting to continue to ask specific questions on issues that were not covered in the Bill.

Ms Tjale stressed that the Bill should be withdrawn, and the process should commence again.

Ms Nomboniso Gasa, Representative, Alliance for Rural Democracy, said that if the NCOP had already made a decision on this Bill and what it should contain, this should be stated up front, so that no further time was wasted.

The Chairperson said that no decision had been made on this point.

Ms Gasa pleaded with the Chairperson and Members to allow her to speak unhindered. Mr Matila had said that LAMOSA should not call for the withdrawal of the Bill. However, this was an honest recommendation from LAMOSA, and its point should be noted, not dismissed out of hand. LAMOSA was setting out people’s experiences on the ground.

The Chairperson clarified that Mr Matila had been trying to say that the process was with the NCOP, and that the Department of Justice therefore could not withdraw the Bill. The processes in the NCOP must be allowed to continue.

Mr Bloem said that it was never the intention that people should not be allowed to express their views.

Mr Nzimande said that that he had explained the process, but the presenter had rejected that explanation. A shortlist of submissions had been made. If there were experts supporting other groupings, he requested that they should assist. He was not suggesting that people should not talk, but the correct engagement processes should be followed.

The Chairperson agreed that only those making presentations and responding to questions would be permitted to speak. He understood that some people were calling for the withdrawal of the Bill but there were others who supported it. The purpose of these hearings was not to debate some of the general points, but to get the views on what product would be finally acceptable to the people.

Ms Mogale said that she believed that women were, even in this meeting, being intimidated. She reiterated that this was her only chance to raise her views, and said that she was not intending to be disrespectful but that she was calling for a proper hearing. Parliament had the power and resources to pass this Bill, but other groups would be prepared to challenge it, and it was quite likely to be rejected in the Constitutional Court. LAMOSA was not against the institution of traditional leaders, but was calling for the scrapping of this Bill.

Mr M Makhubele (COPE, Mpumalanga) asked that the Committee be stricter in its approach to the questions. Only questions of clarity should be allowed, and Members must take a balanced view of the submissions and debate them fully at a later stage.

Silwanendlala Ubuntu Farmers Agricultural Cooperative
Mr Solomon Dlabuza, Chairperson, Silwanendlala Ubuntu Farmers Agricultural Cooperative, said that people in his area feared that the Bill would be used by the Chiefs against the ordinary people. He pointed out that when communities created customary law, they supported genuine Chiefs. However, apartheid structures had created a different system and it was being perpetuated, and the Bill would make it worse. Currently, many of the Headmen had no genuine claims, and had merely acquired power through working on farms in the past. The continuing positions of power resulted in confusion. Mr Dlabuza himself had been happy to work with the Chief, whom he respected, but pleaded that government should seek out the genuine chiefs. People were frustrated at the fact that those who did not have genuine claims were trying to hold on to power.

He detailed how Chiefs without genuine claims were ignoring the plight and problems of the people that were brought to them, and said the Bill would worsen the position. In his village, the people consulted with each other, and formulated strategies for their survival. In 1995 a piece of land was given to the community, but the Headmen had complained that it was too large and annexed part of it, allowing the community only 400 hectares. The original land size could have allowed for employment of 250 permanent workers, but this number now had to be substantially reduced. Maize had been planted, and a good crop was expected, but the Headmen had then allowed cattle on to the land, destroying the crops. This had led to a protest by women in the area, and they were taken to the Magistrate in retaliation.

The community had taken some reasoned decisions, such as building a new mall, that would allow for employment of youth, and although the project commenced, the tribal authorities had then insisted that money earmarked for development should instead be paid to their own coffers. The current pretender to the Chieftainship was actually living in Swaziland, and was not even a citizen of South Africa, so he clearly could not understand the problems of the country. There were problems around double-taxation, with foreigners being required to pay even more, and government was working with the wrong statistics that did not reflect the true position on the ground. Schoolchildren were crossing the border from Swaziland to be educated in South Africa. People were still paying tribal tax, which dated back to 1949. Whilst it was originally intended to allow the successors to chiefs to be educated, it was now clearly anachronistic. Permission to Occupy (PTO) permits did not allow residents to establish proper relationships with banks, and Property Associations were pleading for government to help them get proper title deeds. He pleaded that Parliament must solve the problems that existed on the ground now, before considering how the Bill should be formulated.

Discussion
Prince M Zulu (IPF, KwaZulu Natal) asked for clarity around the PTO permits.

Mr Dlabuza explained the difference between the PTO and a title deed. The PTO was based upon place of birth and automatic entitlement, whereas title deeds related to land that was purchased. Only those who were not born in an area were entitled to buy land there and receive title deeds.

Mr Bloem noted the reference to the Swaziland Chief ,and asked for further clarity.

Mr Bloem asked for more clarity on the chiefs without genuine claims to this position.

Mr Manzini said that about two months ago one of his constituencies had celebrated the appointment of a Swazi king, but later there were allegations that the claims were false.

The Chairperson noted that the Nhlapo Commission had dealt with leadership claims and they should not be discussed by this Committee.

Ms N Swaartbooi, Member of the KwaZulu Natal Provincial Legislature, noted that her family member had purchased land from the local chief for R25 000. In other areas, people were being asked to pay substantially more for land. However, these people were still liable to be evicted because they were never given possession of title deeds.

Mr Manzini said that there were indications of some corruption by the amakhosi in his areas.

Women’s Legal Centre submission
Ms Jennifer Williams, Attorney, Women’s Legal Centre (WLC), noted that the WLC was a public interest law centre, registered with the Law Society, that sought to provide services to indigent women. Over the last ten years it had been asked to help women with problems in customary law and civil courts. It was a research and advocacy organisation, and had been involved in harmonisation of customary law. It had been involved in the Constitutional Court judgment around primogeniture, and with other important cases around polygamous marriages and claims for support.

The WLC felt that it was important to look further than tokenism or setting quotas of women, and look at how the law took into account the real needs of women.

Other presenters had already covered a number of points. The WLC said that most people were aware that so-called “customary law” had been “tainted” when the oral traditions were reduced to writing, since those asked to relate the law were senior traditional leaders with their own agendas. The “official” form of this law, when reduced to writing, did not take into account the experiences of women and it would not have developed in this way had women been involved in that process.

The Constitutional Court had considered the manner in which customary law should be applied. It too had commented that current systems were tainted, and there should instead be adherence with living customary law, as practised within communities. Women should be allowed to state what they required. The Constitutional Court, in a prior case, had allowed that a woman be declared a Chief, in line with the wishes of the community, and this emphasised that customary law was not stagnant, nor set in stone. Customary and living laws had to be developed in a Constitutional context. The Constitution imported customary law into the common law, and it should in fact be applied in all courts, including mainstream courts, subject to the Bill of Rights, including women’s rights to practise and develop their own culture, and their rights of access to justice. There should not be mere lip service paid to empowerment. Measurements had to be put in place to look at content, development, and women’s experiences.

Ms Williams cited the example of the Recognition of Customary Marriages Act. Customary laws, under apartheid, were generally regarded as being out of community of property. However, when the South African Law Reform Commission (SALRC) held workshops, women resoundingly rejected that concept, and so the Act had created a default of customary marriages being in community of property. This demonstrated how customary law developed.

Ms Williams noted South Africa’s international obligations. The Convention on Prevention of Elimination of all forms of Discrimination against Women, required South Africa to accord to women exactly the same legal capacity, for civil matters, as was accorded to men, as well as the same treatment at all stages of courts and tribunals. Article 14 stressed that problems faced by rural women must be taken into account and addressed. The Protocol to the African Charter on Human and People’s Rights required the elimination of harmful cultural and traditional practices, and said that existing discriminatory laws and practices must be reformed, and women should be represented equally in the judiciary and law enforcement, and participate in the determination of cultural policy.

The WLC felt that the current Bill fell far short of these high standards, and urged that the Bill should not be seen in isolation of real issues on the ground. The fact that it did so now was the reason why so many submissions were made. The WLC supported the call for a withdrawal of the Bill, for a return to the drawing board and for full consultation with women as to how their concerns should be encapsulated in new legislation.

Discussion
Mr Bloem noted the NHTL’s statement that women were already represented in their structures, as well as the fact that there was one-third representation of women on Traditional Councils. He asked if this was not enough to satisfy the concerns.

Ms Williams pointed out that the reference to the Traditional Councils was a red herring, for the Bill actually did not currently provide for the courts to be run through the Councils. Furthermore, she added that real representation of women’s issues was needed, not token representation.

Mr Bloem noted that the WLC written submission had asked that domestic violence cases should be excluded from the jurisdiction of the TCs, and that rape cases and maintenance issues should be handled through the Magistrate’s Courts. He asked for more clarity on this statement.

Ms Williams explained that the SALRC had suggested that domestic violence matters should be excluded from the jurisdiction of the TCs, and such matters should return to being handled in specialised courts (ideally, the re-creation of the Sexual Offences Courts). The underlying and serious differences in power between women who appeared as complainants, and the males who dominated the courts was another reason. Customary law allowed the right to chastisement, which was in conflict with the Domestic Violence Act. It would be setting up the TCs for failure if they were allowed to deal with domestic violence matters, because the continuance of the custom was unconstitutional. Women’s rights would be better served in the magistrate’s courts. Ms Williams pleaded that these courts should not in fact be named as “Western courts”, and stressed that instead, customary law should be mainstreamed into all legal considerations, and the law to be applied should take into account customs and women’s rights. Customary law would be marginalised if it remained the sole preserve of the TCs. She stressed that living custom, reflecting people’s changing desires, was needed.

Mr Bloem wanted more detail on the assertion that the Bill gave overly-wide powers to TCs.

Mr Nzimande said that many concerns had been expressed about the current practices in courts. Given that WLC had aligned itself with calls for the withdrawal of the Bill, he asked what it would instead suggest as a desirable regulatory framework that could correct the situation, and make the courts more accountable.

The Chairperson also asked how the scrapping of this Bill would address the current undesirable practices

Ms Williams responded that it would make no sense to proceed with a Bill that was flawed, at the very least in relation to equality, as it would only be subject to constitutional challenges, and this would ultimately result in more significant delays than starting the process afresh. The fundamental flaw in the Bill was that it imposed a system, instead of giving women the choice as to whether they wished to be governed by a TC. The nature of the Courts must be carefully examined. Other legislation had resulted in prolonging women’s suffering rather than in improving their position on the ground.

Mr Makhubele asked how the WLC would view the issue of birthrights.

Ms Williams responded that although the birthright and one third quota for Traditional Councils was legislated, there were, in practice, difficulties in Councils meeting that quota already.

Vulamasango Singene Mnquma District submission
Ms Noloyiso Ntloko, Provincial Committee Member, Vulamasango Singene Mnquma District, requested, through a translator, that the Bill should be referred back to wards and councillors, for closer engagement. Women were suppressed, were not deployed in municipal councils, and the Bill would serve to bring back the apartheid system. A case was cited of a widow who failed to get assistance because she had no representation before the Court. People who were victims of eviction should be assisted to get compensation. Rural communities, the worst affected, had not been consulted properly. If Parliament continued to deliberate on matters without ensuring enough engagement on the ground in the first place, this would result in cultures and practices being taken away from people.

Ms Nosinodi Mtiya, Provincial Committee, Vulamasango Singene Mnquma District, said that the majority of widows were oppressed. Taxes imposed by traditional headmen should be equally applicable to all, instead of favouring those close to the traditional leaders or headmen. The taxes should also be paid into a social fund that would then be used to assist people to improve their situation in the rural areas. It was felt that the Bill violated women’s rights, and it was suggested that it should be referred back to Councils that were working with traditional leaders. Women must be included whenever decisions were made that affected them. By working together, more could be achieved.

Sonke Gender Justice Network submission
Mr Botha Mbuyiselo, Manager: Media, Sonke Gender Justice Network, noted that his organisation worked with both women and men and it was particularly concerned with HIV and Aids matters. He too wanted to emphasise the importance of consultation, and urged that it should not be taken lightly or flippantly. The Network worked across all provinces and had experience if traditional leaders usurping the rights of women. Insufficient had been done, when formulating this Bill, to ensure that the views of women were taken and recognised. South Africa was still a patriarchal and oppressive society, and he was distressed at the Acting Chairperson’s remarks about equality, given that the entire country was founded on recognition of equal treatment. He felt it was critical that the consultation with women should be revisited. The failure to do this in the first place resulted in a Bill that was fatally flawed and that must be scrapped altogether, as the Network did not believe that it was possible to re-draft it into anything better without a full consultation process.

Mr Mbuyiselo said that it was a contradiction that whilst South Africa had a constitution that was highly lauded, this Bill persisted in a misogynistic approach. He said that the Network was not Eurocentric, but it insisted on one law for one country, and equality for all. He suggested that the Bill was not in fact needed at all, if proper Constitutional principles were followed.

The Network had further concerns about the exceptionally high rates of violence against lesbians and gays. There must be representation of all marginalised groups, in line with the Constitution’s dictates that there should not be discrimination on any grounds. Traditional leaders had extremely intolerant views about gay people, and it was vital to ensure that any representation in the TCs agreed with not only the letter, but also the spirit of the Constitution.

The Network called for 50%, rather than 30%, representation of women, since it made no sense that women were under-represented in institutions, and decisions were being made on their behalf, when in fact they were in the majority in the country. Government had always called for equal representation and the Network saw no reason why the traditional leaders should be exempted from this call. This was another reason why the Bill was seen as unconstitutional.

Hosi Sibisi Mahatlani submission
Hosi Sibisi Mahatlani, Mahatlani Village, said that he was speaking both in an individual capacity and for his traditional community. He agreed fully with recommendations that the Bill must be withdrawn, and the process started afresh. He noted that Mahatlani Village was presently subject to an imposed traditional authority that was set up in the late 1950s. Neither his predecessors, nor the current community, recognised that authority, and it showed discrimination against the community, whom it considered to be outsiders. He outlined the history of various claims in respect of land since the 1960s. The authority had set up a mine, for personal gain, and was selling assets without the consent of the community and without paying it any compensation. Disputes had been referred to the Nhlapo, as well as the current Kgatla Commission that was running in Limpopo. He pointed out that the latest Commission was still busy with its work, and had yet to pronounce on the validity of Chiefs’ and Headmens’ claims, so he could not understand why this Bill was being rushed through now. If it was passed, some leadership claims would be regarded as legitimised, but this would only have to be corrected later.

Hosi Mahatlani said that the Bill was based on colonial boundaries, and a colonial system that had imposed leaders on people who had no relationship with them. Much of the land had been allocated to other communities, and about ten communities had been moved without consent. Only the apartheid-recognised leaders were consulted whilst no recognition was given to the voices of others. He too agreed that women must have a real say in the issues that impacted on them.

Discussion
The Chairperson noted that on the previous day, Mr Nesi had pointed out that this Bill had been in the public domain already for ten years, and asked what product was likely to be found acceptable.

Mr Mbuyiselo said that valid points had been raised around consultation, and said that most of the consultations that were carried out latterly, across the whole country, had pointed to overwhelming rejection of the Bill. The Network would like to see the process start afresh, and said a new Bill should be drafted only after direct and substantive consultation with those who were directly affected by it. Women felt intimidated at some of the processes that had been held, by the mere fact that the Chief was present, whilst those at the ground levels of oppression and violence were not properly consulted. The Network believed that all the previous processes were flawed, and a new process should commence, without fear of repercussions.

Mr Sibisi added that in Limpopo nothing concrete had resulted from three commissions, since 1994. In this province, most of the Chiefs who were holding that title were not entitled to it. He reiterated that if the Bill was passed, giving them even more power, it would be hugely problematic later to try to remove them from office. He felt that, at least in Limpopo, it would be premature to introduce the Bill.

Mr Bloem asked why the Network believed that the Bill was unconstitutional.

Mr Mbuyiselo responded that the main problem was that women were not included as presiding officers. Some people may argue that there was representation, but the Network’s experience on the ground was at variance with what the NHTL suggested. Another problem was that people were not given the opportunity to opt out, so that a dissatisfied complainant had no recourse to any other systems, as s/he would have under other systems. He believed that no one should be forced to follow a system that she regarded as inherently flawed.

Mr Makhubele was concerned that some of the issues being raised had nothing to do with the Bill. For instance, the recognition of traditional leaders was not dealt with in this Bill.

Mr Manzini noted that the title “Hosi” meant “Chief for the People”. He asked whether Hosi Mahatlani was mainly concerned about lack of consultation.

Hosi Mahatlani agreed that there had not been proper consultation on many issues. In answer to Mr Makhubele, he said that the Village did not expect that the NCOP could address all the issues, and they would be raised at appropriate forums. However, he was very concerned that powers would be given to the wrong people, if the Bill was passed.

Mr Bloem requested that the Network should provide further written recommendations as to what it would like to see in the Bill.

Rural Women’s Movement (further presentation)
Ms Prisca Shabalala, Chairperson, Rural Women’s Movement, KwaZulu Natal, outlined, via a translator, that the RWM had been embarrassed to note that women were not informed about the Bill. She also complained that some representatives’ right to be present at the hearings had been challenged.

Ms Stombi Hlombi, Representative, Rural Women’s Movement, maintained that women were oppressed, and men with financial power were always preferred. She outlined her own problems and history of harassment and assault by a particular individual. When she had reported the matter to the King, he imposed a fine, but it was not paid. According to the customary law, the perpetrator should have been excluded from his position once he was convicted, but was continuing to be involved closely with the King’s matters.

A further presentation was made outlining problems with a particular leader, who failed to use funding for the proper purposes, appointed representatives without proper voting procedures, and on a whim, and excluded women from structures. The presenter pleaded with government to set women free and help them from being oppressed.

Discussion
Mr Bloem noted the statement that on the previous day, one of the women had been asked why she was present at this meeting. 

Ms Gasa interjected that this question had been asked by an MP.

Mary de Haas submission
Ms Mary de Haas introduced herself as an anthropologist who had been doing research in the rural areas and townships over the last 30 years. She was also a retired academic, and she had researched customary law and chieftainship issues over many years. She would focus, in her submissions, on the position in KwaZulu Natal (KZN), and her first-hand observations.

She believed that the Bill was highly discriminatory, perpetuated colonial practices, and would exacerbate abuses that took place daily. Traditional communities were a colonial construct and so were tribes who lived in them. Customary law in KZN was not truly customary at all. She explained that in their purest form, traditions were handed down from the past, had to be fluid and flexible and new ones were invented all the time. In South Africa, the word “tradition” carried a negative connotation, which was false. She stressed that in any society, whether traditional or Western, people would practice situational direction, selecting from different sets of norms and values, with emotional attachment to certain customs.

Historically, in Southern Africa, land had been plentiful and there had been freedom of movement. She stressed that in the past centuries, not all traditional societies had leaders, and in the nineteenth century, a person who was unhappy with a chief could move elsewhere. However, the Colony of Natal had then created “new chiefs”- mostly those loyal to administrators - and this was coupled with land grabs, confining people to reserves, which became the basis for homelands, and influx controls. This effectively destroyed the that a chief would only be a chief by his people. Chiefs were instead given authority, were expected to keep the people under their control, and were answerable to a magistrate.

Ms de Haas emphasised that customs, like traditions, should be flexible. Most were family based. Chiefs were not the custodians of customs, but the family was. There was a real danger in increasing the power of chiefs. The Bantustan system had promoted ethnic nationalism, and it still persisted in many rural areas. Customary law had been perceived as a set of rules for maintaining order in societies without written records, and in its purest form, as  society changed, including in economic and political ways, so would the law. However, in 1878 the Natal legislature had codified customary law “to control the natives”, and this now reflected the white man’s views of what was good for the Zulus. This codification entrenched perpetual minority of women, and it was not changed until the 1980s, when some of the restrictive controls were removed. The problem was, however, that the Code had by now shaped perceptions for over a century, and perceptions took much longer to change than laws.

The Codification also effected other sinister changes. Chiefs were given increased power over policing, law and order, and movement. During the political violence in the 1980s and 1990s, many chiefs were implicated in gross human rights violations. Many, however, remained traditional chiefs, and were still so implicated, to this day. Her written submission outlined some details. Of particular concern was the fact that often the provincial government refused to act against errant Chiefs. Many amakhosi had valid claims, but were still battling to get them claims recognised. The office of Chief had become heavily politicised, and no remedial steps were taken to address this. She noted that in South Africa, unlike Botswana, traditional leaders were still allowed to become MPs, without resign their chieftainship. In a few areas, the role of traditional leaders was largely ceremonial but in others they had been given increased powers.

Ms de Haas noted that there were well founded reports that some leaders were in favour of, and were even themselves engaging in, practices such as ukuthwala. She also expressed concern that CONTRALESA had made known its opposition to lesbians and gays, and they would clearly not get a fair hearing in any TC.

She briefly summarised other concerns, by clause. She pleaded that clause 9 must be changed to allow legal representation. There was no reason to make a distinction between the types of matters that could be appealed. Although the cornerstone of true customary law was that it should not be contrary to natural justice, the Bill was discriminatory, forcing people into colonially-defined traditional areas to comply with directives given by leaders who may be corrupt, without any choice to opt in. People’s rural rights were already tenuous, with many having been driven off land by traditional  leaders, or traditional leaders taking land for commercial development, and the Bill did not address that. The type of penalties in fact allowed for further abuse and may jeopardise land access. Whilst the Bill claimed to be non-sexist, it did not acknowledge the extent to which women were, in practice, oppressed, and she outlined the experiences of Ms Zungu, an ANC supporter, who was attacked, received death threats and had her requests for proof of residence refused by her Chief when he did not agree with her political leanings.

Ms de Haas reiterated that the failure to de-politicise the Chiefs facilitated abuse. The current Bill could not produce peace and harmony, when conflict was directly linked to leaders. Whilst some leaders tried to do a good job, and were responsive, others were abusive. Traditional leaders could play a constructive role in mediating dispute, if they were removed from the political sphere, if action was taken against abuse, if an opt out system was included, if legal representation was allowed, and the right to appeal and proper legal oversight was made integral to the process.

Discussion
Mr J Gunda (ID, Northern Cape) said that some of the issues would be debated in the Committee. He assured all the presenters that the Members had given consideration to their issues, but could not tell them today what it intended to do. He noted that the public hearings were intended to help the public, and their plight was heard clearly. He pleaded that gross violations must be reported to SAPS, alternatively that petitions be placed before the Petitions Committee in Parliament. Nothing said here would be taken for granted.

Mr Bloem asked if Ms De Haas thought it would be possible to correct the Bill, or whether it should be scrapped.

Ms de Haas said that some parts of the Bill were innocuous. Whilst there were some problems around the position of traditional communities, that was not something that would be solved by the Bill. Ideally, the Bill should be scrapped because as it stood it was unconstitutional and discriminatory. However, there were practical considerations, particularly around cost and time. If it was retained, a substantial re-working would be needed.

A Member asked how the colonial constructs around customary law could be remedied.

Ms de Haas said that the move to hold elections for Councillors was positive, but she recognised the difficulties because amakhosi wanted more powers. The fact that they were in the public domain was in fact to their disadvantage; if they were removed from politics they would not be tainted by party political considerations. In the past, there were checks and balances – and she quoted the saying that “many were born to chieftainship, but few died in it” to illustrate that many would be removed by their communities, or their succession contested. It was possible to build in more democracy and to ensure that leaders had popular support. She challenged Parliament to look at ways to create greater credibility and enhance democracy.

The Member regretted that some Chiefs had been mentioned by name as indulging in bad practices.

Ms de Haas pointed out that their names were already in the public domain, during the enquiry or court processes

The Member questioned Ms de Haas’s reference to First Fruits, and she explained that she had stressed that this was an exception to customary observances, as it was a royal observance.

The meeting was adjourned.