THE new Traditional Courts Bill announced on Monday is an important victory for the rural people who rejected a previous version at public hearings in 2012, and for the provinces who opposed it in the National Council of Provinces.
It is significant that the old Bill was blocked in Parliament in an early example of the kind of parliamentary independence that we are now seeing in relation to the SABC.
Section 76 of the Constitution requires a majority of provinces to pass Bills about customary law. Despite massive government pressure to push it through, only North West caved in to change its vote. But that was not enough when KwaZulu-Natal refused to vote in its favour.
An additional death knell was the brave Parliamentary legal advisor who insisted even after she was refused permission to circulate her memorandum on telling the National Council of Provinces why the Bill was unconstitutional. A lot of people stuck their necks out to defeat the Bill in Parliament, including Lulu Xingwana, who subsequently lost her cabinet position.
The new Bill is major improvement. It no longer relies on apartheid-era tribal boundaries to define the jurisdictional area of traditional courts, and it allows people to opt out of traditional courts, and use other courts and dispute resolution fora instead.
Serious problems remain, however, for rural people seeking to enforce the rights contained in the new Bill. Some clauses are especially worrying in the context of the unequal power relations in rural areas, and government’s abject failure to enforce existing checks and balances on the power of traditional leaders.
The provinces who rejected the old Bill said it was inconsistent with the real nature of customary law, and instead reinforced colonial constructs of the autocratic power of chiefs. That Bill adopted the 1927 Native Administration Act construct of chief-as-judge, which contradicts the council-based, inclusive and restorative nature of customary dispute resolution processes.
The two most fundamental criticisms of the old Bill were its consequences for women and that it obliged 18 million South Africans in former homelands to subject themselves to chiefs’ courts, even where claims and disputes about the legitimacy of the chief and his tribal boundaries have been lodged with the Commission on Traditional Leadership Disputes and Claims. Over 1200 such disputes were lodged before the cut-off date of August 2010.
The fundamental shift in the new Bill is the recognition that customary law is, by its nature, consensual, and that apartheid era tribal jurisdictions cannot trump the right to affiliate with customary identities of choice.
That is the good news, but other concerns remain.
The Bill acknowledges the entrenched inequality and patriarchy that suffuses power relations in rural areas but fails to provide women and minorities with concrete and accessible remedies where abuse takes place.
Obed Bapela, the Deputy Minister of Cooperative Governance and Traditional Affairs, said in answer to a question at the launch of the Bill that equality for women would be “encouraged, not enforced”.
Decisions of Traditional Courts can be taken on review to the High Court on specified procedural grounds, but the Bill does not allow decisions of Traditional Courts to be taken on appeal. There are two problems with this. First, a review does not deal with the merits of the decision made by the traditional court, only whether it was made in the proper manner. And secondly, to bring a review you need to hire a lawyer which vulnerable rural people seldom can afford.
The new TCB needs to tackle enforceability head on. The Department of Justice must ensure that litigants in traditional courts are entitled to Legal Aid funding for review applications. Otherwise the rights that the Bill purports to create for women are simply unenforceable.
While the new Bill does include the right to opt out, the grounds for procedural review do not cover the courts failure or refusal to recognize that right. Can it be that the drafters overlooked the enforcement of this game-changing right? More bizarre still is that a Traditional Court may continue to sit and ‘counsel, assist, or guide’ the complainant in a matter where the other party has opted out.
The complainant will have the full attention of a court sitting in public, while the other side is not there to tell their side of the story. This is in a context of extremely unequal power relations where, for example, gay people, widows and elderly women already endure debilitating forms of social sanction. The Bill tries to disguise the manipulation of social sanction that this entrenches by creating an empty distinction between the Court sitting to make ‘decisions’, which requires both parties, and to ‘counsel, assist or guide’, which requires only the complainant.
Courts are by their nature decision-making, not advisory bodies. There are many other forums in which traditional leaders can, and do, provide advice to people. To do so in an open court, after a one-sided hearing, breaches natural justice and the Constitution.
Also worrying in relation to enforcement is that the penalties for traditional leaders who breach the proposed Code of Conduct are pathetic. And the people who are expected to exercise oversight in relation to the Code of Conduct are provincial office bearers and Houses of Traditional leaders, who have an abysmal track record in relation to enforcing the few checks and balances that were built into the controversial Traditional Leadership and Governance Framework Act of 2003.
For example, the 102 ‘tribal accounts’ in North West have not been audited since 1994, despite this being a requirement in the Framework Act. In Limpopo, no elections have been held since the Framework Act was passed in 2003, despite the Act providing that 40% of the members of Traditional Councils must be elected.
Not only are Traditional Councils allowed to continue to operate, despite their failure to comply with the law, they are allowed to sign multi-million deals with mining companies, and shielded from public oversight and financial accountability
In that context, robust review judgments in the High Court are probably the only way to ensure effective enforcement of the rights in the new TCB. Those whose rights are at issue must have the means to trigger such review applications, which cannot depend on the discretion of Provincial Registrars.
That said, the new Bill is a great improvement on its predecessor. Its recognition that customary law is consensual and cannot be superimposed on people according to apartheid tribal boundaries has far reaching implications, including for the controversial Traditional and Khoi-San Leadership Bill that is currently before Parliament.
The Bill will only achieve its objectives however, if mechanisms are built in to enable people to assert and enforce their rights. It is an established principle of our law that Legal Aid must be provided to groups such as farm workers who are structurally vulnerable. The same needs to be built into this Bill.
(This is an expanded version of an article carried in the South African Sunday Times on 29 January 2017)