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The Council for the Advancement of the South African Constitution (CASAC) is concerned by some of the public statements that have been made by Nkosi Pathekile Holomisa and Chief Mangosutho Buthelezi on the issue of traditional leaders which may be designed to curtail debate on the Traditional Courts Bill (TCB) currently before Parliament. Holomisa mischieviously misconstrues opposition to the TCB as an attack on the institution of traditional leadership, and warns of the strength of traditional leaders and their supporters to retaliate against such perceived attacks. He accuses civil society of “making seriously distorted allegations which insult not only the traditional leaders but the African traditional communities themselves”.

As a member of the Alliance for Rural Democracy (ARD), CASAC has been involved in the public debate on the TCB. CASAC shares the view of the ARD that the recognition of customary law, cultural practices and religious belief systems is an important aspect of strengthening South Africa’s constitutional democracy. However, the Constitution provides clear guidance and parameters on what this means and how it should be implemented. The TCB as it currently stands violates fundamental constitutional provisions and is therefore fatally flawed. The NCOP Provincial Public Hearings process resulted in four provinces (Eastern Cape, Gauteng, North West and Western Cape) rejecting the Bill in its entirety. Another four provinces, KwaZulu-Natal, Free State, Northern Cape and Limpopo supported the Bill but proposed fundamental and wide-reaching amendments, which challenge the original intent of the Bill. Mpumalanga had not finalised its mandate and thus requested a three month extension to determine its position on the Bill.

The decision of the NCOP Select Committee on 30 May 2012 to postpone the tabling of provincial mandates without deliberating on them was unprecedented and procedurally flawed. This decision could have negative implications for further public participation in the legislative process. Many thousands of South Africans, residing in rural and urban communities attended public hearings at great expense and inconvenience to share their views on the TCB. They may now feel that it was all in vain.

We therefore appeal to the NCOP to table and discuss the provincial mandates in the spirit of public engagement contemplated in section 72(1)(a) of the Constitution and guided by the rules of procedure in Parliament. We appeal to the NCOP to formulate and pass legislation that recognises and affirms the place of customary law, cultural practices and traditional leadership within the provisions of the South African Constitution and the principle of one law for one nation in a unitary state.

It is unfortunate that some traditional leaders now seek to stifle debate on the Bill. We appeal to all leaders in South African society, including political parties, traditional leaders and elected representatives to engage in a manner that encourages all South Africans to voice their opinions, without fear or favour, and in an atmosphere free of intimidation. Many people in rural communities have spoken publicly of their vulnerability and fear to speak openly because of possible repercussions. This is not a trait of a vibrant, tolerant, open and inclusive democratic society. We call on those who hold public positions of leadership, including traditional leaders to respect and promote the founding values of the Constitution.
CASAC stands with the people who have said “scrap the bill”. We do so not because we see no role for the institution of traditional leadership or the importance of acknowledging African cultural practices and customary law, but because we are informed by the contents of the Bill, and the provisions of the Constitution. This Bill in its current form does not adequately respect and promote the rights of South Africans living in traditional communities.