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The Traditional Courts Bill was reintroduced unchanged to the National Council of Provinces this year despite having been withdrawn after its initial introduction in 2008 following widespread opposition from civic organisations.
The Democratic Alliance (DA) acknowledges that customary law and customs are recognised in the Constitution and play an important role in traditional communities. Customary law and customs can play a positive role in the resolution of disputes and the restoration of harmony in communities.
However, we have major concerns with the Traditional Courts Bill.
The Bill reinforces Apartheid-Era homelands and powers. It is a throw-back to Bantustan boundaries into which more than 4 million people were forcibly removed under the infamous Black Authorities Act of 1951.
It gives the senior traditional leader the ability to make the law, adjudicate compliance and enforce sanctions. This opens the door for bias, subjectivity and abuse. There is not sufficient protection to the members of the traditional communities.
This is clearly an unacceptable violation of the doctrine of Separation of Powers enshrined in our Constitution and central to any democratic society.
A traditional leader holds power over his or her community and these people are at the mercy of that particular leader. A traditional leader could easily manipulate the customary law to enrich himself to the disadvantage of others in the community.
The Traditional Courts Bill is fundamentally at odds with the Bill of Rights which is the cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
The DA believes that customary law should take into account the experiences of women and children specifically, as well as their rights to equality and to participate in the practice of their culture. Instead this Bill recognises the participation of women in name only. Women in rural areas have always been discriminated against and the current Bill provides another platform for this prejudice to continue.
Customary law is a consensual system, yet this Bill places people under the jurisdiction of a traditional court simply because they happen to live or be in a particular area. This violates the right to a cultural life of choice as entrenched in the Constitution. Any legislation should at a minimum include an “opt–in and opt–out clause” to provide for those who choose not to adhere to the traditional court and customary law system.
Every person has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or independent and impartial tribunal. Traditional leaders do not satisfy the criteria for independence or impartiality exactly because they often make the law, interpret, adjudicate, enforce it and may often benefit from the penalties they impose.
The Traditional Courts Bill states that “no party to any proceedings before a traditional court may be represented by a legal representative”. The Bill is therefore in contravention of the Bill of Rights which guarantees legal representation in all criminal matters.
The Traditional Courts Bill also gives traditional courts the power to institute criminal proceedings and decide whether a matter is referred to the National Prosecuting Authority (NPA) or not. This amounts to usurping the power of the NPA rendering the Bill unconstitutional.
It is further unconstitutional in that the Traditional Courts Bill allows imposition of penalties against “any other person”, including compelling such person to perform community service as punishment, even if the person is not party to the dispute or involved in the proceedings.
Every accused person has a right to a fair trial, including the right of appeal to, or review by, a higher court. Instead, only certain matters before Traditional Courts may be appealed or reviewed.
The Traditional Courts Bill undermines constitutional democracy and does not promote the development of customary law. Instead, it creates an entirely parallel legal system which undermines the rights of women in particular.
Prominent women and civil society organisations, including the Minister of Women, Children and People with Disabilities Lulu Xingwana; Dr Mamphela Ramphele, and the ANC Women’s League have unequivocally rejected this Bill.
The timing of the legislation is questionable and may very well be construed as an attempt by President Zuma to buy political patronage in the run-up to the ANC’s elective conference in Mangaung in December this year. Somewhat ironically the Minister of Justice and Constitutional Development Jeff Radebe who tabled the Bill has himself now raised concerns over the controversial piece of legislation.
There is no constitutional imperative to perpetuate traditional courts as they currently function. The Constitution simply states that courts of traditional leaders, where they exist, may continue to do so subject to consistency with the Constitution and any amendment or repeal of legislation.
Instead of considering the Traditional Courts Bill, Parliament now has an ideal opportunity to incorporate traditional leaders into a dispute resolution mechanism that is consistent with the Constitution and the Rule of Law. The DA believes that alternatives should be explored.
The Democratic Alliance accordingly rejects the Traditional Courts Bill in its entirety. It should be withdrawn.