Democratic Alliance, Traditional Courts Bill reinforces apartheid-era homelands, May 24 2012
Introduction
The Traditional Courts Bill was first introduced in 2008 and was met with widespread opposition from civic organisations, and subsequently withdrawn. Despite this opposition the Bill was reintroduced unchanged this year and referred to the National Council of Provinces (NCOP).
The Democratic Alliance (DA) acknowledges the positive role that customary law and customs can play in the resolution of disputes and the restoration of harmony in traditional communities. We also acknowledge that customary law is recognised in the Constitution. However, we have major concerns with the Traditional Courts Bill.
Reinforcing Apartheid-Era homeland boundaries and powers
In the first instance, as with the Traditional Leadership and Governance Framework (TLGFA), the Bill reinforces apartheid-era Bantustan boundaries, by using territorial jurisdictions established under the infamous Black Authorities Act of 1951. These are the territories into which more than 4 million people were forcibly removed to create the so-called homelands. The TLGFA already gives traditional leaders extraordinary governance powers, including the allocation of land.
Through the Traditional Courts Bill senior traditional leaders will be able to make the law, adjudicate compliance and enforce sanctions. This means traditional leaders have executive, legislative (they develop customary law) and judicial powers, opening the door for bias, subjectivity and abuse, without affording sufficient protection to the members of 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.
The Traditional Courts Bill undermines the Bill of Rights as cornerstone of our Democracy
The DA believes that the Traditional Courts Bill is fundamentally at odds with the Constitution, specifically the Bill of Rights.
The Constitution explicitly states that the "Bill of Rights is a cornerstone of democracy in South Africa" and "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 also "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 the 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.
The Traditional Courts Bill fails to explicitly state that the application of customary law is subject to compliance with the rights enshrined in the Bill of Rights.
The Bill eradicates the consensual nature of Customary Law
Customary law is a consensual system, and yet this Bill places people under the jurisdiction of a traditional court simply because they happen to live or be in a particular area. The jurisdiction of a traditional court should be limited to those who recognise its authority, thereby ensuring that the right to a cultural life of choice, as entrenched in section 30 of the Constitution, is enjoyed by those affected.
The Bill further undermines the supremacy of the Constitution for those who reside in areas designated as traditional communities, as well as those who may be visiting these communities.
The DA believes that 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.
The Bill usurps the NPA's powers and undermines basic rights and the Rule of Law
The Constitution grants every person 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 an independent and impartial tribunal or forum. We do not believe that traditional leaders 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 is further in contravention of section 35(3)(g) of the Bill of Rights, which provides that every accused person is guaranteed legal representation in all criminal matters. The Bill states that "no party to any proceedings before a traditional court may be represented by a legal representative". The guarantee of legal representation is a fundamental right.
In addition, section 179 of the Constitution states that there is "a single national prosecuting authority in the Republic", consisting of a National Director and Deputy Directors of Public Prosecutions, and that the prosecuting authority has the power to institute criminal proceedings on behalf of the state, and carry out any necessary functions incidental to instituting criminal proceedings.
The Bill gives traditional courts the power to institute criminal proceedings and decide whether a matter is referred to the 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.
Of additional concern is the lack of a general review or appeal mechanism, with the Bill only providing for the right of appeal in respect of certain matters. This is at odds with section 35(3)(o) of the Bill of Rights, which provides that every accused person has a right to a fair trial, which includes the right of appeal to, or review by, a higher court.
Conclusion
The Traditional Courts Bill undermines constitutional democracy and does not promote the development of customary law. Instead, it creates an entirely parallel legal system that 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. 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. Schedule 6 of 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 in relation to them.
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.
Issued by the DA, May 24 2012
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