ADV. RICHARD SIZANI 30 MAY 2017 1 A. OVERVIEW 1. CONSTITUTIONAL - - PowerPoint PPT Presentation

ARE POWERS AND FUNCTIONS OF LEADERS SUFFICIENT, IN A REPUBLICAN AND DEMOCRATIC DISPENSATION, ESPECIALLY IN ITS CURRENT CHARACTER? IF NOT, WHAT NEEDS TO BE DONE?

• ADV. RICHARD SIZANI

30 MAY 2017

1

• A. OVERVIEW
• 1. CONSTITUTIONAL RECOGNITION AND INCORPORATION OF TRADITIONAL LEADERSHIP AND

INSTITUTIONS, AND RECOGNITION OF CUSTOMARY LAW: Chapter 12 of the Constitution determines as follows as regards traditional leadership and the recognition of customary law:

• Section 211: Recognition

“(1) The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution. (2) A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs. (3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.”

• Section 212: Role of traditional leaders

“(1) National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities. (2) To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law - (a) national or provincial legislation may provide for the establishment of houses of traditional leaders; and (b) national legislation may establish a council of traditional leaders. Section 219: Remuneration of persons holding public office Schedule 4 (Part A): “Cultural matters,” as well as “traditional leadership” (subject to Chapter 12 of 1996 Constitution) and “indigenous law and customary law” (subject to Chapter 12 of 1996 Constitution) are functional areas within concurrent domain of national Parliament and provincial legislatures

• 2. STRUCTURAL AND FUNCTIONAL ARRANGEMENTS ACCORDING TO THE 1996 CONSTITUTION

2.1 ELECTED GOVERNANCE - 3 BRANCHES (ARMS) OF GOVERNMENT: LEGISLATURE, EXECUTIVE AND JUDICIARY

• Legislative branch: Parliament (NA+NCOP), Provincial Legislatures and Municipal Councils
• Executive branch: Cabinet, Provincial Executive Council, Municipal Council
• Judicial branch: Independence of Judiciary - 2010 Establishment of separate national entity - Office of the Chief

Justice (currently still located in the Executive as a government department) 2.2 TRADITIONAL GOVERNANCE: OVERVIEW: TRADITIONAL COMMUNITIES, TRADITIONAL LEADERSHIP AND TRADITIONAL COUNCILS Traditional Communities: Approximately 40% of South Africans form part of traditional communities. Currently ±800 (African) traditional communities are officially recognised. Traditional community members live under traditional governance systems (in varying degrees), predominantly in the former homelands.

Traditional Leadership: The following levels of traditional leadership are recognised:

• Officially recognised Kingships & Queenships (hereditary)
• Officially recognised Principal Traditional Leaders
• ±800 officially recognised Senior Traditional Leaders (one for each of ±800 traditional communities) (hereditary)
• Officially recognised Headmen and Headwomen (mostly hereditary, sometimes elected).

Traditional Councils: Each recognised traditional community has an officially recognised (and established by law) Traditional Council, the membership of which is composed of 60% traditional/customary; 40% elected (by commoners from commoners); 1/3 overarching female membership. In addition, the following categories of Councils are also recognised:

• Kingship and Queenship Councils;
• Principal Traditional Councils;
• Traditional Sub-councils.

• 3. RECOGNITION OF TRADITIONAL COMMUNITIES, TRADITIONAL LEADERS AS WELL AS OF TRADITIONAL COUNCILS

(INCLUDING THE DETERMINATION OF THEIR JURISDICTIONAL AREAS): Recognition of traditional communities: * Pre-2004: recognition by RSA and homeland governments * 2004+: recognition by Premier of the province concerned Appointment / recognition of traditional leaders: * Pre-2004: appointment by RSA and homeland governments * 2004+: recognition by Premier of the province concerned (and as regards king-/queenship, by the President) Recognition of traditional councils and determination of their jurisdictional areas: * Pre-2004: RSA and homeland governments * 2004+: Premier of the province concerned

• 4. POST-1994 POLICY AND STATUTORY PROCESS

1998: Cabinet decision: initiate policy and legislative process:

• Status Quo Report on Traditional Leadership and Institutions
• Discussion Document on Traditional Leadership and Institutions
• Draft White Paper on Traditional Leadership and Governance
• White Paper on Traditional Leadership and Governance

• 5. THREE KEY FUNCTIONAL AREAS RELATING TO TRADITIONAL LEADERSHIP
• Governance (recognition; role, powers, functions and duties; relationship with elected government; etc.)
• Judicial matters
• Land allocation and management

• 6. TRADITIONAL LEADERSHIP: ALLOCATION OF RESPONSIBILITIES WITHIN THE EXECUTIVE BRANCH (POLICIES,

LEGISLATION, STRATEGIES, IMPLEMENTATION, OVERSIGHT AND M&E) Governance of Traditional communities and leadership affairs within the Executive Branch (“Traditional leadership” being a Schedule 4 (Part A) concurrent functional domain):

• 2009: Separate national Department of Traditional Affairs established
• 8 Provincial Departments of Cooperative Government and Traditional Affairs

Traditional leadership: Judicial arrangements within the Executive Branch (Judicial matters being an exclusive national functional domain; whilst “indigenous law customary law and customary law” is a Schedule 4 (Part A) concurrent functional domain): Department of Justice and Constitutional Development (exclusive national function) Traditional leadership: Land allocation and management arrangements within the Executive Branch (Land matters being an exclusive national functional domain: Department of Rural Development and Land Reform

• 7. DISCONTINUATION AND CONTINUATION OF PRE-1994 FRAMEWORKS IN RESPECT OF THE THREE KEY FUNCTIONAL

AREAS: Discontinuation of pre-1994 legislation: (a) Governance matters (Traditional communities, and their governance structures (leadership and councils); National, Provincial and Local Houses of Traditional Leadership, as well as 20% representation in Municipal Councils (non-voting)):

• (national) Traditional Leadership and Governance Framework Act 41 of 2003
• National House of Traditional Leaders Act 22 of 2009 (which replaced the National House of Traditional

Leaders Act 10 of 1997)

• Provincial Traditional Leadership and Governance Acts
• Provincial House of Traditional Leaders Acts
• Section 81 of the Local Government: Municipal Structures Act 117 of 1998

Continuation of pre-1994 legislation: (a) Judicial matters (Traditional courts): * Traditional courts (applying customary law in civil cases, and having limited criminal jurisdiction) continue to

• perate under national Department of Justice and Constitutional Development

* January 2002: South African Law Reform Commission’s Project 90 dealt with traditional courts and judicial function of Traditional Leaders * Black Administration Act 38 of 1927 (in process of being repealed by Traditional Courts Bill, 2015) * Homeland legislation (in process of being repealed by Traditional Courts Bill, 2015) * Traditional Courts Bill, 2015: currently before National Assembly (b) Land matters: * Homeland + SADT legislation + Proclamations issued in terms of section 25 of the Black Administration Act 38

• f 1927 still in force

* Pre-27 April 1994 legal framework continues in operation (exception: Ingonyama Trust land) * Communal Land Rights Act 11 of 20 invalidated in 2010 by Constitutional Court on account of incorrect procedure followed by Parliament * Draft Communal Land Bill, 2017 (still to be published for public comment)

• 8. TRADITIONAL LEADERS: STATUTORY CONSULTATION (AND PARTICIPATION) STRUCTURES

Statutory structures for liaison with, and provision of advice to, 3 spheres of elected government: * National House of Traditional Leaders (national sphere) * Provincial Houses of Traditional Leaders (provincial sphere) * Local Houses of Traditional Leaders (municipal sphere)

• Membership of Municipal Councils (non-voting) (Section 81 of the Local Government: Municipal Structures Act

117 of 1998

• 9. PERFORMANCE OF FUNCTIONS BY TRADITIONAL LEADERS

Section 19 TLGFA provides for the performance by Traditional Leaders of functions provided for in terms

• f:

* Customary law * Customs * Applicable legislation

19 “A traditional leader performs the functions provided for in terms of customary law and customs of the traditional community concerned, and in applicable legislation”.

• 10. PERFORMANCE OF FUNCTIONS BY TRADITIONAL COUNCILS

Section 4(1) TLGFA provides for the following functions of Traditional Councils, many of which are to be performed in support of local government:

“4(1)(a) administering the affairs of the traditional community in accordance with customs and tradition; (b) assisting, supporting and guiding traditional leaders in the performance of their functions; (c) supporting municipalities in the identification of community needs; (d) facilitating the involvement of the traditional community in the development or amendment of the integrated development plan of a municipality in whose area that community resides; (e) recommending, after consultation with the relevant local and provincial houses of traditional leaders, appropriate interventions to government that will contribute to development and service delivery within the area of jurisdiction of the traditional council;

(f) participating in the development of policy and legislation at local level; (g) participating in development programmes of municipalities and of the provincial and national spheres of government; (h) promoting the ideals of co-operative governance, integrated development planning, sustainable development and service delivery; (i) promoting indigenous knowledge systems for sustainable development and disaster management; (j) alerting any relevant municipality to any hazard or calamity that threatens the area of jurisdiction of the traditional council in question, or the well-being of people living in such area of jurisdiction, and contributing to disaster management in general; (k) sharing information and co-operating with other traditional councils; and (l) performing the functions conferred by customary law, customs and statutory law consistent with the Constitution.”

• 11. ROLE OF TRADITIONAL COUNCILS

AND TRADITIONAL LEADERS IN SUPPORT OF LOCAL, PROVINCIAL AND NATIONAL SPHERES OF (ELECTED) GOVERNANCE STRUCTURES 11.1 COMPULSORY PROMOTION OF PARTNERSHIPS BETWEEN TRADITIONAL COUNCILS AND MUNICIPALITIES: Section 5 TLGFA provides for the compulsory promotion (“must”) by National and Provincial Government

• f partnerships between:

(a) District Municipalities and Kingship and Queenship Councils + Principal Traditional Councils, and (b) Local Municipalities and Traditional Councils: “5(1) The national government and all provincial governments must promote partnerships between district municipalities and kingship or queenship councils and principal traditional councils through legislative or other measures. (2) The national government and all provincial governments must promote partnerships between local municipalities and traditional councils through legislative or other measures. (3) Any partnership contemplated in subsections (1) and (2) must- (a) be based on the principles of mutual respect and recognition of the status and roles of the respective parties; and (b) be guided by and based on the principles of co-operative governance.”

11.2 OPTIONAL CONCLUSION OF SDAS BETWEEN A TRADITIONAL COUNCIL AND A MUNICIPALITY: Section 5 TLGFA provides for the optional (“may”) conclusion of SDAs between a Traditional Council and a municipality (thus Metro, DM or LM) in accordance with the 2000 Local Government: Municipal Systems Act 32 of 2000, and any other applicable legislation: 5“(4) A traditional council may enter into a service delivery agreement with a municipality in accordance with the Local Government: Municipal Systems Act, 2000 (Act 32 of 2000), and any other applicable legislation.”

11.3 OPTIONAL ALLOCATION OF ROLES AND FUNCTIONS TO TRADITIONAL LEADERS AND TRADITIONAL COUNCIL BY NATIONAL AND PROVINCIAL GOVERNMENT Section 20 TLGFA sets out the guiding principles for the optional (“may”) allocation of roles and functions by National and Provincial Government, which may, through legislative or other measures, provide a role for Traditional Leaders and Traditional Councils i.r.o.: (a) arts and culture; (b) land administration; (c) agriculture; (d) health; (e) welfare; (f) the administration of justice; (g) safety and security; (h) the registration of births, deaths and customary marriages; (i) economic development; (j) environment; (k) tourism; (l) disaster management; (m) the management of natural resources; (n) the dissemination of information relating to government policies and programmes; and (o) education.

Section 20(2) TLGFA prescribes the following process for the optional allocation of roles and functions to Traditional Councils and Traditional Leaders: “(2) Whenever an organ of state within the national government or a provincial government considers allocating a role for traditional councils or traditional leaders in terms of subsection (1), that organ of state must- (a) seek the concurrence of- (i) the Minister if it is an organ of state in the national sphere of government; or (ii) the Member of the Executive Council responsible for traditional affairs in the province concerned if it is an organ

• f state of that province;

(b) consult with- (i) the relevant structures of traditional leadership; and (ii) the South African Local Government Association; (c) ensure that the allocation of a role or function is consistent with the Constitution and applicable legislation; (d) take the customary law and customs of the respective traditional communities into account; (e) strive to ensure that the allocation of a role or function is accompanied by resources and that appropriate measures for accounting for such resources are put in place; (f) ensure, to the extent that it is possible, that the allocation of roles or functions is implemented uniformly in areas where the institution of traditional leadership exists; and (g) promote the ideals of co-operative governance, integrated development planning, sustainable development and service delivery through the allocation of roles and functions.”

Section 20(3) - (4) TLGFA provides as follows as regards M&E and withdrawal of such allocated role or function by a national or provincial organ of state:

“(3) Where an organ of state has allocated a role or function to traditional councils or traditional leaders as envisaged by subsection (1), the organ of state must monitor the implementation of the function and ensure that- (a) the implementation of the function is consistent with the Constitution; and (b) the function is being performed. (4) Where a traditional council does not perform an allocated function as envisaged in subsection (3), any resources given to a traditional council to perform that function may be withdrawn.”

• B. SOME KEY SHORTCOMINGS IN CURRENT LEGISLATIVE AND ADMINISTRATIVE FRAMEWORK (NON-

EXHAUSTIVE LIST)

• 1. Absence of provision (by national DTA and Provincial Departments responsible for traditional affairs) of

targeted and customised support, resources (infrastructure, finances and trained staff, etc.), training and other capacitation programmes on a continuous and regular basis to, amongst others, the following:

• National House of Traditional Leaders
• All Provincial Houses of Traditional Leaders
• All Local Houses of Traditional Leaders
• Local House representatives (Traditional leaders) to municipal councils (section 81 of the Local Government:

Municipal Structures Act 117 of 1998)

• Traditional councils
• Kings and Queens
• Principal traditional leaders
• Senior traditional leaders
• Headmen and headwomen
• Traditional communities

• 2. Absence of provision (by national DCoG and DTA, and Provincial DCoGs and Provincial Departments

responsible for traditional affairs) of targeted and customised training and other capacitation programmes to, amongst others, the following:

• Elected municipal councilors
• Local House representatives (Traditional leaders) to municipal councils (section 81 of the Local Government:

Municipal Structures Act 117 of 1998)

• Municipal officials
• Members of traditional councils
• n the relationship between municipalities, on the one hand, and traditional leaders representatives (on

municipal councils) and traditional councils, on the other hand as regards, amongst others, relevant provisions of the

• Local Government: Municipal Structures Act 117 of 1998
• Local Government: Municipal Systems Act 32 of 2000
• (national) Traditional Leadership and Governance Framework Act 41 of 2003
• Provincial Traditional Leadership and Governance Acts

• 3. Non-implementation of section 5 TLGFA by National and Provincial Government – section 5(1)-(3)

provides for the compulsory promotion (“must”) by National + Provincial Government of partnerships between municipalities and traditional councils

• 4. Absence of provision of support by National and Provincial Government for the conclusion of Service

Delivery Agreements (SDAs) between a Traditional Council and a municipality in accordance with the Local Government: Municipal Systems Act 32 of 2000, and any other applicable legislation as provided for in section 5(4) TLGFA

• 5. Non-implementation of section 20 TLGFA (“Guiding principles for allocation of roles and functions”) by National and Provincial
• Government. Section 20 TLGFA provides for the optional (“may”) allocation of roles and functions by National and Provincial Government,

which may, through legislative or other measures, provide a role for Traditional Councils or Traditional Leaders in respect the following matters: (a) arts and culture; (b) land administration; (c) agriculture; (d) health; (e) welfare; (f) the administration of justice; (g) safety and security; (h) the registration of births, deaths and customary marriages; (i) economic development; (j) environment; (k) tourism; (l) disaster management; (m)the management of natural resources; (n) the dissemination of information relating to government policies and programmes; and (o) education.

• 6. Absence of enactment of national and provincial other “applicable legislation” that allocates functions

to traditional leaders as provided for in section 19 TLGFA: 19 “A traditional leader performs the functions provided for in terms of customary law and customs of the traditional community concerned, and in applicable legislation”.

• 7. Absence of:

regular monitoring and evaluation publication of annual M&E reports publication of annual reports on interventions and remedial steps taken, by national government departments, provincial government departments, officially recognised traditional leaders and traditional councils, in respect of their compliance with all relevant statutory provisions .

• C. SOME KEY SHORTCOMINGS IN PROPOSED NEW GOVERNANCE FRAMEWORK (TRADITIONAL AND

KHOI-SAN LEADERSHIP BILL, 2015) (NON-EXHAUSTIVE LIST)

• 1. The 2015 Bill should be divided into two separate Bills, dealing with:

(a) (African) Traditional Leadership and Governance, as regulated by Chapter 12 of 1996 Constitution; and (b) Khoi-San Leadership and Governance, as regulated by Chapter 2 of 1996 Constitution. See also the determination of “traditional leadership, subject to Chapter 12 of the Constitution” as a Schedule 4 (Part A) concurrent functional area.

• 2. The 2015 Bill makes very limited provision for provincial legislation and provincial policy formulation. This is

contrary to the provisions of the Constitution, which determines that “traditional leadership, subject to Chapter 12 of the Constitution” as a Schedule 4 (Part A) concurrent functional area\. (The 2015 Bill is no longer framework legislation and is formulated as if traditional leadership is an exclusive national functional area, with a few clauses allocating specific limited roles to provinces.).

• 3. The role of traditional leadership as such is under-emphasised and should be explicitly provided for by

amendments to the Bill by, amongst others:

• Throughout the Bill, including “traditional leadership” in all instances where it mentions kingship, queenship, etc.

(depending of course on the nature of the clause concerned) – this is not currently the case

• Compelling the Premier, before exercising any of his or her statutory discretions, to consult with the senior

traditional leader concerned, prior to taking decisions which may affect the traditional leadership concerned, the traditional community concerned, and/or the traditional council concerned – this is not currently the case

• By specifying in detail all the statutory and customary roles, powers, functions and duties of both the senior

traditional leader concerned, as well as of headmen/headwomen – these are currently not spelled out and the few instances where reference is made to such matters, are very limited

• By distinguishing and specifying in detail the two different categories of roles, powers, functions and duties of a

senior traditional leader –

• a. As chairperson of the traditional council concerned; and
• b. In his or her capacity as officially recognised traditional leader
• this is not currently the case

• 4. The 2015 Bill does not provide in any detail for the compulsory provision (by national DTA, and Provincial

Departments responsible for traditional affairs) of targeted and customised support, resources (infrastructure, finances and trained staff, etc.), training and other capacitation programmes on a continuous and regular basis to, amongst others, the following:

• National House of Traditional Leaders
• All Provincial Houses of Traditional Leaders
• All Local Houses of Traditional Leaders
• Local House representatives to municipal councils (see proposed amendments to section 81 of the Local

Government: Municipal Structures Act 117 of 1998)

• Traditional councils
• Kings and Queens
• Principal traditional leaders
• Senior traditional leaders
• Headmen and headwomen
• Traditional communities
• this is not currently the case

• 5. The 2015 Bill does not provide in any detail for the compulsory provision (by national DCoG and DTA, and

Provincial DCoGs and Provincial Departments responsible for traditional affairs) of targeted and customized support, resources (infrastructure, finances and trained staff, etc.), training and other capacitation programmes on a continuous and regular basis to, amongst others, the following:

• Elected municipal councilors
• Local House representatives (Traditional leaders) to municipal councils (see proposed amendments to section

81 of the Local Government: Municipal Structures Act 117 of 1998)

• Municipal officials
• Members of traditional councils
• n the relationship between municipalities, on the one hand, and traditional leaders representatives (on municipal

councils) and traditional councils, on the other hand as regards, amongst others, relevant provisions of the

• Local Government: Municipal Structures Act 117 of 1998
• Local Government: Municipal Systems Act 32 of 2000
• Proposed Traditional and Khoi-San Leadership Bill, 2015 (after enactment)
• Provincial Traditional Leadership and Governance Acts

• 6. The 2015 Bill provides for the optional making of Regulations by the national DTA Minister, and in a few instances,

by the Premier concerned. The making of Regulations should be compulsory in all cases in order to bring about both legal certainty and uniformity (at national and provincial level, as the case may be)

• 7. The 2015 Bill does not provide for the break-away of a particular group within an officially recognised traditional

community in cases where such a break-away group wants to be recognised as a separate traditional community

• 8. Financial matters are dealt with in various clauses – these should be consolidated in one clause
• 9. The 2015 Bill vests far-reaching financial oversight and management powers in the Premier of the Province
• concerned. Within this context:
• All trust accounts (with the exception of trusts established in terms of section 10 Trust Property Control Act 57 of

1998); and

• Other accounts (e.g. opened and managed by a business entity belonging to the traditional community concerned

and established in accordance with legislation administered by the dti), would in principle have to be closed and consolidated in one traditional council account opened by the Premier (clause 23 of the 2015 Bill)

• 10. The 2015 Bill does not provide for the continued existence, management and auditing of business and other

entities established by the traditional community/council concerned in accordance with, amongst others, legislation administered by the dti in those cases where there has been a track record of successful management and auditing, as well as of the making available of accrued benefits to community members. This should be amended to provide for the continuation of such accounts, and their management and auditing by the traditional community / council concerned, as well as of the making available of accrued benefits to community members. (Examples are, amongst others, traditional communities in North West who receive monetary benefits from the utilization of natural resources on or under their traditional community land, e.g. royalties/dividends from mines.)

• 11. The 2015 Bill provides for the ratification by the Premier concerned of each individual partnership or agreement

between traditional councils, on the one hand, and (a) municipalities, (b) national/provincial government departments, and (c) any other person, body or institution. The 2015 Bill requires such ratification as a prerequisite for legal effect and implementation. This requirement may not be helpful, as this will possibly result in inordinate delays in what, in reality, amounts to approvals. It is proposed that the national Minister and/or Premiers should be compelled to issue binding guidelines as regards the minimum content and a prescribed pro forma template by means of binding Regulations.

• 12. The proposed clause 25 (Allocation of roles to kingship or queenship council, principal traditional council,

traditional council, Khoi-San council, traditional sub-council and traditional and Khoi-San leaders) is vague and also much weaker than the current section 20 (Guiding principles for allocation of roles and functions) of the Traditional Leadership and Governance Framework Act 41 of 2003. In addition, clause 25 of the 2015 Bill only refers to the allocation of roles, and does not – as the current section 20 of the 2003 Act does - provide for the allocation of both roles and functions. Furthermore, clause 25 of the 2015 Bill determines that “such a role may not include any decision-making power”. It is proposed that the contents of the current section 20 of the 2003 Act should be incorporated in clause 25 of the 2015 Bill, and that the allocation should include both (a) roles and functions, and, (b) where appropriate, also decision-making (e.g. in the allocation of residential sites).

• 13. The proposed clause 69 (“Monitoring) does not provide for the compulsory
• regular monitoring and evaluation
• publication of annual M&E reports
• publication of annual reports on interventions and remedial steps taken,

by national government departments, provincial government departments, officially recognised traditional leaders and traditional councils, in respect of their compliance with all relevant statutory provisions . (Clause 79

• nly provides for the optional (discretionary) monitoring by the (national) Department of Traditional Affairs and
• ptional (discretionary) intervention by the (national) Minister responsible for traditional affairs.

• D. SOME KEY SHORTCOMINGS IN PROPOSED NEW TRADITIONAL COURTS FRAMEWORK (TRADITIONAL

COURTS BILL, 2017) (NON-EXHAUSTIVE LIST)

• 1. Clause 2 (“Objects of Act”) of the Traditional Courts Bill, 2017, provides for members of a specific traditional

community to have an option to elect to observe their custom, traditions and customary practices. Members of the community should not have an option to elect to observe their custom, traditions and customary practices as that will as erode custom. If a community member were to decide not to observe the community’s customs, traditions and customary practices, that person is in fact disassociating him-/herself from the community (and should, in principle, not continue to reside on communal land).

• 2. Clause 4 (“Institution of proceedings in traditional courts”) of the Traditional Courts Bill, 2017, provides for a

person to opt out of the jurisdiction of a traditional court. The clause should be rephrased to provide that the court has automatic jurisdiction on any person who resides, carries on business or is member of a particular traditional community concerned and that the said categories have no option to opt out.

• 3. Clause 4 (“Institution of proceedings in traditional courts”) of the Traditional Courts Bill, 2017, provides for a

person to opt out of the jurisdiction of a traditional court during the proceedings of a traditional court. The clause should be rephrased to provide that a person who resides, carries on business or is member of a particular traditional community concerned and that the said categories does not have an option to opt out prior to the commencement of, at the initialisation of, or during, proceedings before the traditional court concerned.

• 4. Various other matters are not dealt with sufficiently, or not at all, in the Traditional Courts Bill, 2017.

These include, but are not limited to:

• A sheriff of the traditional court must be appointed similar to the clerk of the court.
• There must be consistent references to mediation, reconciliation, Ubuntu, restorative justice and peaceful co-

existence in the Bill

• Members and officials of the traditional courts must be trained
• Traditional councils and members of traditional communities must be informed of the contents of the Traditional

Courts Act (once enacted)

• The role of the Justice of Peace must be clarified
• The role of the paralegals and legal interns must be clarified
• The clerk must be provided with assistants, appointed by Government
• Government/Department of Justice must provide all the necessary training, technical assistance and

infrastructure to courts, e.g. stationery, recording facilities, messengers of courts etc.

• E. SOME KEY ELEMENTS AND SHORTCOMINGS IN PROPOSED NEW DRAFT

COMMUNAL LAND BILL, 2017 The new proposed Communal Land Bill, 2017, has not yet been published.

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