Traditional Courts Bill Process, Substance and Implications HSRC - - PowerPoint PPT Presentation

Traditional Courts Bill

Process, Substance and Implications

HSRC Panel Discussion, 8 May 2012 Sindiso Mnisi Weeks

Overview

• Traditional Courts Bill Background
• Specific issues raised by the Bill and their implications
• Centralisation of Power to Traditional Leader
• Extensive Powers Assigned
• Inescapable Apartheid ‘Tribal’ Boundaries
• Women Not Afforded Adequate Protection

Background and Process

• NA: B15-2008

– May 2008, public hearings – Outcry from civil society – Policy drafted in consultation with NHTL – No ordinary (rural) people consulted

• NCOP: B1-2012

– Jan 2012, (re)introduced – Same (acknowledged) problems and concerns: Not enough for rural people to amend, not help conceptualise law

• SALRC research and consultation involving

cross-section + special process with women by CALS, CGE and NLC

• Findings:

– Customary courts very important – 1927 Black Administration Act inadequate – Alignment of courts w/ Constitution necessary

• Traditional leaders objected
• SALRC recommendations disappeared

• Integral connection with Traditional Leadership

and Governance Framework Act, 2003 (TLGFA) which is connected to Bantu Authorities Act, 1951

• Officially recognised senior traditional leaders

become presiding officers of courts

• Courts’ jurisdictions and boundaries the same

as TLGFA boundaries

• Section 28(1) of the TLGFA:

‘Any traditional leader who was appointed as such in terms

• f applicable provincial legislation and was still recognised as a

traditional leader immediately before the commencement of this Act, is deemed to have been recognised as such in terms of section 9

• r 11, subject to a decision of the Commission in terms of section 26.’
• Section 28(3):

any ‘“tribe” that, immediately before the commencement of this Act, had been established and was still recognised as such is deemed to be a traditional community contemplated in section 2 ... .’

• Section 28(4):

any ‘tribal authority that, immediately before the commencement of this Act, had been established and was still recognised as such, is deemed to be a traditional council ...’ subject to elections of 40%.

Homelands 1986

Traditional Councils 2010

Bophuthatswana KwaNdebele Lebowa Venda Gazankulu KaNgwane KwaZulu Transkei Ciskei QwaQwa

Centralisation of Power to TL

• Presiding officer is senior traditional leader or

his delegate

• No functions, powers or recognition given to

intrinsic role played by council or councillors in customary dispute resolution process

• SA Law Reform Commission (SALRC) said

councils are intrinsic and should be representative, including option for elected councillors

• Section 20(1) of TLGFA enables national and

provincial government to provide a role for traditional councils or traditional leaders in eg: – land administration, and management of natural resources; – health, and education; – administration of justice; – safety and security; – economic development; etc.

• Also service delivery agreements w/ LG

• Constitutional doctrine purpose: to mediate

abuse of power

• In TCB, senior traditional leader as presiding
• fficer could:
• Determine the content of customary law
• Administer customary and state laws

– TLGFA s20, service delivery; NTAB s38

• Adjudicate disputes arising from his

administrative actions E.g. Disputes arising from land allocation

Extensive Powers Assigned

• Can order any person to perform unpaid

labour – 10(2)(g)

• Can deprive of customary benefits – 10(2)(i)

– implication = could strip of community membership, deprive of land rights

• Banishment only excluded as sanction in

criminal matters, not in civil matters

• May impose further sanctions where no

compliance – coercive (not restorative justice)

Inescapable Apartheid ‘Tribal’ Boundaries

• SALRC recommended that people must be

able to opt out of customary courts in favour

• f other courts (e.g. Magistrate’s court)
• Traditional leaders said undermined authority
• Under TCB, an offence not to appear before

traditional court once summoned – clause 20

• Regardless of whether:
• Private owners, Trusts and CPAs
• Other groupings who dispute apartheid tribal boundaries
• r legitimacy of particular traditional leaders

• No lawyers or legal reps allowed, regardless
• f s35(3)(f) right of criminal accused
• Counter argument that lawyers would change

nature of courts and make more costly

• However, appeals limited to exclude e.g.

prohibition and “any other order that the traditional court may deem fit …”

• Also, basis of review is limited to e.g. gross

irregularity, bias, absence of jurisdiction

• Decisions final and have status of MCs

Women Not Afforded Adequate Protection

• No provision making women members of

courts

• Husbands can represent wives just as wives

can represent husbands “according to customary law” – clause 9(3)(b)

• Clause 9(2)(a)(i) pays lip service to formal

equality but Bill as a whole entrenches unequal power relations

• Value of customary dispute resolution:

encourages debate; builds consensus; inclusive – need more inclusivity, not less

• In practice, women’s voices beginning to be

heard

• Customary courts exist at different levels,

especially at village level

• 2008 Bill centralises power, trumps all other

forums and vests all power in senior traditional leader as presiding officer. Adopts 1927 Black Administration Act model, worse.

• Creates separate legal regime for former

homelands;

• Entrenches past distortions of custom –

authoritarian rule and patriarchy;

• Enables corruption and shields abuse of

power;

• Undermines equal citizenship

Thank you

www.lrg.uct.ac.za/research/focus/tcb/