On 26 December, 2011, the Department of Justice and Constitutional Development reintroduced the Traditional Courts Bill to the National Council of Provinces (NCOP). This is the latest version of a bill that was first tabled in 2008¹ and which was heavily criticised by members of those rural communities.²

However, despite broad opposition the NCOP has chosen to put forward a virtually unchanged version of the original bill. Unsurprisingly, then, it is once again being met with much resistance. It begs to be asked why the government is so insistent on the current version of the Bill. The seeming disregard for widespread criticism – also seen around the ANC-promoted Protection of Information Bill (or ‘Secrecy Bill’) and Media Appeals Tribunal – represents a significant cause for concern.

In the Mail and Guardian article reproduced below, Sindiso Mnisi Weeks writes a clear and more comprehensive overview of the issues around the bill. In the article and the accompanying photo caption, she refers to a 2010 controversy around the practice of ukuthwala, which “involves the abduction and forced marriage of girls who are frequently under-aged”.³ The controversy was caused when Mandla Mandela, an ANC MP and the chief of the Mvezo traditional council, made statements in defence of the practice, which clearly contravenes the rights of the young women in question.

This is one example of how the Traditional Courts Bill contradicts the Constitution. As pointed out by Tshwaranang Legal Advocacy Centre’s executive director, Lisa Vetten, the practice of ukuthwala “violates the constitutional rights to dignity, freedom and security of the person”. She further notes that “the practice clearly contravenes the Recognition of Customary Marriages Act of 1998, which prescribes that prospective spouses be over the age of 18 and that they must both consent to the marriage”. If the Traditional Courts Bill were passed in its current form, it seems unlikely that young women would have adequate recourse to legal representation in cases where the decisions of traditional courts unfairly curtailed their rights.

The University of Cape Town’s Law, Race and Gender Research Unit (LRG) has released a statement describing their objections to the new bill. Specifically, they are concerned that:

• the Bill would empower traditional leaders to single-handedly make and apply customary law on wide-ranging issues in cases before their courts, and impose punishments such as forced labour, loss of customary entitlements and any other order they deem fit;
• no one (not even a passerby) would be allowed to opt out of traditional courts – anyone refusing to appear once summoned by a traditional leader would be guilty of an offence;
• people (even criminal accused) would not be entitled to legal representation before the courts and women would not be guaranteed self-representation; and
• despite the contraventions of basic rights, numerous decisions and sanctions in traditional courts would not be appealable – their decisions would be final and have the status of Magistrate Courts’ decisions.

A short documentary about the bill, released by the LRG, can be viewed online here: http://www.youtube.com/watch?v=DbmcT0K85JE&feature=related.

Additional information about the bill (including dates for submissions and guidelines for writing letters to the Speaker, the Select Committee, a submission to Parliament, and a submission on behalf of an NGO or academic bodies) is available from the dedicated Traditional Courts Bill page of the LRG web site: http://www.lrg.uct.ac.za/research/focus/tcb/. This page also includes the full text of the LRG’s legal submission on the 2012 bill:

http://www.lrg.uct.ac.za/usr/lrg/docs/TCB/2012/legal_submission_lrg_2012_final.pdf, as well as submissions from NGOs, academics, and communities on the original bill (B15-2008), background documents, and related journal articles, press clips, and statements.

¹ The explanatory summary of the Bill was published in Government Gazette No. 30902 of 27 March 2008. A copy is available online, from the LRG website: http://www.lrg.uct.ac.za/usr/lrg/docs/TCB/2012/TCB_B15-2008.pdf

² As reported by the Mail and Guardian in 2008, objections to the original bill included that it:

a) gave traditional leaders “sweeping powers … over rural South Africans”;

b) “entrenches the geographical jurisdiction of traditional courts, often according to the boundaries drawn by the apartheid authorities”;

c) “will make all rural people into tribal subjects”; and

d) allows chiefs “to interpret and enforce customary law” unilaterally, without input from the communities themselves.
Moreover, only traditional leaders were included during the initial drafting process, which means that the Bill gives exclusive consideration to the interests of chiefs, whereas rural women and young men were not heard before the bill was drafted.

³ See the Comment & Analysis article for the  Mail and Guardian, “When ‘culture’ clashes with gender rights” by Christi van der Westhuizen (Dec 2, 2011): http://mg.co.za/article/2011-12-02-when-culture-clashes-with-gender-rights

Subject to the traditional leaders’ whims
SINDISO MNISI WEEKS: TRADITIONAL LEADERS  Feb 20 2012 10:19
Traditional leadership is on the rise. The Traditional Courts Bill 1 of 2012, which was introduced in the National Council of Provinces on Thursday last week, is the latest in a series of significant legislative affirmations of this reality.
Traditional affairs
Mandla Mandela’s actions in Mvezo in the Eastern Cape have infuriated locals, who say he does not have the right to remove them from their land to build a hotel and stadium. (David Harrison, M&G)

Like its predecessors, but infinitely more so, it assigns traditional leaders such extended authority over the 17-million people in their apartheid-established jurisdictions that, effectively, ordinary rural people will no longer be citizens of South Africa but rather subjects of former homelands.
Preferring the alleged powers of traditional leaders over the ­democratic rights of rural citizens has been a trend seen since apartheid ended. As early as Codesa I and II, the negotiations that ended apartheid, traditional leaders began fighting hard to be perceived as the sole custodians of culture and be guaranteed the right to speak on behalf of their “subjects”.

This is surprising to the many who saw vast rural areas burning in the late Eighties as a result of the rage and protests of rural people who wanted the government to do away with traditional leaders. At the time the ANC agreed with the people, but no more.
In the words of chief Mandla Mandela, MP, as he stood outside the Mthatha Regional Court where he was defending an application for an interdict filed by the Mvezo community members, who refused to accept that his traditional authority allowed him single-handedly to remove them and their ancestors’ gravesites from their land to build a hotel and stadium: “This is not just a personal attack on my character as an individual, but it is an attack on the Mandela legacy. It is an attack on the Mandela family and it is an attack on the ANC as a whole, because we are adhering to ANC policies.

We are implementing them on the ground and this is what has resulted — people are trying to ensure that they stop development.”
One wonders what kind of development it is that overrides people’s legitimate constitutional rights to be consulted on decisions that affect them. But it would seem that constitutional rights are dispensable when it comes to rural people.
So suggests the tide of legislation that the government has passed concerning people in so-called communal areas. One might recall that the Communal Land Rights Act of 2004, which effectively stripped rural people of their ability to administer their own land and gave the power to traditional councils headed by traditional leaders, was struck down in May 2010 when the Constitutional Court found that insufficient public participation had accompanied the law-making process.

The Traditional Courts Bill follows on from that legacy of unconstitutional legislation. According to the Bill, traditional leaders can effectively constitute traditional courts and be the sole law and decision-making powers. Because customary law (which, as the Constitutional Court has correctly found, is a form of law that evolves with ordinary people’s practice) is articulated most explicitly in legal cases, this would mean that traditional leaders would be the ones to determine its content.

The Bill does not guarantee any ordinary people a role in the courts, unlike current practice in most areas, which at least permits men to participate freely.
This is particularly bad for women, who, in practice, are often not members of the court and need to be ensured participation in the articulation of customary law and how it should apply to people’s lives.
The Bill provides that women, when they come before the court as litigants, can be represented by their husbands or other family members “in accordance with customary law”. It thus reinforces the problem of prohibitions on women appearing and representing themselves in ­traditional courts in some areas, which has serious consequences in domestic violence and eviction cases.

The Bill compels anyone whose civil or criminal matter arises within the traditional leader’s apartheid-established area of jurisdiction to appear before the traditional leader court when summoned by the leader. This is assuming that the subject of the case is not one of those who have been excluded. Thus, rural people and passers-by alike will be compelled to have their cases resolved by the local traditional leader, whether they knew the content of the law beforehand or not. And remember that the traditional leader could very easily invent that customary law on the spot — the Bill provides no checks for confirming what the local customary law is.

The traditional leader can sanction the parties with punishments such as forced labour, loss of customary entitlements, or whatever other penalty he sees fit. If they fail to appear when summoned, they can be similarly punished. In all appearances before the traditional leader court they will have no right to legal representation.
For a practical example, among several instances of abuse by emboldened traditional leaders, think of Mandla Mandela’s actions in Mvezo. What protection will there be for people like those who object to the hotel and stadium when, under the Bill, some matters are confined to the traditional court and there is no right to opt out of the court’s jurisdiction, as well as extremely limited grounds for appeal or review?
Under the Bill, those seeking to protect their land rights would, quite possibly, have had no way to get to the magistrate’s court to challenge their traditional leader without first challenging the Bill itself.
This should tell you that there is something very wrong with the Bill. A law like this could not possibly stand up to constitutional scrutiny.

Sindiso Mnisi Weeks is a senior researcher in the law, race and gender research unit at the University of Cape Town

Source M&G

Youtube  The Law, Race and Gender unit takes on the “unconstitutionality” of the Traditional Courts Bill