Traditional courts bill still not up to scratch

2017-01-29 06:01

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Cape Town - People living in rural communities will no longer be subject to the traditional court system and will be able to opt out of customary dispute resolution if they don’t recognise it.

This is a significant shift by the government in the revised version of the highly contested Traditional Courts Bill, which includes an opt-out clause. This means while anybody can be summoned to appear before the court, those who don’t recognise the system can decline to go there.

This is a big victory for civil society and women’s rights organisations who successfully opposed the two versions of the bill, which were brought to Parliament in 2008 and again in 2011.

While critics welcomed this development, concerns remain about a range of other proposals in the yet-to-be-tabled bill, which was published on the department of justice’s website a few days ago.

Introducing the bill to the media, John Jeffery, the deputy minister responsible for justice, assured journalists the revised bill was in line with the Constitution. He said its enactment would put an end to the abuse of the system which was manipulated to serve the interests of the colonial and apartheid regimes.

Previous bills imposed traditional courts on traditional communities, which amounted to an entrenchment of tribal boundaries, said critics of the bills.

“The emphasis is on restorative justice measures, for instance, compensation and redress, which are aimed at restoring relations between parties and promoting social cohesion,” said Jeffery.

“While the previous bills provided for the imposition of fines and the deprivation of customary law benefits, among others, the [revised] bill does not provide for these, which could lead to abuses,” he added.

Fundamental problem

The bill also makes provision for the review of procedural shortcomings in the high court, for instance if the traditional court was not properly constituted or the parties were not allowed to be represented by persons of their choice.

The high court can confirm, alter, set aside or correct an order made by a traditional court. It may also correct the proceedings of the traditional court.

“To review, you have to go to the high court and you have to have a lawyer. How do poor people get lawyers?” asked Aninka Claassens, director of the UCT-based Land and Accountability Research Centre.

Claassens said while the revised bill is a vast improvement, especially the opting-out clause which breaks the old apartheid boundaries, it remains “utterly cynical and even unenforceable.

“It’s a big improvement...there is a major paradigm shift in that the fundamental problem with the old one is that it locked people under those courts and they couldn’t get out.”

The boundaries of the courts were deeply controversial because they were the old Bantu authority boundaries.

“That is what we disputed. It changes that. But while it doesn’t say that the court’s jurisdiction would be those tribal boundaries, there are still big problems because it defines traditional leaders as traditional leaders who are recognised by an act of Parliament.

“That act is the Traditional Leadership and Governance Framework Act, which entrenches the apartheid boundaries,” said Claassens.

Claassens explained that there were ongoing disputes between traditional leaders who were officially recognised during apartheid and those who were not, with those who were not being those who opposed apartheid.

Proposed legislation

“In a way, what all of these laws do is entrench those [leaders] who were officially recognised against counterclaims by many people. It’s incredibly significant that this new Traditional Courts Bill de-links the court’s jurisdiction from the tribal jurisdiction,” she said.

Civil society organisations opposed the previous versions of the bill, saying they were built on the Black Administration Act, with chiefs automatically becoming presiding officers of the court. It was a practice that had nothing to do with customary laws but was about giving powers to traditional leaders.

Constance Mogale of the Alliance for Rural Democracy, who also led the campaign opposing the previous versions of the bill during the parliamentary process, hailed the new version’s departure from the so-called apartheid boundaries through its opting-out clause.

The alliance, however, has non-negotiable demands for the proposed legislation which were drafted in August 2014 and Mogale says the new bill falls short on addressing them.

They want any legislation about customary dispute resolution forums to include substantive protection for women, children and other vulnerable groups such as lesbian, gay, bisexual, transgender, intersex and questioning people.

“The ability of these vulnerable peoples to speak and be heard in these forums without fear of repercussions must be safeguarded.”

They are also concerned that the bill does not make provision for appeals, but only allows reviews on grounds of procedure.

Does the revised Traditional Courts Bill go far enough in protecting the rights of rural communities?

SMS us on 35697 using the keyword BILL and tell us what you think. Please include your name and province. SMSes cost R1.50

Read more on:    cape town  |  judiciary  |  legislation

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