Despite changes, bill still flawed

2012-09-26 00:00

THE Traditional Courts Bill — legislation that will give patriarchal traditional courts the power to undermine the constitutional rights of people living in the former homelands — was resoundingly rejected by civil society organisations and by rural people during the provincial public hearings held during April and May.

The Department of Justice has responded by proposing significant changes to the draft legislation under the guise that its proposal addresses all the concerns raised by those who have made submissions opposing the bill.

This is not the case. The proposals made by the department exacerbate the fundamental flaw raised in submission after submission: that the bill imposes a separate legal system on people living in the former homelands. The department goes a step further by proposing that traditional courts should be subsumed into traditional councils.

These proposals were presented to the National Council of Province’s Select Committee on Security and Constitutional Development at last week’s public hearings on the bill.

Traditional councils were created in terms of the controversial Traditional Leadership and Governance Framework Act (TLFGA) of 2003. The TLGFA entrenches the apartheid-era tribal boundaries created in terms of the 1951 Bantu Authorities Act, which precipitated uprisings in areas, such as Pondoland, Sekhukhuneland and Zeerust. During apartheid, traditional leaders who supported the Bantustan agenda were allocated large areas of land, whereas those who opposed the Bantu Authorities Act were stripped of their powers, or relegated to headman status and confined to small areas. In many instances, people with different identities and cultures were forcibly removed to specific Bantustan areas and found themselves the tribal subjects of traditional leaders with whom they had little or no shared history. Over three-and-a-half million black South Africans were forcibly removed during the creation of the ethnically delineated former Bantustans.

Rural people rejected their status as tribal subjects of separate ethnic homelands and demanded equal citizenship in a united South Africa. Widespread rural uprisings ensued which brought the Bantustan political system to its knees during the late eighties and early nineties. These uprisings played a key role in the demise of grand apartheid and the transition to democracy.

Despite this history, Section 28 of the TLGFA deems traditional councils to have the same tribal boundaries as those inherited from our apartheid past. The Department of Justice’s proposals effectively re-affirm that people living in the former homelands will again be denied the right to determine their own cultural identity and customary affiliation. Instead, the TLGFA and the TCB reimpose apartheid-era tribal identities and authority structures on them, whether they like it or not.

Currently, there are more than 500 disputes about traditional council boundaries in Limpopo alone. In North West, the Department of Co-operative Governance and Traditional Affairs (Cogta) does not want to accede to even a valid challenge to existing traditional council boundaries for fear that this could lead to a flood of similar claims.

The imposition of tribal boundaries and discredited apartheid-appointed chiefs by the state contradicts the underlying nature of customary law, which is based on consensual affiliation and free choice. Previously, the South African Law Commission (SALC) proposed that customary courts should operate at the level dictated by custom and practice, and not at the level of the ascribed tribal boundaries created during apartheid. The SALC also insisted that people have the right to opt out of customary courts if they so chose. This was rejected outright by the traditional leader lobby. The SALC’s proposals disappeared after it had been tabled in 2003. Instead, a different bill was drafted in consultation with the National House of Traditional Leaders.

The department’s proposals attempt to obfuscate the central concerns with imposed traditional council boundaries by harping on the difference between civil and criminal jurisdiction. The department attempts to argue that by not granting traditional courts criminal jurisdiction, it solves the problem of entrenching superimposed geographical tribal boundaries. This is disingenuous. In addition, the proposals sneak back in restrictions that would, in practice, make it impossible for people to opt out of traditional courts. The department states in its proposals that any person who receives notice to appear before a traditional court will be compelled to do so. If such a person is not willing to submit to the authority of such a court, he or she could submit reasons for non-attendance. The court, however, could proceed with the case in the absence of the said person. It further states that failure to comply with a directive of a traditional court should elicit a criminal sanction. This contradicts the notion that traditional courts should have no criminal jurisdiction.

There are many examples of people who were placed under the jurisdiction of the wrong chiefs during apartheid. They became structural minorities subsumed within large tribes. In terms of the TGLFA, these people will have no basis to challenge the boundaries imposed by traditional councils because any such challenge requires the support of the majority of the traditional community, which may have as many as 500 000 residents.

The Traditional Courts Bill and the proposals by the Department of Justice adopt the same top-down, state-imposed tribal identities that were created during apartheid. Chiefs are often associated with abuses, such as the extortion of tribal levies, the selling of land allocations and securing unilateral mining and investment deals. The bill and the new proposals will make it even more difficult for rural people living under these leaders to challenge their abuses, let alone hold them to account.

Perhaps most importantly, the aforementioned proposals made by the Department of Justice significantly change the nature of the original bill. The Constitution requires that all stakeholders be consulted on legislation that affects them. Yet, no such consultations took place, neither were stakeholders granted the opportunity to comment on the proposals before making their respective submissions to Parliament. Justice Minister Jeff Radebe claims the new proposals were drafted in consultation with the ministries of Women, Children and People with Disabilities, Cogta and Rural Development, but neither Parliament nor the relevant stakeholders had sight of the proposals beforehand. This puts the integrity of the legislative process at risk and exposes Parliament to a legal challenge.

There is a strong basis in law for arguing that the traditional councils Radebe wishes to empower have no legal standing or authority. The TLGFA provides that 30% of the members of a traditional council must be women, and 40% of the members of a traditional council must be elected. Most, however, have not complied with these requirements. Nine years after the Framework Act was introduced, the required elections have not yet taken place in Limpopo, and a report by Quanta Research Services shows the elections that have taken place to be fatally flawed. Radebe’s attempt to avoid a legal challenge to the TCB by empowering traditional councils to act as traditional courts, may yet backfire spectacularly. It provides the perfect cause of action to challenge the Framework Act itself.

Instead of bringing about positive changes in the rural areas, the bill and the Department of Justice’s proposals entrench colonial and apartheid distortions. Moreover, the drafters of the bill did not consult the very people who will be affected by this legislation, but rather relied exclusively on the input of traditional leaders whose own interests are directly at stake.  

 Dr Aninka Claassens is a long-term land rights activist and a senior researcher in the Law, Race and Gender Unit at the University of Cape Town (LRG). The LRG is a member of the Alliance for Rural Democracy.

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