Traditional laws should be compulsory

2018-03-25 06:00
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Traditional leaders have rejected the proposed voluntary participation by rural residents in the traditional courts system. As long as people live in traditional communities, they have to subject themselves to the authority of traditional leadership, they argue.

The government reintroduced the Traditional Courts Bill last year, with a new clause which makes provision for people to opt out of the traditional system and pursue their matters in magistrates’ courts, if they so wish.

The proposal was a significant concession by the government and a big victory for civil society organisations that rejected the two previous versions of the bill, introduced in 2008 and in 2011. They were unconstitutional and would infringe on women’s rights, they argued.

The bill is meant to regulate the role and functions of traditional courts.

The Congress of Traditional Leaders of SA (Contralesa) and the National House of Traditional Leaders (NHTL) this week rejected the proposed opt-out clause, saying that traditional courts should apply to all rural residents, with no exception.

“The institution [of traditional leadership] believes that everybody who voluntarily settles in any area under the jurisdiction of traditional leadership, by virtue of being a member of the community in that area, has subjected him or herself to the authority of the traditional leadership in question.

Speaking on behalf of the NHTL this week, Inkosi Sipho Mahlangu said: “The bill should not create a division within the community. We believe that once the courts start to function effectively, all the challenges seen, experienced, imagined or heard will be minimised or eliminated.”

Mahlangu was addressing the third day of public hearings into the bill by Parliament’s justice portfolio committee.

The chiefs believe that anybody who lives in the area of jurisdiction of a traditional council is bound by the laws of that village, as long as those laws are not in conflict with the Constitution and any other law of the country.

“We propose that any person who has been summoned to appear before the traditional court must do so within the time allocated, as long as the said time is reasonable.”

Mahlangu said if the person was unable to attend, he or she should, in writing or through a delegation, approach the clerk of the court to ask for an extension of the date.

The traditional court may, after evaluating the reasons provided, decide on the next step, which could include hearing the matter, transferring it to another court or escalating it, proposed the chiefs.

“It should be compulsory for any person summoned to appear before the court to do so. Failure to do so should result in the members of the South African Police Service fetching him or her and the clerk or messenger of the court accompanying the person concerned to the court,” said Mahlangu.

The proposed law makes provision for unsatisfied parties to take their matters to the high court for review.

Amakhosi want the rules of the high court to be amended to allow for any review to be conducted without legal representation, just as in a traditional court. They suggest that the high court may summon an expert in the relevant customary law to provide clarity, to ensure an effective review, in line with restorative justice and customary law.

The bill puts jurisdictional limits on cases up to R5 000 in value. The NHTL wants the amount to be increased to R10 000.

In its submission, Contralesa said people live in traditional communities by choice, for their own interests and that those in the same community practise their customs and culture without any form of coercion.

Contralesa argued that customary law enjoys the same status as Roman-Dutch law in this country’s legal system and, as a system of law, many South Africans use it to regulate their lives in a multicultural society.

In her presentation Nomboniso Gasa, an expert on the subject who has researched the bill for the last 10 years, warned that it would not pass constitutional muster. She said it was not possible to have a bill that replaces the Black Administration Act and yet it insists on people who live under the jurisdiction of a traditional leader being bound by traditional law.

Gasa warned MPs that the notion of opting in and opting out is affirmed in the Constitution and that the proposed law would be tested against it.

“Opting in and opting out do not only apply to Africans. The conversation we are having on the Traditional Courts Bill and on African customary law is no different from the boiling conversation that the Muslim Judicial Council is having about to what extent do people of Muslim faith opt in and opt out of their practices.”

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