Traditional courts bill won't be withdrawn

2012-08-30 20:43

Cape Town - The government will not withdraw the highly contested traditional courts bill from Parliament, Justice Minister Jeff Radebe said on Thursday.

Overhauling the bill outside the parliamentary process would undermine the legislative process, he told a Women's Parliament gathering in Cape Town.

However, Women's Minister Lulu Xingwana earlier this month said her justice counterpart had agreed the bill should be overhauled because it trampled on women's rights.

On Thursday, Radebe said: "I have also deemed it necessary to briefly outline the parliamentary process in order to quash speculations that there is a process underway to revamp the bill outside the parliamentary processes."

He said there had never been any intention to withdraw the bill.

"Doing so will not only interrupt the vibrant discourse occurring in Parliament that will shape the end product of this bill, but will allow the department to redraft another bill somewhere in a dark corner of its corridors, away from the public eye."

Radebe said the bill was not written in the statute books yet, but a work in progress and should be dealt with as such.

The minister said he would consult Xingwana, and his counterparts in co-operative governance and traditional affairs, as well as rural development.

He would then make a presentation to the National Council of Provinces, before it started public hearings on the bill.

Radebe said he would take into account the views of those opposed to the bill. These included that traditional courts should be distinguishable from courts of law, and that women should have an opt-out clause.

Earlier this month, Xingwana said currently women could choose whether they wanted to access a traditional court or a magistrate's court, but they would not have this option under the proposed law.

Xingwana, along with several women's organisations, are opposed to the law. She has vowed to fight against the bill in its current form becoming law, and insisted it would not pass constitutional muster.

"Women were not consulted when this bill was drafted and this is the biggest outcry from women," she said at the time.

Xingwana said many cultural practices like "ukuthwala and "ukungenwa" were harmful to both women and children.

Ukuthwala refers to young girls being abducted and forced into marriage, often with the consent of their parents.

Ukungenwa is the practice whereby a widowed woman automatically becomes her brother-in-law's wife.

The Traditional Courts bill was introduced in the NCOP, amid a loud outcry last year, after it was withdrawn from the National Assembly the previous year.

  • johandebeer - 2012-08-30 20:59

    Is this 2012?

      max.reynecke - 2012-08-31 07:21

      The rest of the world has managed to evolve out of the stone age, why is it so difficult for Africa with its backwards culture. When are Africans going to realise that their culture is prehistoric and all human races went through it at same stage but they have grown out of it?

      Linds - 2012-08-31 11:36

      I live in a middle to high income surbub. My neighbour's workers mistakely broke down my boundary wall and he refused to repair it. I went to my local police station and I was told that it was a civil case. I had to get a lawyer to write him a letter of demand, which he also ignored. Then I realised that it was cheaper for me to fix the wall than to continue with a civil claim. This is why we need traditional courts and community courts, where such disputes can be resolved locally without expensive lawyers and High Courts with long court rolls. The bill is neccessary, maybe it just needs to be reviewed.

      Linds - 2012-08-31 11:40

      Now imagine a poor person in a remote vilage! They should be able to approach a local chief or tribal court in such cases and get the dispute resolved without paying a cent.

      Linds - 2012-08-31 11:46

      Maybe the wording of the bill is not correct, but the intention is to make justice more accessible to poor people; which is plausible and we should support it (the intention).

      francis.ssekandi - 2012-09-09 22:39

      It is a pity that African customs are described as pre-historic when customs in the West that degrade human dignity are applauded as progressive!!!! Respect for the cultures of others is the corner stone of a civilised mind; bigotry only produces hatred and sometimes wars.

  • godfrey.welman - 2012-08-30 21:08

    ANC (traditional leaders) vs ANC (womans League)round 1.

      bernpm - 2012-08-30 21:26

      Could look like an oil wrestling session.

      heibrin.venter - 2012-08-31 01:54

      @bernpm: please God, not that, just the mental image makes me want to vomit.

  • Vince.York - 2012-08-30 21:11


  • glen.e.huysamer - 2012-08-30 21:16

    Why not? Are the kings and chiefs, afraid that losing their patriarchal suppression over their women and children will force them to get off the fat backsides..... forcing them to go fetch there own beer from the fridge. Tradition makes slaves of our rural women.... and keeps them in poverty.

      juannepierre - 2012-08-31 03:22

      I couldn't agree more

  • vusi.mlondo - 2012-08-30 21:22

    Why only protect women. Men need protection too.

      juannepierre - 2012-08-31 03:23

      From whom exactly...? Women?

      juannepierre - 2012-08-31 03:24

      Traditional leaders - I love magic too. But I don't believe in magic... Maybe you shouldn't either.

  • faizieishlah.shabalala - 2012-08-30 21:29

    Damn right I want an opt out clause. What chance do I get when I sue one of King Goodwills sons for non payment of maintenance. Prince Simakade Jackson Zulu

  • zwelakhe.lekgoro - 2012-08-31 09:41

    what matters will be heard by thios kind of court

  • Linds - 2012-08-31 11:24

    It's very neccessary to return these traditional courts. Communities should be able to resolve local disputes without having to go to civil courts. Remember that to resolve a civil dispute with a neighbour you need to appoint a very expensive lawyer who will go to the high court. Rural people don't have access or resources to access the current justice system. So those who are talking about "prehistoric," "stone age," etc. are clearly not in touch with reality. Criminal cases must still be reported to police for investigation. But local civil disputes must be resolved by the local tribal courts. Many westen democracies have community courts.

      Linds - 2012-08-31 11:30

      Imagine an uneducated woman in a remote village, whose neighbor refuses to repay a loan. She doesn't even know how to access the small claims court. And what if the loan is above the small claims court limit (I think it's about R8,000)? The only way for her to force the neighbour to repay her is to file a civil claim at the High Court and spend far more than what she's owed. So people please be sensible. You can't just shoot down everything the government is trying to do, without applying your minds.

  • francis.ssekandi - 2012-09-09 22:50

    Traditional Courts were integrated in the formal court system in many countries in Africa that attained independence in the early '60s. The integration was hurried and resulted from the hatred politicians had for traditional chiefs who had in effect betrayed their people during colonialism and sided with the colonial rulers to enforce their laws. This has proved to be a mistake because everywhere these traditional justice systems continue to operate outside the form government structures, in many cases more effectively that the formal justice system. It is important to recognise these traditional courts, regulate their procedures and enforce their decisions. Appeals should be limited only to miscarriage of justice where a decision conflicts with Constitutional mandates. In this spirit, South Africa must be commended for departing from the path followed by its predecessors to independence. An additional reason for these courts is that customary law must be allowed to evolve and adjust to changing circumstances at its pace. Decisions like Bhe could have been avoided if a mechanism existed for updating the law as was argued by the dissent instead of resorting to the common law which is alien to the indigenous people. African Customs are not any more pre-historic that some of the practices in the West being touted as "progressive". The universe is vast enough for all of us to fit in with our own cultures, Next thing we will be told to give up our languages? colour also?

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