Traditional Courts Bill ‘inadequate’

The president of the Congress of ­Traditional Leaders of South Africa (Contralesa) has slammed the contentious Traditional Courts Bill (TCB) as “inadequate and a complete distortion of African law and custom”.

Chief Phathekile Holomisa told City Press that rural people “need a law that will recognise all the levels of our ­justice administration system”.

“The (bill) is being rammed down our throats by a government that is ­half-hearted on the issue of traditional leadership and a government that is half-hearted in its support of traditional ­authority. This law will never be adopted as it stands now.”

Tabled in 2008, the bill was met with outrage by a number of rural ­organisations because of the wide-ranging powers it affords chiefs and its disregard of women.

“In most traditional courts, women cannot represent themselves and must use a male relative or friend to state their case. Women cannot even enter traditional courts held in or next to cattle kraals out of respect for ancestral spirits.

“The Constitution doesn’t provide and give power to traditional leadership; it merely talks about functions and roles. As chiefs, we need something to enable us to ­enforce decisions taken by traditional authorities. The Constitution must be amended,” Holomisa said.

The department of justice says the legislation will recognise and ­enhance the effectiveness of the ­traditional justice system, and ­provide for the structure and functioning of traditional courts.

The bill will also see the reinstatement of ­rural chiefs and homelands, but with far more widespread powers than they had under apartheid.

The Select Committee on Security and Constitutional Development has gathered about 30 public submissions on the bill. The deadline for public comment on the bill expired this week.

Rural communities, non-governmental organisations (NGOs), scores of rural women and women’s organisations and even traditional chiefs have objected to the bill, saying it is anti-democratic because it places black rural people under a separate legal system that re-creates second class citizenship for those living in the former homelands.

Holomisa, who conceded that both Contralesa and the National House of Traditional Leaders were consulted in the drafting of the bill, didn’t mince his words: “Yes, we were consulted on the drafting of this bill.

“But we didn’t foresee the outcome would be this flawed piece of legislation. It’s obvious that the people who drafted this bill have no understanding of African law and are yet again imposing a Western perspective on how traditional courts function,” he said.

He argued that traditional courts function on four levels while the bill consolidates all powers in the hand of one man – the chief.

“Government and the architects of this law seem to think that a traditional leader is the same as a magistrate or a judge.

“But in African culture the traditional court and chief never operate alone, but with a council. The chief merely presides over proceedings, working with the headman and his council.

“Our highest court is the king; then there is the court of the chief who is the senior traditional leader and then below that the court of the headman and fourthly the court of the sub-headman.

“All these courts work together and not all cases go to all four levels. The TCB doesn’t begin to acknowledge and respect this,” Holomisa said.

Holomisa, who is also the traditional leader of the amaHegebe in Mqanduli in Eastern Cape, says the end of apartheid and the abolition of the homelands necessitates legislation because constitutional democracy has undermined the authority and power of chiefs.

“We need something, in line with the Constitution to fill the gap left when the homelands were abolished. People now simply ignore summons and findings imposed and made by traditional courts.

“People can also defy a decision taken by this court because there is no law that supports this court. There were laws in the homelands that gave authority to the courts of traditional leaders. We need such a law again and it’s not the TCB.”

But it is precisely the strong coercive elements of the bill that have rural communities up in arms about this bill.

Last week, during a workshop on the bill in Mpumalanga, Daphne Nkosi, executive director of the Nkomazi Advice Centre, near the Swaziland border, said there is “nothing good in the TCB for rural women”.

“Traditional courts are not private. Men sit under trees and everyone can hear everything about people’s private and sensitive problems while women can’t talk for themselves but have to be represented by a man.”

Like Holomisa, Nkosi describes the bill as a distortion: “This bill says that the chief is the only one to make rulings and that he is the presiding officer. That’s not traditionally correct.

“Our courts must rely on headmen and advisers elected by the community and women must make up 50% of these advisors because that’s what our constitution requires.”

In response to the widespread opposition of rural people to government’s attempt to empower rural chiefs through the bill, Holomisa dismissed those who oppose the amakhosi (Zulu for chiefs) as “the clever ones who feel that they would rather go to magistrates courts – those are the people who disrupt the peace and order in our rural communities”.

“I’m sure that most of the people who are in opposition to the chiefs are NGOs who make it their life’s mission to oppose anything that has to do with traditional leaders. These people portray chiefs and African law as backward, corrupt and undemocratic.”

He said “most rural African people” support the amakhosi and the role they play in society.

Chairperson of the select committee, Tzheta Mofokeng, confirmed that his committee has set aside April 18 for briefings on the TCB.

“The provinces will be briefed and then public hearings will be held on this bill. I think the TCB has a couple of issues that will cause big problems – the biggest being the role of women.

“The gender issue in the TCB is a big problem,” Mofokeng said.

Funding that made this article possible was provided by the Open Society Foundation.
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