Another try at revamping customary law

By Nolundi Luwaya

Earlier attempts to introduce a legal system that empowered chiefs to administer justice were fiercely opposed as provisions of the Traditional Courts Bill were deemed unconstitutional. Now a revised bill addressing rural issues is in the pipeline, writes Nolundi Luwaya.

Cape Town - The government is preparing to try again later this year to get a Traditional Courts Bill through Parliament. Although it is known that it will be a redrafted version of the bill that was defeated in the National Council of Provinces in 2013, it is not yet clear what changes have been made in response to the objections of rural communities.

“I intend to introduce a revised Traditional Courts Bill into Parliament towards the end of the 2015 session… around November or soon thereafter,” Minister of Justice and Correctional Services Mike Masutha said recently in response to a parliamentary question.

Masutha indicated at an imbizo in Limpopo last month that the revised bill would address rural concerns, but Mathole Motshekga, the chairman of Parliament’s portfolio committee on justice and correctional services, has since cast doubt on that reassurance.

In comments that could undermine the voice of those destined to live under the Traditional Courts Bill regime, Motshekga and other senior government officials have suggested that the opposition to the bill was urban-led and did not reflect the views of rural communities.

This charge contradicts what those of us who followed the progress of the bill heard in provincial hearings, from rural people in Parliament during national hearings and in written submissions.

It also contradicts many of the provincial voting mandates that communicated the scale of opposition to the bill by rural people.

In forums throughout the country, people juxtaposed experiences of life in the former bantustans with hopes for the freedoms, protections and rights promised by the end of apartheid.

Their framing of rights highlighted the value that many people placed on living in a democratic dispensation characterised by a constitution that they can draw on to demand rights and protections previously denied to Africans.

The level of engagement around the bill sent a message that people in rural areas would not allow distorted versions of customary law to be used as a vehicle to deprive them of their rights.

It illustrated a demand by rural people for equal rights and protections to those enjoyed by people in the rest of South Africa.

Opposition to the bill was co-ordinated through the Alliance for Rural Democracy, a cross-section of civil society organisations sharing a common concern about the detrimental effects that the Traditional Courts Bill could have on the rural constituencies they serve and support.

The belittling of rural people’s opposition to the bill, which has also been pushed by Minister in the Presidency Jeff Radebe in the past, amounts to undermining the value of a democratic process that ensures that the voices of all South Africans are heard.

The bill was the first government-sponsored bill in the post-1994 democratic dispensation to be rejected by Parliament.

Despite an unprecedented number of repeat hearings, the bill could not gather a five-province majority in the National Council of Provinces. This was because of the extraordinary depth of feeling with which people in rural areas spoke out against the bill and the pressure that this put on individual provinces to reject it.

In opposing the bill, rural people made it clear that they were not opposing customary law. Instead, they were opposing the distorted autocratic version of chiefly power that the bill put forward.

Echoing points raised in the consultation process, Parliament’s legal advisors raised concerns over a number of the bill’s provisions that were identified as unconstitutional, and recommended significant redrafting of major sections of the bill.

In hearings and submissions across the country, people highlighted the ways in which the bill would have exacerbated existing challenges to access to justice by denying the right to legal representation and by centralising power in hands of senior traditional leaders at the expense of lower levels of customary dispute resolution.

The bill also threatened to create new inequalities by denying people living within the boundaries of the former homelands the right to opt for a magistrate’s court in preference to a traditional court.

It also sought to empower traditional leaders to deny people land rights and to impose sentences of forced labour, among other punishments.

Many of these provisions would have particularly affected women, who are not allowed to speak or represent themselves in many traditional courts and have to rely on male relatives to represent them.

Women and other marginalised groups such as children and lesbian, gay, bisexual, transgender and intersex people, enjoy formally mandated protections in state courts that would not have been fully available to them in the courts proposed by the Traditional Courts Bill.

Building on apartheid tribal boundaries cemented by the 2003 Traditional Leadership and Governance Framework Act, the bill would have applied only in areas where state-recognised traditional councils exercised authority.

Together, these areas match the apartheid-era bantustan boundaries.

Ordinary people across the country, and from some of the most remote areas, decried the devastating effects that the bill would have on their lives and the ways that it would have distorted essentially democratic practices of custom and traditional governance in different communities.

No written submission to Parliament, other than those by traditional leaders, gave full support to the bill in the 2008 and 2012 consultation rounds. Instead, inputs from the people who would be most directly affected by the bill pointed to the ways in which the bill cut across and overrode existing customary practices.

This made it impossible for most provinces to support it without a radical revision of its most important provisions.

As the Department of Justice finalises the new version of the Traditional Courts Bill, it is important to remember that the failure of the previous draft was a victory for the thousands of people who took part in parliamentary public participation processes.

It was a victory for the millions who will not be forced under a separate legal system as the bill had proposed, and crucially also a victory for South Africa’s democratic structures, which demonstrated responsiveness to public outcry.

We welcome the redrafting of the bill and trust that it will reflect sensitivity to the challenges and vulnerabilities facing ordinary people around the country regarding access to justice in rural areas.

Luwaya is a researcher at the Centre for Law and Society at UCT and a member of the Alliance for Rural Democracy.

This article was first published on 6 May 2015 in The Mercury.