Traditional Courts Bill: Parliamentary Research Unit briefing

Monitoring Improvement of Quality of Life and Status of Women

20 June 2008
Chairperson: Ms M Morutoa (ANC)
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Meeting Summary

The Chairperson noted that the Committee should, as a monitoring Committee, be continuously looking at the laws that were being dealt with in parliament, but that it had hitherto not been given sufficient support capacity nor had Bills been referred to it. The Parliamentary Researchers recognised the problem and were now suggesting that greater cooperation across Committees be fostered. A Parliamentary Researcher then briefed the Committee on the Traditional Courts Bill, expressing her view that the views of this Committee were needed so that the theory of the Bill could be linked to the realities of the communities that were affected by it.

The Traditional Courts Bill had been drafted to ensure that the customary or traditional courts continued to function after the final repeal of the Black Administration Act, which had not passed constitutional muster. The Bill sought to take over the concepts and principles behind the Courts. The Constitution called for recognition of customary law, but even that law had to be consistent with the Bill of Rights. Concerns had been expressed over a number of topics in the Bill, including the exclusion of legal representation, the questions of gender equality both in respect of the status of women litigants and whether women would, by virtue of not being traditional leaders, also be excluded from being officials of the Courts. Other areas of concern related to the sanctions, which may be unconstitutional. The areas of jurisdiction and applicability of the Bill raised serious debate. Although there was some urgency to the Bill, it had been realised that there was a need for extensive consultation and public engagement and public hearings would be held.

Members asked how this Bill had been received by traditional leaders, the fact that many communities were not consulted yet, whether the courts would be able to hear issues involving minors, and under what conditions, and whether they would be hearing matters involving child maintenance. Members were concerned that the wording perpetuated the idea of male chiefs only, and that no provision was made for inclusion of women, and suggested that the gender aspects of the Bill be specifically highlighted. The Committee agreed that a Member of this Committee should participate on the task team set up by the Portfolio Committee on Justice to deal with the Bill. Members also noted that although it was desirable that the Black Administration Act be repealed, women’s groups had expressed serious reservations on the Bill, women were currently unable to express themselves fully within their traditional roles, and that the drafters of the Bill had perhaps not consulted as widely as they should, particularly amongst women’s organisations. Questions were asked as to how gender equality and traditional laws could be reconciled, and whether the Committee should attempt to engage with traditional leaders. Several Members expressed the view that there should not be attempts to do away with customary laws and values, but rather to incorporate and modernise them to be relevant in the modern society. It was stressed that the public engagement should reach the deep rural areas who were most affected.

Meeting report

Traditional Courts Bill: Parliamentary Research Unit Briefing
The Chairperson noted that the Committee should, as a monitoring Committee, be continuously exercising its role of looking at the laws that were being dealt with in parliament. However the Committee had often been overlooked when dealing with Bills, and that was a call for concern. She suggested that inputs from the Department of Justice should be included in the research, to give an indication of the implications around implementation of the proposed legislation.

Ms Joy Watson, Senior Researcher for Joint Monitoring Committees, said that the Joint Monitoring Committees had not had the same support as other parliamentary committees, but that there had been efforts to improve on that. She also highlighted that researchers of committees that tended to link or overlap in their work (such as this Committee and the Justice Portfolio Committee) needed to cooperate, as committees may debate the same issues at the same time but not sit together. She noted that in this matter, because of the complex issues, the Justice Portfolio Committee had been making use of a task team or subcommittee, and it would be useful for a Member of this Committee to sit on that.

Ms J Semple (DA) expressed that she was pleased that the researcher had recognised that the lack of resources made available to this Committee had rendered it less able to fulfill its duties.

Ms Gillian Nesbitt, Researcher, Parliamentary Research Unit, noted that this Committee needed to voice its inputs so that the theory of the bill could be linked to the realities of the communities that were affected by it. She highlighted the key reasons that led to the drafting of the bill, which were the amendment of the old Black Administration Act (BAA) of 1927, under which the Traditional Courts were originally constituted, and the impact of the Constitution.

Ms Nesbitt explained that the traditional Courts were given official recognition in Sections 12 and 20 of the BAA. However, after 1994, it was discovered that the Black Administration Act was not in accordance with the new Constitution, and would need to be repealed. This Bill sought to take over from the BAA the concepts relating to the traditional Courts and assign them to this separate Bill, after which the BAA would be finally repealed. She pointed out that one of the tenets in the Constitution called for recognition of customary law, but that even this law had to be consistent with the Bill of Rights.

Ms Nesbitt said that 21 million people living in rural areas would be affected by the Bill. There were certain areas, highlighted in public hearings on the Bill, which were a cause for concern. These included the exclusion of legal practitioners from the courts, the question of gender equality, both in the leadership of the courts and the judgments they passed on women under traditional laws, which may be gender-insensitive, and the question of representation. Judicial leadership in the Traditional Courts was also highlighted, as in most areas the traditional leadership was exclusively male, and thus females would be precluded from being officials in the Courts. Another area for concern was the ability of the Courts to impose certain sanctions that were regarded as unconstitutional, including corporal punishment, and confiscation of property. The areas of jurisdiction and applicability of the Bill were another matter for serious debate.

Ms Nesbitt said that there was some sense of urgency to submit the Bill to the House before the August deadline, but it had been realized that that would not be reached, as there were a number of issues that required extensive consultation in communities on the ground. The deadline was also extended to facilitate the public hearings.

Discussion
The Chairperson asked how far the Justice Committee had gone with consultations with traditional leaders. She asked how traditional leaders had received the interventions, as this was a male dominated sector.

Ms Nesbitt replied that majority of traditional leaders were consulted and they were responsive. Many had expressed that the BAA was very offensive to them and that the concept and application of “traditional” law had in the past been flawed, and therefore welcomed attempts by the new Bill to correct that. The traditional leaders were part of the task team and had taken on the responsibility of ‘taking the bill to the people’, and they had seemed to be willing to make an initiative to repeal the sections of the BAA.

The Chairperson also asked about the concerns of the researchers that there had not been tangible public hearings and the need for inclusion of the community. During oversight visits it was evident to this Committee that the customary law of certain communities was marginalised.

Ms Nesbitt said that the traditional leaders and the Department had admitted that there had been little consultation with their communities to date, and accepted that this was an issue.

Ms N Ngele (ANC) was pleased that women had the ability to be included in the Traditional Courts, because often the proceedings of the courts were unknown to them unless they were somehow involved in a case. She asked if there was legal monitoring in the Imbizos (Traditional Courts), and whether, for instance, the courts would be able to hear a case involving a minor without the consent or presence of the parents.

Mr R Pieterse (ANC) said that the wording of the Bill still perpetuated the concept that only men could be chiefs; no specific inclusion of women was made, and he found that problematic.  He suggested that there should be joint meetings between this Joint Committee and the Justice Portfolio Committee. He further recommended that the researchers should focus on where the gender issues were, instead of giving a broad overview.

Ms Watson said there was already a paper that had been drafted from a gender perceptive, and the Committee could perhaps add recommendations to that. There had been three recommendations thus far; for a joint meeting between the Justice Portfolio Committee and the JMC, for the JMC to have public meetings with women, or for the Committee to form part of the task team. She asked whether the Committee would endorse any or all of these suggestions.

The Chairperson reiterated that men had too much power given to them under traditional law and that this could pose a serious problem to representation.

Ms C Zikalala (IFP) asked if the Committee had been present at or spoken at the public hearings. She said, in relation to the status of women, that traditional courts excluded women. When they were victims of the system they could not fully express themselves, as they had to maintain their traditional obedient role.

Ms S Camerer (DA) said that Committee should be extremely cautious about the issue. Women’s organisations had been very specific in their criticism of the Bill, although there was general support for repealing the Black Administration Act. She noted that the Department of Justice had approached a certain Chief for assistance in the drafting of the Bill, but this particular individual had a low opinion of women and equality. She did not believe that this was appropriate in a modern democracy, and that there should have been far more research, and the opinions of women’s organizations more widely canvassed, in the drafting process.

The Chairperson agreed with Ms Camerer. The issue of equality was enshrined in the Bill of Rights, and was incorporated into numerous organisations’ constitutions, but there were still many who ignored it. She suggested a meeting with the South African Law Reform Commission (SALRC), because they would take up the issues with which this Committee was concerned.

Ms Semple asked how gender equality and traditional laws, both of which were recognised by the Constitution, were reconciled. If women were brought into the courts, she asked if that would not go against the nature of those courts.

Ms Semple asked the Committee if it would be worthwhile to have an engagement with the traditional leaders on the matter.

Members noted that they had tried to have this engagement previously, in relation to a different matter, but it had not been a success.

Mr Pieterse suggested that before this Committee met with any other Committee, it should first consolidate its base and gather support. He asked what legacy the Committee wanted to leave behind at the end of its term. He said that the Bill should evolve to fit in with the times, but still retain the values attached to the customary laws.

The Chairperson said the Committee would have liked to see the Traditional Courts being democratised and transformed, since at the moment she would regard them as stagnant.

Ms X Makasi (ANC) said that the Committee should have facts and strengthen themselves when they went to meet the leaders. She also noted that women Chiefs should be invited, and they could all go as a united force.

Ms Zikalala asked if it was possible for the Committee to have a representative in the task team.

The Committee nominated Ms Makasi to be on the task team.

Ms Semple commented that some of the problems that came up in modern societies were the result of throwing away traditional values. She suggested that instead of seeking to do away with traditional practices there should be a way of incorporating them into the modern society.

Mr Pieterse said that modernisation and Westernisation were often confused. There should not be a call for Westernisation, but for modernisation of the Traditional Courts, so that the same value systems and outcomes would apply without oppressing identity.

The chairperson asked for input as to how far research had gone.

A Researcher from the Parliamentary Research Unit said that the presiding officer needed to ensure that women had full involvement and participation, but there was no legal procedure to enforce this. She also noted that the representation of women should be guaranteed by law, so that they could make meaningful contributions. There were also the challenges that arise from traditional roles, especially in the Traditional Courts and thus the Bill was not gender sensitive at all.

Ms Zikalala emphatically said that women of the Committee needed to fight for their right so that the presence of women could be felt.

Mr Pieterse said that the Bill seemed be based on too many assumptions, and that was of concern. He also suggested that church groups should be invited to comment as they often had large constituencies and were presently ignored.

Ms Ngele suggested that during the oversight visits the Committee should make an attempt to visit and observe a Traditional Court proceeding.

Ms M Seadimo (ANC) suggested that the public engagements should be taking place in ‘deep’ rural areas, since this was where most of the customary laws were being applied, and the people there were not aware of their rights. She also noted that the language used in the bills should be such that people could readily understand it.

Mr Pieterse said that statements about the Bill should be distributed to community radio stations, so that people were widely informed. He believed that there was a widespread feeling that the Bill, in its current form, was problematic, and the Committee should try to find a way forward instead of merely criticising.

The Chairperson asked how women would go about getting maintenance for their children in the courts, taking into account that they were male dominated.

Ms Nesbitt said that maintenance was excluded from the jurisdiction of these courts, due to a perception or suspicion that women may not get a fair trial.

The Chairperson expressed concern that it might take women some time to be able to travel to a court and get a hearing date, while still having to care for the children.

Ms Zikalala agreed with the Chairperson, and said the not paying maintenance fell under another branch of the law. The Customary Courts would only facilitate the payment of damages for the impregnation of the girl, and not for the maintenance of the child born subsequently.

Ms Ngele interjected that the payment of damages was not allowed in the Bill.

Ms Watson said that whilst it would be useful for the Traditional Courts to be able to deal with maintenance issues, where people did not have access to other civil courts, it must be noted that this was excluded due to concerns that unbiased verdicts might not necessarily result. 

Mr Pieterse said that although it was an inconvenience for women to have to seek redress for maintenance through the Magistrate’s Courts, they would be likely to receive a fairer and less biased hearing.

The Chairperson asked for a written explanation of why maintenance had not been included.

The meeting was adjourned.

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