Thank you, hon Chairperson and good morning, hon members. The Traditional Courts Bill was referred to the Select Committee on Security and Justice on 31 October 2019, after being revived in the Council on
17 October. The committee has agreed to the Bill, with amendments.
Traditional courts exist and it is constitutionally essential that they be transformed to align them with the new constitutional dispensation. Chapter 12 of the Constitution recognises the institution, status and role of traditional leadership according to customary law, subject to the Constitution, and schedule 6 of the Constitution recognises the existence of traditional courts.
Currently, traditional courts are still governed by sections 11 and 20 of the Black Administration Act 38 of 1927; however, in this Bill these sections of the Black Administration Act are repealed.
The objectives of the Bill, as contained in clause 2, is to create a uniform legislative framework regulating the roles and functions of traditional courts in the resolution of certain disputes, and in accordance with constitutional imperatives and values. The Bill is intended to improve access to justice services by enhancing the effectiveness, efficiency and integrity of traditional courts for the purposes of resolving disputes with the view to promoting social cohesion, coexistence, peace and harmony.
The Bill affirms the role of traditional courts in terms of customary law, and facilitates full and meaningful participation, without discriminating against any member of a community, in a traditional court in order to create an enabling environment which promotes the rights enshrined in Chapter 2 of the Constitution.
Traditional courts are accessible to anyone who wants to use them. However, this should be understood in the context of section 30 and section 31 of the Constitution. Section 30 provides that everybody has the right to use their language and participate in the cultural life of their choice. Section 31 affords persons the right to belong to a cultural, religious or linguistic community to enjoy their culture, practise religion and the use of their language, and to form, join and maintain cultural, religious or linguistic associations in other organs of civil society.
These rights must be exercised in a manner that is not inconsistent with the Bill of Rights, and these sections already give persons a choice in practising their culture and does not impose a duty on them.
Clause 3 of the Bill sets out the guiding principles which must be borne in mind when implementing the Bill so as to embrace the values enshrined in the Constitution.
In terms of clause 2(b), when dealing with disputes the courts must be mindful of the existence of systemic,
unfair discrimination and inequalities or attitudes which are in conflict with the Constitution or which have the susceptibility of excluding meaningful participation in traditional court proceedings by any person or groups of persons, particularly in respect of gender, gender identity, sexual orientation, age, disability, religion, language, marital status and race brought about by colonialism, apartheid and patriarchy.
Furthermore, clause 3(2)(e) states that a founding value on which customary law is premised, is that its application is accessible to those who voluntarily subject themselves to that set of laws and customs. This provision therefore emphasises the voluntary nature of the traditional court system.
Clause 4 deals with the institution of proceedings in traditional courts. Proceedings may not be instituted if the dispute in question is being dealt with at another level within the traditional justice system or if the matter is pending or has been finalised by a court in the judicial system or is being investigated by the SA Police Service. This clause, read with schedule 2, sets out the
types of disputes which traditional courts are competent to deal with, which are less serious disputes that disturb harmonious relationships within communities.
With regard to gender representivity and vulnerable groups, the Bill includes provisions that seek to promote the right to equality within traditional courts. Traditional courts must be made up of women and men pursuant to promoting the right to equality, as contemplated in section 9 of the Constitution. Traditional courts are required to promote and protect the representation and participation of women as parties and members of the court, and the Minister and Commission for Gender Equality, CGE, are required to put measures in place to promote gender equality in these courts and to report annually on these to Parliament.
Further safeguards are contained in the Bill for the protection and assistance of vulnerable groups. The Bill requires, for instance that all court proceedings must be open to all members of the community at a place which is accessible to members of the community. Proceedings must be conducted in the presence of both parties and both
parties must be able to participate fully in the proceedings without discrimination on any of the prohibited grounds referred to in section 9(3) - the right to equality - in the Constitution.
Failure to comply with these important procedural aspects can result in the matter being taken on review to the High Court. Provincial registrars are required to assist unhappy litigants to take their matters on review.
Parties in proceedings before a traditional court are furthermore allowed to be assisted by any person of their choice in whom they have confidence, although legal representation is not allowed.
Furthermore, if the parties are aggrieved by the decision or order of a traditional court, they may, after exhausting all the traditional court system appeal procedures, refer that decision or order to the magistrate's court to hear the matter and take a decision.
Clause 5 deals with the composition of and participation in traditional courts, and clause 7 deals with the procedure in traditional courts.
Clause 6 sets out the nature of traditional courts and emphasises that traditional courts are courts of law; the specific purpose of which is to promote the equitable and fair resolution of disputes in a manner that is underpinned by the value system applicable in customary law, and custom and function in terms of the Constitution. There main emphasis is on preventing conflict, maintaining harmony and resolving disputes in a manner that promotes restorative justice, social cohesion and reconciliation.
Clause 8 sets out orders that the traditional court may make. The type of orders provided for in this clause is restorative in nature, for instance compensation and redress, which are aimed at restoring relations between parties and promoting harmony.
Clause 9 provides for the enforcement of orders made by traditional courts; however, if an order of a traditional
court is not complied with, the party in whose favour it is made may escalate the matter to the clerk of the traditional court who must try to resolve the matter or refer the matter to a justice of the peace appointed by the Minister for that purpose in terms of the Justices of the Peace and Commissioners of Oaths Act.
Clause 10 provides for the appointment or designation of provincial traditional court registrars and sets out their role and responsibilities.
Clause 11 allows for the review of procedural shortcomings in the High Court, as I've already indicated.
Clause 12 deals with the referral of matters from traditional courts to magistrate's courts if parties are aggrieved by a decision or order of a traditional court.
Clauses 13 and 14 deal with the record of proceedings of traditional courts and the transfer of disputes from traditional courts to magistrate's courts, and vice versa.
Clause 15 deals with the limitation of liability of members of traditional courts for anything done in good faith, while clause 16 deals with the code of good conduct and the enforcement thereof.
Clause 17 empowers the Cabinet member responsible for the administration of justice to make regulations and various matters required under the Bill, including regulations on the training of traditional leaders and members of traditional courts, and the involvement of paralegals.
Clause 18 deals with transitional provisions. Among others, this clause repeals all existing former homeland legislation regulating traditional courts, and clause 19 contains a short title and commencement.
Schedule 1 deals with the discriminatory behaviour which is prohibited on various grounds, and schedule 2 deals with matters which a traditional court may hear and clearly specifies these matters.
In terms of financial implications, the department subjected the Bill to a costing exercise and undertook to
use existing resources as far as possible in the implementation of this Bill. The main financial implications for the state would be in the form of personnel, goods and services relating to the provincial registrars and their support staff, as well as training. The department envisages that the provincial registrars will be officials at the level of director.
In terms of the committee process, the Department of Justice and Constitutional Development briefed the committee on 9 October 2019. Provincial legislatures conducted their public participation process between November 2019 and February 2020. The committee received eight negotiating mandates in favour of the Bill, with one province not supporting the Bill.
On 21 October 2020, the committee met to consider the negotiating mandates, the responses of the Department of Justice and Constitutional Development to the negotiating mandates and matters raised by the parliamentary legal advisor.
Some of the pertinent points raised in discussion, included that the Bill does not seek to establish traditional courts nor change customary law but rather align the functioning of traditional courts with the Constitution.
Many provinces raised the concern that legal representation was not allowed in traditional courts. However, the traditional court system is not punitive but is based on restorative justice, and the need for legal representation is unsuited for dispute resolution in the context of the traditional justice system.
Now, although the opt-out clause was removed from the Bill by the portfolio committee, it is clear in sections 30 and 31 of the Bill of Rights in the Constitution that involvement in cultural life is a voluntary exercise. However, in clause 3, related to the guiding principles, clause 4 - institution of proceedings in traditional courts - as well as clause 6 - the nature of courts - the Bill still provides for persons to execute their right not to participate.
With regard to women and vulnerable groups, regulations that will be developed after the Bill is finalised would contain mechanisms to ensure the promotion and participation of women and vulnerable groups. In addition, training offered would sensitise officials of the court as well as presiding officers to the protection of rights for vulnerable groups. The involvement of paralegal interns in the functioning of the court would also be an inbuilt safeguard even if it is not statutorily imposed.
In addition, in broader terms, the provisions of the Bill read together, namely clause 7, clause 10, subclause 2(b), clause 11, clause 12(1) and clause 17(1) ... [Inaudible.] ... present a form of protection and mechanisms to address issues that could be faced by vulnerable groups.
In addition, the CGE is well placed to monitor gender representivity and gender equity in the traditional courts as this is part of their mandate.
The committee adopted the series of amendments on
3 November 2020. The committee amended six clauses in the Bill as follows. Clause 1, in relation to the definition of a traditional court, we removed reference to the Traditional Leadership and Governance Framework Act and substituted applicable legislation providing for such recognition so as to accommodate the Traditional and Khoi-San Leadership Act. This amendment was also effected in clause 6 to ensure consistency within the Bill.
In clause 6 - nature of traditional courts - another amendment in terms of the level of a principle traditional leader's support was added to the levels of traditional courts in subclause 3.
During the course of the committee's deliberations, we noted an error in clause 11 of the Bill and an amendment was made to ensure that the Bill was aligned correctly.
With regard to clause 16 - code of conduct and the enforcement thereof - to ensure that the Minister acted after consultation with the relevant Cabinet Minister, an amendment was made.
Also in respect of clause 16(5)(a), the clause was amended so that, if there were any transgressions to the code of conduct by persons who have a role in terms of customary law for the effective functioning of traditional courts, the relevant provincial MEC would be better placed in the House of Traditional Leaders to deal with transgressions.
Clause 18 was amended to stipulate clearly the repeals of sections 12 and 20 of the Black Administration Act.
Finally, in clause 19, the short title of the Act is amended to reflect that the year of the Bill was 2020 instead of 2019.
The select committee met on 18 November to consider the final mandates. Seven provinces were in favour ... in support of the Bill and two were not. The committee was of the view that the Bill will go a long way in ensuring the regulation and uniformity of operations of traditional courts. In addition, gender representivity and gender equity was sufficiently addressed in the various clauses of the Bill and the CGE reporting to
Parliament was a progressive step in ensuring that Parliament strengthens its oversight over the functioning of traditional courts.
The committee was further assured by the department that the drafting of regulations would occur speedily as the regulations will give meaning and effect to provisions of the Bill, and further ensure the effective functioning of these courts.
The committee encourages the department to ensure that training occurs in all provinces on the implementation of the Bill to all those who may utilise the traditional court system.
The Select Committee on Security and Justice, having considered the Traditional Courts Bill [B 1B - 2017] referred to it on 31 October and classified by the Joint Tagging Mechanism, JTM, as a section 76 Bill, submits an amended Bill, namely the Traditional Courts Bill [B 1D - 2017] for the Council's consideration.
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