Let's try to do this quickly. The point of order is that this House is not in a position to deliberate on this Bill at this sitting, because this Bill must first be referred to the National House of Traditional Leaders in terms of section 18 of the National House of Traditional Leaders Act. Section 18 of that Act requires that any Bill pertaining to customary law or customs of traditional communities must, before it is passed by the House of Parliament where it was introduced, be referred by the Secretary to Parliament to the National House of Traditional Leaders for its comments. The Bill has not been so referred.
The legal test is that pertaining to customs. The test is not that of legislating customs, for instance repealing, replacing, amending or codifying and enforcing the registration requirements on customs. In many respects, it would be unconstitutional for the law to legislate customs and traditions, which is an area of collective freedom and autonomy.
The Bill pertains to indigenous customs and traditions. Its sole purpose is that of giving intellectual property rights protection to customs and traditions. It also contains a customary dispute resolution mechanism, which includes traditional councils and courts. Parliament and the National Assembly are subjected to, and bound by, the principle of legality, which includes observance of any law enforced. Parliament has the power to amend laws it passed, explicitly or by necessary implication, but until it does so, it is ...