South Africa’s revised Traditional Courts Bill makes a valiant attempt at resolving the concerns raised about the unconstitutionality of the previous draft. Yet, it stops short of addressing some fundamental issues.
The country’s constitution recognises the institution of traditional leadership, in accordance with customary law and “subject to the constitution.”
Moreover, it says
National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities.
The government has erroneously interpreted these provisions to mean that it should elevate the powers of traditional leaders in all customary law legislation.
Section 20 of the Traditional Leadership and Governance Framework Act of 2003 allows national or provincial government to, “through legislative or other measures, provide a role for traditional councils or traditional leaders in respect of (among other things) administration of justice”. The Traditional Courts Bill is intended as fulfilment of this provision. It gives traditional courts the power to resolve civil and criminal disputes between observers of customary law.
The original bill, tabled in 2008, prompted a tremendous outcry. The ongoing demand for traditional courts as a way of providing justice that’s accessible to ordinary rural people was generally accepted. The public criticised the bill for its insensitivity to the reality of most rural people’s lives.
Concerns about the bill came from a range of constituencies, including rural people, civil society and scholars. Many argued that the bill was unconstitutional. The greatest concern was that it was drafted without consulting ordinary rural people. Only traditional leaders and members of local government were consulted and the bill reflected traditional leaders’ interests.
This concern remained when the same bill was reintroduced in 2012. The problem couldn’t be remedied by consulting rural people on an existing draft, then simply amending it.
The very structure of the bill, and the assumptions on which it was premised, were profoundly flawed. This became apparent when the government couldn’t secure sufficient support to pass the bill into law. The bill lapsed in early 2014.
The latest version shows that the Department of Justice and Correctional Services has taken these concerns seriously. In the new bill the department has succeeded in addressing them in some ways, yet failed in others.
Problems in the old bill
Some of the fundamental problems with the content of the 2008/2012 bill included that it:
centralised dispute resolution authority and power to a “senior traditional leader”. This distorted a living customary law that’s, in fact, based on distributed power and strives for participation and consensus among the members of a community;
denied rural people choice and forcibly rendered them subjects in line with the former homelands’ jurisdictional boundaries;
gave traditional leaders broad powers which were left unchecked by its very limited provision for accountability; and
exacerbated the gender inequalities that exist under the patriarchal arrangements that prevail in many customary communities.
In the latest draft, the department has made some progress in addressing the substantive concerns raised by rural people, civil society and scholars of customary law about the unconstitutionality of the 2008/2012 bill.
For instance, it no longer describes the traditional leader as “the presiding officer” in traditional courts. Instead, it recognises a central role for community actors who are not traditional leaders. It also recognises the multi-layered nature of the traditional courts system.
Furthermore, it accommodates the bedrock of customary law under the Constitution – voluntariness. It allows any person to initiate their case in any traditional court. It also allows parties to freely opt out of the summoning traditional court’s jurisdiction.
The 2017 bill is also strong on the need to eliminate discrimination of all kinds in traditional courts. Women and other vulnerable groups are to participate freely, both as litigants and members of the courts. Furthermore, it incorporates important exclusions, thus attempting to make it impossible for traditional leaders to use these courts to secure personal benefits and exploit ordinary rural people.
Unequal consultation is a persistent concern. The department says it held consultative meetings and a national dialogue with representatives of traditional leaders and members of civil society.
It also drew on a reference group that included these stakeholders. This group was established
for the purpose of soliciting views on the principles which were to form the basis of the proposed legislation on the transformation of the traditional justice system.
But these representatives do not adequately represent the views of rural people. Indeed, even reviewing the submissions made by ordinary rural people in the process pertaining to the 2008/2012 bill is not enough. The government must ensure robust public consultation on this bill.
The department has also left some of the substantive concerns in place. This could partly be because of the compromises made with traditional leaders who see traditional courts as having authority akin to that of state courts.
This may explain the ambiguity created by the new bill. On the one hand it says that traditional courts must operate according to customary law and customs. On the other it describes them as “courts of law”, allowing them to develop the common law.
The new bill also retains a perplexing fidelity to the way in which the Traditional Leadership and Governance Framework Act centralises traditional leaders as the cogs in the wheel of customary authority. It refers to traditional leaders “convening” the courts and holding top-down authority that they can “delegate” to other actors to establish lower level traditional courts. This assumption remains even though the bill also says that customary law is voluntary and consensual, and the courts are not “presided over by judicial officers”.
This concern is linked to a severe problem in the Traditional Leadership and Governance Framework Act. The act recognises traditional leaders only if their authority can be territorially linked to a traditional community (formerly “tribe”) that came into existence under the Black Authorities Act 68 of 1951 and observes those apartheid-era boundaries.
This conception of traditional authority contradicts the bottom up nature of customary law and does not allow traditional courts to be created independently. Moreover, the bill should provide for appeals to state courts, not just procedural reviews to state courts and appeals to other traditional courts exclusively. It should also have stronger requirements concerning women’s equal membership of traditional courts.
Despite these concerns, the improvements in the latest bill should be welcomed. Yet some revisions are needed to ensure that the bill meets the justice needs of rural people.
The most important concern is the need to abandon the top-down authority model that centralises traditional leaders and their territorially-based jurisdiction. This is a distortion of customary law that was invented by colonial authorities, enacted by the apartheid state and is perpetuated by the Traditional Leadership and Governance Framework Act.
In terms of process, the highest priority remains consultation with the people who will be most directly affected by the bill: ordinary rural people who rely on traditional courts for their daily access to justice and security.
Finally, it’s troubling that the government doesn’t intend to make additional funding available to implement the bill. Adequate resources are needed to educate ordinary rural people and ensure enforcement of their rights under an improved bill.