Introduction

When publishing the Traditional Courts Bill in January 2017, the Department of Justice and Constitutional Development reminded us of something which is often forgotten by South Africans. Traditional courts exist and they are used by millions of people to resolve disputes according to customary law in a manner which should promote justice. They provide communities with dispute resolution mechanisms and focus on the implementation of restorative justice. It is time to regularise the existing system and make sure that these systems are in line with the Constitution[1]. 

South Africa has a hybrid legal system, which consists of a mixture of types of law such as civil law, common law, and customary law.  It is important to note that 'the institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution'[2] and the courts of traditional leaders continue to function and exercise jurisdiction as outlined in Schedule 6 of the Constitution.[3] Customary law enjoys the same status as Roman-Dutch law in our legal system, and as a system of law, it is used by many South Africans to regulate their lives in a multicultural society.

The Traditional Courts Bill was originally developed in order to replace S12 and S20 of the Black Administration Act of 1927, which empowered traditional leadership to resolve disputes and certain offences in Traditional Courts[4]. Although the Act has been repealed, the provisions which regulated the traditional courts were kept until new legislation would be enacted[5]. The Traditional Courts Bill purports to 'provide a uniform legislative framework for the structure and functioning of traditional courts, in line with constitutional imperatives and values'[6].

The facts are simple: Customary law and Traditional leadership are systems that are entrenched in South Africa. There is currently a lack of legislation to govern and provide the structural framework in which these systems operate. Therefore there is a need for legislation such as the Traditional Courts Bill. However, there have been many drafts of Traditional Courts Bill and each has encountered many problems as the Bill fails to bring the Traditional Courts ‘in line with constitutional imperatives and values’. Does the latest draft of the Bill have the same problems or does it provide the much needed framework for traditional communities?

History of the Traditional Courts Bill

The first Traditional Courts Bill was introduced in 2008 but was subsequently rejected outright as a result of major public outcry.  The Bill was reintroduced in Parliament in 2012, however, with the content of the Bill having not changed. It was again met with strong opposition by civil society and organisations representing the interests of women and rural communities. 

This earlier version of the Bill was heavily criticised for several reasons, all of which would potentially undermine ‘the rights of rural people, particularly women, and (fail) to facilitate access to justice in the rural areas.'[7]  

The Bill created a separate system of law for tribal communities leaving individuals no choice to opt out of the system[8]. Traditional leaders were also granted extraordinary powers in the forms of punishments they could impose on individuals. This included forced labour for the benefit of the community, without the option of appeal. The traditional leader could also strip an individual of their customary benefits, which included land rights or community membership. Another point was that people who took part in Traditional Courts were denied legal representation, going against the accused individual’s Constitutional right to legal representation.[9] Lastly there was insufficient public consultation in the drafting of the Bill in 2008.  Only traditional leaders had been consulted, inconsistent with the Constitutional obligation imposed on the State to facilitate public consultation in the legislative process.

One cannot deny the history of patriarchy and the ongoing structural inequalities faced by women in customary law and traditional communities. Although living customary law looks to evolve and develop traditional communities toward democratic ideals and to become more in line with the Constitution, the promulgation of previous versions of the Traditional Courts Bill would have had dire consequences for woman in traditional communities. The Bill failed to recognise the historical disadvantages faced by women in these communities; such as in some traditional courts women are often not able to participate as members of court or represent themselves[10].

However the 2017 Traditional Courts Bill has been heavily revised after more than a year of consultation with reference groups consisting of traditional leaders and members of civil society. [11]Having dropped many of the previously contested provisions, the Bill is now more in line with the requirement of ensuring that the Traditional Courts comply with the Constitution and the Bill of Rights. The Bill also places a duty on the Traditional Courts to ensure greater involvement and protection for women and vulnerable groups in the community.

Changes to the Bill

The 2017 Traditional Courts Bill contains provisions which stipulate that women can freely participate as members or litigants of the court without any limitation. The Bill requires the Traditional Courts to 'promote and protect the representation and participation of women, as parties and members'.[12]  The Bill also places a duty on the Justice Minister and the Commission for Gender Equality to report on, and ensure that measures are put in place which promote and protect the representation and participation of women[13].

One of the most significant changes to the new version of the Bill is S4(3)(a) which allows for a person to opt out of the traditional system before the court proceedings begin. This ensures that individuals who want to have their case heard in a Magistrate’s Court may do so. The Bill now provides that a traditional court can only hear a case 'if the party against whom the proceedings are instituted agrees freely and voluntarily to the resolution of the dispute by the court in question.'[14] Therefore, if summoned to appear before a Traditional Court, you need either to appear before the Court or inform the clerk that you wish to have the case heard elsewhere.

The sanctions that the Traditional Court can impose have also been revised during the consultation process. The sanctions now imposed by the Bill take on a more restorative form of justice, rather than the retributive form. S8 of the Bill allows for the payment of damages in monetary terms or in livestock to the value of the damage caused or an amount capped by the Minister at R5 000 [15]. Labour or service is now only possible if a person is not in the financial position to pay the damages. Then one has to render the 'aggrieved party some specific benefit or service’ [16] but only at the consent of both the parties.

The 2017 Bill still stipulates that those who participate in the Traditional Courts are not allowed to be ‘represented by a legal practitioner acting in that capacity.’ [17] However the arguments for keeping this provision are more persuasive than before. One has to keep in mind that due to the new provisions, the Traditional Courts are now consensual and voluntary and are aimed at more restorative and reconciliatory forms of justice, unlike the other Courts. Vulnerable social groups or individuals ‘may be assisted by any person of his or her choice’,[18] but not a legal practitioner acting in that capacity. This ensures that the Traditional Courts function as a speedy, cheap and accessible system to people in rural communities. The nature of this provision is not new in South African law, as both the Small Claims Court and Commission for Conciliation, Mediation and Arbitration (CCMA) hearings do not allow for legal representation.

The Bill also provides that parties may appeal substantive aspects of the Court’s judgements to a customary law institution or structure. Section 11 allows for aggrieved parties to appeal to the High Courts on the grounds of procedural deficiencies. Therefore if during the court proceedings the Court failed to uphold its duties, or the process was not consensual and voluntary, then one can find justice in the High Courts.

Conclusion

The revised Traditional Courts Bill has taken into account many of the suggestions that arose from public consultations. The revised Bill provides greater protection for women and vulnerable groups in that ‘women, as parties to any proceedings or members of the traditional court, are afforded full and equal participation in the proceedings, as men are’[19]. The new Bill has also limited aspects of the Traditional Courts’ powers, and placed greater power in the hands of community members who live in traditional communities. This is a real improvement in a difficult area in South African law.

While there are aspects of the Traditional Courts Bill that are contestable or undesirable to some, the 2017 Bill provides for a more uniform legislative framework for the structure and functioning of traditional courts, in line with constitutional imperatives and values.

Richard Griffin

Researcher

richard@hsf.org.za

Endnotes

1. Merten, M. 2017. Traditional Courts Bill, ver 2017: Can ‘everyone live with it’?.  Daily Maverick. https://www.dailymaverick.co.za/article/2017-01-23-traditional-courts-bill-ver-2017-can-everyone-live-with-it/#.WJrL5Ih97nB

2. Constitution of the Republic of South Africa, 1996.  S211(1)

3. Constitution of the Republic of South Africa, 1996. Schedule 6, S16(1)

4. Land & Accountability Research Centre, Traditional Courts Bill. 2012 http://www.customcontested.co.za/laws-and-policies/traditional-courts-bill-tcb/

5. Press Release Department of Justice & Constitutional Development. 2017 http://allafrica.com/stories/201701240402.html

6. Traditional Courts Bill, pg2

7. Alliance for Rural Democracy. Fact Sheet:  The Traditional Courts Bill. 2012 http://www.cls.uct.ac.za/usr/lrg/docs/TCB/2012/ARD_factsheet_final.pdf

8. Ibid

9. Constitution of the Republic of South Africa, 1996. S35(3)(f)

10. Supra note 4

11. South African Lawyer, 'Sanitised' Traditional Courts Bill unveiled. January 2017 http://www.southafricanlawyer.co.za/article/2017/01/sanitised-traditional-courts-bill-unveiled/

12. Traditional Courts Bill S5(2)

13. Department of Justice & Constitutional Development, http://www.justice.gov.za/legislation/bills/b2016-TraditionalCourtsBill-30Nov2016-Summary.pdf

14. Traditional Courts Bill S4(2)(a)(iii)

15. South African Lawyer, 'Sanitised' Traditional Courts Bill unveiled. January 2017 http://www.southafricanlawyer.co.za/article/2017/01/sanitised-traditional-courts-bill-unveiled/

16. Traditional Courts Bill S8(1)(b)

17. Traditional Courts Bill S7(4)(b)

18. Traditional Courts Bill S7(4)(a)

19. Traditional Courts Bill S7(3)(a)(i)