[DEBATE] : What's wrong with the Traditional Courts Bill

[Russell]

What's wrong with the Traditional Courts Bill


Aninka Claassens




M&G, 02 June 2008 06:00


Customary courts are valuable institutions. They provide millions of South
Africans access to justice they would not otherwise have. They are more
accessible and affordable than existing formal courts and in general reflect
the values of the people who choose to use them. 

But the Traditional Courts Bill fails to recognise customary
dispute-resolution processes at the local levels where the system works best
and provides no role for the community councils, which are the bedrock of
the system. Instead it vests power exclusively in "senior traditional
leaders" as presiding officers. It enables a traditional court to order any
person to perform unpaid services "for the benefit of the community".

Given claims by traditional leaders that customary law requires their
"subjects" to provide free labour "in the fields of the realm", this is
cause for concern. The Bill also enables the court to deprive an "accused
person or defendant of any benefits that accrue in terms of customary law or
custom". Land rights are one such entitlement, community membership is
another. 

The powers given to the court (in the person of the presiding officer)
override historical customary protections, which require that issues as
serious as eviction and banishment first be debated and endorsed at various
levels, including at a pitso, or gathering, of the whole community. 

At the heart of the Bill are the contested tribal authority boundaries,
which are made the basis of the courts jurisdiction. Tribal authorities were
created by the apartheid Bantu Authorities Act of 1951 as the primary
building blocks of the Bantustan system. Their imposition led to rural
uprisings throughout the country.

Many people were subsumed within "tribes" with which they had no connection
and forced removals were used to separate people into ethnically separate
"homelands". Tribal authorities were subsequently converted into
"traditional councils" by the 2003 Traditional Leadership and Governance
Framework Act.

The Traditional Courts Bill provides traditional leaders with the unilateral
power to create and enforce customary law within the bounded jurisdictional
areas it confirms. Instead of focusing on what unites people, it reinforces
the constructs of ethnic difference and insider-outsider status, which are
at the heart of the violence gripping our country. 

How did it come about that such a Bill was gazetted at this point in our
history? Part of the answer lies with its authorship. The memorandum that
accompanies the Bill explains that it was drafted in consultation with the
National House of Traditional Leaders. It also indicates that traditional
leaders were the only rural constituency consulted about the Bill. 

The South African Law Commission previously conducted extensive research and
public hearings about the shape that customary courts should take in
post-apartheid South Africa. In 2003 the commission produced a report and a
draft Bill. These dealt with the problem of exclusion and bias against women
in customary courts. The commission recommended that women's representation
in the councils that hear and decide disputes be guaranteed by law. 

The current Bill does not include this requirement. It could not, because it
provides no role for councils whatsoever. Instead it centralises
decision-making power directly to "senior traditional leaders". The Bill
also ignores the Law Commission recommendation that courts opera-ting at
village level be recognised.

Controversial for the chiefs as well was the commission's recommendation
that people should be allowed to "opt out" of customary courts. They said
that allowing people choice would undermine their authority. The current
bill goes further than depriving people of choice. It makes it an offence
for anyone within the jurisdiction of a traditional court (even someone who
is only passing through) not to appear when summoned by the presiding
officer. 

This undermines the consensual character of customary law. People recognise
and use a range of different dispute-resolution forums in rural areas. These
include village councils, development forums, clan meetings, civics and
magistrate's courts. The existence of these different levels and types of
dispute-resolution forums enhances accountability by enabling people to
sidestep courts they consider to be illegitimate or courts reputed to be
biased. 

It also enables the development of a vibrant "living law" that reflects all
the voices engaged in debating changing social realities and finding ways to
integrate underlying customary precedents with the values of equality and
democracy that informed the struggle against apartheid and are now
guaranteed by the Constitution. 

If the primary purpose of the Bill was to support restorative justice and
the development of "living customary law" it would recognise the full range
of customary courts that operate. There would be no need to empower
traditional leaders to strip people who challenge the dubious tribal
boundaries, on which their authority is based, of their "customary
entitlements". 

The anti-Bantustan revolts that exploded during the 1980s were struggles to
be part of a united South Africa and a rejection of the ethnic divisions
imposed during apartheid. This Bill betrays those struggles and attempts to
impose a map of neatly delineated separate "tribes" on the 17-million South
Africans living in former homeland areas. This Bill is a disaster. Attacks
on "outsiders", whether labelled foreigners, Pedis or "Shangaans",
illustrate the direction towards which it leads. 

Aninka Claassens in an independent consultant on land rights and tenure