A ray of hope for Traditional Courts Bill?
Parliament is rushing to finalise a version of the Traditional Courts Bill that continues to entrench a top-down, undemocratic approach to customary law.
‘If passed, the Bill will be challenged in court and ultimately struck down for its failure to protect basic rights,’ says Nolundi Luwaya, director of the Land & Accountability Research Centre at UCT, in an opinion piece in Business Day.
However, she notes that there remains ‘a small hope’ that a new legal opinion requested by MPs in the Justice Portfolio Committee may delay the matter.
A key demand, she says, has been that the Bill should reflect and honour the voluntary, affiliation-based nature of customary law and customary dispute resolution forums by allowing affected people to opt out of contested tribal boundaries.
‘Given the ambition to regulate Traditional Courts in line with constitutional values, it seems short-sighted and contradictory to fail to build the inherently democratic elements of customary law into the Bill.’
She points out that there is only one surviving reference to the voluntary nature of customary law in clause three, which outlines the Bill’s guiding principles, ‘an abstract notion that is not concretised’.
Allowing for opting out has been and remains an important demand.
Luwaya says if legislation can be shown to replicate an oppressive historical inaccuracy, the least Parliament can do is provide affected communities with a way to opt out of these boundaries.
Instead, the Bill requires that a participant must exhaust ‘all traditional court appeal procedures available in terms of customary law’ before being able to refer their matter to a Magistrate’s Court to be heard anew.
Furthermore, while clause five in the current version of the Bill acknowledges the ideal of women’s participation and representation in Traditional Courts, it places the sole responsibility for putting measures in place for this in the hands of ‘the Cabinet member responsible for the administration of justice’.
Luwaya said it is not clear how this will be done.
She says rural communities deserve an outcome that heeds their demands and better reflects their participation.
‘This would show exhausted and disillusioned rural South Africans that the parliamentary process can work.’
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
