Aligning the Traditional Justice System to the Constitution – A submission of the Department of Justice and Constitutio

1. Aligning the Traditional Justice System to the Constitution – A submission of the Department of Justice and Constitutional Development September 2012

2. Structure of the Submission • Gives historical background • History of the Traditional Courts Bill process to date – has gone through 5 stages of development: South African Law Reform process, 2003 Policy framework and approval by Cabinet, 2008 Introduction of Bill on National Assembly, 2008 followed by Parliamentary hearings Withdrawal and reintroduction in NCOP, December 2011 & Parliamentary hearings, 2012 • Information and input gathered at all stages is well documented and usable – the amount of energy, the emotions and sensationalism, the costs from the fiscus and time militate against any decision to re-invent the wheel

3. 2. The value of consultation • One fundamental factor which has been constantly been raised in the legislative development of the Bill prior to introduction is the lack of adequate consultation or rather skewed consultation with traditional leaders to the exclusion of the majority of the people who will mostly be affected by the legislative instrument. This point has been rehearsed • A question may arise whether the lack of adequate consultation can be remedied by other means other than the Dept going back to the drawing board – noting that Parliament, through its exclusive legislative power underpinned by the separation of powers in the Constitution has the sole competence to make law out of a Bill initiated by the Department

4. It is through the consultation that has ensued through this Parliamentary process since 2008 when the Bill was introduced, that the Dept has been able to identify areas in the Traditional Courts Bill that may require reformulation, repackaging, strengthening or a different dimensional focus • The Bill initiated by the Dept not seek create traditional courts nor does it pronounce of the appropriateness or constitutionality or otherwise of practices and customs that are the embodiment of customary law. It creates a framework or a vehicle through which traditional justice can be dispensed with and that customary law be developed by structures authorised to do so by the Constitution – the courts, tribunals or forums (s39). (You don’t discard the vehicle or the bath for the sins of the passengers or the baby – you change the profile of the outlook of the passengers and throw out the water and preserve the bath and the baby)

5. Comments on the substantive provisions of Bill • Absence of provisions to protect and promote the rights of women and children (clause 3) • Several commentators have raised a concern that the Bill only contains vague and general provisions relating to the participation of women in these courts as members of the court and as litigants and that the absence of concrete provisions in this regard to protect the rights of women to participate in these courts is glaring. • Concentration of powers on traditional leaders • The designation of traditional leaders as presiding officers is perceived as centralising power in traditional leaders and gives rise to fears that the Bill gives more powers to traditional leaders than they currently have. • Failure to provide the right to opt out • Apparent denial of the right to approach the courts of law

6. The apparent entrenchment of apartheid boundaries that were the bastion of the defunct Bantustans policy • The determination of territorial boundaries for traditional courts in accordance with the jurisdiction of traditional councils is perceived as entrenching the tribal authorities which were grouped in accordance with race and ethnicity. • Nature of the traditional courts • Failure to recognise the various other levels of dispute resolution in the traditional justice system and the traditional courts as another parallel judicial structure that has overlapping jurisdiction with courts of law • Exclusion of legal representation • Fears that prohibiting legal representation may not pass constitutional muster • Appeals to courts of law seen inappropriate due to difference value systems of the judicial system and the traditional justice system

7. Comments on substantive provisions of Bill • Nature of the courts • It is important to convey the understanding that traditional courts should not be equated with courts of law. A compelling argument is made that traditional courts do not find their basis or source of authority in Chapter 8 of the Constitution that sets out the courts that constitute the judicial system. • Therefore traditional courts should be distinguishable from courts of law that are part of the judicial system as contemplated in section 166 of the Constitution. The distinction must be reflected both in the name, description and type of these courts which by their nature are forums of community members (makgotla/inkundla) who meet to dispense justice

8. Comments on substantive provisions • The following dispensation of traditional courts is proposed for consideration by Parliament: • Traditional courts as they currently exist should be unfolded or integrated into the Traditional Councils, which are democratic institutions where all sectors of society are represented. • Special measures should provide for instances when a Traditional Council sits for purposes of adjudicating over disputes in respect of which it has jurisdiction. These special measures : • May determine the quota of women who must participate in the Traditional Council and their specific role during such a sitting with a view to advancing the right to equality • May allow any member of the community to attend and participate in the Traditional Council sitting as a court

9. Comments on substantive provisions • must provide for procedures that regulate proceedings before a Traditional Council sitting as a court, including the manner of arriving at a decision by the Council sitting as a courtfor purposes of the envisaged integration • must provide for Traditional Councils to adjudicate over disputes that arise within their local communities. The law must determine the jurisdiction or the type of disputes that may be adjudicated upon by Transitional Councils sitting as a court. • The following benefits of the proposed integration will emerge: • Gender representivity: The TCs already have at least 33,3% women and must also comprise traditional leaders and members of the traditional community, some selected by traditional leaders and others democratically elected.Allowingparticipation bymembers of the community and considering special quotas will enhance women participation

10. Comments of substantive provisions • It will eliminate a proliferation of traditional structures. Traditional Councils are already resourced and supported through various government programmes. Creating parallel traditional courts will require additional resources and capacity which are difficult to satisfy from the fiscus; • It will be conducive for implementing training programmes for the members of the Traditional Councils for purposes of dispute resolution. • If the policy option is adopted in terms of which Traditional Councils “double up” as traditional courts, the fear that the Bill has the effect of centralising power in individual traditional leaders will largely be addressed. Decisions will be made by the Traditional Councils and not by individual traditional leaders. It is suggested that the provisions in the Bill dealing with the designation of traditional leaders as presiding officers be deleted in their entirety.

11. Comments on substantive provisions • Doing away with apartheid boundaries • A revised Bill should avoid the concept of “jurisdiction” as much as possible. In practice, persons who approach the traditional courts for redress will inevitably have a connection with the court in question, which may be by reason of residence, affiliation, family ties or cause of action arising in the area in question • Such an approach will, for instance, enable persons who live in urban communities but who have some affiliation or family ties with a traditional community to approach a Traditional Council sitting as a traditional court for redress • Absence of legal representation • The insistence on the exercise of criminal and civil jurisdiction by customary courts, coupled with punitive sanctions heightened the call for legal representation • A change to the Traditional Council approach obviates this fear

12. Comments on substantive provisions • Addressing concerns of “opting out” of the system • A guiding principle will be to empower Traditional Councils sitting as traditional courts to deal with any dispute, whether it is criminal or civil in nature and which is not pending before or has not commenced in a court of law. It is suggested that traditional courts may only deal with a limited range of disputes, or matters arising out of customary law and custom, the ambit of which is determined by law • A person given notice to attend the council must attend. If such a person, due to some reason does not want to submit to the authority of the council sitting as a court, he or she must give reasons for non-attendance. The court may then proceed with the case in their absence, although a court may not take any decision that has a legal effect on the absent party. The court may, however, provide the party present in court with assistance, advice etc

13. Comments on substantive provisions • Move from retributive sanctions to restorative awards • Only compensation aimed at the restoration of harmed relations between parties to a dispute or which is aimed at the restoration of harmony in the community itself should be provided for. Traditional courts should be limited to giving an award or directive in the following forms: (i) Compensation (in monetary terms or livestock); (ii) an apology; (iii) an order to discontinue the harmful act; (iv) a reprimand; • an order to keep the peace (vi) any form of training, orientation or rehabilitation consistent with customary law and the Constitution and is aimed at enhancing reconciliation (Ubuntu) (viii) guidance, counselling or advice

14. Comments of substantive provisions •  Recognition of the different tiers in the traditional justice system • Dispute resolution starts at the family, and proceeds to the headman/woman if it is not resolved at the first layer; If the headman/woman cannot resolve the dispute it is then escalated to a senior traditional leader; • Traditional Council may refer the disputes to the other preceding layers if they have not been utilised • No appeal should lie against award of traditional courts • Appeals as applied in courts of law should not be equated with the referral of a dispute from one layer to another within the traditional justice system. An appeal to a court of law should not be permissible • Enforcement of awards • Traditional courts will benefit from the public confidence these courts will in a revamped form • Failure to comply with an award or directive of the traditional court should elicit a criminal prosecution

15. Comments on substantive provisions • Strengthening accountability through an oath of office • There are compelling reasons that traditional leaders, as public office bearers, must swear allegiance to the Constitution, in particular to enhance accountability and curb alleged abuses of public power complained of. • Training of traditional leaders, members of Traditional Council • Training is an important element of the traditional justice system and should be extended to all people involved in the traditional justice system including the development of customary law • The need for national legislation to ensure uniformity • The need for uniformity and standardisation of processes, whilst at the same recognising the diverse and peculiarities of the different cultures and customs is a matter to be borne in mind

16. Comments on substantive provisions • Short Title / Definition Having in mind the transformation of the traditional courts in the manner described above, the short title in the Bill can be defined as courts for the: Resolution of Certain Disputes by Traditional Councils Conclusion It is our humble view that this submission will not only enrich the lively and robust debate in our quest to cleanse the tarnished traditional value system, but will contribute towards legislation that will facilitate the reconstruction of traditional courts commensurate with the values of our constitutional democracy. Sections 11 and 20 of the BAA are the remnants of the apartheid legislation which do not belong to the constitutional era. Nothing can be worse than perpetuating a dispensation that was suited for the 1927 era. Time is of essence, justice delayed is justice denied.

17. Thank You Q & A