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Dissent over Traditional Courts Bill

Andisiwe Makinana

Parliament has asked for clarity as the departments of Lulu Xingwana and Jeff Radebe contradict each other on the Traditional Courts Bill's validity.

Minister for Women, Children and People with Disabilities Lulu Xingwana and Justice Minister Jeff Radebe widely disagree on the Traditional Courts Bill. (Yunus Mohamed, Gallo Images)

Divisions in the ANC over the Traditional Courts Bill are sowing confusion in Parliament and have led to a committee chairperson asking two ministers to clarify their positions.

The differing stances of Lulu Xingwana, minister of women, children and people with disabilities, and Justice Minister Jeff Radebe have been laid bare in an email an official in Xingwana's department sent to civil society organisations.

Radebe introduced the Bill to the National Council of Provinces and is seen as its biggest advocate, whereas Xingwana has called for its overhaul.

The email, dated August 29, was sent by Mapitsi Mary Mononela, chief director of mainstreaming and advocacy in the women empowerment and gender equality division to some non-governmental organisations opposed to the Bill. It calls on them to avoid communication with Radebe's department before going to a meeting with the two departments.

That meeting was scheduled for September 7, but was later postponed after the organisations questioned its status.

Mononela said organisations should not discuss the justice department's revised draft document with justice officials.

"At this moment, please do not communicate with them about the draft as we have arranged a meeting on September 7 where you will all be able to engage with them," the email states.

Another email, from August 30, reveals that the aim of the meeting in Pretoria was to "plan and come up with a way forward on how the process should unfold".

Irregular
Three ANC members, who asked to remain anonymous, said it was highly unusual and probably irregular for one government minister to influence non-governmental organisations against another minister.

Meanwhile, the chairperson of the National Council of Province's select committee on security and constitutional development, Tjheta Mofokeng, accused Radebe and Xingwana of creating confusion about the Bill.

In a committee meeting on September 12, Mofokeng proposed that the two ministers appear before his committee to clear up their confusing statements.

"Seeing that there was a lot of confusion from the ministries of women, children and people with disabilities and justice as to whether the Bill is going to be withdrawn or not, I propose that we call on the two departments and the national house of traditional leaders so that they make their position clear."

Mofokeng later told the Mail & Guardian: "When the Bill was brought to the National Council of Provinces, the Cabinet had dealt with it and both ministers are members of the Cabinet and are ANC members. For them to speak two different languages creates confusion.

"Radebe is saying the parliamentary process should be given a chance, while Xingwana says the Bill should be withdrawn. In the meantime, there have been public hearings in the provinces and we have received mandates from them.

"The process is unfolding, so it is confusing that both are making the statements they are making," said Mofokeng.

Women's rights
The committee will hold public hearings on the Bill from September 18 to 21 in Parliament. Among the people listed to make presentations are former ANC national executive committee member Cheryl Carolus, who in a written submission rejected the Bill "in its entirety".

Even politicians admit that the Bill will trample on women's rights and that women's voices should be considered in formulating the proposed law, but the National Council of Provinces' committee is composed entirely of men. A spokesperson for Xingwana's department, Cornelius Monama, said there was no law that said the department that initiated the Bill was the only one entitled to discuss it.

"A Bill by its very nature is a document for public discussion. Our department is a critical stakeholder in this process by virtue of the fact that one of its key constituencies – rural women – is affected by it," he said.

Monama said the department was approached by a number of civil society organisations in April to facilitate consultations with rural women.

"One of the major agreements with civil society organisations was that our department should continue to facilitate a process of listening to women's voices and to make recommendations to the custodian of the Bill, the justice department, that the Bill be set aside and a new drafting process be initiated, which should start with the voices of those who will be most affected by the resultant legislation or those mandated to represent them."

He denied that the department had encouraged non-governmental organisations to hide information from the justice and constitutional development departments accusing the M&G of trying to "cast aspersions on the integrity of our department".


Bapo leadership spat historical

The establishment of a traditional council is not always a ­straightforward process.

In its 2010-2011 annual report, the national department of co-operative governance and traditional affairs said there had been 1322 claims and disputes of traditional leadership nationally. A commission on traditional leadership disputes and claims is tasked with dealing with these disputes by December 2015.

The Bapo ba Mogale in North West is one case of a community in dispute, with claims of illegitimate leadership dating back decades.

The rule of the current chief, Edward Mogale, has been in dispute for years. He was appointed by Lucas Mangope, then the president of Boputhatswana, a so-called homeland in the apartheid era. The community alleges that Mogale's appointment was a political move by Mangope and a case of nepotism because Mogale is his cousin.

In 1986, City Press published an article in which Julius Mogale, then a headman of the Legalaope clan, expressed his dissatisfaction with Edward Mogale. Julius alleged that Edward ruled the Bapo people autocratically and would use the police to intimidate members of his community at traditional gatherings. Julius also accused Edward of maladministration.

But the roots of the division can be found further in the past.

The royal family is divided: for each wife, there is a house. The first house is that of the chief's first wife and the children he has with her. The second house includes the chief's second wife and their children.

For generations, the first two royal houses of the Bapo ba Mogale have been at odds. On two occasions, the chiefs of the first house were deposed by the second house because they sold the community's land without its consent. But these ructions were halted, at least on the surface, when Mangope appointed Edward Mogale as the community's leader.

Today, there is still division within the royal family in terms of who the true leader is and numerous lawsuits are pending.  


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