Parliament has referred the controversial Traditional Courts Bill back to the provinces for "further consultation" despite most rejecting it.
Instead of withdrawing the controversial Traditional Courts Bill, which has been rejected by the majority of the country's provinces, Parliament has referred the Bill back to the same provinces for "further consultation".
It is feared now that the provinces might be put under political pressure to change their stance on the Bill and support it.
Five provinces have opposed the controversial Bill which seeks to regulate the functioning of the traditional courts on grounds of constitutionality.
Only two provinces – the Northern Cape and the Free State – support the Bill, while Mpumalanga and KwaZulu-Natal are yet to decide.
KwaZulu-Natal sources have told the Mail & Guardian that the province will abstain and not make a pronouncement on the Bill.
The Eastern Cape – which has a large number of traditional communities – North West, Gauteng, Western Cape and Limpopo have all opposed it.
The ANC-led provinces' "negotiating mandate" or submissions on the Bill are more scathing than the submission from the DA-led Western Cape.
"The province is of the view that the Bill is fundamentally flawed and no amount of amendments will be able to remedy the Bill," said the Eastern Cape legislature.
In its mandate, Gauteng said it was of the view that the Bill in its current form would not pass constitutional muster and therefore recommended that it should not be passed in its current form.
The province proposed that the Bill should be redrafted to ensure compliance with the Constitution and other applicable laws.
The North West said the Bill is a "Black Administration Act smuggled [through the] back door".
In its submission, the Free State legislature raised a number of significant issues that it is unhappy with regarding the Bill, but said it still supported it.
The Northern Cape gave qualified support to the Bill.
In its submission, it said it was in favour of the principle of the Traditional Courts Bill. It said that its view is therefore to enhance the Bill by considering the views as expressed during the public participation process and deliberations of the committee.
The Bill was sent to provincial legislatures in November 2012 for them to consult communities through public hearings.
On Tuesday morning, the National Council of Provinces' select committee on security and constitutional development was supposed to deliberate on the negotiating mandates or inputs from the provincial legislatures.
But, in a bizarre move, acting chairperson of the committee Matome Mokgobi announced that the Bill that has been with the provincial legislature for the past 11 months, would be sent back to those legislatures for further consultations.
Mokgobi said that some provinces had requested extensions, while others needed ambiguity clarified, so the meeting could not proceed with engaging the negotiating mandates.
He said the Bill was being referred back to provinces for clarity and to remove ambiguities as some decisions "are neither here nor there".
His colleague ANC MP Amos Matilas said that besides the issues of unconstitutionality around the Bill, provinces must deal with the areas around who is going to fund the implementation of the Bill. "So let's go back to province to further consult and come up with clear proposed amendments."
But an ANC member from the Eastern Cape legislature held a different view.
A visibly annoyed Mninawa Nyusile, who was in Parliament to push for the Eastern Cape's view, told the meeting that referring the Bill back to the provinces was a waste of time.
"It is so unfortunate that this Bill is taken back again because that is what the majority of the members of the committee are saying.
"In our view as the Eastern Cape, we are just wasting our time. Some of the issues raised such as who is to fund this Bill, don't reside in the provinces; it's this House or committee that must address that aspect, even the constitutionality part of the Bill.
"As a province, we went through thorough public hearings and this is what our people are saying: that this Bill is not in the interest of our country, it is taking us back."
Nyusile said taking the Bill back was a waste of time, "because I don't see us coming back with any other mandate besides what the Eastern Cape people have already said".
Separate justice system
He said the province wouldn't accept a Bill that creates a separate justice system for rural people to that of other people in urban areas.
Dr Aninka Claassens of the Centre for Law and Society at the University of Cape Town reiterated the society's stand that the Bill would never stand up in court, as the content is flagrantly unconstitutional and the parliamentary procedure has so far been flawed.
"If they got it through now by a show of force within Parliament, it will get struck down afterwards.
"If they get it through, they will get it through as a very empty promise to the chiefs, because they know that it is unconstitutional," said Claassens.
She described as "incredibly good news, beyond my wildest dreams" that the majority of provinces voted against this Bill, including ANC provinces.
"If they [the committee] had discussed the negotiating mandates today as they are required by law; they would have had to kick out the Bill, but they kicked for touch, they fudged the issues and compromised this legislative process."