What’s wrong with the Traditional Courts Bill

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

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