Parliament has bowed to Justice and Constitutional Development Minister Jeff Radebe's request that the Traditional Courts Bill (TCB) be sent back to the provinces for "further consultation" instead of being withdrawn.
This week, the parliamentary select committee on security and constitutional development ignored Parliament's own legal advice on how it should proceed with the contentious Bill, which seeks to regulate the functioning of traditional courts.
The select committee was meant to consider input from the provinces on Tuesday but, without entertaining a single word from the submissions, decided to refer the Bill back to the provincial legislatures for the third time.
The last time the select committee referred the Bill back to the provinces was in November last year.
It was revealed this week that the Eastern Cape, Western Cape, Gauteng, North West and Limpopo have opposed the Bill on grounds of constitutionality. Only the Northern Cape and Free State supported it. Mpumalanga and KwaZulu-Natal were yet to decide.
But there are fears that political pressure might be brought to bear on the provinces to change their stance and support the Bill this time round.
The Mail & Guardian has obtained a copy of the legal advice the committee had sought from Parliament's legal advisers on how to proceed with the Bill.
The opinion, dated August 1, reveals that the National Council of Provinces (NCOP) committee had received suggestions on how to proceed with the Bill from the [justice] minister's office, who said it must be referred back to the provinces for more public hearings. It also reveals that the ANC's caucus had suggested that the Bill be put in abeyance, considering next year's general elections.
The department of justice had suggested the appointment of a task team comprising three members of the select committee, two officials designated by the department in a research capacity, two representatives each from the provincial Houses of Traditional Leaders to be designated by the National House of Traditional Leaders and nominated representatives from the Commission for Gender Equality, the South African Human Rights Commission and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.
The task team would function as the hub of the select committee to sift through and outline proposals from the 57 written submissions that have been received as well as input from the committee hearings, and attempt to reconcile submissions and refine the Bill.
"The ANC caucus takes into consideration the upcoming 2014
elections and the limited available time to process the Bill meaningfully. The ANC caucus suggests that, in order to afford sufficient and meaningful consideration and deliberations on the TCB, the latter must be put in abeyance," reads the document.
It reveals that members of the select committee who had been persuaded by the submissions held differing views, among which was that the Bill was incomplete and should be withdrawn and referred back to the department.
In terms of the NCOP rules, the select committee may recommend approval or rejection, or present an amendment Bill and prepare a report to submit to the NCOP.
For the NCOP to approve any Bill, it must have the support of at least five provinces. "Considering the received negotiating mandates on the TCB, it is unlikely that the quorum of five provinces supporting the TCB will be achieved," said the legal opinion.
The advisers stated that there has been extensive public consultation, which has produced a number of written and oral submissions.
"The recommendation from the department and its motivation to form a task team may be a viable option, considering all processes and the complexity of the TCB.
"However, the task team process, as proposed, may compromise the principle of separation of powers, is likely to take a long time and may necessitate further public engagement."
Legal advisers also warned that, taking into account all the resources and effort put into the consultation processes, letting the Bill lapse or be withdrawn when there are still public submissions that have not yet been deliberated on would amount to wasteful expenditure.The ANC caucus suggests that, to process the Bill meaningfully, it must be put in abeyance