/ 5 June 2019

The ‘Bantustan Bills’ remain disastrously flawed

The Traditional and Khoi-San Leadership Bill recognises the Khoi-San as people worthy of legislative protection.
The Traditional and Khoi-San Leadership Bill recognises the Khoi-San as people worthy of legislative protection. (Oupa Nkosi/M&G)

Today (June 5), South Africans from all corners of this country will march to the Union Buildings in Pretoria against the signing into law of the Traditional and Khoi-San Leadership Bill and the Traditional Courts Bill.

The proposed laws are viewed by the Alliance for Rural Democracy as repressive laws that seek to deny people their constitutional rights.

The Traditional and Khoi-San Leadership Bill recognises the Khoi-San as people worthy of legislative protection. Yet much of the Bill is about giving new oppressive powers to unelected chiefs in the same way the apartheid government did. For example, clause 24 of the Bill gives chiefs and their councils the power to sign over people’s land — such as family graves and fields, and possibly even homes — to mining companies, large farms, developers and other big corporations.

The Bill is awaiting the signature of President Cyril Ramaphosa. If this Bill is signed into law, it could be used to overrule the rights of people and give greater legal powers to unelected chiefs.

The Traditional Courts Bill is another piece of legislation that will infringe on people’s rights. This Bill is being considered by Parliament to provide updated legislation for traditional justice processes and institutions. The Bill — and its previous iterations — however, has been the subject of much speculation and controversy.

The Traditional Courts Bill which, according to Parliament, is “intended to increase access to justice services by enhancing [the] effectiveness, efficiency and integrity of traditional courts in resolving disputes”, was first introduced to the National Assembly on April 9 2008. It was withdrawn on June 2 2011 because of widespread concerns that the public had not been adequately consulted in its drafting and that it had unconstitutional content.

The withdrawal of the Bill was, in part, because of the advocacy work by civil society organisations to challenge passages in the Bill that would have strengthened the autocratic powers of unelected, male traditional leaders in rural areas and which excluded women from the formal justice system.

As a founding member of the Alliance for Rural Democracy, Sonke Gender Justice and its teams helped inform people living in affected rural areas about the Bill, ran workshops about its implications and assisted them to challenge the discriminatory provisions of the Bill in provincial consultations. The feedback from these sessions informed Sonke’s submissions to Parliament and their meetings with the women’s ministry.

Despite opposition, the Bill was reintroduced in December 2011 and tabled before the National Council of Provinces in January 2012 and then again in January 2017, after which a final, revised version of the Bill was introduced to Parliament.

Sonke made a submission on the Bill to the portfolio committee on justice and correctional services in March 2017. Although it recognised that many of the issues raised with the 2012 version of the Bill had seemingly been rectified (especially concerning the participation of women in the traditional justice process), there remained several worrying issues.

These Bills will affect the lives of millions of people in the former homelands, who will effectively be subject to different laws to the rest of South Africa, akin to the apartheid legal system. This means they will have fewer citizenship and property rights than other South Africans.

For example, the preamble to the Traditional Courts Bill states that traditional courts are “distinguishable from courts in the judicial system”. Clause six of the Bill indicates that the traditional courts are “courts of law under customary law” whereas the term “court” is defined in clause one as any court established in terms of section 166 of the Constitution. This suggests that traditional courts will not form part of the judicial system that is established in section 166 of the Constitution.

This affirms fears that traditional courts will not be courts in the ordinary sense of the word, but they will have powers to summon and sentence members under their jurisdiction.

A major concern is that the Traditional Courts Bill does not have a voluntary opt-out clause, which infringes on people’s right to access other courts. Moreover, the Bill contains a prohibition on legal representation, in contrast to the Constitution, which explicitly provides that every accused person has the right to be represented by a legal practitioner.

Importantly, these Bills will disempower women by denying them the right to represent themselves in traditional courts.

The passing of these Bills will not adhere to the consensual nature of customary law. Instead, they will give power to unelected leaders.

The Constitution is the supreme law of the country. The Constitution makes it very clear that customary law is subject to the Constitution. We need to ensure that our Constitution is upheld and that we are not subjecting those in the former Bantustans to a heinous system similar to that of yesteryear. Let us all stand together to oppose these laws in their current form.

We need to make our voices heard. Asijiki.

Letlhogonolo Mokgoroane is the outgoing public development and advocacy fellow at Sonke Gender Justice