2 August 2012

South Africa: DA Welcomes Traditional Courts Bill 'Overhaul'

Photo: So-and-So/IRIN
Girls dance to entertain guests.

press release

The DA welcomes yesterday's announcement by the Minister of Women, Children and People with Disabilities Lulu Xingwana that, after discussions with the Minister of Justice, the Traditional Courts Bill will undergo an "overhaul".

We acknowledge that customary law and customs are recognised in the Constitution and play an important role in traditional communities. Traditional dispute resolution bodies can also play a vital part in bringing access to justice closer to people in these communities. The DA does, however, have significant concerns regarding the Bill in its current form, as outlined in our position paper released on 24 May this year.

Now that there is an acknowledgement that the Bill needs to be overhauled, we trust that the following issues will be given attention:

That effect is given to the constitutional imperative that only the NPA is responsible for the prosecution of criminal cases.

The principle of separation of powers must be adhered to, and the traditional leader should not be in the position to make law, adjudicate on it and enforce it.

Customary law is a consensual system, yet the Bill as it currently stands places people under the jurisdiction of a traditional court simply because they happen to live or be in a particular area. This violates the right to a cultural life of choice as entrenched in the Constitution. Any legislation should at a minimum include an "opt-in and opt-out clause" to provide for those who choose not to adhere to the traditional court and customary law system.

The constitutional right to legal representation must be incorporated, and not excluded, as is currently the case.

• No penalty or judgment should be imposed or made against a party other than those who are involved in the proceedings.

• The right of appeal or review should not be excluded.

• The rights of women must be promoted, taking into account the daily realities faced by women. It is not sufficient to provide for equality in the law when it is something that will never be realised in practice because of discriminatory systems and attitudes.

Essentially, we cannot have a parallel legal system in South Africa. A way needs to be found to incorporate the traditional courts system into the country's legal system in a manner that is consistent with the Constitution. The DA will use all means at our disposal to ensure that any such Bill does comply with the Constitution, both in letter and in spirit.

Debbie Schafer, Shadow Deputy Minister of Justice and Constitutional Development

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