analysisBy Rebecca Davis
Johannesburg — Halfway through public hearings on the Traditional Courts Bill, it's clear that practically everyone other than the Justice Department and traditional leaders consider it to be vastly flawed. That may not be enough to halt the passage of a bill widely suspected to carry more political weight than meets the eye.
The National Council of Provinces' Select Committee on Security and Constitutional Development does not count a single woman among its members. This is unfortunate, because it is this committee which is currently responsible for weighing up public submissions on the Traditional Courts Bill, many of which include the claim that the legislation will be disastrous for women.
Oral presentations on the bill will be made to the committee by researchers, activists and members of the public from 18 to 21 September. The committee received 65 applications, of which 20 will be heard over the four days. This in itself hasn't pleased everybody: three LGTBI organisations applied to heard, for instance, and only one - the Equality Project - received a slot. Nonetheless, the committee has to be seen to be giving a fair hearing to all those with a stake in the matter.
This is the second coming of the bill. It was bounced from the National Assembly in 2008 amid widespread criticism, but last year was introduced - unchanged - into the National Council of Provinces. There are strong suggestions that its reappearance at this time may be intended to keep traditional leaders sweet in the run-up to Mangaung. This is also why it won't be surprising if we see the ANC engaging in further stalling on the matter after this week's hearings are done.
Supporters of the bill say it will serve to harmonise the traditional justice system (customary law) with the state court system ("Western" common law), and bring the status of customary law up to a par with common law. Those who are against it point out that it will vest extraordinary powers in the hands of (exclusively male) traditional leaders, who will essentially become a one-stop shop for legislation, with the powers to make, rule on and enforce laws. There is further concern that it could entrench patriarchal customs like ukuthwala - the abduction and forced marriage of frequently under-age girls - and, given the views of the Congress of Traditional Leaders of SA (Contralesa) on gays it's felt to be unlikely that LGBTI rights would be upheld if the bill were passed.
In addition to this, however, there is the fact that between 17-million and 20-million rural people would be placed under the jurisdiction of a traditional court simply based on where they live, adhering to the Bantustan boundaries established under the Black Authorities Act of 1951. There would be no opt-out, no ability for people to choose between accessing justice from a traditional court or a magistrate's court.
In the run-up to this week's hearings, there have been many prominent criticisms of the bill - and not just from civil society organisations.
Shirhami Shirinda, a member of a rural royal family in Limpopo, wrote an opinion piece for the M&G last week laying out her concerns about the bill, particularly with regards to women's access to justice.
"I know many women who do not want to take their cases to traditional courts, preferring social workers and magistrate's courts because of the view that traditional courts are biased in favour of men," Shirinda wrote. She also said the bill's proposal that a traditional leader should preside over traditional courts was based on a misunderstanding of custom: "Traditional courts do not normally have traditional leaders to preside over them; instead a traditional leader is informed of the judgment to enforce and amend," she noted. "They are simply repeating the colonial precedent of the Black Administration Act of 1927, which turned chiefs into judges."
Also last week, UCT's Aninka Claassens, a land rights activist who has been vocal in her criticism of the bill, wrote a troubling piece for Business Day citing the case of the Bakgatla ba Kgafela tribe, close to Marikana, as an example of how increasing the powers of traditional leaders increases the potential for the abuse of these powers. The land the Bakgatla ba Kgafela inhabit contains platinum reserves they accuse their chief, Nyalala Pilane, of plundering for his own reward. They have repeatedly failed to achieve any legal redress towards this situation despite petitioning the Department of Land Affairs, the National House of Traditional Leaders and a succession of premiers. Claassens attributed this legal stonewalling to "a sweetheart deal between chiefs and the ANC", which she also sees as lying behind the Traditional Courts bill.
Given these kinds of high-profile critiques of the bill, it can only be construed as disingenuous that the National House of Traditional Leaders (NHTL) professed itself shocked at criticisms of the bill when it made its submission to the parliamentary committee on Tuesday. (Chief Sefogole Makgeru, deputy chairman of the NHTL, also happens to be an ANC MP.) Repeating the claim that the bill's aim was just to streamline the functioning of traditional courts with state courts, the NHTL said gender equality would be a key focus. It also made it clear that, bill or no bill, traditional courts would keep operating.
The Justice Department was playing a funny game on Tuesday, with Chief Director for Legislative Policy Jacob Skosana urging the bill be processed as a matter of urgency, suggesting it would play a vital role in fostering community ties. Unlike the "Western" judicial system, which merely seeks retribution against the wrongdoer, the aim of the bill would be to mete out restorative justice to the wronged: compensation in terms of money, livestock and apologies, for instance.
At the same time, though, Skosana suddenly introduced a raft of proposed amendments to the bill. Perhaps legal authority should be vested in a traditional council rather than one traditional leader, he said. This would cut down on the cost of establishing new courts. And perhaps the courts should be excluded from dealing with domestic violence, maintenance, deceased estates, matrimonial matters, issues relating to children in conflict with the law and issues relating to land allocation. Furthermore, on traditional councils it is currently mandated that 1/3 of officers must be women (though anecdotal reports suggest this rarely happens). The Justice Department suggested this quota be increased to 50% - clearly a sop to the Department of Women, Children and the Disabled and concerned women's rights groups.
Civil society was far from thrilled at these concessions, however. UCT's Law, Race and Gender Unit said the department should have circulated the changes beforehand in order to allow those making submissions to the hearings to respond. This was a point echoed by the DA: Debbie Schafer, DA shadow deputy minister of Justice and Constitutional Development, released a statement Wednesday accusing Justice Minister Jeff Radebe of "acting in bad faith by tabling a bill that is clearly unconstitutional whilst his department is busy substantially amending it."
At the hearings on Wednesday, individuals presenting their submissions repeatedly called for the bill to be scrapped altogether. This is not possible, the committee was told repeatedly by the chair. Radebe said the same thing to the Women's Parliament late last month, framing retaining the bill as far preferable to more sinister alternatives.
Withdrawing the bill, he said, "will not only interrupt the vibrant discourse occurring in Parliament that will shape the end product of this bill, but will allow the department to redraft another bill somewhere in a dark corner of its corridors, away from the public eye".
Clearly Radebe doesn't put a lot of faith in democratic processes.
On Wednesday groups ranging from the Federation of Unions of SA (Fedusa) to Land Access Movement of South Africa (Lamosa) got up to tell the committee that, and we're loosely paraphrasing here, they could stuff the bill. But members of rural communities had also travelled from far and wide to appear in front of the committee and make arguments that had nothing to do with gender or the separation of legislative powers. They were, it seemed, simply worried about the amount of power that would fall into the hands of traditional leaders.
A man called Solomon Mabuza from Buffelspruit in Mpumalanga told a long story about abuse of power in his village by an illegitimate chief who stole communal land. Nosinodi Mthiya testified to the fact that the "fees" extorted by chiefs amount to simple corruption. KwaZulu-Natal's Stompi Hlombe delivered an extraordinary account of how her involvement on a traditional council as a woman had resulted in a campaign of intimidation and violence against her culminating in the loss of her finger.
Mbuyiselo Botha of Sonke Gender Justice said flatly that the bill was unconstitutional, in the fact that women were excluded from the top level of adjudication and there was no recourse of appeal to another court if one's case was not listened to fairly. The Women's Legal Centre's Jennifer Williams pointed out that South Africa has signed up to a number of international conventions outlawing discrimination against women, to which South Africa is bound by law. The bill would likely fall in contravention of these.
The last submission on Wednesday came from independent anthropologist Mary de Haas, who gave those gathered a crash-course in both Anthropology 101 and SA History 101. Pointing out that "customary law" was a colonial construct, codified by Theophilus Shepstone as a way to control the natives, de Haas also noted that the office of chief became heavily politicised during Apartheid and remains so to this day. The bill is "discriminatory because it forces people in colonially-defined 'traditional' areas to comply with directives given by leaders who may be corrupt", she summed up.
We're only halfway through the public hearings on the bill, and already it seems clear it will have to be substantially amended if it isn't going to be scrapped altogether. Exactly what will happen next is anyone's guess, though. You probably wouldn't do badly to put your money on "nothing much" - at least until the dust has settled on Mangaung.