DA leader Helen Zille says the reintroduction of the controversial Traditional Courts Bill is “questionable” and may be construed as an attempt by President Jacob Zuma to “buy political patronage” in the run-up to the ANC’s elective conference to be held in Mangaung in December.
“I have no doubt that this legislation would not have been reintroduced now if there was any chance of it decreasing the size of Jacob Zuma’s corner in Mangaung,” Zille said. She was speaking at a press conference at Parliament at which she expressed the DA’s rejection of the bill in its entirety and called for its withdrawal.
The stated aim of the bill – which has been rejected by prominent women and civil society organisations, including Minister of Women, Children and People with Disabilities Lulu Xingwana, Dr Mamphela Ramphele and the ANC Women’s League – is to regulate traditional courts and customary law to bring them in line with the constitution.
Critics say that while entrenching the rights of traditional leaders, the bill – which affects 22 million rural South Africans – ignores the plight of vulnerable citizens and women.
Xingwana has called for the bill to be scrapped and the process to be started from scratch.
Zille said it was “interesting” that the bill had been taken off the parliamentary schedule in 2008 and, “suddenly, six months before Mangaung”, made a reappearance.
“One has to ask questions around the timing. If it was thought to be unconstitutional then, why is it suddenly making a reappearance now? Somewhat ironically, the Minister of Justice, Jeff Radebe, who tabled the bill, has himself now raised concerns over the controversial piece of legislation.”
Asked to comment on the possibility that garnering the support of traditional leaders before Mangaung might backfire on Zuma in terms of securing other votes, Zille said: “The critical thing is who votes at Mangaung. I am sure that President Jacob Zuma has done his arithmetic very carefully.
“The ANC Youth League is divided about him, although I think the majority are possibly counting in the anti corner. He is certainly hoping to hold on to the majority of Cosatu, and then he is looking to the other allies and doing his arithmetic very carefully.
“I think President Zuma knows that he is, in many ways, in a corner. He has got to increase the size of his corner.”
DA parliamentary leader Lindiwe Mazibuko who, with the party’s deputy spokeswoman on justice, Debbie Schafer, joined Zille at the press conference, said the bill recognised the participation of women “in name only”.
“Women in rural areas have always been discriminated against and the bill provides another platform for this prejudice to continue,” Mazibuko said.
“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or independent and impartial tribunal.
“Traditional leaders do not satisfy the criteria for independence or impartiality exactly because they often make the law, interpret, adjudicate, enforce it and may often benefit from the penalties they impose.”
Schafer said a key concern of the DA was that the bill stated that “no party to any proceedings before a traditional court may be represented by a legal representative”.
“The bill is therefore in contravention of the Bill of Rights, which guarantees legal representation in all criminal matters.”
Another concern was that the bill gave traditional courts the power to institute criminal proceedings and to decide whether a matter was referred to the National Prosecuting Authority (NPA).
“This amounts to usurping the power of the NPA, rendering the bill unconstitutional.”
The bill was first introduced in 2008, when it encountered widespread opposition and withdrawn. It was recently reintroduced, unchanged, in the National Council of Provinces (NCOP) and public hearings are being held in the provinces.
The provinces will have to give their negotiating mandates on June 8 before the NCOP votes on the bill, which will then go back to the National Assembly.
Zille said while the DA acknowledged that customary law and customs were recognised in the constitution and played an important role in traditional communities, the Traditional Courts Bill reinforced apartheid-era homelands and powers.
“It is a throwback to Bantustan boundaries into which more than four million people were forcibly removed under the infamous Black Authorities Act of 1951.”
Zille said that Parliament, instead of considering the bill, now had an ideal opportunity to incorporate traditional leaders into a dispute-resolution mechanism that was consistent with the constitution and the rule of law. “There are many disputes and disagreements in communities that don’t need to go to court,” she said.
“Often it is much more affordable and manageable to resolve them where people are, where they live and with the authorities with which they are familiar, but then that has to happen because that is what people choose to do… and not because they are forced to do so.”