Parliament, Cape Town - The justice department proposed a slew of changes on Tuesday to the draft Traditional Courts Bill (TCB).
In its submission to the National Council of Provinces during public hearings on the contentious legislation, the department set out various policy options to respond to the bill's critics.
The department suggested traditional courts be integrated into traditional councils to adjudicate over disputes in local communities, to satisfy the objective of gender equality.
In the submission, the department proposed that special measures be spelled out when a council sat to settle a dispute.
“The special measures must determine the quota of women who must participate in the Traditional Council and their specific role during such a sitting, with a view to advancing the right to equality...” the document reads.
The law currently stipulates that women make up one-third of those represented on these councils.
The new proposal suggested a possibility of increasing the quota to 50 percent, an option preferred by the department of women, children and people with disabilities.
The cost impact of traditional courts was also addressed.
“Traditional Councils are already resourced and supported through various government programmes.
“Creating parallel traditional courts will require additional resources and capacity, which are difficult to satisfy (obtain) from the fiscus,” the justice department documents stated.
Addressing the call for women to be allowed the option of accessing a magistrate's court instead of a traditional court, the department listed several matters in which the traditional authority should be excluded from dealing with formally.
“The areas in respect of which these exclusions should apply are domestic violence, maintenance, deceased estates, matrimonial matters, issues relating to children in conflict with the law, and issues relating to land allocation.”
The department also pushed for the traditional councils to lead reform in the development of customary law, especially with reference to harmful cultural practices.
“To date the development of customary law to rid itself of these practices, some of which are archaic and heinous, has been left to the courts.”
The University of Cape Town's Law Race and Gender Unit (LRG) later criticised the department for not circulating the proposed changes prior to the public hearing, so that interested groups and individuals could respond.
In a submission presented by Aninka Claassens from the LRG, the changes are described as being inconsistent with the practices and values of customary law.
“Instead of building on existing practice and positive changes in rural areas, the Bill entrenches colonial and apartheid distortions that re-conceived of custom as a means of indirect rule,” said Claassens.
Claassens echoed the views of other groups in the Alliance for Rural Democracy.
The Alliance wants Justice Minister Jeff Radebe to withdraw the bill and start a new drafting process Ä and consult those who will be most affected by the legislation, particularly women.
The National House of Traditional Leaders (NHTL), on the other hand, on Tuesday gave their full support to the bill, telling MPs it was shocked by the criticism.
“It (the bill) seeks to uniformly have one legislation across the country that will regulate this traditional court against abuse and any other inconsistency, like infringement upon the rights of people, (and) the rights of women,” NHTL chairman Kgosi Ponsho Maubane told Sapa on the sidelines of the hearings.
Maubane said the bill would address malpractices which were happening in “one or two traditional communities”.
“It was maybe because of past practices that these concerns come about. Remember, we come from various TBVC (former homeland) areas that trampled on the rights of people.” - Sapa