Deputy Justice Minister John Jeffery. File picture: Thobile Mathonsi/Independent Media
Parliament – Fundamental differences in understanding on the purpose of the Traditional Courts Bill became apparent on Tuesday as the department of justice briefed MPs on the draft act that has twice before failed to find its way into law.

Deputy Justice Minister John Jeffery recalled that the last attempt, in 2012, was abandoned after the National Council of Provinces could not agree on its provisions and pleaded for consensus on the new draft.

At that time, the divergent views were about, among others, the role of women in traditional justice and the voluntary aspect of participation in customary courts. "It is paramount that you will be taking the bill out to public hearings," Jeffery told Parliament's portfolio committee on justice.

"We need to get consensus on the bill." But the briefing suggested there was a chasm between the department's interpretation of the bill and that of committee chairman Mathole Motshekga, who accused Parliament and previous administrations of clinging to a colonial mindset and minimising the role of African law.

"We have now waited for ten years to this and we would have expected to be beyond doubt by now. We need to reflect on the decolonisation of the entire justice system," he said.

"The traditional legal system existed long before there was even places called London or Rome. It is still called customary law even by a democratic government and this is a problem. This Parliament does not respond to the needs of the majority of the South African people." Motshekga noted that the bill allowed for a matter to serve before three tiers of traditional courts before a party turned to the high court for review, but appeared to question the fitness of judges who are not versed in African law, conventions or language to overturn the findings of traditional courts.

To this, Jeffery countered: "We cannot get away from the issue of review, the high courts have that power." The director general of the department of justice, Vusi Madonsela, added that it must be understood that the traditional courts could not deliver any finding, or operate in a manner, that was not consistent with the Constitution.

"This bill is not an attempt to codify traditional law, the bill defines the manner in which traditional courts must operate," Madonsela said.

"The Constitution is the supreme law, this is only acceptable in as far as it is consistent with the Constitution." Motshekga countered: "People are not created by the Constitution. People create the Constitution."

An opposition MP remarked on the sidelines that "with those views it is going to very difficult to come to an understanding on the bill".