Mogomotsi Magome

CIVIL society, academics and general members of the public have slammed the new Traditional Courts Bill, which they described as unconstitutional and flawed in many aspects.

The bill is now scheduled for public consultation after it was reintroduced by the Department of Justice and Constitutional Development last year following its withdrawal in 2008.

But most people attending a seminar hosted by the Human Sciences Research Council (HSRC) yesterday called for a delay in the passing of the bill, while some have even suggested that it be completely scrapped and the process started from scratch.

The bill seeks to regulate the traditional courts and customary law so they are in line with the constitution, but many claim this is not possible.

Dr Sindiso Mnisi Weeks, a senior lecturer in African customary law at the University of Cape Town, is one of the staunch opponents of the bill in its current form and has called for it to be scrapped.

According to Weeks, it was too late to hold public consultation meetings only for amendments to be made when the public had not been consulted before the Bill was drafted. “It is not enough to consult rural people about amendments to the bill when they were not consulted during the conceptualisation of the bill in the first place.

“There are just too many flaws with this bill and it is actually going to affect nearly 20 million South Africans who are subjected to traditional courts.

“Traditional leaders objected to the draft bill brought forward by the SA Law Reform Commission (SALRC) and this bill has now come back with the initial flaws it had,” said Weeks.

She said it was extremely worrying that women would be mostly affected by this bill but were not even allowed to sit on traditional councils.

Her sentiments were shared by many participants from Cape Town, Pretoria and Durban, who also raised fundamental concerns about the bill.

Some of the concerns included the fact that one couldn’t opt out of a traditional court process in favour of a magistrate’s court if one was in the jurisdiction of the traditional court. In fact, it is an offence not to attend the court when summoned and the presiding officer, usually the traditional leader, may dish out punishment as he sees fit.

Those facing charges in a traditional court are not allowed any legal representation, and may only appeal against a penalty and not the judgment itself.

It is such aspects of the bill that have many up in arms because these kinds of rights are provided for in the constitution yet are absent in the bill.

Heyns Kuhn, of the Department of Co-operative Governance and Traditional Affairs, said the bill would not be able to survive constitutional scrutiny in its current form. He raised concerns that in Kwazulu-Natal alone, the Department of Justice would have to train nearly 5 000 people as presiding officers. It would create an immense burden on the department. “An alternative to the bill would be a voluntary traditional conflict resolution system. There must also be a removal of the ability to impose any criminal sanctions as this will create two tiers in dealing with criminality. The National Prosecuting Authority is currently doing that,” said Kuhn.

Jennifer Johnny, of the SALRC, said the solution was probably to have specialist courts dealing with customary law in the mainstream courts.

“If there is so much desire to regulate customary law, should we rather not have specialist courts which deal specifically with customary law, like the courts we have now which deal with maintenance and domestic violence?” asked Johnny.

One of the fiercest criticisms that the bill faces is the fact that it has not been translated into 11 official languages.

A public consultation is due in Bronkhorstpruit today.

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