Structure of the Presentation

Background and policy perspectives on the Traditional Courts Bill Briefing to the Select Committee on Security and Constitutional Development 7 March 2012

Structure of the Presentation • Historical Background of the Traditional Justice System (TJS) • Background to the Traditional Courts Bill (TCB) the investigation by the SALRC & its Bill, Policy Framework & Introduction of the TCB • Overview of concerns raised during the Parliamentary Hearings in the NA • Key policy considerations arising from comments • Whether comments have been taken into consideration

Structure of the Presentation • Transformation of the traditional courts as part of the broader transformation of the judicial system discourse • The transformation of the traditional justice system (TJS) as a constitutional imperative 8. Consequences of the delay in finalising the TCB: 8.1 Traditional Courts functioning outside the constitutional & legislative framework 8.2 Opportunity to enhance access to justice 9. Recommendations

1. Historical Background to the TJS • The Traditional Justice System (TJS) is of ancient origin – it is the oldest known organisation in the state and society • Research indicates that TJS could have been distorted to suit the governance systems brought by colonialism and apartheid • The Black Administration Act of 1929 (BAA) was the bastion of the policy of segregation through which the TJS was designed to maintain & enforce Apartheid policies

Historical background • The BAA was subsequently repealed in 2007, with only the following provisions saved under a separate Act of Parliament to keep the traditional courts operational: • s12 which provides for adjudication of civil disputes by traditional courts • s20 which provides for the resolution of criminal disputes by traditional courts • Both sections 12 & 20 are inadequate and reminiscent of the old-order discriminatory dispensation. Their repeal is an essential element of the transformation of the justice system

2. Background to the TCB • In 2003 the SALRC conducted investigation to reform the BAA and align traditional courts to the Constitution • In its Report the SALRC recommended, among others, that customary courts be established as a parallel court system to the mainstream courts, (court infrastructure, personnel, IT, transcriptions & records) • The Report was accompanied by a Customary Courts Bill to give effect to the proposal in the Report

Background to TCB • The Minister then did not approve the SALRC Report and the SALRC Bill (although certain principles of the Bill were accepted) – the view was that the establishment of a parallel court system alongside the magistrates’ courts would perpetuate segregation; lead to overlapping of their jurisdiction with that of magistrates’ courts; and the court infrastructure, personnel and IT parallel to existing court infrastructure would be an administrative & financial burden to the State • The preferred position was to establish traditional courts as special-type courts which would supplement the conventional court system with emphasis on the Alternative Dispute Resolution Mechanism (ADRM)

3. Overview of comments on TCB • The then Minister submitted a policy framework and the TCB to Cabinet in 2008 which, in turn, approved its introduction into Parliament • The Justice Committee conducted public hearings at which criticism was levelled against the Bill, in particular on the following: (i) The Bill confers more power on the traditional leaders than they had under BAA [The Bill was perceived to give traditional leaders as presiding officers, equal status to that magistrates]

Overview of Comments on TCB (ii) The Bill does not provide adequate protection for the rights of women [Bill perceived not to provide enough measures to address past gender prejudices] (iii) The Bill does not recognise the different layers in the traditional court system eg headmen/head women, senior traditional leaders & above [This was acknowledged in the policy framework but is not reflected in the Bill]

Comments on TCB • Community service sanctions have the potential for abuse by traditional leaders [Bill does not provide adequate checks and balances on community service sanctions ] (v) The Bill deprives communities of the right to legal representation which is a human right enshrined in the Bill of Rights [that the deprivation of the right to legal representation is unconstitutional]

Comments on TCB (vi) That civil jurisdiction should be based on consent of the parties and that the courts’ criminal jurisdiction was inconsistent with Constitution [that power to institute criminal prosecutions on behalf of the state lie with the National Prosecuting Authority] (vii) The Bill does not provide the right to opt out in order to give a choice to pursue legal redress in the conventional courts [This remained a sticky point which the SALRC acknowledged and deferred to policy makers]

Comments on TCB (viii) The appeal to Magistrates’ Courts and the choice of legal system where more than one conflicting customary law values applied were cumbersome [An appeal of an appeal system within the Customary Court system itself was made, mainly by the institution of traditional leadership] (ix) There was a lack of adequate consultation with communities who are affected by the Bill [Consultations was largely with traditional leadership and limited civil society]

4. Key policy considerations Some of the important questions which emerged from the comments on the Bill are: • Whether Traditional Courts should be part of the judicial system or complement the system? Should traditional courts be courts envisaged in s166 of the Constitution or special-type courts? What are the consequences of integrating the traditional courts as part of the judiciary on principles such as separation of powers, judicial independence and legal representation? • Should they therefore be called courts under the judicial system. What is the implication of item 16(1) of Schedule 6 to the Constitution?

5. Whether comments were considered? • When a notice inviting comments was issued by the Department in Dec 2011 with closing date of Feb 2012, same criticism on the Bill were raised, with a strong undertone that comments made on the Bill were ignored by the Minister • The reason for re-introducing same Bill was: (i) in the interest of time (the 31 December 2012 deadline would be unachievable if the Bill were to be revised and reintroduced • opportunity for further consultations at local level where there is more interest & impact • Final text following further consultations will take all comments into consideration

6.Transformation of traditional courts is part of the broader transformation discourse • Like all other courts, the traditional courts system must be transformed and brought in line with the Constitution and its values. Item 16(1) of Schedule 6 to the Constitution specifically states that “every court, including courts of traditional leaders, existing when the constitution too effect, must continue to function and to exercise jurisdiction in terms of the legislation applicable to it” subject to an amendment or repeal of that legislation • Changes brought to the traditional courts thus far were mainly jurisprudence-driven, eg. of custodial sentences and corporal punishment which we declared unconstitutional

6.Transformation of traditional courts part of broader transformation • The discussion document on the transformation of the judicial system which the Minister released on 28 February 2012 has a bearing on the traditional justice system as an important justice system geared to enhance access to justice • Through the transformative initiatives envisaged by the discussion document the following aspects, among others, will be addressed: - the traditional justice system as an important element of restorative justice; - The exercise of quasi-judicial function to vest in traditional courts which are community forums, and not traditional leaders as individuals

7. TJS as a constitutional imperative • There is constitutional recognition of the institution of Traditional Leadership (Chapter 12) • Access to courts (s34) –everyone has the right to have a dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, by another independent or impartial tribunal • Constitutional duty of courts and tribunals to develop customary law (s39(2)) • Minister’s authority to enact national legislation regarding the administration of justice not referred to in the Constitution (s180)

Constitutional imperatives • Other Constitutional values underpinning the TJS • Supremacy of the Constitution and the rule of law (s1) – all laws are subject to the Constitution. All laws, including Customary Law must be adapted and aligned to the Constitution • Bill of Rights, which is a corner stone of our democracy in particular right to equality (s9); linguistic & cultural rights (s30,31)

Constitutional imperatives • Other constitutional values underpinning the TJS • All courts are enjoined to Customary Law when that law is applicable (s211(3)). • Constitution enjoins courts, tribunals or forums to develop Customary Law when interpreting Bills of Rights(s39(2)) • Jurisprudence on Customary Law and traditional practices and customs (land mark judgments on land and property rights, right to ascend to the chieftainship, inheritance, etc)

8. Consequences of delay in finalising the TCB • Traditional Courts continue to operate without any effective legislative framework which weakens respect to the rule of law • Reported incidents of abuse and failure to observe human rights undermine the efficiency of the TJS, in particular with regard to the strengthening of social cohesion, nation building and restorative justice

Consequences of delay of TCB • Unclear roles of magistrates courts in relation to their appeal jurisdiction over decisions of the traditional courts • Saved provisions of the BAA hugely inadequate and ineffective and ‘may not have general application in all provinces and therefore there is a dire need for national legislation to create legal certainty • Confirmation of jurisdiction of traditional leaders is inappropriate under current legislative regime and we need to develop measures to address the pressing needs in the interim

9. Recommendation That the Select Committee – • Notes the Historical Background to the Traditional Justice System • Notes the history of the Traditional Courts Bill and the comments made on the Bill, in particular the reasons for the introduction of the same Bill which was introduced in the National Assembly • Guide the Provincial Legislatures in deliberating on the Bill • Guide on further consultations on the the Bill

Thank You

Structure of the Presentation