South Africans braced for new confrontation with government over controversial law

© Ferenc Szelepcsenyi – 123RF.com

The bill purports to regulate dispute resolution under customary law in line with South Africa's Constitution, and provide access to justice to the millions of South Africans who live in rural areas subject to traditional leadership.

The original draft brought into sharp focus tensions over the role of traditional leaders, on one hand, and the sovereignty of the country's Constitution, on the other. Critics of the proposed law, who successfully mobilised against it when it was tabled in 2008 and 2012, argued that it flouts rights entrenched in the Constitution, such as equality for women.

Now the ruling African National Congress has given notice that it plans to retable the contested bill in the next few months - albeit in a revised form.

The bill's flaws

First introduced in the National Assembly in 2008, the proposed law was thwarted by an outcry in the Portfolio Committee on Justice and Constitutional Development. The public's primary objection was that the bill mainly represented the interests of traditional leaders. Ordinary people, who would be adversely affected, were not consulted in its drafting.

The draft law was primarily criticised for centralising too much executive, legislative and judicial decision-making power in traditional leaders. This was inconsistent with the more democratic functioning of existing traditional courts under customary law.

The bill also did not address the concerns that women do not get a fair hearing in many traditional courts, which tend to rule in line with the patriarchal values that remain endemic in traditional communities. This violates the constitutional guarantee of equality.

It caused particular concern that the bill's provisions allowed for the continuation of the requirement that women be represented by men in traditional courts.

The bill was also challenged for the jurisdiction it gave traditional courts, which is based on apartheid boundaries perpetuated by the Traditional Leadership and Governance Framework Act of 2004.

The bill did not allow community members to choose if they would rather have their cases heard by magistrates' courts and, thus, under civil law. Instead, it compelled people who did not recognise a particular traditional leader as legitimate to submit to his authority for dispute resolution.

Worse still, it empowered traditional leaders to take away people's property rights as punishment in some cases. It therefore perpetuated the legal segregation and second-class citizenship imposed on people in the Bantustans.

The ANC's stubborn determination

The governing African National Congress has remained determined to pass the bill into law. It is partial to traditional leaders because it apparently believes they are vital to winning the rural vote. This, however, is unproven. The ANC also says traditional leaders are the "custodians" of African culture, which is not so. Further, rural local government is weak and it sees traditional institutions as a potential substitute.

President Jacob Zuma promised traditional leaders in 2010 that the bill would be passed by the end of that year. Subsequently, the ANC tried to pass the bill despite being repeatedly advised by civil society and people in rural areas that it was unconstitutional.

The government hoped to address the concern of inadequate consultation by processing the bill through the house of parliament that looks after the interests of provinces. The bill was therefore introduced in the National Council of Provinces in 2012, virtually unchanged even though criticism persisted that it was unconstitutional.

Constitutional objections raised were that it:

• Violated people's right to choose their culture;
• Violated women's rights to equality;
• Ignored the doctrine of the separation of powers;
• Infringed the right to legal representation, particularly in criminal matters;
• Potentially removed the property rights of some;
• Failed to comply with the rights of communities to be consulted in the making of law; and
• Infringed many other constitutional protections.

After the provinces conducted their consultations they too were largely persuaded that the bill would not pass constitutional muster. Zuma finally had to concede these problems in November 2012. But the bill lingered until it was realised in February last year that it had lapsed.

The bill makes a comeback

The first the public learned of the bill's resurfacing was in March this year when Justice Minister Michael Masutha gave a written reply to a question in parliament. He said he intended to table a revised version in November or soon thereafter, after consultations with all stakeholders.

Despite his promise, it appears that the justice department will compress the consultation period. Given the problem that pre-drafting consultations were previously inadequate it seems unwise to short-circuit this process.

The discussion document that is to form the basis of the public dialogue has not yet been made available. We can only hope that it is based on the public comments received in the backlash against the original bill and allows substantial input from ordinary people.

Reason for hope

What offers some hope is that the justice department's approach to traditional courts may have evolved. It recently described traditional courts as a means of alternative dispute resolution.

One hopes that government has realised that it is indefensible to regulate traditional courts as "courts" under the constitution. Factually, they are not courts in the same sense as civil courts. They are mediation and arbitration forums, highly dependent for effectiveness on participation by the communities that use them.

This is why communities should play a central role in their conception. But to be truly representative they need to be reformed to fundamentally respect women's rights to equality and non-discrimination.