Traditional Courts Bill a relic that must go
Hearings on the Traditional Courts Bill concluded last Friday.
They coincided with welcome comments by Minister of Justice and Constitutional Development Jeff Radebe, agreeing with statements made earlier by Minister of Women, Children and People with Disabilities Lulu Xingwana, that the bill is bad for women.
Radebe strongly suggested that the bill was undemocratic and said he shared most of the concerns people were raising.
These concerns are not confined to the fact that the bill would undo the gains women have secured under the Constitution.
Violations by the bill include women not being made members of traditional courts, nor being assured of self-representation before the courts.
One of the most offensive aspects of the bill is that it denies the right to choose not to attend a traditional court.
Those summoned by a traditional leader have to appear before him or face being guilty of an offence.
This is regardless of whether they recognise the traditional leader’s authority or not.
For instance, a subcommunity forced under that traditional leader during apartheid, and people who own land privately or under trust, would all be subject to the court’s jurisdiction.
Also, it would not matter if the accused was ignorant of the law applicable in that community if they broke it while passing through.
What makes the fact that people cannot opt out of the court’s jurisdiction so terrible?
The boundaries are those largely determined by the apartheid government and section 28 of the Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA).
The Traditional Courts Bill simply imposes them as the jurisdictions of the traditional leaders’ courts.
Hence, the bill in effect creates a separate and authoritarian legal regime for those in the former homelands.
Issues of customary identity and affiliation are not established by consensual affiliation and choice, but decided by laws that resuscitate the boundaries of the former homelands.
We are back to the divided citizenship of the apartheid era, only this time the criterion is not overtly race.
It is geography, coinciding precisely with the map of deepest poverty and the dumping grounds for apartheid’s forced removals and Bantustan consolidation.
There are many contestations in rural communities over the tribal boundaries imposed by apartheid.
The bill would subject those who dispute their official “tribal” classification to real risk.
Under the bill, the traditional leaders whose authority they challenge could strip them of their customary entitlements.
This is the mark of a highly coercive system that predetermines who is a rights-bearing citizen and who is not.
Supporters of the bill repeatedly argue that customary law is a popular and consensual system that practises restorative justice.
I agree that living customary law is. Why then do traditional leaders need coercive powers like these?
Such powers make it clear that apartheid and its contested tribal boundaries confirmed by section 28 of the TLGFA are the foundation of the new laws; not consensual practice and living law.
As long as the bill cross-refers to the disputed tribal boundaries entrenched by section 28, it is unfixable.
Even scrapping the bill entirely as civil society and Xingwana have called for will not deal with the fundamental problem.
Section 28 of the TLGFA must also go. Not just for the sake of rural women, but all South Africans.
Whatever its content, any law that establishes a separate legal regime for those living in the former homelands undermines the kind of democracy South Africans fought for.
»Weeks is a senior researcher in the law, race and gender research unit at UCT