Khulumani Expresses Concern about the Potential of the Traditional Courts Bill to Undermine the Right of Access to Effective Justice of Nearly 17 million Rural South Africans: The Importance of Khulumani's Access to Information Programme
In April 2011, the Traditional Courts Bill was referred to the National Council of Provinces by the .ANC Study Group on Justice. When the Bill was first introduced in the National Assembly in May 2008, the Department of Justice and Constitutional Development argued that the purpose of the Bill was to give South Africans improved "access to justice" by giving proper recognition to the traditional justice system for millions of rural South Africans, in a manner consistent with values in customary law and the Constitution.
The Bill met with much resistance because it was inconsistent with both customary law and the Constitution.
The Bill has been returned to the National Council of Provinces for finalisation without very serious concerns about the Bill in its present form, being raised. The major concerns, as pointed out by the Law, Race and Gender Research Unit in the UCT Faculty of Law, are that consultation on the Bill has been very limited to date and has not involved the substantial participation of the 17 million ordinary South Africans living in rural areas in South Africa; the Bill does not allow for women to appear before these courts or to have effective representation; and the Bill is seen as contradicting current customary law practice where the general community participate and assist in dispute resolution in these courts..
A further concern is the lack of a separation of powers between the legislative and executive powers of chiefs and potential conflicts of interest that could arise when there is no provision for a separation of these powers. The Bill fails to recognise that the bulk of the dispute resolution work in rural areas is conducted in headmen's courts while the Bill presently under consideration only provides for the recognition and empowerment of chiefs' courts.
A further concern is the absence of any prescribed process for appeals. This lack would imply a failure of due legal process for individuals appearing before traditional courts. Finally, concern is expressed that traditional leaders are empowered to deprive a person of customary benefits, whether land rights or community membership, without recourse to any system of appeal. This would appear to present an unjustified threat to rural people's security of tenure.
Other points raised in this analysis of the Bill are that:
* the Bill establishes a separate legal regime for those living within the boundaries of the former Bantustans / homelands in which traditional leaders are empowered to single-handedly (without recourse to a structure of appeal authorities, for example) make and apply customary law on wide-ranging issues in cases before their courts;
* no one (not even a passer-by) is allowed to opt out of traditional courts and anyone refusing to appear once summoned by a traditional leader is guilty of an offence;
* traditional leaders can impose punishments such as forced labour, loss of customary entitlements (which may include land rights and community membership) and any other order they deem fit without reference to schedules of appropriate sanctions as exist in the 'regular' justice system; and
* people (even criminal accused) are not entitled to legal representation before the courts and women are not be guaranteed self-representation and in some instances, may not even be allowed to enter the court space.
These provisions undermine the protection of accused persons that exist in the 'regular' justice system and could undermine the rights provided for in the Constitution of the country such as the right to have any dispute resolved by the application of law in a fair public hearing before a court of other independent and impartial tribunal or forum.
The Bill if passed, would be challenged in the Constitutional Court, in respect of its failure to guarantee the provision in its proceedings of fairness, independence and impartiality as well as the rights of arrested, detained and accused persons, as detailed in Articles 34 and 35 of the Bill of Rights. These rights include the rights of accused persons to "choose and to consult with a legal practitioner" and to have a legal practitioner assigned to defend them, "if substantial injustice would otherwise result." The Bill of Rights also provides for every accused person to a public trial before an ordinary court, to be present when the case is heard (which may not be provided for, for women in the present form of the Bill), to be presumed innocent until otherwise proven, to be able to challenge evidence, not to be convicted for an act that was not an offence under national or international law at the time it was committed, and to have the right to appeal or review by a higher court.
Khulumani is organising to share the information prepared by the Law, Race & Gender Research Unit at the Faculty of Law of the University of Cape Town with its rural members who have been mobilising rural people as defenders of democracy in South Africa.
More information on the Law, Race and Gender Research Unit is available at http://www.lrg.uct.ac.zathe contact details for its Director, Professor Dee Smythe are Tel: 021 650 5680 or 021 650 5906 and Cell 073 381 2821