A victory for rural people - but unjust practices remain

While the new Traditional Courts Bill is a great improvement, chiefs will keep too many apartheid-era powers, writes Aninka Claassens

The new Traditional Courts Bill announced on Monday is an important victory for the rural people who rejected a previous version at public hearings in 2012, and for the provinces who opposed it in the National Council of Provinces.

It is significant that the old bill was blocked in an early example of the new parliamentary independence we are seeing.

Section 76 of the constitution requires a majority of provinces to pass bills about customary law. Only North West caved in to government pressure to push it through. An additional death knell was the brave parliamentary legal adviser who stuck to her guns even after she was refused permission to circulate her memorandum on why the bill was unconstitutional.

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The new bill no longer relies on apartheid-era tribal boundaries to define the jurisdictional area of traditional courts, and it allows people to opt out of traditional courts for other courts and dispute resolution forums.

Serious problems remain, however, especially in the context of the unequal power relations in rural areas, and the government's failure to enforce existing checks and balances on the power of traditional leaders.

The provinces who rejected the old bill said it was inconsistent with the real nature of customary law, and instead reinforced colonial constructs of the autocratic power of chiefs. The old bill adopted the 1927 Native Administration Act construct of chief-as-judge, which contradicts the council-based, inclusive and restorative nature of customary dispute resolution processes.

The two most fundamental criticisms of the old bill were its consequences for women and that it obliged 18million South Africans in former homelands to subject themselves to chiefs' courts, even where claims and disputes about the legitimacy of the chief and his tribal boundaries have been lodged with the Commission on Traditional Leadership Disputes and Claims. More than 1200 such disputes were lodged before the cut-off date of August 2010.

The fundamental shift in the new bill is the recognition that customary law is, by its nature, consensual, and that apartheid- era tribal jurisdictions cannot trump the right to affiliate with customary identities of choice.

That is the good news, but other concerns remain.

The bill acknowledges the entrenched inequality and patriarchy that suffuses power relations in rural areas but fails to provide women and minorities with concrete, accessible remedies where abuse takes place.

Deputy Minister of Cooperative Governance and Traditional Affairs Obed Bapela said at the launch of the bill that equality for women would be "encouraged, not enforced".

block_quotes_start The bill needs to tackle enforceability otherwise the rights that the bill purports to create for women are unenforceable block_quotes_end

Decisions of traditional courts can be taken on review to the high court on specified procedural grounds, but the bill does not allow them to be taken on appeal.

There are two problems with this. First, a review does not deal with the merits of the decision made by the traditional court, only whether it was made in the proper manner. Second, to bring a review you need to hire a lawyer, which vulnerable rural people seldom can afford.

The bill needs to tackle enforceability. The Justice Department must ensure litigants in traditional courts are entitled to legal aid funding for review applications. Otherwise the rights that the bill purports to create for women are unenforceable.

While the new bill does include the right to opt out, the grounds for procedural review do not cover the courts' failure or refusal to recognise that right. Can it be that the drafters overlooked the enforcement of this game-changing right? More bizarre still is that a traditional court may continue to sit and "counsel, assist, or guide" the complainant in a matter where the other party has opted out.

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The complainant will have the full attention of a court sitting in public, while the other side is absent. This is in a context of extremely unequal power relations where, for example, gay people, widows and elderly women already endure debilitating forms of social sanction.

The bill tries to disguise this manipulation of social sanction by creating an empty distinction between the court sitting to make "decisions" requiring both parties, and to "counsel, assist or guide", which requires only the complainant.

There are many other forums in which traditional leaders can provide advice to people. To do so in an open court, after a one-sided hearing, breaches natural justice and the constitution.

Also worrying is the pathetic penalties for traditional leaders who breach the proposed code of conduct. And the people expected to exercise oversight are provincial office bearers and houses of traditional leaders, who have an abysmal record on enforcing the few checks and balances built into the Traditional Leadership and Governance Framework Act of 2003.

Not only are the councils allowed to continue operating despite failing to comply with the law, they can sign multimillion-rand mining deals, and are shielded from public oversight and financial accountability.

The bill will only achieve its objectives if mechanisms are built in to enable people to assert and enforce their rights.

Dr Claassens is director of the Land and Accountability Research Centre at University of Cape Town