ANC caves on induna courts' opt-out clause

26 August 2018 - 00:00 By ANDISIWE MAKINANA

ANC MPs have bowed to pressure from traditional leaders and dumped a crucial clause in a controversial bill that allowed citizens the right to refuse to be subject to traditional courts.
The opt-out clause was introduced as a compromise by the department of justice last year following a huge public outcry over the Traditional Courts Bill.
The bill has been a source of tension among civil rights activists, traditional leaders and lawmakers for the past 10 years.
The chair of the justice portfolio committee, senior ANC MP Mathole Motshekga, this week rejected the advice of parliament's chief legal adviser, who had warned that scrapping the opt-out clause would render the bill unconstitutional.
"You are a good lawyer, but even good lawyers lose cases. We must agree here that you have not persuaded us that there must be an opt-out clause," said Motshekga as he dismissed advocate Zuraya Adhikarie's written advice, which was presented in a committee meeting on Tuesday by legal adviser Phumelele Ngema.
The bill was reintroduced in parliament last year after previous attempts to pass it in 2008 and 2012 hit snags.
Deputy minister of justice John Jeffery led multistakeholder negotiations that resulted in the introduction of the clause. Asked to comment on the dropping of the clause, Jeffery said the matter was out of his hands.
Motshekga said they rejected the opt-out because it would nullify the existence of traditional courts. He dismissed the proponents of the clause as "a minority".
He said: "If you are going to have optional participation, do you really even need this bill? When you have institutions like the National House of Traditional Leaders and Contralesa [the Congress of Traditional Leaders of SA], the majority of people affected by this are saying that it will undermine the bill, who are these important voices … who are saying we must opt out?"
Aninka Claassens, director of the Land and Accountability Research Centre at UCT, said the rejection of the clause was a slap in the face of those who had campaigned for it for the past 10 years.
Labour federation Cosatu has called on parliament to once more halt the processing of the bill as it was "now fatally flawed and simply unconstitutional".
Other changes to the bill include the expansion of the jurisdiction of traditional courts on monetary matters, from R5,000 to R15,000. It also bars those aggrieved by decisions of traditional courts from challenging these in the magistrate's or high courts. It says appeals should be filed with the higher courts within the traditional court system, a departure from the initial provision of escalating matters from the traditional court system to the Roman Dutch Law system.
"We want to restore ... the institution of traditional leadership and according to that institution there is an in-built appeal system … from the headman's court to the chief's court and from the chief's court to the king or queen's courts," said Motshekga.
He said some magistrates and judges "know nothing about indigenous law".

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