A public hearing discussing the Traditional Courts Bill took place in Parliament today, led by the Portfolio Committee on Justice and Correctional Services. The Bill, which was first introduced in 2008, was developed in order to replace Sections 12 and 20 of the Black Administration Act of 1927, which empowered traditional leadership to resolve disputes and offences in traditional courts. The Act was repealed, but the provisions regulating traditional courts were kept until new legislation could be enacted. The Traditional Courts Bill, which was reintroduced in 2012, has been met with strong opposition over the years. According to the Helen Suzman Foundation (HSF) the following issues have been raised:
The Bill created a separate system of law for tribal communities leaving individuals no choice to opt out of the system. Traditional leaders were also granted extraordinary powers in the forms of punishments they could impose on individuals. This included forced labour for the benefit of the community, without the option of appeal. The traditional leader could also strip an individual of their customary benefits, which included land rights or community membership. Another point was that people who took part in Traditional Courts were denied legal representation, going against the accused individual’s Constitutional right to legal representation. Lastly there was insufficient public consultation in the drafting of the Bill in 2008. Only traditional leaders had been consulted, inconsistent with the Constitutional obligation imposed on the State to facilitate public consultation in the legislative process.
The newly revised 2017 Traditional Courts Bill is the result of more than a year of consultation with both traditional leaders and members of civil society, and takes into account many of the suggestions highlighted by the HSF. While there are bound to be aspects of the Bill that will still be contested, it’s vital the a legal framework exists to guide the functioning of our traditional courts, which are used by millions of people to resolve disputes according to customary law.
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