The following op-ed is a collaborative effort by Cameron McConnachie and Teddy Weinstein of the Legal Resources Centre
South Africa has a hybrid legal system that recognises the customary laws and traditions of millions of people who regulate their lives in accordance with the customs and practices of their traditional communities. The enactment of the Constitution has seen many of these customary laws challenged and changed to align it with the provisions of the Constitution.
The controversial Traditional Courts Bill, 2017 (“the Bill”) is an attempt to formalise the age-old practice of traditional courts and ensure that it complies with the provisions of the Constitution. It proposes to introduce a new framework for the operation of Traditional Courts in areas formerly administrated by the Black Administration Act, 1927.
The most recent version of the Bill was adopted in the Justice and Correctional Services Committee on 6 March 2019 (previous iterations having been withdrawn for a failure to consult the public properly). The National Assembly passed the Bill on 12 March 2019 and it has been sent to the National Council of Provinces (NCOP) for comment.
The Bill is centred on the concept of restorative justice that promotes the resolution of disputes in a manner that promotes reconciliation between the parties and the community. While this is a commendable approach to dispute resolution, there are many shortcomings and pitfalls in the current Bill that must first be addressed to achieve its purpose.
The LRC submits that an effective and legitimate system of traditional courts, which complies with the Constitution, is a key component for ensuring adequate access to justice for all South Africans.
While we are supportive of legislation regulating traditional courts that ensures that their procedures and operation comply with the Constitution, we believe a number of changes are necessary to make it constitutionally compliant.
The main difficulty with the Bill is the concentration of power in the hands of traditional leaders and authorities. In terms of the Bill, the power to decide on the Court’s structure and personnel lies with the traditional authorities, as does the restorative justice process.
The court must be presided over by a traditional leader or a person designated by a traditional leader. This leaves the door open for abuses of power by the traditional leaders and an overconcentration of power in one person or authority. It also constitutes a serious infringement of the separation of powers principle.
There are no checks and balances on the powers granted to traditional leaders in terms of the Bill, who are expected to act simultaneously as creators, administrators, and interpreters of customary law in the courts.
The Bill also makes no provision for an “opt-out” clause that would allow people to avoid the traditional courts system and have their disputes heard in exisiting or mainstream judicial for a such as the Magistrate’s or High Court.
When the 2017 version of the Bill was first introduced, it contained a provision that positively affirmed the right of individuals to elect not to proceed in the traditional court. This section has now been removed, and has been replaced with a much weaker and more complicated process of review by the Magistrate’s court after proceedings in the Traditional Court have been finalised. This undermines the voluntary nature of customary law and creates a mandatory second tier system of law for those residing in traditional territories.
It also ignores the underlying conflicts that often exist between communities and traditional authorities, which can influence the impartiality of the traditional leader. In 2018 the LRC represented a community in Mthatha who were being evicted from their homes by the traditional leader in the area to make way for commercial developments from which the traditional leader benefitted.
The community successfully resisted the unlawful evictions, but the ordeal understandably soured relations between the community and the traditional leader. In terms of the Bill this same leader will now have the right to decide over disputes in the community, without the option for people to rather have their disputes decided by an impartial court in which they have confidence.
The third concerning issue is a confusing clause that allows a traditional court to “advise, assist, or guide a party to a dispute” even where there is no other party present. Currently the Bill prohibits legal professionals from advising or representing parties in the traditional courts. This clause might be present to help fill that gap, and guide parties to the dispute in the substantive and procedural aspects of customary law.
However, these powers to advise are currently unknown to other courts in South Africa, and not clearly delineated in the Bill. It essentially allows one party to the proceedings a private audience with the court, which undermines the court’s impartiality in any future proceedings. This negates the procedural and substantive fairness of proceedings in traditional courts.
The Bill also denies parties the right to legal representation in traditional courts. Presumably, this provision is meant to encourage less formal, adversarial proceedings in the traditional courts. However, this provision needs to be balanced with the very real consequences that an order from the traditional court may have for litigants.
The courts have the power to order financial damages and impose sanctions that affect the rights of litigants. Litigants have the right to legal representation in terms of the Constitution which is integral to ensuring a fair trial. Even in traditional courts, the proceedings may be rather complicated for unsophisticated litigants that may make it difficult for them to defend themselves or state their case properly.
Furthermore, the Bill has very real cost implications for both the state and the litigants. The Bill will undoubtedly grow government’s budgets because of the need to hire new clerks, erect infrastructure and run training programs. The LRC is concerned that the implementation of the Bill has not been accurately costed which will compromise the effectiveness of all the proceedings.
The lack of an “opt out” clause also has financial implications for litigants who must now approach the magistrate’s courts if they are aggrieved by a decision in the traditional court which they elected not to participate in. In practice, it is unclear how indigent clients will carry the costs of such an appeal.
In addition to the critique above, the LRC has made six further recommendations that it believes are required to make the Bill constitutionally compliant. Firstly, it is important that the orders of the traditional courts must be reviewable by the magistrate’s courts that can confirm, set aside or vary the order. This allows for the proceedings in the traditional court to be scrutinised for procedural irregularities.
Secondly, the traditional courts must employ legally qualified assessors to ensure that the rights contained within the Bill of Rights are not transgressed. The alignment of the traditional courts system with constitutional principles is made more difficult due to the lack of legally qualified personnel in the courts. Assessors can fill that gap and ensure that the traditional courts functions in a constitutionally compliant manner.
Thirdly, the traditional court adjudicators must have their judicial powers clearly defined and circumscribed, with a focus on mediation and conciliation. This is important to ensure that the court system is not used to abuse the rights of communities.
Fourthly, the “opt-out” clause present in the previous version of the Bill must be restored. This will allow people the option of approaching a civil court if they feel that their rights may not be vindicated in the traditional courts.
Fifthly, the Traditional Court’s power to counsel and advise should be clearly defined in the Bill. It has to be clear who is responsible for advising the litigants and a clear separation must exist between the people who provide this service and the presiding officers in the courts. This is essential to maintain the impartiality of the courts.
Lastly, the prohibition on legal representation should be removed and replaced with a provision that compels the traditional court to advise parties of their right to same.
As stated above, the LRC supports legislation that regulates and protects traditional courts and the practice of customary law. However, it is our position that without these changes, the Bill will not withstand constitutional scrutiny. Furthermore, it will have a decidedly negative impact on access to justice for the many South Africans living under traditional leadership and customary law.