Author: Martin van Staden
Date: 25 November 2019
The Traditional Courts Bill, 2017, is intended to fill the void left by those provisions of the Apartheid-era Black Administration Act that empowered traditional leaders to adjudicate disputes and hear charges of certain crimes. It ostensibly recognises customary law and seeks to expand access to justice. Some have claimed, however, that the bill deviates from customary law in that it centralises power in the hands of traditional leaders, ignoring the consensus-based nature and “complex layers of governance” that exist in authentic customary law. The bill is evidently unconstitutional, inter alia for reasons that will become apparent below.
Sonke Gender Justice sets out the reasons for the bill’s unconstitutionality, some of which will be revisited in this analysis: The bill does not contain an opt-out mechanism, it ignores the consensus-based nature of customary law, it bestows traditional courts with enforcement powers, it weakens transparency, and re-entrenches the boundaries of the former Apartheid homelands.
There have also been concerns about the process followed by government in adopting the bill, with some arguing that public participation was rushed and conducted in bad faith. For instance, it has been said that “traditional leaders had been privileged in the drafting process, while the people most affected had been excluded”. It is also said that hostility was shown to some participants in the public consultation process. This analysis, however, is confined to the substantive legal issues evident in the bill.
The bill was passed by the National Assembly in March 2019, and is now before the National Council of Provinces. The Deputy Minister of Justice avers that the bill requires further work and will not be passed in Parliament’s upper house.
In 2018, the Rule of Law Project adopted ten Imperatives of the Rule of Law, with the purpose of giving substantive content to section 1(c) of the Constitution, which provides for the supremacy of the Constitution and the Rule of Law in South Africa. All ten imperatives have been recognised in case law, scholarship, and by the Constitution itself, to varying degrees. The imperatives are:
- All law must be clear, predictable, accessible, not contradictory, and shall not have retrospective effect.
- All legislation that makes provision for discretionary powers, must also incorporate the objective criteria by which those powers are to be exercised. The enabling legislation must, in addition, stipulate the purpose or purposes for which the powers may be exercised.
- All law must apply the principle of equality before the law.
- All law must be applied fairly, impartially, and without fear, favour or prejudice.
- The sole legitimate authority for making substantive law rests with the legislature, which authority shall not be delegated to any other entity.
- No law shall have the aim or the effect of circumventing the final authority of the courts.
- No one may be deprived of or have their property expropriated, except if done with due process for the public interest, and in exchange for compensation that is just and market-related.
- The law shall afford adequate protection of classical individual rights.
- All law must comply with the overriding principle of reasonableness, which comprehends rationality, proportionality, and effectiveness.
- The legislature and organs of state shall observe due process in the rational exercise of their authority.
For the purposes of this analysis, the first, second, fifth, sixth, eighth, ninth, and tenth imperatives are relevant.
This analysis considers three categories of problems inherent in the Traditional Courts Bill. Firstly, the bill pays little mind to the due-process imperatives contained in the Constitution. Secondly, the bill contains no provision for opting out of the jurisdiction of traditional courts. This is problematic in light of the fact that these courts may have subpoenas and court orders enforced. Thirdly, the bill’s envisioned relationship between traditional courts and the judiciary – both the institution and the concept – is questionable, considering the deficit in training, institutional capacity and institutional values, that exists between the two.
The due process rights found in section 35 of the Constitution are not mentioned as “guiding principles” in section 3 of the bill, despite various other references to the Constitution being made. This is repeated in section 7, and is fundamentally at odds with the tenth imperative of the Rule of Law.
Section 7(3)(b) makes reference to the rules of natural justice and sets those rules out in subsections (i) and (ii), viz: All sides of the dispute must be heard, and the “decision” must be impartial. Natural justice, however, is a limited part of due process. Indeed, section 35 of the Constitution lists other characteristics that are not mentioned in the bill: The right to remain silent, the right to not incriminate oneself, to right to a speedy trial, the right to be informed of why one is being detained, the right to legal representation, the right to be presumed innocent until proven guilty, the right to adduce and challenge evidence, etc. Whilst it may be assumed that accused persons in traditional courts still enjoy the protection of these rights, in light of the Constitution’s legal supremacy, their omission in the bill does give rise to concern. If these due process rights are not recognised in traditional court proceedings, it would render the bill unconstitutional.
Section 7(4)(b) of the bill goes as far as to exclude the right to legal representation. It has been noted that this would be particularly harmful to women in traditional communities, especially in disputes with their male relatives. This provision, because it amounts to a direct contradiction of section 35 of the Constitution, is unconstitutional.
Section 7(8) of the bill provides that the “customary law of procedure and evidence applies in traditional courts”. It is unclear what this means. Customary law is fundamentally a private law doctrine, in that it chiefly regulates contract, property, and delict. While there may be some customs surrounding evidence, this is unclear, and it is certain that ordinary South Africans brought before these courts would not be familiar with these rules. This provision undermines the first, fourth, ninth, and tenth imperatives of the Rule of Law.
OPT-OUT AND ENFORCEMENT
The bill contains no opt-out provision, meaning anyone, including persons who do not subscribe to the customary law in question, may be forcefully brought before a traditional court. It has been argued that this re-entrenches the artificial tribal paradigm created by the Apartheid regime, denying individuals the ability to decide for themselves whether they wish to participate in certain customary practices/value systems or not. There used to be an opt-out mechanism, but this has since been removed by the Portfolio Committee on Justice and Correctional Services.
The absence of an opt-out provision is most relevant in the context of sections 4(4) and 9(4). The former deals with the enforcement of summonses and the latter with the enforcement of court orders. In both cases, the clerk of the court must direct justices of the peace “to facilitate compliance”, inter alia, by transferring the matter to a magistrate’s court. It is not the merits of matter before the traditional court that goes before the Magistrate’s Court; instead, the failure to appear in the traditional court or failure to comply with a traditional court order will go before the Magistrate’s Court.
In other words, despite traditional courts not being composed of trained judicial officers, and (willing as well as unwilling) participants in traditional court proceedings not being entitled to legal representation or enjoying the protection of constitutional due process, South Africans can be forced to appear before and to comply with traditional court orders, potentially liable for jail time, fines, and a criminal record.
Among the types of order a traditional court may make, according to section 8 of the bill, include orders prohibiting conduct (i.e., an interdict), orders directing parties to undergo “training, orientation or rehabilitation”, and orders requiring parties to make progress reports to the court.
Section 4(b) of the bill empowers traditional leaders to “delegate a person or persons to preside over [a session the leader cannot attend] and indicate who may participate therein”. This is repeated in section 5(1)(b), which provides that a traditional court must “be presided over by a traditional leader or any person designated by the traditional leader.”
It takes years of learning, training and experience, before judges and magistrates become judicial officers. Adjudication in courts of law is specialised field, because people’s rights and resources are in jeopardy.
Schedule 2 of the bill, for instance, empowers traditional leaders to preside over matters dealing with crimen injuria, a crime for which people have been sentenced to jail for a number of years, and fined for hundreds of thousands of rands. Adjudicating charges of this crime is a technical and delicate process that requires a thorough understanding of the law and the theory surrounding freedom of expression, something that even some magistrates and judges themselves do not possess. While traditional courts may not sentence persons to jail, being found guilty of crimen injuria and having that on one’s criminal record is a serious affair.
One might make the argument that traditional leaders, because they are trusted arbitrators in the community, may preside over judicial proceedings. Increasingly, however, there have been reports of traditional leaders, who are not necessarily accountable to or recallable by the communities must serve, are abusing their powers for their own personal gain. For instance, in an article for the Financial Mail of 7-13 November 2019, investigative journalist Ruth Hopkins relates several stories of traditional leaders in KwaZulu-Natal arbitrarily and unaccountably extorting residents and property owners to pay “rent” to the Ingonyama Trust or be put off their land.
Even if it is assumed that traditional leaders are fit and proper to adjudicate legal disputes, it is nonetheless improper to empower leaders to designate “any [other] person” to preside in their stead. This unrestrained discretionary power is incompatible with the standard of the Rule of Law found in section 1(c) of the Constitution, particularly the second imperative of the Rule of Law formulated by the Rule of Law Project. If this provision is to remain in the final bill, it is advisable for it to be expanded to include criteria such as a legal qualification, and/or some experience in legal practice or professional arbitration, before one can be designated to preside over traditional court proceedings.
Section 6(1)(a) provides that traditional courts are “underpinned by the value system applicable in customary law”. This is amorphous. There exist, no doubt, systems of customary law throughout the country that are recognised and respected. The reason, however, why it is improper for a provision of this nature to be taken up in legislation is because legislation and custom are two very different sources of law. Legislation, historically and by its nature, is meant to bring about certainty and accessibility. This provision undermines that purpose by way of improper codification. If customary law is to be codified, it must be done in a manner that creates certainty, not confusion. Individuals unfamiliar with customary law – who, we have already established, can be forcibly brought into the jurisdiction of a traditional court – would not know what “the value system applicable in customary law” means or comprehends. At best, this provision consists of empty words and is redundant, and at worst, it introduces confusion and uncertainty where there likely did not use to be any. This undermines the first imperative of the Rule of Law.
Appeals can only be made to the ordinary courts once “all traditional court system appeal procedures available in terms of customary law” have been exhausted, in terms of section 12(1). This, like the previous section, is amorphous. If there are more levels of appeal other than a traditional court, it must be provided for in legislation, otherwise there is a risk of arbitrariness. If one is not satisfied with the decision of a traditional court, it must be clear what the next step is, and not be left to government or community officials to decide ad hoc. The uncertainty introduced by this provision undermines the first imperative of the Rule of Law.
 Black Administration Act (38 of 1927).
 Custom Contested. “Traditional Courts Bill (TCB)”. Land & Accountability Research Centre. https://www.customcontested.co.za/laws-and-policies/traditional-courts-bill-tcb/.
 Sonke Gender Justice. “The Traditional Courts Bill, explained: Why should you be concerned?”. Sonke Gender Justice. https://genderjustice.org.za/card/the-traditional-courts-bill-explained/why-should-you-be-concerned/.
 Custom Contested (footnote 2 above).
 Sonke Gender Justice. “The Traditional Courts Bill, explained: A history of the Bill”. Sonke Gender Justice. https://genderjustice.org.za/card/the-traditional-courts-bill-explained/a-history-of-the-bill/.
 Van Dalsen. “The Traditional Courts Bill – A problematic piece of legislation”. (2019). Helen Suzman Foundation. https://hsf.org.za/publications/hsf-briefs/the-traditional-courts-bill-a-problematic-piece-of-legislation.
 Custom Contested (footnote 2 above).
 Custom Contested (footnote 2 above).
 Sonke Gender Justice. “The Traditional Courts Bill, explained: What positive changes were in the 2017 Bill when it was introduced to Parliament?”. Sonke Gender Justice. https://genderjustice.org.za/card/the-traditional-courts-bill-explained/what-positive-changes-were-in-the-2017-bill-when-it-was-introduced-to-parliament/.
 Sonke Gender Justice (footnote 5 above).
 Hopkins R. “Your land is my land”. (2019). Financial Mail.