Submission on the Traditional Courts Bill
By Dinga Sikwebu
Introduction:
The National Union of Metalworkers of South Africa (Numsa) is the second biggest affiliate of the Congress of South African Trade Unions (Cosatu), with 300 401 members. Although the majority of the union’s membership is urban-based, Numsa has 14 locals or branches that stretch into areas that fall under former bantustans. The total membership of these branches is 46 720.
It is also important to note that, although based in towns and cities, a significant number of our members have roots and links in areas where the traditional court system exists. In response to a question on whether respondents did move to a town or city from a rural town or village to find work, an independent survey of Numsa members conducted in 2011 by the Society, Work and Development Institute (Swop) from the University of Witwatersrand found that 33% of those surveyed had moved from the countryside to towns and cities to find work and that the majority of these respondents claimed to support a household where they came from.
Just more than half of those who took part in the research also indicated that they had family homes somewhere other than the areas where they worked.
Another reason why our union is interested in the Traditional Courts Bill is that as the labour movement we have a wealth of experience in non-formal adjudication and in alternative dispute resolution mechanisms.
Having pioneered the use of mediation and arbitration as a form of non-formal adjudication, it is our belief that unions can bring this experience to the debate on the Traditional Courts Bill, particularly aspects of how formal and informal ways of settling disputes can co-exist.
Since it was launched in 1987, Numsa has firmly committed itself to building a united South Africa, free of oppression and economic exploitation. In its constitution, the union undertakes to “fight and oppose discrimination in all its forms within the union, the factories and in society”.
As a result of this commitment to equality, Numsa fought hard after the reincorporation of Transkei, Bophutatswana, Venda and Ciskei into South Africa for harmonisation in all establishments falling under the auspices of the Metal and Engineering Industries Bargaining Council and the Motor Industry Bargaining Council of working conditions that existed in the Republic and those prevailing in the so-called TBVC states.
As a union, we were clear that in a democratic South Africa no workers should have working conditions less than those enjoyed by their counterparts in the rest of the country.
It is with the same appreciation of the need for equality that, as Numsa, we argue that the Bill in its entirety should be withdrawn.
Numsa’s engagement with the Bill:
Since June 2012, Numsa has had numerous internal discussions on the Traditional Courts Bill. The first discussion was at our ninth national congress in Durban in June 2012.
The union’s highest decision-making body, with 958 delegates, decided that as Numsa we should oppose the Bill “as it presents a serious threat to the rights of women in rural areas”.
The union was also concerned about the rights of citizens living under the jurisdiction of traditional leaders. National congress called on the union to “take active steps to ensure that the rights of [citizens living under the jurisdiction of traditional leaders] are not compromised”. (See Annexure 1 for the full resolution)
As mandated by national congress, the union rolled out nine regional workshops for Numsa’s regional executive committees between mid-July and mid-August 2012. These workshops were preceded by a national workshop with the union’s regional education officers and regional legal officers in attendance. In addition to these workshops, Numsa also convened members’ forums in the following areas:
The targeted groups in these members’ forums were Numsa members that live in areas where the traditional court system exists. We wanted to get their experiences of the traditional court system.
Numsa’s position on the Bill
Numsa’s position is that the Bill must be withdrawn in its entirety. This stance is not motivated by whether we as the union see no role for traditional courts.
In fact, in the meetings that we held on the Bill, some of our members spoke favourably of the traditional court system. They argued that:
• The traditional court system is good and that it must be maintained, but with changes that bring it in line with South Africa’s constitution.
• The system is less expensive – you do not have to go to town to have a case heard.
• We must continue to live our lives the way our forefathers and mothers lived and taught us.
• The leadership of chiefs was better than that of councillors.
As a union, we recognise section 30 of the Constitution, which states that all people have the right to “participate in the cultural life of their choice” in a manner consistent with the Bill of Rights.
Our objections to the Bill are based on the following:
• The bill could “ghettoise” customary law.
• The Bill idealises the traditional court system.
• The Bill is part of a drive by traditional leaders to have more power and make residents in the former bantustans second-class citizens and tribal subjects.
• Instead of building a unified judicial system with formal and non-formal adjudication processes, the Traditional Courts Bill further fragments the justice system.
The Bill has the potential to ‘ghetto-ise’ customary law
The provisions in the Constitution such as section 211(3) make it quite clear that customary law is one of the foundations of South Africa’s legal system.
The Constitution calls on the courts to “apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law”.
What this means is that customary law must find its place inside the country’s court system. The Bill as it stands, particularly the link in the section on the objectives of the proposed legislation between “enhancement of customary law” and the regulation of the traditional court system, may provide an escape valve for those who refuse to see customary law as a branch of our legal system.
It is Numsa’s contention that the net effect of the Traditional Courts Bill will be to relegate customary law to traditional courts while relieving the judicial system outlined in section 166 of Chapter 8 of the Constitution from its obligation to affirm customary law.
In 1927, when the Native Administration Act was passed to create a system of courts to hear civil disputes between Africans, movers of that legislation trumpeted the virtues of African judicial systems to hide their segregationist policies and agenda.
We are, therefore, not convinced by the nice-sounding objectives stated in
sections 2 and 3 of the Bill, such as:
• affirming the values of the traditional justice, based on restorative justice and reconciliation;
• alignment with the Constitution;
• enhancing access to justice through the provision of speedier, less formal and less expensive resolution of disputes;
• preservation of African values and tradition; and
promotion of nation-building.
The dangers of reifying and idealising customary law
Our starting point is that culture and customary law are not static. They spring out of a context and they are ever-changing, they incorporate changing practices and attitudes in society. With phenomena such as culture and customary law, there is a real danger of reification – separating them from the original context from which they emerged and placing them in another context that is completely devoid of the original connections. We also idealise culture and custom when we remain silent on their oppressive and destructive aspects.
While not departing from what they identified as positive about traditional courts, Numsa members who participated pointed to some weaknesses in the system, such as;
• the misappropriation of fines by chiefs or traditional leaders;
• the intimidation of those who, because of the institution itself, are not in a position to represent themselves effectively, such as women and youth;
• the abuse of the traditional court system by traditional leaders, where individuals do not get a fair hearing when they have complaints against the chief or traditional leader; and
• favouritism in the system.
To back up some of these claims, a participant in the Phuthaditjhaba workshop had this to say;
“The traditional adjudication divides communities if, for instance, you happen to reside in an area dominated by a certain clan. Let us say the Mokoena clan is in majority in a particular village and the chief is a Mokoen –, other clans will not be judged fairly but will always be stigmatised and viewed as if this other clan are a cause of whatever trouble is there.”
The parts of the Bill that outline objectives (section 2) and guiding principles (section 3) should talk to these issues and state that one of the objectives of the Bill is to deal with the negative practices associated with the traditional court system.
The Bill as part of creeping retribalisation from above
Policymakers who propagated colonialism, segregation and apartheid preached the lesson ithat there were different and discrete African “tribes” in South Africa.
It is on the basis of this myth that reserves, homelands and bantustans were created and millions robbed of their birthright as part of a grand plan to bolster minority and capitalist rule in South Africa. As part of this plan, traditional leaders who opposed the homeland system were deposed or made “ordinary headmen” and puppets installed in their place.
This was not the first time that colonialists had created their “own lineage of traditional leadership”. Early on, the colonial state recognised an array of African chiefs and gave them authority as a form of indirect rule. Others were denied this role.
Through being paid a salary, traditional authorities became accountable to the government and no longer to their people. Furthermore, the colonial state argued that the chiefs it recognised had authority over their subjects and that it was through chiefs that people in those areas could have access to land.
Equally vicious was the process of creating “tribes”, were people of different identities and people removed from “white South Africa” were clubbed together to establish separate ethnic groups.
While an appearance was created that the political and social structures of African communities were retained in rural areas, the political and social systems that existed among African people at the point of colonial encounter became highly distorted.
It is this political trickery and social engineering that incited many of our people in the countryside to rise up and oppose the system of reserves, its administrative machinery and its agricultural and rehabilitation schemes. This resistance was carried over to the homeland and bantustan system where people protested, among many things, against the abuse of power by “tribal authorities” and the extortion of excessive tribal levies.
Together with other sections of the oppressed, people in the countryside demanded equal citizenship in a unitary South Africa and rejected their status as second-class citizens or tribal subjects of separate ethnic “homelands”.
Unfortunately, 18 years into democracy, the map of homelands and Bantustans has not changed. Despite gallant struggles that residents of these areas waged, they are still treated as different from the rest of South Africans.
But more serious is the creeping retribalisation from above; where those who live in former homelands and Bantustans are treated as not as full citizens and have laws that apply only to them.
Despite evidence that people in homelands and bantustans were forcibly removed from land in terms of betterment schemes policy, the residents of these areas were prevented from lodging claims for restitution because the policy stipulated in the 1997 Land White Paper states that “claims of those dispossessed under betterment policies, which involved removal and loss of land rights for millions of inhabitants of the former Bantustans, should be addressed through tenure security programmes, land administration reform and land redistribution support programmes”.
Although the section 25(9) of the Constitution calls on Parliament to enact legislation that will give security to people or communities whose tenure of land is legally insecure, the relationship of residents of former homelands and bantustans to land is still precarious. The law that was meant to remedy this – the 2004 Communal Land Rights Act – was declared unconstitutional by the Constitutional Court in May 2010.
While calling for a unified and single tenure system in South Africa, the recently published Green Paper on Land Reform proposes to deal with communal tenure in former homelands and bantustans under separate legislation.
The Bill, if passed, will be yet another law that will apply only to people in former homelands and bantustans. Although section 2 of the Traditional Leadership and Governance Framework Act (TLGFA) of 2003 makes no reference to former homelands and bantustans when recognising “traditional communities”, it is a fact that the legislation contemplated in the 2003 legislation and passed by different provinces has equated “traditional communities” with former bantustans and homelands. By borrowing the definition of the TLGFA, the Traditional Courts Bill effectively means that traditional courts envisaged in the proposed legislation will apply in former homelands and bantustans.
The treatment of traditional courts outside of other alternative dispute resolution mechanisms
In South Africa, an array of institutions deal with disputes outside the formal court system. Every day, as unions, we are involved in negotiations that lead to collective agreements that have the force of law. We are also involved in mediation which, if not successful, leads to binding arbitration awards. There is also a plethora of tribunals and ombud bodies that deal with disputes that arise in society.
This country has a history of street committees that are involved in settling disputes in different neighbourhoods. Even within African communities there is a string of other structures ranging from extended family dispute-resolving mechanisms, to clan societies that intervene when members have problems. So why this infatuation with traditional courts outside many of the existing bodies?
Throughout our workshops we were struck by the absence of knowledge about the Bill among our members. Not a single person in the members’ forums participated in the public hearings or was aware of the provincial mandates taken by their legislatures to the National Council of Provinces.
In all our interactions with members, it has become abundantly clear that the drivers behind the Bill are traditional leaders and not ordinary people.
Other concerns
Participants in our workshops expressed other concerns with the Bill. These are some of their concerns:
• Too much power is given to traditional leaders in the Bill.
• The Bill must not only apply in traditional communities, but must be applied equally across the board – meaning one law, one nation.
• Find ways in which the best practices of the formal judicial system, such as legal representation, can be applied to the traditional court system.
• Cases where the complainants are not happy or have complaints of incapacity, gross incompetence or misconduct must directed to the magistrates or an independent committee, not the minister.
• The Bill is discriminatory in that it does not give the complainant who resides within the jurisdiction of a traditional court the option of taking their case to a magistrate’s court.
• Provisions that prosecutors may, on analysing cases, refer matters back to a traditional court are open to abuse by prosecutors and other officials. Cases which do not fall within the jurisdiction of the traditional court must be adjudicated by the magistrate’s court.
Conclusion
“If we abandon the traditional court system, we are succumbing to Western influence and its prescriptions.”
“If the Bill is introduced I would rather move out of that area where it applies
to areas where it is not applicable.”
“If the Bill is in conflict with the constitution of the country then it is a recipe for disaster. Therefore everything must be done in order for the Bill to comply with constitution”.
As earlier indicated, the views of our members are mixed. While others supported aspects of the Bill, concerns were raised. As Numsa, we do not think that these mixed feelings are confined to our members only. We think that such sentiments exist in broader society.
It is for this reason that we think that the Bill should be withdrawn in its entirety and look at:
• how to build a unified judicial system where formal and non-formal ways of resolving disputes co-exist
• not only at traditional courts but at all non-formal tribunals that exist in South Africa.
Dinga Sikwebu is the Numsa Head of Education
Date Towns where workshop was held Areas from which participants were drawn 25 Aug Phuthaditjhaba, Qwa-Qwa. Bethlehem, Welkom, Warden and
Harrismith. 25 Aug Richards Bay, KZN Empangeni, Mandeni, Sokhulu,
Mbonambi and uMhlathuze 31 Aug East London, E. Cape King Williamstown, Mthatha, Queenstown and East London 01 Sept Nkowankowa, Limpopo Ga-Kgapane, Giyani, Semarela, Tzaneen, Phalaborwa, and Mokgolobotho
Annexure 1
Numsa Ninth National Congress Resolution on the Traditional Courts Bill
Noting:
The Traditional Courts Bill gives powers to traditional leaders to decide on matters arising out of civil and criminal disputes that fall within the jurisdiction of these leaders
That Cosatu CEC held on the 28-30 May 2012 resolved to oppose the Bill as it presents a serious threat to the rights of women in rural areas and wants to have discussions with government on the Bill.
Resolve:
That this ninth National Congress of Numsa supports the decision taken by Cosatu at its CEC meeting to oppose the Traditional Courts Bill
That in calling for the transformation of the judiciary, the union needs to pay particular attention to the rights of citizens living under the jurisdiction of traditional leaders and take active steps to ensure that their rights are not compromised
That in its post-congress discussion on the transformation of the judiciary the union must include a discussion on the Traditional Courts Bill and emerge with a clearer position as how to engage government on the matter.
[Moved: W. Cape]
[Seconded: Mpumalanga, Ekurhuleni, JCB, KZN, Hlanganani, EC, Sedibeng, NC]