Last week Deputy Minister John Jeffery released the latest version of the Traditional Courts Bill to be introduced into Parliament for the third time.
The Bill had previously been opposed by civil society and women’s rights organisations and it could not get sufficient votes from the provinces to pass in Parliament. It lapsed in 2014 before the national elections.
Congress of Traditional Leaders of South Africa (Contralesa) president, Kgosi Thobejane, says the TBC's original intended purpose was seeking to recognise and legitimise courts that are presided over by traditional leaders.
Thobejane says public hearings on the Traditional Courts Bill are dominated by scholar and professionals who do not live in affected areas.
He says this then affects what goes into the bill, which is often not what people in rural areas want.
They lobby. They campaign. And of course lobbying is allowed. Unfortunately, when we say we are dealing with rural poor, we were supposed to put an extra deliberate effort to say this should be centered around that particular level.— Kgosi Thobejane, Contralesa president
He says people are also forced to communicate in the language they do not understand.
Thobejane criticises changes in the new bill that traditional courts must be constituted of women and not only men, and promote and protect the representation of women.
The notion of saying the inclusion of men and women in the constitution of this structure, to us means nothing. When we are saying a community, we are referring to all residents irrespective of gender.— Kgosi Thobejane, Contralesa president
This thing of he/she is in English. We don't have such in vernacular.— Kgosi Thobejane, Contralesa president
He says the provision that allows for parties to opt out of the traditional justice system undermines the traditional justice system.
It's a continuation of the discriminatory undermining of the credibility and legitimacy of the very same structure that people are residing in. We were supposed to maintain that the structure will have the similar kind of jurisdiction same as magisterial. I don't remember that you have right to opt out from the magisterial court.— Kgosi Thobejane, Contralesa president
Director of the UCT-based Land and Accountability Research Centre, Aninka Claassens, made it clear that all public hearings they monitored were conducted in vernacular and people clearly articulated issues experienced from their lived experiences.
Claassens said it was untrue that people were denied the opportunity to talk in the vernacular.
She emphasised that the South African law needs to reconnect with the values of most citizens.
In order for the law to be legitimate and valid, it has to connect with values and beliefs of the majority of South Africans she said.
Our current legal system can be rightly accused of not connecting with customary values and practices that actually govern the majority of South Africans.— Aninka Claassens, director of the UCT-based Land and Accountability Research Centre
She says the new bill breaks apartheid boundaries, and it would have been unconstitutional if changes were not made.
You can't impose customary law on people according to apartheid geography. The Constitution provides people to choose the culture and religion of their choice.— Aninka Claassens, director of the UCT-based Land and Accountability Research Centre
She explains people cannot appeal against the judgment of a traditional court, and people often don't have resources to take the process on review.
The problem is how enforceable is that change.— Aninka Claassens, director of the UCT-based Land and Accountability Research Centre
The provision that allows for people to opt out is not a ground for review, so how do you enforce it.— Aninka Claassens, director of the UCT-based Land and Accountability Research Centre
Listen to the full interview below for more information on the bill...