Despite the fact that five of the nine provinces have opposed the proposed Traditional Courts Bill, the ANC seems set on trying to ram the Bill through parliament.
“The DA will write to the Speaker of the National Council of Provinces (NCOP), Johannes Mahlangu, requesting that a debate and vote on the Traditional Courts Bill take place at the earliest opportunity. This Bill must be formally rejected by the NCOP,” said Elza Van Lingen from the DA.
The Traditional Courts Bill was first introduced in 2008 and was met with widespread opposition and subsequently withdrawn.
However, the Bill was reintroduced unchanged last year and referred to the NCOP. It can be assumed that this was a move to garner the support of Traditional Leaders for the ANC in the lead up to the 2014 election.
The positive role that customary law and customs can play in the resolution of disputes and the restoration of harmony in traditional communities.
However, the Traditional Courts Bill does not promote the development of customary law, and instead perpetuates its unconstitutional elements such as:
•Parties are still denied legal representation when before a traditional court;
•Traditional courts still have jurisdiction over certain criminal proceedings;
•Penalties and judgements can still be imposed or made against ‘any other person’, than those who are involved in the proceedings;
•There is still no opt out clause; and
•The principle of separation of powers is not adhered to as traditional leaders still make law, adjudicate on it and enforce it.
This will lead to a separate legal system in the rural areas of South Africa and another for the urban areas.
Traditional Courts play a vital role in the daily governance of rural communities.
However, the Bill in its current state does not protect the rights entrenched in the Constitution.