Concept of voluntary traditional justice rejected

THE voluntary participation of people in the traditional justice system was roundly rejected by lawmakers when Parliament was briefed about the revised Traditional Courts Bill yesterday.

This happened as lawmakers expressed strong views on several provisions of the Bill, including a clause providing for the traditional courts not to impose fines and that its appeals be heard by the high court.

During the briefing by the department, the committee also heard that the clerk of the court could be approached if a party to the dispute did not comply with the court’s order to seek mediation through a justice of the peace, and that presiding officers should take the oath whenever administering justice.

Committee chairman Mathole Matshekga said voluntary participation from the traditional court should apply in other courts.

“If people are going to be allowed to opt out, I must do the same with the Roman Dutch and common law,” Motshekga said. “Opting out suggests somebody is ranking African law below other legal systems. We need to discuss that matter,” he said.

His view was shared by other members, with the ANC’s Moloko Maila saying the traditional court would be futile if people, especially white farmers in traditional areas, could choose to participate in it.

Maila also questioned one of the clauses that provided for the court to proceed in the absence of one of the parties in a dispute, but it could not make an order.

“This is an exercise in futility. Why go the route when it will not bear the fruits at the end of the day?” he asked.

The UDM’s Cynthia Majeke said: “If it is about law, it must be binding, otherwise it will lead to an institution that is ineffective.”

The ACDP’s Steve Swart said while the bill had come a long way, “some of the points made are valid”.

Swart said he noted the proposed legislation wanted to introduce co-operation between the traditional and the Roman Dutch laws by providing for appeals to be in the high court.

“My concern is the cost implication. The cost to the high court is quite exorbitant. Is it something you considered?” he said.

Motshekga and others asked why the tratitional leaders could not be used to appeal against the decisions.

“You must exhaust the appeal process before you go to the high court,” he said, before listing the layers of traditional leadership that ought to hear appeals.

Motshekga also said there was no need for justice of the peace officers to help mediate when the orders of the court were not complied with. “You have community volunteers. Where will you get the people to service the structures”? he asked.

The DA’s Glynis Breytenbach said there was a huge amount of work to be done on the bill.

But the ANC’s Bongani Bongo raised a concern that the traditional court could not proceed with matters when it was investigated by the police.

“If the police don’t investigate, can the traditional courts handle it?” he asked.

On the traditional court not being allowed to impose fines, Maila said: “How do you make them effective if they can’t impose fines?”

The Deputy Minister for Justice and Correctional Services, John Jeffrey, said some of the provisions in the bill had gone through a debate in reference groups that comprised the traditional leaders and civil society organisations.

“If a person does not want to participate, they can’t just ignore the summons. They must inform the clerk of the court that they don’t want to attend,” he said.