Scramble to revive tribal courts bill
THE Traditional Courts Bill is not dead. The Department of Justice will “resuscitate” this controversial legislation after the election.
When the bill lapsed last week, civil society organisations and gender activists celebrated the “death of the [bill]”.
But the department’s spokesman, Mthunzi Mhaga, said it would “resuscitate this [bill]”. “We are hopeful that the bill will be revived . . . by parliament,” he said in a statement.
Deputy Minister of Justice John Jeffery said “there has to be a Traditional Courts Bill”.
“Traditional courts and practices exist in reality and on a statutory basis,” he said. “There needs to be legislation to regulate those courts that is consistent with the constitution. It’s a pity that the parliamentary process, which is the best place to resolve differences, was unable to resolve constitutional difficulties of the [bill].”
The Sunday Times reported in October that Justice Minister Jeff Radebe had stepped in to save the bill. He reportedly asked the state law adviser and head of policy in the department, Jacob Skosana, to lobby Tjheta Mofokeng, chairman of the portfolio committee on security and constitutional development, to get provinces to accept the bill, even with major amendments.
But the National Council of Provinces decided to removed it from its agenda. It is understood the reason was that the council had reached an impasse. Four provinces voted against the bill, four in favour and KwaZulu-Natal abstained.
“It has never happened before that ANC stronghold provinces reject gov- ernment’s legislation . . . I don’t think anybody could believe how intransigent some of the provinces — like the Eastern Cape, Gauteng and Limpopo - were in opposing the bill, ” said an MP.
The general secretary of the Congress of Traditional Leaders of South Africa, Kgoshi Setlamorago Thobejane, said “the day the [bill] lapsed was a sad and bad day”.
“The people and provinces rejecting the [bill] are from universities and townships . . . they’re not rural people,” said Thobejane. “The ANC shouldn’t try and fool us. We’ll wait until after the election and see the president.”
His predecessor, Phathekile Holomisa, said the bill, “although flawed, will never die: The people who have agitated against the [bill] are against traditional leaders. They say we’re backward, sexist and patriarchal,” he said. “They’re happy to live under Western norms imposed on us by colonialism.”
Holomisa said the bill had lapsed because there was “no political will among the ANC”.
“The ANC is wishy-washy on traditional leaders,” said Holomisa.
Mofokeng, whose committee has been dealing with the bill, said it was allowed to lapse because parliament “can’t be exposed to legal action”.
“Our responsibility is to do legislation that will withstand constitutional muster,” said Mofokeng. “The bill will be reworked. I sincerely hope the bill will be reinstated.”
The minister for women, children and people with disabilities, Lulu Xingwana, said last year that “conservative elements in our society and parliament” were responsible for the bill. She said as it stood it would not withstand a Constitutional Court challenge.