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Revised Traditional Courts Bill an improvement, but…

Publish date: 10 April 2017
Issue Number: 721
Diary: IBA Legalbrief Africa
Category: South Africa

While the revised Traditional Courts Bill makes a ‘valiant’ attempt at resolving the concerns raised about the unconstitutionality of the previous draft, it stops short of addressing some fundamental issues, says assistant professor Sindiso Mnisi Weeks, of the University of Massachusetts Boston, in an analysis on The Conversation site. Improvements in the latest draft include the facts that it recognises a central role for community actors who are not traditional leaders; it recognises the multi-layered nature of the traditional courts system; it accommodates the bedrock of customary law under the Constitution – voluntariness; it allows any person to initiate their case in any traditional court; and it allows parties to freely opt out of the summoning traditional court’s jurisdiction. ‘The 2017 Bill is also strong on the need to eliminate discrimination of all kinds in traditional courts. Women and other vulnerable groups are to participate freely, both as litigants and members of the courts. Furthermore, it incorporates important exclusions, thus attempting to make it impossible for traditional leaders to use these courts to secure personal benefits and exploit ordinary rural people.’ However, she argues that some further revisions are needed. ‘The most important concern is the need to abandon the top-down authority model that centralises traditional leaders and their territorially-based jurisdiction. This is a distortion of customary law that was invented by colonial authorities, enacted by the apartheid state and is perpetuated by the Traditional Leadership and Governance Framework Act.’ Weeks adds the highest priority remains consultation with the people who will be most directly affected by the Bill. Finally, she sounds a warning regarding funding available to implement the Bill. ‘Adequate resources are needed to educate ordinary rural people and ensure enforcement of their rights under an improved Bill.’

Full analysis on The Conversation site

Traditional Courts Bill (B1-2017)