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Traditional leadership Bills bypass constitutional rights

Publish date: 10 June 2019
Issue Number: 827
Diary: IBA Legalbrief Africa
Category: South Africa

‘The Constitution makes it very clear that customary law is subject to the Constitution. We need to ensure that our Constitution is upheld and that we are not subjecting those in the former Bantustans to a heinous system similar to that of yesteryear.’ Sonke Gender Justice’s Letlhogonolo Mokgoroane says the SA Alliance for Rural Democracy – of which Sonke is a founding member – views the Traditional and Khoi-San Leadership Bill and the Traditional Courts Bill ‘as repressive laws that seek to deny people their constitutional rights’. Clause 24 of the former Bill gives chiefs and their councils the power to sign over people’s land – such as family graves and fields, and possibly even homes – to mining companies, large farms, developers and other big corporations. Mokgoroane says if this Bill is signed into law, it could be used to overrule the rights of people and give greater legal powers to unelected chiefs. In an analysis on the Mail & Guardian Online site, Mokgoroane notes these Bills will affect the lives of millions of people in the former homelands, ‘who will effectively be subject to different laws to the rest of SA, akin to the apartheid legal system. This means they will have fewer citizenship and property rights than other South Africans.’ Citing an example, he says the preamble to the Traditional Courts Bill states that Traditional Courts are ‘distinguishable from courts in the judicial system’. Clause six of the Bill indicates that the Traditional Courts are ‘courts of law under customary law’ whereas the term ‘court’ is defined in clause one as any court established in terms of section 166 of the Constitution. ‘This,’ he says, ‘suggests that Traditional Courts will not form part of the judicial system that is established in section 166 of the Constitution.’ Mokgoroane argues that these Bills will disempower women by denying them the right to represent themselves in Traditional Courts. ‘The passing of these Bills will not adhere to the consensual nature of customary law. Instead, they will give power to unelected leaders.’

Traditional Courts Bill (B1B-2017)

Traditional and Khoi-San Leadership Bill (B23D-2015)

Full analysis on the Mail & Guardian Online site