Unpacking the Traditional Courts Bill

The Traditional Courts Bill is lurching its way through Parliament, amid howls of protest – mostly, ironically, from the very people it’s intended to protect. What is the Bill, and what do we need to know about it?

Deeply flawed

The Bill’s intention is to regulate the structure and functioning of South Africa’s traditional courts in line with the country’s constitutional values. It will – at long last – repeal the provisions of the Black Administration Act of 1927, which still regulates these courts despite half a century of the country’s being a republic, nearly three decades of our being a democracy, and the fact that we’re living in the year 2021.

The first thing to know is that, despite its noble intentions, the Bill is deeply unpopular. In its preamble, the Bill claims to ‘affirm the recognition of the traditional justice system and its values, based on restorative justice and reconciliation; to provide for the structure and functioning of traditional courts in line with constitutional imperatives and values; to enhance customary law and the customs of communities observing a system of customary law; and to provide for matters connected therewith.’

Legal commentators and land rights activists aren’t convinced. Nolundi Luwaya, Director of the University of Cape Town’s Land & Accountability Research Centre, warns that, ‘if passed, the Bill will be challenged in court and ultimately struck down for its failure to protect basic rights’, while her colleague Dr Aninka Claassens simply calls it ‘deeply flawed legislation’.

What’s the problem?

Parallel legal system

The Traditional Courts Bill aims to establish traditional courts across South Africa, in the territorial jurisdiction of – here comes the first red flag – the former apartheid-era homelands (or, if you prefer, the Bantustans). Those territorial boundaries, infamously, are lines on apartheid government maps that do not necessarily match up with the actual traditional community groups.

The Bill grants extraordinary powers to traditional leaders who are not elected but (as it says in the Bill) ‘appointed’. Under the Bill, traditional courts in those jurisdictions would have the power to hear and determine civil disputes arising out of customary law and custom, along with certain criminal matters. People living in these (mostly rural, mostly underdeveloped, invariably poor) areas would not have the option of opting out of traditional courts and using other courts instead. The Bill also expressly prohibits legal representation in traditional courts.

You can see where this is going.

As Claasens, Chief Researcher at the Land & Accountability Research Centre, put it in a recent Daily Maverick article: ‘The Traditional Courts Bill entrenches inequality by creating a parallel and separate legal system for the 18 million South Africans living within the boundaries of the former homelands.’

As the Women’s Legal Centre (WLC) warns, ‘the Bill also provides for harsh penalties, which allow the court to order any person to perform unpaid services for the benefit of the community, or to deprive an accused person of any benefits that accrue in terms of customary law or custom. This has particular implications for property rights, as ‘benefits’ could include land rights.’

The WLC goes on to explain that, under the Traditional Courts Bill, traditional leaders (who, they are at pains to point out, are almost all men) would ‘have wide powers to impose their interpretations of customary law upon women, which are likely to include traditional patriarchal views about women’s lack of capacity to own and inherit property.’

Unclear implications

As a property developer working in these former homeland areas, you and your company would not be subject to the traditional courts. But what about your employees – especially if they’re drawn from local communities? And what about the people whose land you’re purchasing or developing? That’s where that ‘parallel and separate legal system’, with one applying in rural areas and another in urban areas, becomes a legislative minefield.

Specialised legal advice would have to be sought, obviously at extra cost. The question of who’s in charge and which laws apply would have to be ironed out as you go.

The first version of the Traditional Courts Bill surfaced in 2008. In 2014 it was blocked by a majority of provinces amid public outcry – particularly from rural communities and rural women who were worried about what it would mean for them, and how it would distort customary law.

‘It seems extraordinary that a Bill intent on doing such good and necessary things should face such prolonged and vehement opposition,’ Nolundi Luwaya wrote in a recent opinion piece. ‘But enduring problems with the Bill have been pointed out repeatedly by rural communities, activists, thought leaders and civil society organisations that have engaged with the Bill’s long journey through the legislature. In its current form the Bill falls short and is still not the Bill communities living under customary law demand or need.’

Yet here we are. For property developers – many of whom may only be reading the details of the Bill for the first time here – the implications of the Traditional Courts Act have yet to be fully explored.