Debate on the Traditional Courts Bill by Cde Gijimani Skosana in the National Assembly
12 March 2019
It has been clearly articulated that the African National Congress has a long-standing history with traditional leadership. The ANC, has for decades, worked side by side with traditional leaders and the clergy for the liberation of this country. The institution of traditional leadership in Africa is one which predates colonialism and apartheid. It is the institution which has been the custodian of culture, tradition, custom and values of African societies since time immemorial. Likewise, traditional courts were the mechanism used to resolve disputes. They were a way of administering justice in a participatory and reconciliatory manner, promoting restorative justice. This bill does not create traditional courts as they already exist. The bill merely seeks to regulate their functioning through a legislative framework.
The ANC has throughout its existence promoted human rights, dignity and justice. The Bill is a hallmark when it comes to the regulation of traditional justice. This legislature was tasked with the monumental task of redefining and shaping traditional justice systems in line with the new constitutional dispensation without distorting traditional customary law and relegating it to common law. This has already been done by the colonial and apartheid regimes.
Our Constitution is clear. Access to courts is guaranteed by section 34. We are the ones who fought for this right. From the days of ANC President-General Pixley ka Isaka Seme, we advocated for the right to a fair trial, courts which are representative of all people and equality before the law. We advocated for access to justice for all. The Constitution guarantees access to courts and other independent tribunals or forums. Unless ordinary people have access to courts and other independent forums or tribunals to resolve their disputes, the vision of a society based on the rule of law as envisaged by the Constitution will not be realised.
The ANC was seized with the task of not only promoting this right but also the not perpetuating the distortions created by the colonial government through the Black Administration Act which relegated African customary law and the role of traditional leaders to being subservient to Western laws and systems. A balance needed to be struck and we are pleased that this balance is one which can pass constitutional muster. Clause 12 entails that internal remedies within the traditional legal system need to be exhausted before an appeal can be made to a magistrate’s court. This therefore means that an aggrieved party is not denied his or her right to access the courts. In this way, the internal customary appeal structure is upheld and the section 34 right is not denied. All courts, which include traditional courts need to be in line with the Constitution.
The Bill promotes the participation of women in traditional courts. President Ramaphosa has emphasised that women must be included in traditional decision-making. The patriarchal fibre in our society cannot be ignored. We have heard and considered what many people in society and civil society groups have said in this regard. The ANC argued for the emancipation of women and promoted their rights long before it was fashionable to do so. Our Constitution recognises equality, gender parity and sensitivity around the protection of the rights of women. While the Constitution guarantees the right to equality, we welcome the fact that the Bill reiterates women’s rights and their participation. We welcome the fact that they, as well as members of the LGBTIQ+ community should not be discriminated against.
The ANC supports this Bill.