The Traditional Courts Bill (TCB) is dead. This follows years of opposition from civil society and is a massive victory for the thousands of people in rural parts of the country who spoke out against the bill during provincial public hearings.
It is a wonderful instance of the provinces, including African National Congress (ANC) ruled provinces such as Eastern Cape, Limpopo and Gauteng, heeding the voices of ordinary people and voting against the government-sponsored draft law in parliament’s National Council of Provinces (NCOP). Even KwaZulu-Natal refused to vote in favour of the TCB, despite political pressure.
It is unprecedented for ANC provinces to break ranks in this way. One reason they did is because of the numerous examples of abuse in the name of custom raised by ordinary people in public hearings. Women have been at the forefront of opposition to the TCB, arguing that it would legalise and entrench current discrimination.
In effect the bill created a separate legal system for the 17 million people living in the former Bantustans, enabling chiefs to order forced labour within those boundaries, and making it a criminal offence for people to opt out of traditional courts. Provinces such as Gauteng and Mpumalanga challenged the re-introduction of such unequal citizenship. They argued that customary law applies to all South Africans, not just those living in the former homelands.
The final nail in the coffin of the TCB was hammered in at the NCOP select committee on security and constitutional development’s meeting on 19 February 2014. At that meeting the parliamentary law advisor found that many of the provinces’ concerns about the bill were valid and highlighted that various provisions were unconstitutional. After that input, John Gunda, Northern Cape MP, stated, “We must not deliberate on this bill which South Africa has rejected.” Quoting Minister of Women, Children and People with Disabilities, Lulu Xingwana, he continued, “’This bill cannot even be panel-beaten.’ We must go back and start again with a new bill and consult people who will live under this bill, not just traditional leaders like before.”
The meeting was adjourned on the basis that the bill would be referred back to the provincial legislatures for further mandates yet again. But it was very clear that even those provinces that had previously voted in favour (such as the Northern Cape) would return ‘no’ mandates this time. To avoid that embarrassment, the TCB was quietly removed from the parliamentary schedule on Wednesday evening after the meeting. The explanation is the sudden realisation that it had, in any event, lapsed in terms of parliament’s Rule 238.
The justice department, which has promoted the bill since 2008, has taken this cowardly way to avoid public defeat by elected representatives in parliament. Rural people are claiming and celebrating their victory. Andries Sihlangu, a Mpumalanga-based member of the Alliance for Rural Democracy, says: “We are happy that government has listened to rural people. It gives us hope that the people shall indeed govern one day.”
Sizani Ngubane of the Rural Women’s Movement in KwaZulu-Natal states: “The TCB was never about custom. It was about bolstering the power of chiefs. Government can no longer deny the abuses that many chiefs are getting away with, because we explained these abuses over and over again in the public hearings. What we need now is a law that protects real custom and protects women, especially, against the kinds of autocratic power that chiefs got used to under apartheid.”
Nomboniso Gasa of the Alliance for Rural Democracy and the Centre for Law and Society, University of Cape Town, regards the whole attempt since 2008 to ram this unconstitutional law through Parliament as a massive waste of taxpayers’ money. “Stopping the TCB means that rural people have really organised about it and the broader question of who makes customary law. They are on the alert and will easily recognise it if the government tries to sell the same package in another form after the elections.”
For more information on the TCB and related laws, refer to www.customcontested.co.za.
The Alliance for Rural Democracy (ARD) is a cross-section of civil society organisations sharing a common concern about the detrimental effects that the Traditional Courts Bill will have on the rural constituencies they serve and support. The ARD includes the following organisations: Association for Rural Advancement (AFRA); Centre for Human Rights, University of Pretoria; Community Law Centre, University of the Western Cape (CLC);Corruption Watch; Co-operative Policy Alternative Centre (COPAC); Council for the Advancement of the South African Constitution (CASAC);Democratic Governance and Rights Unit, University of Cape Town (DGRU); Embrace Dignity Campaign; Empilisweni AIDS Education and Training Centre; Greater Rape Intervention Programme (GRIP);Institute for Justice and Reconciliation (IJR); Justice and Women (JAW); Land Access Movement of South Africa (LAMOSA); Centre for Law and Society, University of Cape Town; Lesbian and Gay Equality Project; Masimanyane Women’s Support Centre; Open Democracy Advice Centre (ODAC); Rural People’s Movement; Rural Women’s Movement; Rural Health Advocacy Project; Section 27; Sonke Gender Justice; South African Constitutional Literacy and Service Initiative (CLASI); Students for Law and Social Justice (SLSJ); Thohoyandou Victim Empowerment Project (TVEP);Treatment Action Campaign (TAC);Triangle Project; Tshwaranang Legal Advocacy Centre (TLAC); Unemployed People’s Movement; Women’s Health Research Unit in the School of Public Health and Family Medicine, University of Cape Town; Women’s Legal Centre Trust. The Legal Resources Centre (LRC) acts as legal advisor to the ARD.