George Mari, MPP
DA KZN Spokesperson on Co-operative Governance and Traditional Affairs
THE proposed Traditional Courts Bill – set to impact heavily on KwaZulu-Natal if passed – is not only unconstitutional, it will also trap rural communities within a separate and discriminatory legal system, while seeking to revive old apartheid structures and further entrench tribalism.
Public consultation over the Bill within KwaZulu-Natal has to date been concentrated in areas loyal to traditional leaders and Izinduna. The Democratic Alliance believes that this has limited true participation and presented what is a skewed perception of what rural communities really want. Glaring omissions within the Bill include silence over the role of women in traditional courts and a proposal aimed at resurrecting previous homeland and tribal boundaries. Other areas of concern include;
– A proposal which will see Traditional Leaders placed in control of all legislative, executive and judicial functions. In the vast majority of cases these leaders have no legal background or experience. The Bill also seeks to establish Tribal Courts, where leaders will be glorified as magistrates, yet there is no explanation as to how they will be trained to fulfil this role.
– The Bill deems Tribal Authorities of the past to be the Traditional Council of today and recognises Traditional Leaders for positions held in the past. This will see communities forced to abide by old autocratic tribal laws, denied their constitutional rights and forced to serve sentences and sanctions.
– Communities will not be permitted to take any case directly to the Magistrates Courts. Traditional Leaders alone will determine which cases are heard and which cases are referred to the Magistrates Court. This system creates a separate judicial system for rural communities who would necessarily not want to be part of it. Section 9 of the Bill excludes legal representation for accused, thereby denying individuals the constitutional right to legal representation. The role of the SAPS is also not defined in Traditional Courts. Will the SAPS arrest offenders and take them to a Traditional Court where they will not be permitted legal representation?
South Africa has come a long way since democracy was first introduced 18 years ago, yet many aspects of this Bill are unconstitutional. The DA firmly believes that its introduction would drag rural communities back towards a past that many would prefer to forget.