Christi van der Westhuizen
Christi van der Westhuizen

Traditional Courts Bill: Colonialism warmed up

The retabled Traditional Courts Bill, if adopted in its current form, will relegate at least 17 million South Africans to a separate and unequal judicial regime merely because they happen to live in the rural areas – a situation in many cases imposed on them by the apartheid regime.

While cabinet’s planned “review” of Constitutional Court decisions threatens to violate the doctrine of separation of powers, this bill already does just that. And it accomplishes this no less by rehashing apartheid and British colonial law stretching all the way back to the 19th century.

In terms of the Bill, traditional leaders will be appointed presiding officers of traditional courts with the powers to decide on both civil and criminal matters involving members of traditional communities, or even people just passing through.

These are the same traditional leaders who, in terms of the Traditional Leadership and Governance Framework Act of 2003, are permitted to administer government functions such as health, welfare, economic development, land administration, the management of natural resources and the registration of births, deaths and marriages.

Moreover, in neither the 2003 Act nor the current Bill is customary law defined. According to the University of Cape Town’s Law, Race and Gender (LRG) research unit, the Bill gives traditional leaders the power to make customary law.

The Bill allows the chief-cum-judicial officer to pass various sentences, including, among others, fines, forced labour or depriving someone of “customary benefits”, which could mean losing access to land.

The same person who makes the rules and executes government decisions also metes out punishment when deeming a rule broken. This concentration of judicial, legislative, executive and administrative powers in the hands of one person is anathema to the principle of separation of powers.

This system has its historical antecedent in colonialism. Ugandan scholar Mahmood Mamdani dubbed it “decentralised despotism” in his influential book Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism.

Mamdani reminds us that there was nothing “natural” or voluntary about customary law. In fact, the most authoritarian elements of pre-colonial social and political arrangements were concentrated in so-called customary law.

Rather than recapturing the ways of people before the ravages of colonialism, as traditionalists would like us to believe, customary law’s purpose was to advance the colonial and, later, apartheid agenda.

Mamdani points to what he calls colonialism’s “bifurcation” of the state in which “modern” law applies to “citizens” while “customary” law applies to “subjects”. Customary law turns people into subjects because it strips them from the protections that common law affords citizens.

Women were particularly compromised, as they were declared perpetual minors who could neither inherit nor bequeath, according to the Natal Code of Native Law of 1891. This was reinforced in the Black Administration Act of 1927, which was only repealed in 2005.

At the negotiations in the early 1990s, traditional leaders aimed for the entrenchment of this parallel system, a localised absolutism disconnected from the constitutional order. With the Traditional Courts Bill they may move closer to their original objective.

The Traditional Courts Bill and the Communal Land Rights Act of 2004 (declared unconstitutional in 2010 for not being tagged as a bill that affects the provinces) both have the effect of perpetuating the second-class, “subject” status of rural people, especially women.

The Traditional Courts Bill denies rural people not only the basic rights to appeal (against a sentence of forced labour, for example) and to legal representation but also refuses them the right to opt out of these courts and have their cases heard in the civil courts.

The Bill’s permitting of representation by relatives means in practice the shutting out of women, according to the LRG. Widows are frequently barred from speaking in the “sacred” space of the traditional court. The male relatives who “represent” them can be the very same people eyeing property that the widow is entitled to.

The irony of the re-entrenchment of this parallel system of subjugation becomes even bitterer when reminding ourselves of PW Botha’s divide-and-rule manoeuvres in the 1980s: the passing of laws to create a division between black urban insiders, admitted as part of “White South Africa”, and black rural outsiders, locked down in the 20th century’s last colonial relics, the bantustans.

The LRG sees the Bill as part of a “silent coup” that is brewing. To be sure, the legal perpetuation of these dynamics from yesteryear is a testimony to how well traditionalists have navigated the post-apartheid Parliament to promote their own interests.

Since the traditionalists’ political flip-flop away from the apartheid regime into the lap of the ANC during the transition to democracy, they have had more success than other reactionaries such as the volkstaters, despite the ANC’s historical opposition to them as “apartheid puppets”.

Could traditionalists’ political success since 1994 be ascribed to them being promoters of a system that enables repressive social control, something that a government could use in times of mounting socio-economic distress?

It was British colonialist Theopilus Shepstone who said in the 1880s that the main objective of customary law was to “ensure control”, as the colonialists did not regard the “natives” as sufficiently “civilised” to enjoy the rights available to the rest of the population.

The Bill at least does not refer to civilisation but its stated aim, in Sections 2 and 7, is to position traditional leadership as an “institution” that maintains “peace and harmony” and “prevents conflict”. It is difficult to think of any similar law pertaining to people living in urban areas. The aims sound like 21st century euphemisms for subjugation.

Of course the Bill is saturated with references to upholding the Constitution and one clause accentuates women’s participation.

But, if the Traditional Leadership and Governance Framework Act is anything to go by, the commitment to gender equality is thin. That Act permits a measly one-third representation of women in traditional councils and, through a spurious circular argument, allows for that number to be lowered even further if there are too few women available to fill the positions.

This exemption facilitates the continuing manufacturing of a “lack” of women, typically done through political and social exclusion, and this in a context where the female to male ratio is notably higher than in the rest of the population.

The way in which the Traditional Courts Bill found its way back to Parliament undermines the pledges of constitutional alignment. Civil society, including rural people, have pointed out the flaws when the Bill was tabled in 2008, including that only traditional leaders had been consulted in its drafting.

Instead of addressing these flaws, the exact same version of the Bill has been re-tabled in the National Council of Provinces, which shows that it was the Communal Land Rights Act’s failure in the Constitutional Court that was heeded and not the calls of rural people.

This monthly column series is made available by the Open Society Foundation for South Africa to monitor the health of our democracy. This column first appeared in the Independent Group’s daily newspapers.

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    • http://none Lyndall Beddy

      How is blacks living in the Homelands “imposed on them by the apartheid era” almost 2 decades after the ANC came to power?

      Instead of the ANC waffling about getting rid of provinces to create one country, it would be more relevant to get rid of the rule of the chiefs entirely.

    • http://none Lyndall Beddy

      It is a favourite claim of the Kwanza Cultists that the present “backward” customns of the blacks were “imposed” on them by colonialists, and that they lost their real culture which they had inherited from Egypt.

    • Philip Cole

      Excellent article, Christi! Perhaps the most shameful act of the ANC has been the wholesale reversal of its radical democracy for rural areas prior to 1994. As you point out, this has betrayed the rights of millions of rural South Africand living in the former homelands.

      The measures that work in rural development rest upon putting power and assets in the hands of the poor. The ANC has acted against these objectives by actually strengthening the power of traditional leaders rather than creating the conditions for greater democracy.

      It is to be hoped that there will be a Constitutional Court challenge to the Conditional Courts Bill, just as there was successfully to CLaRA. There are clearly grounds for such a challenge.

    • Robard

      You seem to forget that the colonial power itself was not a fully fledged egalitarian democracy, but that had its own traditional authorities in the form of a monarch and aristocrats that enjoyed exclusive rights and privileges. Occam’s razor suggests that they simply adapted their own model to conditions as they found them rather than deviously subverting some incipient democracies of Noble Savages.

    • Graham Johnson

      An excellent piece. Thank you for your research and the obvious conclusions. But are the ‘rulers’ smart enough to even understand it?

    • Robard

      Good point, Lyndall Beddy. Africa had even more backward customs before than after colonization. I very much doubt that the practise of murdering people for muti for instance was introduced by colonials. And how about thanking Europeans for abolishing the endemic slavery as it was practised around these parts?

    • http://none Lyndall Beddy

      Thabo Mbeki in his speeches in parliament railed against the whites extermination of the Khoisan – a historical inaccuracy. Also against the derogatory (in his view)word “Bushmen” saying “who were the Bushmen?”.

      He continually quoted American Kwanza Cult writers, like in his speech about whites seeing blacks as “germ carriers”.

      He never actually lived in SA remember? He grew up and did his schooling in the Xhosa Homeland of the Transkei and then went into exile.

      I suspect Mbeki also believed, like the American marketing advisors to the ANC, that the Cape Coloured was a mix of white master and black servant, like the American colored.

      It is a great pity that Thabo Mbeki did not study history.

    • http://southafricana.blogspot.com Dave Harris

      The common law, civil law and a few other variations of mixed legal systems can be largely traced to European origins trying to confer/check privileges of monarchies and later to other government systems. Currently, in most cultures based on these eurocentric systems, where retributive justice goes hand-in-hand with a Christian National Education system that subtly promotes white supremacy.

      Alternate “traditional” systems devised by indigenous cultures over thousands of years, African (based on http://en.wikipedia.org/wiki/Ubuntu_(philosophy) in parts Africa), Islamic (http://en.wikipedia.org/wiki/Sharia), Indian (http://en.wikipedia.org/wiki/Classical_Hindu_Law), Chinese http://en.wikipedia.org/wiki/Chinese_law Mayan, Aboriginal, etc. that are work well in village/rural contexts, are more humane, promoting harmony and love, as opposed to the alien system of RETRIBUTIVE justice designed to concentrate wealth, power and privilege.

      Your one-dimensional eurocentric view that imposes an alien legal system onto rural communities, is sad, destructive, and futile. You should be reminded that “We’re not in Kansas anymore “. African culture has been decimated and maligned by the colonial conquerors and their descendants, who in SA, continue to enjoy the fruits of apartheid. Now the beneficiaries of apartheid and colonialism wish to use the same eurocentric legal system to cling to privileges and ill-gotten gains that they acquired by that very system- how devilishly…

    • Tal

      @Robard

      I agree with your Occam’s razor conclusion but for the quote of Theopilus Shepstone. This tells me that there is more to the equation than meets the eye.

      Occam’s razor is one of the finest analytical tools. Hacking a great chunk of assumption with it is, perhaps, a tad uncivilised?

    • http://none Lyndall Beddy

      The ANC idea of “gender equality” is placing a lot of female relatives of the ANC elite as “deployed cadres” in positions of power.

      For as long as black men can have multiple wives, and black women can not have multiple husbands, any claim for “gender equality” is laughable.

    • http://none Lyndall Beddy

      Robart

      “Muti” medicine, a belief in body part medicine, is cannibalism.

      American Kwanza Cult writers refute that blacks were ever cannibals and say it is a white myth.

      Which is not surprising – the Papacy authorised Catholics to enslave cannibals, so it was used as an excuse to enslave blacks by white Americans.

    • J du Preez

      Supreme Courts were established in Transkei (1973), Bophuthatswana (1977), Venda (1979) and Ciskei (1981). These Supreme Courts were constitutionally empowered to exercise jurisdiction over all persons residing in or of these states and to hear or determine all civil and criminal matters, proceedings or causes arising.

      Not bothering with such research, Van der Westhuizen is creating a new legend in the “apartheid myth’ in her head, namely that traditional leaders were given judicial powers in so-called traditional courts in an “unequal judicial regime”.

      It is evident that “verblindes” like Van der Westhuizen feel that they have to polish these and other obligatory legends, in order to address the african-nationalist oppressor’s real hunger for power.

    • Mouse

      Great article – thank you!

    • MLH

      I have always instinctively believed that traditional and a more modern system cannot compete to provide effective justice, just as I believe that several little kingdoms within a democracy are out of line. Where sovereigns are not mine, why should I contribute to their welfare (they don’t to mine) and where different rules of law persist, not all are treated the same.
      As a complete layperson, this article clarified my own instincts.

    • Reducto

      @Dave Harris: I don’t think you even bothered to read the article before you started throwing around terms like “beneficiaries of apartheid”. You do realise this Bill denies rural people – by not allowing them to opt out of the jurisdiction of these traditional courts – basic rights like legal representation and appeal with regard to certain matters? Meanwhile, your wealthy folk will enjoy the right to legal representation and appeal. This Bill is legally handicapping some of the most vulnerable! But given that denying people the right to legal representation flies straight in the face of a basic constitutional right, this Bill will (thankfully) not likely survive constitutional scrutiny.

    • http://none Lyndall Beddy

      I am tired of hearing about “vegtable farming projects” in the Homelands for “rural women”.

      Where are the “rural men”?

      Or are the Homelands now occupied only by spare wives, mud huts, cows and tribal chiefs?

      That is prime farmland. The Transkei has over 200 rivers – not a single one of which has been dammed!

    • Robard

      @Tal – I’m not sure I follow your meaning. Are you saying that Shepstone was mistaken in considering the natives uncivilized?

    • Robard

      @Dave Harris – Yes. Slavery and suttee and stoning of adulterous women are so much better for promoting “harmony and love”.

    • Benzo

      Why not divide SA into a federation of “states”? Some under the “traditional legal system” and some under the “colonial legal system”.

      People can be given 6 months to decide where they want to live under acceptance of the system they choose…lock stock and barrel.

      I wonder where Dave Harris will want to live :-))

    • http://southafricana.blogspot.com Dave Harris

      @Reducto
      ” Meanwhile, your wealthy folk will enjoy the right to legal representation and appeal.”
      But this is exactly what happens in every western judicial system! Furthermore, the beneficiaries of apartheid (BOA) use the legal system to play games with affirmative action, land redistribution, education reform,…recently they’ve even had the gall to use the legal system to prevent the changing of street names in Durban!!!

      @Robard
      When you speak of slavery, sutee and stonings, it likely that you’ve overdosed on Indiana Jones movies and watching Fox News 😉 I could bring out a litany of atrocities against women and children in western society, but I’ll refrain from stooping to the level of your indoctrination as a BOA.

      The greatness of ancient societies is slowly being rediscovered in our new awakening – much of this is made possible by our information age, the dispelling of the myth of white supremacy and the overthrow of puppets and dictators masquerading as democrats.

    • Reducto

      @Harris: What are you on about? There is no point in dealing with the validity of what you are spewing out, as it is irrelevant to what is at issue here: the unjustifiable deprivation of the right to legal representation for those who fall within the ambit of this Bill. For crimes as serious as theft, a person is denied the right to a legal representative at state expense. That is so blatantly unconstitutional this Bill has a snowball’s chance in hell of surviving a Constitutional Court challenge.

      Also, if you knew your history, you’d know that forcing people to live by customary law without an option to opt out was a quite a nasty aspect of colonialism. You might as well re-name this Bill the Shepstone Memorial Bill.

    • http://southafricana.blogspot.com Dave Harris

      @Reducto
      It seems like you have great difficulty accepting that there was a world before colonialism when people lived in far happier peaceful societies in harmony with the environment.
      I know it a difficult concept for BOAs to wrap their heads around…so to speak. LOL

    • Max

      According to Dave Harris all the world was the garden of eden before the evil white devils arrived. Even Sharia law he sees as “more humane, promoting harmony and love, as opposed to the alien [western] system of RETRIBUTIVE justice designed to concentrate wealth, power and privilege.” The mind boggles at the one-dimensional extremist nostalgia and hatred.

    • africalover

      side remark (see Lyndall Beddy)
      For as long as white men cannot have several wifes, any claim for racial equality is nullified.

    • Reducto

      So rather than engage me on the issue at hand – the deprivation of a basic constitutional right to legal representation – Harris calls me a “BOA” and ends his post with “LOL”. What an intellectual giant we are dealing with here.

    • http://none Lyndall Beddy

      africalover

      LOL!

      Actually it is more normal in white society for 1 woman to share 2 men. Google Satre for example!

    • http://blogroid.wordpress.com Blogroid 2012

      A German expatriate development expert colleague, with whom i was associated at the time [2008], drew my attention to this Bill then, in confusion and puzzlement; unable to comprehend why the ANC government he had believed to be a model of progressive pragmatism was promoting such a flawed return to a feudal past.

      I reminded him about what happened to Nkrumah. And how difficult it is to uncoil a well tempered suspension spring.

      He came to believe that the true struggle for freedom in RSA [as it is in many other developing and perhaps, even developed places] is the struggle against the tyranny of past experience, habit and vested interest … : knowing that the past is simply someone’s favourite lie; Delicately perfumed.

      We agreed that fortunately rural people have a solution available that they didn’t have in the Dispossession: they can leave, and have been for decades.

      So should this authoritarian back to Feudalism legislation prove too onerous, then the towns will attract ever more immigrants… and the Chiefs will inherit the earth… which is what it is all about: f..k the poor, and the infirm, and the inept and the indolent and let the main manne rule… This is a legalised land grab sanctioned by the State. Q What is the Quid Pro Quo? Voter delivery?

      So far its about 18 years of stretching the spring, versus 10 tempered millennia. Feudalism rulz.

    • africalover

      to Linda B
      No pbm, I am very much for sharing all human resources. Let women have many partners and we do the same.

    • http://roryshort.blogspot.com/ Rory Short

      Surely the first thing that we need to do as a country is to decide whether we want to continue with what people consider as customary law or not. If the decision is to have customary law then the next thing to be done after that is to give every individual upon whom customary law might fall a choice of whether they want to be ruled by customary law or not. Then those people who so choose can be ruled by customary law.

    • Sicelo

      Thank you Dave Harris. There is absolutely no point in me expressing in any words different the same sentiment as you have expressed. Christi is to be commended for sharing a thought, but she has to accept that (a) she is barely an authority on the matter and (c) she is clearly misguided and almost ignorant even especially in her view that the rural people concerned whom she describes as “subjects” are uninformed and voiceless. Far from it, and she can bet her last penny on it, the ANC would not attempt what she claims and has not.
      Disturbingly, and with due respect, her case is a classic one not dissimilar to the missionaries who aided both colonialism and apartheid thereafter by acting on behalf of natives, in their own interest. We have had enough of those.

    • http://none Lyndall Beddy

      Dave Harris

      The only written records of pre-colonial sub Saharan Africa would be in Arabic by the original Arab conquerors, who were in sub Saharan Africa for 1000 years before the Europeans.

      I must admit to always wanting to find some of those translated into English.

      You appear to have read all about it – can you give me some titles of Arabic translations?

    • Foom

      @Lyndal Beddy

      You said it’s more common for 1 woman to share 2 men in European culture and asked us to Google Sartre – it would appear that you are factually wrong, and that Sartre (and SImone de Beauvoir) had relationships with several women whilst married.

    • Judith

      No woman should have to be subjected to customary law. In fact no-one in SA should at all because it is obsolete.

    • http://none Lyndall Beddy

      Foom

      Satre, his wife and her lover were a permanent threesome, a menge a trois (which I can’t spell), very French, but they all also had other lovers.

    • george of mangove in tiyani

      good bill for rural land becouse less crime on those areas

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