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.


Christi van der Westhuizen

Christi van der Westhuizen

Dr Christi van der Westhuizen is an award-winning political columnist and the author of the book Working Democracy: Perspectives on South Africa's Parliament at 20 Years, available for download...

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