During the interactive dialogue between member states at the United Nations Human Rights Council where the South African government presented its Universal Periodic Review last week, Norway recommended that the country ensure that the Traditional Courts Bill complied with all international and constitutional obligations before being passed by Parliament.

The request came on the same day Parliament’s National Council of Provinces held its hearings in parliament where the SAHRC presented its views on the Traditional Courts Bill.

Norway requested that South Africa “ensure that the proposed new Traditional Courts Bill, if adopted, does not violate South Africa’s international obligations or its own Constitution in the area of women’s rights and gender equality.”

We believe that it was unfortunate that these recommendations from our international friends were not accepted by the South African government who simply made a statement declaring that the “matter was still under national consultation”.  

It was a missed opportunity for South Africa to clarify how it’s going to ensure it respects the rights of everyone including women. We failed in our international obligations, not only with regards to international human rights mechanisms, but also to engage and interact with other state bodies in the sharing of best practices.

It unfortunately appears that the SA government has little capacity to listen to voices of concern from  other countries and state bodies.

As the Commission we have received a number of complaints relating to insufficient consultation and lack of information on the Bill, particularly in rural communities where this Bill will have most effect.   In its presentation before the NCOP, the SAHRC pointed to issues concerning gender equality, the fundamental rights to a fair trial, and the rights of a child. The Commission further requested clarity as to whether the legislation refers to a dispute resolution mechanism or a conventional court system, which would raise a number of constitutional issues around due process, fair trail and criminal and civil sanctions.
Other issues the SAHRC raised regarding South Africa’s international, regional and constitutional obligations included:

•    The wording of the Bill in relation to jurisdiction and sanctions as having the potential for abuse, for example if sanctions included the possibility of forced labour or evictions.  
•    The Bill fails to ensure full and equal participation of women at all levels in the traditional courts, and failed to ensure the full and equal participation of women in the process of compiling and drafting the Bill.   
•    The Bill’s jurisdiction was reliant on geographic boundaries.  No opt-out clause is provided for.
•    Due process and legal representation is not provided for in the Bill.  
•    The Bill is unclear in respect of legal responsibility for child offenders.  
•    There is a need to consider a Traditional Courts appeal system.  Should the Bill retain its appeal system to the Magistrates’ Court, presiding officers would require expertise in customary law.

The SAHRC recognises the dynamic nature of customary law and its adaptation to the changing conditions of a globalising world.  However, whilst customary law is integral to the make-up of South African society, the Traditional Courts Bill has serious flaws which require Parliament to rethink the implications of the draft legislation. If passed in its current form, it is unlikely the Bill would survive the test of constitutionality.

The government is given its power by the people and must serve the people and listen to the people. The SAHRC will continue to fight the Bill in its current form, and will work with other Chapter Nine institutions and NGOs to assist communities to ensure that our government addresses certain human rights concerns in a re-drafted Traditional Courts Bill.

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For any queries, please contact
Isaac Mangena
South African Human Rights Commission
Head: Communications