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Traditional Courts Bill, the devil in the details

Dambuza Lecture

Date Released: Fri, 7 April 2017 11:45 +0200

Judge of Appeal Nambitha Dambuza, 45, addressed a lecture that interrogates the devil in the detail of the newly revised and approved 2017 Traditional Courts Bill on the 3rd of April 2017 as a guest of the Faculty of Law, Rhodes University, Grahamstown.

Judge Dambuza, who has Masters in Law, has acted as a judge in both the Supreme Court of Appeal (SCA) and the Constitutional Court. She is currently a judge in the Eastern Cape High Court and the Competition Appeal Court in Port Elizabeth.

She presented her lecture to Law staff (current and retired) and students on the gaps apparent in the latest version of the Traditional Courts Bill. She does however admit that it is a significant improvement from its 2012 version.

“The new Bill shows commitment to the rights enshrined in the constitution, mostly the protection of basic rights. It does however lack clarity on the extent of power given to both traditional leaders and women,” she exclaims.

She laments that the Bill is troubling in that it falls short in addressing the long-standing social injustice of the exclusion of women in the decision making process of the Courts.

“Gender representation in the decision-making is still an incomprehensive concept. Women’s full participation cannot hinge on evolution as so wished by some. As it stands, it continues to undermine women for the near future, contrary to the stipulations of the Constitution. This matter must not be taken lightly,” she said.

Obed Bapela, Deputy Minister of Cooperative Governance and Traditional Affairs had earlier expressed that the exclusion of women in this process is an entrenched practise that must be left to evolution because as society evolves we see more and more women participating.

This is a sentiment Dambuza rejects fully. “That is not the standard we want to set at this stage of the crafting of the Bill, as it is a direct contradiction of our constitution”.

Former Dean of Law at Rhodes and Advocate of the High Court of South Africa Professor Richmond Mqeke begged to differ with Dambuza on this matter.

“I was part of the process of formulating the new Bill, and a lot of time was spent looking at the concerns that were raised from the original Bill. This Bill must be read together with the Traditional Leadership and Governance Framework Act as it recognises both genders. In the Transkei, some areas are herded by women, so these women are participants and head these courts.”

Mqeke clarified that Traditional Courts are a peer justice system not a court of Law in the traditional Western legal system. He agreed that there is still much improvement; although most issues raised were addressed. 

Mqeke has published two books, Basic Approaches to Problem Solving in Customary Law (1997) and Customary Law.

Dambuza went on to analyse the legitimacy of traditional leaders as the ultimate authoritarians in customary law and traditional courts. She acknowledged the unwavering importance of traditional courts as they are voluntary, and are a speedy, affordable and accessible form of justice comparable to small claims court.

However, she has reasons for discomfort. Because there is no clear sense of the rest of the structure and how will it function - from summons, execution of judgements and various administrative aspects.

“Chiefs and herdsmen as heads of traditional courts raises questions of separation of powers. Their knowledge of law does not appear to exceed any other member of their respective communities. We cannot have a system that does not have checks and balances. Let us not hide behind vagueness and ambiguity. Authoritarian systems always hit the most poor and vulnerable,” she pleaded with the law community present.

Associate Professor of Computer Science at Rhodes University, Philip Machanick backed up Dambuza in her call for separation of powers. He spoke of a long-standing interrogation that he was part of in the 1990s in the Transkei.

“The Regional Authority Courts Act in the Transkei was designed in such a way that the separation of powers did not exist. Traditional Leaders are functionaries within the executive arm of government on a local platform and them exercising judicial powers is incompatible with that primary function,” he said.

He cited an example in the West Tembuland, where the regional authority court was being used openly to target political opponents of traditional leaders. “These were mostly ANC activists who were opposed to the system of rule. That is the danger when you do not separate powers,” argued Machanick.

Dambuza closed off her analysis by re-emphasising the lack of detail in the current Bill. “We are choking in the knowledge that we are trampling on our Constitution, by setting up a court system for some of our compatriots that is not good enough”.

Presentations on the Bill will be called on shortly. She pleaded to students and her learned colleagues in Law to ensure that all matters arising be raised accordingly.

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