Jeff Radebe on Traditional Courts Bill: Don't think twice, it's all right

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Justice Minister Jeff Radebe’s visit to UCT to address students on Tuesday night comes at a time when he is presiding over a number of pieces of controversial legislation. Little surprise that he was met with a picket organised by students concerned about the Traditional Courts Bill. But they need hardly have bothered – Radebe was giving almost nothing away.

Jeff Radebe was 45 minutes late to his Tuesday address at UCT, organised by the university’s Legal Students Council and the Student Representative Council. (That’s the outgoing SRC, of course, because nobody yet knows exactly who will serve on UCT’s next SRC until the legal dust has settled. But most people simply seemed relieved that he had arrived at all, given that the talk had been postponed twice before – it was originally scheduled to take place on October 4th.

A student-circulated communiqué explaining the most recent deferral of the event stated: “Understandably these postponements have been inconvenient; however the nature of the minister's address will certainly outweigh these previous inconveniences. The postponements on the part of the Minister are in large part due to current issues such as the Secrecy Bill, the Traditional Courts Bill and the Legal Practice Bill that have been taking up much of his time and will be incorporated in his address at Tuesday’s event.” If “incorporated” was understood to mean “evaded”, that would have been more accurate. As it was, it is to be hoped that the students filled up on the refreshments available afterwards, because these represented pretty much the only way of leaving the address satisfied.

Before Radebe’s arrival into the Molly Blackburn Hall, the audience was instructed to rise to their feet on his arrival and sing the national anthem. When the Honourable Minister departed the hall after his talk, the audience was also told to stand. It is to be hoped that this was merely attributable to unusual deference on the part of the student organisers, rather than some new “rider” specified by Radebe’s team as part of his public speaking arrangements. After all, he’s not the president.

Radebe was greeted by a group of students standing at the back of the hall holding signs which read “One Justice System For All”, “South Africans must be able to opt out of the Traditional Courts Bill” and “We Reject Bantustan Boundaries”. Prior to the protest, one of the organisers, third-year PPE student Nishal Robb, explained that their objectives were “quite modest”.

“We aim to ensure that the minister does not leave UCT without being aware that students oppose the Traditional Courts Bill,” Robb told the Daily Maverick. “We don’t believe that the picket will convince the minister to give up on the Bill, but we nevertheless cannot allow it to go unopposed on campus. Secondly, we aim to make students and the wider UCT community aware of the issues surrounding the Bill.”

“There is also an element of opposition to the Protection of State Information Bill included at our picket,” added co-organiser Michael Moss, a third-year student of history and politics. “Although the Secrecy Bill is technically promulgated by the Department of State Security, Radebe’s department would ultimately be the enforcer.”

Given the concerns around, in particular, the Traditional Courts Bill, it was a touch ironic that the theme of Radebe’s talk was “Challenges facing access to justice”. Radebe set off by attempting to define the concepts involved: “As long as there is injustice, there will always be lack of access to justice,” he explained helpfully. He was keen to state that the project of justice did not fall simply on the shoulders of the Justice Department: there must be cooperation across all stakeholders, business, labour, government and NGOs, he said. 

Radebe added that while being able to afford legal representation, and having one’s case speedily dealt with, amounted to important ingredients of access to justice, there was more to it than that. What matters is a legal system underpinned by the founding values of the constitution, with an independent judiciary and clear separation of powers, he stated. But in addition to these lofty ideals, there are also practical steps that have been taken to improve access to justice.

Radebe cited the fact that the Justice Department was continuing to build courts to expand justice infrastructure, saying that two courts have been built in the Western Cape over the past 18 years. There are also two new high courts on the way in Limpopo and Mpumalanga. To help deal with the prohibitive cost of litigation for the poor, the department continues to resource Legal Aid. And to speed up the processing of trials, the judiciary has taken the lead in developing a “case-flow management system” to ensure speedy trials. 

“Justice delayed is justice denied,” he reminded the audience. This issue is no joke: while the Case Backlog Reduction intervention – which included the establishment of additional regional backlog courts – has yielded some results in recent years, the South African court system is still radically over-clogged. At the end of March 2012, of the 160,000-odd prisoners in South African jails, 49,467 were awaiting trial, according to figures from the Department of Correctional Services. 

But back to the good news. Another efficiency measure which had streamlined the South African justice system, Radebe said, was the introduction and expansion of small claims courts across the country. “This allows for the speedy resolution of financial claims not exceeding R12,000,” he said. “Even in these small financial matters, it is imperative that justice is seen to be done.” 

Radebe said that the main concern of the Department of Justice was to ensure access to justice for all people – and that in fact it was for this very reason that the Traditional Courts Bill existed. “Our Constitution recognises provision for traditional courts as part of justice,” he said. Noting that UCT had been responsible for some submissions to parliament on the matter of the Bill (notably land rights activist Aninka Claassens, who has been vocal in criticism), Radebe said that he was sure parliament would find this “important commentary” to be “invaluable as it concludes on this important legislation”.

When it came to question time, Radebe proved difficult to pin down, though the students gave it their best shot. Why did the Traditional Courts Bill adhere to the Bantustan boundaries established under the Black Authorities Act of 1951? Shouldn’t South Africans be able to choose between accessing justice from a traditional court or a magistrate’s court? 

Radebe stressed that “all opinions and views” on the matter could still be aired, because the Bill was still before parliament, and urged people to interact with the parliamentary process on the matter. Contrary to perception, “the Traditional Courts Bill does not create traditional courts,” he said. “Our Constitution recognises customary law and traditional leadership. We already have a Department of Traditional Affairs that affirms that basic truth.” The problem is that traditional courts are currently administered using Apartheid legislation (the Black Administration Act of 1927). So, he said, the proposed bill was necessary because it would ensure that the courts were in line with the Constitution.

There is nobody in government who wants to see the perpetuation of discrimination on the basis of race and gender, Radebe purred. Anything in the Bill which conflicts with the Constitution will therefore be found invalid and excluded.

Many will be relieved (if a little surprised) to hear this. The DA’s shadow deputy justice minister, Debbie Schafer, last month accused Radebe of “acting in bad faith by tabling a bill that is clearly unconstitutional whilst his department is busy substantially amending it.”

He was similarly reassuring when the matter of the Protection of State Information Bill was raised. “Fundamental changes have been made,” Radebe stressed, but he couldn’t say what they were offhand, as he didn’t know what the “final text” was. “I am sure in good time we will all know,” he said. After all, the Bill’s purpose is no more sinister than to simply “protect state information as is done everywhere in the world.”   

After the event, the group of student protestors seemed downbeat. “He didn’t really say anything,” one of them said gloomily. “He just kept dodging the questions.” Welcome to politics, chaps.

  • Rebecca Davis writes for the Daily Maverick online. This article was published on the Daily Maverick online.