To its credit, the portfolio committee of justice and correctional services has decided to seek an additional, external opinion on the matter after a presentation from a representative of the law adviser’s office to the committee on 14 May 2021. The presentation was supposed to clear up the question of whether the Bill was unconstitutional, despite removing the right of millions of citizens in the former homeland areas to opt out of traditional courts and choose to pursue justice through the magistrate’s courts.

The explicit “opt-out” clause was removed from the Bill’s wording in 2018. The “opt-out” clause allowed persons summoned by the court to opt out of having the matter heard by a traditional court.

Civil society fought hard for this to protect the many rural people who find themselves under the jurisdiction of a traditional authority they don’t recognise, women who belong to communities where patriarchal abuses remain prevalent and to prevent examples of these courts being abused to silence dissenting voices within the community. Such an opt-out clause does what legislation regulating courts should do: allow courts to operate while preventing abuses to occur and allow access to justice broadly, in line with the constitution.

Surprisingly, however, in 2018 the then-portfolio committee voted to have the clause removed – even though the Office of State Law Advisers advised at the time that the Bill would probably be unconstitutional without it.

The “clauseless” version of the Bill that is currently before parliament has provoked concern in the legal fraternity and strong opposition from rights activists. Earlier this year, the newly constituted portfolio committee asked the legal services office to provide a fresh opinion on the Bill. Oddly, the office this time concluded that the Bill was constitutional, because the office was satisfied that there were “implicit” references to the voluntary nature of customary law in the Bill. (This opinion cited an incorrect version of the Bill, however).

The contradiction to the prior opinion prompted the portfolio committee to ask the office to come and explain its view.

In her presentation to the committee on 14 May, parliamentary legal adviser Phumelele Ngema offered yet another interpretation. Now, she acknowledged, the “opt-out” provision had been removed and is indeed a limitation of the constitutional rights of rural people, but the legislatures in both Houses had done so after carefully “appl[ying] their minds, deliberated exercising the proportional balance required when limiting rights in light of section 36 and seriously considering the inbuilt limit of section 31 of the constitution”.

Section 36 of the constitution sets out the circumstances in which fundamental rights may be lawfully restricted. I have attended or read the minutes of every committee deliberation on the Bill and I have never witnessed anything that can be described as a proportional balancing exercise in terms of section 36. This description of the process was simply made up. The gymnastics to reach a conclusion that the Bill was constitutional, was remarkable.

But the most concerning intervention was from Deputy Minister of Justice John Jeffery, who also addressed the committee. He chose to fudge the issues: opt out may still implicitly be there, and the Bill may or may not be constitutional. But none of that should worry the committee, he proposed: they should get on with passing the Bill. The Constitutional Court can decide whether it is constitutional or not.

The committee, thankfully, disagreed.

The rest of the deputy minister’s time was dedicated to discrediting those who oppose the Bill. Implying that opposition is really driven by only one organisation, he argued that the “real problem” is that those opposing the Bill simply don’t want traditional courts or, indeed, traditional leaders. They will oppose any legislation that deals with either, apparently believing, according to the deputy minister, that if there was no legislation, then traditional courts and traditional leaders would not exist.

Astonishingly, he referenced Mam Sizani Ngubane as one such person. She was widely admired as a legendary activist for women’s rights in traditional areas who died tragically of Covid-19 last year. Jeffery argued that since the constitution recognises traditional leaders, the committee had no choice but to adopt the Bill.

Mr Jeffery’s argument underlines the government’s fundamental misunderstanding of one of the most revolutionary transformations brought about by the constitution. The constitutional drafters elevated customary law – “living” customary law, not the official codified versions created by the colonial and apartheid states – to the same status as that of the common law and even statute law (unless that law specifically regulates customary law). But whenever communities assert their customary law rights in line with the constitution, the government opposes it – often on the side of traditional leaders.

In the Ntamo case, the community challenged the recognition of a headman that was not done in line with its customary law. The government opposed the community, arguing, incredibly, that the community’s customary law was extinguished by Bantustan laws. They lost, appealed, and lost again.

In Gongqose, a fishing community from Dwesa-Cwebe whose customary law rights to the sea were ignored and actively suppressed by the authorities for a decade took the matter to court in 2010. They fought the government for eight years, all the way to the supreme court of appeal, where their customary fishing rights were confirmed. Since then, despite their legal victory, they and others in their position continue to battle to convince the government to take their customary rights seriously.

In the Baleni case, the Amadiba community of Xolobeni successfully demanded that their customary law procedure of decision-making and consent should be adhered to before a mining right can be granted on their land. Mineral Resources and Energy Minister Gwede Mantashe is now appealing the judgment.

The civil society organisations Jeffery refers to do not believe that traditional courts or traditional leaders will not exist if no legislation is adopted. They know that customary courts, customary leaders and customary property rights exist in terms of customary law without having to be granted legitimacy by legislation. That is precisely why they oppose creating legislation that upends the customary nature of these courts and rather borrows heavily from the Bantustan models of traditional courts.

Insisting on recognising and respecting customary law as it is lived of course does not mean that it should not be regulated, where necessary, to be brought in line with the constitution. But the constitution requires taking a minimalist approach, to interfere with the customary law itself as little as possible, while minimising potential abuse. The “opt-out” clause does exactly that: it confirms the voluntary nature of customary law while at the same time ensuring that, where abuses may occur, community members would be protected from it.

What it doesn’t do is accede to the demands of traditional leaders, as articulated in a startling document recently revealed in parliament capturing a series of “resolutions” reached between government and traditional leaders at an indaba in 2017. On the Traditional Courts Bill, the parties apparently resolved that the “opt-out” clause would be removed as, the traditional leaders said, “it erodes and undermines the jurisdiction of the traditional courts”.

So let’s not fudge the issue. Traditional leaders clearly have the government in their corner. Jeffery does not have the right to erase the voices of the brave women and men who have tried to stand their ground, against all odds. They will not go away.

Wilmien Wicomb

Click here to subscribe to ESSF newsletters in English and/or French.