Many a community activist celebrated when the controversial Traditional Courts Bill lapsed in Parliament last year. It was roundly lambasted for denying people legal representation if they appeared before traditional courts and also for wide punitive powers that risked being unconstitutional.
Political commentator Nomboniso Gasa has accused it of “balkanising SA according to the old bantustan lines”. So it came as a surprise when Justice Minister Michael Masuthu said, in a written reply to a Parliamentary question earlier this year, that he’d be returning the Bill to Parliament in November.
It’s not clear how different it will be from the previous draft, but Masuthu did say it would be preceded by a public dialogue that would “inform the contents of the revised Bill”.
This process doesn’t appear to be underway yet and at the time of going to print, Justice Ministry spokesman Mthunzi Mmhaga hadn’t responded to a request for a comment.
In any event, expectations are that Masuthu will need to submit a significantly revised piece of legislation when the Bill’s resurrected so that it passes constitutional muster.
Shadow Minister of Justice for the Democratic Alliance (DA), Advocate Glynnis Breytenbach, says it’s unclear if or when the revised Bill will be reintroduced. She says it’s critical that SA recognises the role of traditional justice, but adds that this must be done in a way that heeds SA’s Constitution.
“Among the big issues for us were the clauses in which parties were denied legal representation when appearing before traditional courts. These courts have their place in SA, definitely, but the Constitution makes it clear that customary law is applicable only when it’s not in conflict with the Constitution – the same as any other law.
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