27/01/2017 04:59 SAST | Updated 27/01/2017 10:09 SAST

Why I'm Cautiously Optimistic About The New Traditional Courts Bill Being Back

The new bill has greatly devolved power away from the traditional leaders and to the communities, but concerns still remain.

South African President Jacob Zuma arrives for his traditional wedding to Tobeka Madiba, his fifth wife, at the village of Nkandla in northern KwaZulu-Natal January 4, 2010.

On Monday, Deputy Minister John Jeffery released the latest version of the Traditional Courts Bill to be introduced into parliament for the third time. It was a moment of great significance for rural constituencies and civil society groups who had been opposing previous versions of the bill since 2008.

In April that year, the bill was introduced into parliament, promising to grant traditional leaders extraordinary powers to make, administer and dispense with the law within their communities. The bill made it a criminal offence to ignore a summons from the court, and granted the court the power to mete out forced labour and even take away 'customary entitlements' – including land. The loudest opposition came from women's groups, who argued that the bill did nothing to protect women in communities where they are not even allowed to enter the court space, even when they are the ones on trial.

The bill was quickly withdrawn but, to the consternation of its opponents, reintroduced in 2011. A very public battle over the fate of the bill ensued that lasted for more than two years. In several extraordinary twists, first Minister of Women, Children and Disabilities Lulu Xingwana, backed by the ANC Women's League, came out guns blazing against the bill. Soon after, the chair of the parliamentary committee responsible for the bill hit back by declaring all submissions made to parliament by community members "irrelevant" and to be struck from the record. And in November 2012, President Zuma gave a prepared speech to the National House of Traditional Leaders acknowledging that the bill was flawed and had to be fixed, before going off-script and launching an attack on the critics of the bill as opponents of 'African culture'.

"They tell you they are dealing with cold facts. They will never tell you that these cold facts have warm bodies", he said.

In February 2014, a meeting of the parliamentary committee seized with the bill descended into chaos as members across the political spectrum, including from the ruling party, objected to the fact that the bill was even still on the table. A quiet announcement followed days later claiming that, due to a technical oversight, the bill had lapsed. It was dead. Former Constitutional Court judge Albie Sachs cited the victory over the Traditional Courts Bill as one of the most significant post-constitutional indications that the South African democracy is indeed alive and well.

The new bill introduced on Monday, appears to represent a paradigm shift. I say this with guarded optimism, as we have missed the devilish details of legislation that undermine the rights of rural people in the past, and even on this version some red flags remain. But there is a lot to celebrate.

To understand the level of outrage over the previous versions of the Bill, and indeed the nervousness that remains today, one needs to understand the impact of the legislation that preceded it. Better yet, one needs to encounter some of those 'warm bodies' from whom our President have apparently been shielded.

Resisters were punished by being denied land allocations, or being forced to pay outrageous amounts just to bury their loved ones.

With the 2003 Traditional Leadership and Governance Framework Act, parliament took the extraordinary step of keeping the boundaries of traditional leadership jurisdiction drawn by the apartheid government in terms of the 1951 Bantu Authorities Act, in place. The mechanisms that were simultaneously created to transform traditional leadership into constitutionally compliant, relatively democratic institutions, have all failed.

What does this mean for real South Africans? Take the example of *Mr Mabunda who lives in a village in Limpopo province. Mr Mabunda and his family were forcibly relocated to a farm called Geduld in 1981. When they arrived at Geduld, they found other people who had been dumped there six years earlier. Mr Mabunda's family received a stand and two tents and until 2005, paid rent for the stand to the government. During this time, the people who had been thrown together on Geduld became a community. They had an elected structure that governed the village.

But in 2005, a chief in the area announced that, in terms of the 2003 Framework Act, Geduld fell under his jurisdiction and so does everyone who live there. From that day, they were to pay rent to him and in addition to the various forms of 'tribal tax' that he charged from his other subjects. Perplexed, some people of Geduld resisted by refusing to pay these charges to a chief that they did not recognise as their own. When the Chief installed a headman in the village and took over the function of land allocations, resistance grew. Resisters were punished by being denied land allocations, or being forced to pay outrageous amounts just to bury their loved ones.

Unfortunately, the 2003 Framework Act provides no mechanism for Mr Mabunda to assert that he does not belong to this chief or his jurisdiction, despite the fact that he ended up in the area due to forced removals. It does not even provide a mechanism by which he can hold the chief to account. Those mechanisms are reserved for the royal family or the chief's traditional council, who, unsurprisingly, rarely use it.

Instead, the Act has emboldened the chief to create his own tribal police who round up resisters and other dissidents in the community and drag them to the tribal court, which often sits in the middle of the night, where they are summarily adjudicated to be guilty of the crime of 'disrespecting the chief' and fined accordingly.

Several people, among them elderly men and women, return from such an ordeal with the bruises of blows from pick axe handles. Mr Mabunda refused to pay one of those fines, and was soon summoned to the local magistrate's court, at the informal request of the chief, to answer the charge of 'disrespecting the chief' in front of a magistrate. When he continued to resist, he was abducted by the tribal police, held captive for more than 30 hours and repeatedly beaten. If this sounds like a different planet, consider that several of the people who had suffered injuries at the hands of the 'tribal police' attempted to open cases at the local police stations. They were invariably turned away because 'tribal issues' are apparently beyond the jurisdiction of the police.

Imagine placing the powers envisioned by the previous Traditional Courts Bill in the hands of this chief. And while it would be entirely unfair to suggest that all chiefs operate in this fashion, this is by no means an isolated case. In particular where chiefly power is combined with control over land and resources.

The test, of course, will be how this bill is implemented.

In this context, the new Traditional Courts Bill is poised to provide welcome relief to Mr Mabunda. It allows him to refuse to have any charges against him heard by the Traditional Court, and provides that no-one may "intimidate, manipulate, threaten or denigrate a person" who chooses to opt out. It makes a serious attempt at protecting vulnerable groupings in the court space. It even appears to recognise the legitimacy of the leaders recognised by communities in terms of customary law, but who continue to be denied government recognition. In short, it makes important strides at shifting the power away from traditional leaders to the ordinary members of communities.

The test, of course, will be how this bill is implemented. As long as the Framework Act continues to empower chiefs to assert wide powers over anyone within the boundaries of their jurisdiction without any form of accountability, Mr Mabunda's problems will hardly come to an end. He may not have to appear before the chief's court, but he will still have to bow to all the other chiefly demands.

With this in mind, rural activists now turn their attention to the Traditional and Khoi-San Leadership Bill, currently presented at parliamentary hearings across the country. It is the proposed continuation of the Framework Act, confirming and even strengthening the very mechanisms that have disempowered Mr Mabunda. If passed, it will destroy much of the good work done on the Traditional Courts Bill. The struggle continues.

* Not his real name.