1 Traditional Courts Bill Policy & Key Provisions

2 Why need for Policy To transform traditional courts system to be consistent with the Constitution To give full recognition of the traditional justice system as part of the legal system To lay basis for legislation governing the Traditional Courts to replace the Black Administration Act, 1929

3 The general thrust of the Policy Framework Seeks to preserve the traditional value system which are founded on - restorative and reconciliatory justice - customary law and practices - community participation Emphasis is on the system than court structures & formal procedures

4 Policy Framework It compliments the judicial system by diverting less serious disputes and offences out of the mainstream courts to handled speedily through ADR It recognises different levels of conflict resolution with family/community structures – it recognise role of Family, Headmen/women & family heads and community leaders It standardise the traditional court system across the Republic to create uniformity and certainty

5 Key provisions of the Traditional Courts Bill Feature of the t/courts Definition relate to section 34 tribunal than court envisaged in section 35 of Constitution – a forum of community elders (kgotla, inkundla); no legal representation ((s9(2)(b)) – but recognise form of representation allowed under customary law; Conflict of laws (system applying in the local community, or that close to the issues) (s9(4)

6 Key provisions of the Traditional Courts Bill Designation (s4) Ministerial designation for Kings, Queens & senior traditional leaders Designation necessary for training and accountability Designation will be in respect of traditional leaders recognised by President/Premier

7 Key provisions … Upholding constitutional values (s9): Equal participation by and protection of women, children & vulnerable members of community; Rules of natural justice apply

8 Key provisions … Training: Undergoing a prescribed training course is a requirement for designation (s4(5) & (6) Regulations to prescribe training course and content of the rtaining(s21(1) Traditional leader may be exempted from undergoing training Human Rights and social context training to be part of the training course

9 Key provisions … Jurisdiction Trad Courts to hear disputes of people residing within traditional communities as defined by Premier Or where the cause of action has arisen within the area of jurisdiction of a traditional community regardless of race, ethnicity

10 Key provisions … Criminal & civil jurisdiction: (s5 &6) to deal with less serious cases which do not warrant incarceration as listed in the Schedule including - petty theft/malicious damage to property -assault common/defamation/strayed animal); civil to have monetary ceiling & exclude DVA and nullity of marriages

11 Key provisions … Sanctions (s10): compensatory rather than punitive; reconciliatory/self imposed orders/community service sanction (examples given) - Increased amount of fine (the figure of R2 000 repeated) - No corporal punishment or imprisonment

12 Key provisions … Diversion (s19): by the mainstream court where diversion is necessary; diversion aimed at restorative justice; relate to a criminal matter that is dealt by mag court by diverted to TradC for implement restorative programme

13 Key provisions … Appeal (s13): Decision of traditional courts final, save in exceptional cases where decisions may be referred to local Magistrates Courts for review Appeal lies where orders are not in keeping with the need to promote restorative justice

14 Key provisions … Administrative Support by the Dept (s17) Infrastructure support not mandate of DoJ&CD, but collective govt responsibility clerks to be assigned to support traditional courts Function could include - service of notices, record keeping, correspondence in relation to referrals & diversion

15 Status of the Bill The Bill has been introduced, Public Hearings conducted by the National Assembly Concerns raised by civil society in relation to: - Bill perceived to give more powers to t/leaders who tend to abuse them - Concerns the Bill does not provide adequate safeguards for equality and protection against abuse of women

16 Status of the Traditional Courts Bill - Bill perceived to allow forced labour through community sanctions

17 Approach of Parliament - Task Team met severally to address the concerns - Public hearings to be held jointly by NA and NCOP in all provinces as part of public participation - Awareness campaigns to precede public hearings to empower communities ahead of hearings

18 Work in progress by the Dept … Dept is looking at capacity of the courts where admin support will be provided Regulations are being drafted with anticipated completion by Dec 09 Training Course will be informed by the content of Regulation and intended for completion by March 2010

19 Work in progress by the Dept … Regulations would be published simultaneously with the enactment of the Bill Training implementation will commence from 01 April 2010 Designation of traditional leaders will take place after commencement of the Act

20 Thank you Questions & Answers