National Assembly adopts Traditional Courts Bill

12 March 2019

The Office of the ANC Chief Whip welcomes the National Assembly’s adoption of the Traditional Courts Bill earlier today.

The Traditional Courts Bill [B1-2017] is aimed at replacing the current legislative framework and the manner in which disputes are resolved in terms of customary law providing for a uniform and legislative framework for the structure and functioning of traditional courts, in line with the values and imperatives of the Constitution.

The first Traditional Courts Bill was introduced in 2008 and again in 2012. Both were met with much criticism. The current Bill was revised to address the concerns both from Traditional Leadership and government and to ensure that any institution is in line with the Constitution.

One of the main issues of contention in the 2017 Bill was the opt-out clause. The consequence of this clause would be that a person would have the option to opt-out of the traditional court system, and not subject themselves to the traditional court system and have their case heard before a magistrate’s court. There was concern that this relegates customary law and erodes the legitimacy of the traditional court system. On the other hand, it was argued that, without this clause, a person’s right to access courts in terms of Section 34 of the Constitution would be denied. The Bill as adopted today includes an appeals clause to a Magistrates Court.

The Bill encourages the values of evolving customary law and the role of traditional courts in terms of customary law, and affirms Traditional Courts as legitimate courts like other courts throughout the Republic. Furthermore, the Bill ensures the protection of the rights of women and members of the LGBTIQ+ community and also encourages the participation of women in traditional courts. The protection of women’s rights is something the ANC has consistently emphasised.

This Bill is progressive in that it gives due regard to an important instrument of justice, in line with the Constitution. It promotes access to justice and ensures presiding officers – traditional leaders, magistrates and judges alike act in accordance with the Constitution.

As a Section 76 Bill, the Bill will be sent to the National Council of Provinces for concurrence. Members of the public will therefore have another opportunity to engage with the Bill in the NCOP.

Issued by the Office of the ANC Chief Whip, Comrade Jackson Mthembu.


Nonceba Mhlauli