News agency, Cape Town, South Africa
Sunday January 20th 2019

Traditional Courts Bill unconstitutional – Xingwana

20.09.2012

The controversial Traditional Courts Bill was slammed by Minister of Women, Children and People with Disabilities Lulu Xingwana during public hearings in Parliament today.

Giving her input on the Bill before the select committee on Security and Constitutional Development, Xingwana said the Bill was unconstitutional and if passed in its current form would oppress and discriminate against women and children, particularly those in rural areas falling under the auspices of traditional courts.

Critics of the Bill fear it gives patriarchal traditional courts enormous power to undermine the Constitutional rights of women and children.

Xingwana said while she supported traditional courts, women should have 50 percent representation in them and women should be allowed to speak for themselves if they have a case to answer.

She said the Bill in its current form would entrench discrimination against women, encourage the murder of gays and lesbians as well as legitimise some “illegitimate chiefs”.

Xingwana said the Bill, which was rejected by the Portfolio Committee on Justice and Constitutional Development in 2008 on the grounds that it was unconstitutional, had not been tabled before the Cabinet since then.

She said it should be withdrawn and drafted anew taking into account the full participation of rural people who would be affected if it were to be passed into law.

Citing a memorandum from the Department of Justice and Constitutional Development, she said that department had admitted consultation had only taken place with the National House of Traditional leaders.

Xingwana’s stance was welcomed by several activists, who in their submissions, had strongly opposed the Bill and requested that it should be scrapped.

Asked if the Bill could be “panel beaten” by the committee instead of complete withdrawal, she said she had no problem with “panel beating” but “it should be complete panel beating”.

Her comments on the Bill was in direct opposition to Justice and Constitutional Development Minister Jeff Radebe who seeks to have the Bill passed into law.

Thandi Orleyn director at Peotona, a company representing women in business, said the Bill was on a collision course with the Constitution as it was flawed and gave chiefs too much power, which could be abused.

She said chiefs should derive power from the people and not the President.

Orleyn who is also a lawyer, argued there was little the committee could do to improve the Bill as the problem resided with the Department of Justice and Constitutional Development having mooted it.

Thandi said chiefs were ill-trained to deal with issues of theft, damage to property, assault and crimen injuria.

Among stories of alleged abuse of power told to the committee this week were that some chiefs were taxing their subjects.

For example, the taxation could take the form of dog or cattle tax as well as taxing people for cutting down trees.

William Mnyani from Ekuthaleni in KwaZulu Natal told of a chief in his area who forced all the villagers in the community to shave their heads after he lost his father.

Mnyani said such practices were alien to their culture and were an abuse of power. – Francis Hweshe

Tags: Department of Justice and Constitutional Development, Lulu Xingwana, National House of Traditional Leaders, Peotona, Thandi Orleyn, William Mnyani

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