OP-ED: The Traditional Courts Bill will enable concentration of power in one individual – a traditional leader

A forerunner to the Traditional Courts Bill 2017 was introduced in the National Assembly in 2008, but was withdrawn in 2011 as a result of public criticism. The same text was then again tabled in the National Council of Provinces in 2012. In public hearings held by the relevant Select Committee in the NCOP, there were widely divergent views and strong opposition . In light of the vehement opposition, the Select Committee decided that it was too hot to handle and did not proceed with the Bill.

theft, malicious damage to property, burglary and receiving stolen property, all of which are subject to the value in question not exceeding R15,000;initiation, customary law marriages, custody/guardianship of minor children, succession and inheritance and customary law benefits; The Bill explicitly states that traditional courts function in accordance with customary law, but subject to the Constitution. Specific reference is made of the need to ensure that its proceedings require full and equal participation by women and that vulnerable persons are treated in an appropriate manner .

an order directing that the matter be submitted to the national prosecuting authority for the possible institution of criminal proceedings; and The Constitution makes it very clear that customary law is subject to the Constitution itself. If there is a conflict between the Constitution and customary law, the Constitution therefore prevails. At first sight, this may seem to settle the issue, but the practical relationship between the Constitution and customary law is far more complex.

Another problematic issue is the consensual nature of customary law. Much has been published on this aspect. For example, “customary law is a system based on voluntary affiliation legitimised from the bottom up”

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