Democratic Alliance (DA) leader Helen Zille yesterday questioned the timing of the return to Parliament of the controversial Traditional Courts Bill, suggesting it was an attempt by President Jacob Zuma to secure the support of traditional leaders ahead of the next African National Congress (ANC) conference in December.

The bill, after being roundly condemned as unconstitutional in 2008, was withdrawn from Parliament but has now returned in its original form.

The bill seeks to legalise traditional courts and would grant them the power to adjudicate disputes and enforce punishment.

In recent weeks the bill has been the subject of public hearings in the provinces and has been condemned as destroying the gains made in women's rights under the new constitution in the past 18 years. Among those who have publicly opposed the bill are Women, Children and People with Disabilities Minister Lulu Xingwana, renowned activist Mamphela Ramphele and the ANC Women's League.

Addressing a news conference yesterday, Ms Zille said: "The timing of the legislation is questionable and may very well be construed as an attempt by President Zuma to buy political patronage in the run-up to the ANC's elective conference in Mangaung in December. Somewhat ironically, the Minister of Justice and Constitutional Development, Jeff Radebe , who tabled the bill, has himself now raised concerns over the controversial ... legislation."

She and DA parliamentary leader Lindiwe Mazibuko and MP Debbier Schafer said the bill reinforced the apartheid-era homelands mentality and was a "throwback to Bantustan boundaries into which more than 4-million people were forcibly removed under the infamous Black Authorities Act of 1951".

"It gives the senior traditional leaders the ability to make the law, adjudicate compliance and enforce sanctions. This opens the door for bias, subjectivity and abuse. There is not sufficient protection to the members of the traditional communities. This is clearly an unacceptable violation of the doctrine of separation of powers enshrined in our constitution and central to any democratic society," they said.

The three said the legislation was at odds with the bill of rights in the constitution.

"The DA believes that customary law should take into account the experiences of women and children specifically, as well as their rights to equality and to participate in the practice of their culture. Instead this bill recognises the participation of women in name only. Women in rural areas have always been discriminated against and the current bill provides another platform for this prejudice to continue.

"Customary law is a consensual system, yet this bill places people under the jurisdiction of a traditional court simply because they happen to live or be in a particular area. This violates the right to a cultural life of choice as entrenched in the constitution. Any legislation should at a minimum include an 'opt-in and opt-out clause' to provide for those who choose not to adhere to the traditional court and customary law system."

They said all South Africans had the right to have any dispute decided in a fair public hearing before a court or independent and impartial tribunal.

"Traditional leaders do not satisfy the criteria for independence or impartiality, exactly because they often make the law, interpret, adjudicate, enforce it and may often benefit from the penalties they impose."

Wyndham Hartley

Business Day