Wednesday 22 May

Released by the Alliance for Rural Democracy

Today many South Africans expected the National Council of Province’s Select Committee on Security and Constitutional Development to finally deliberate on the Traditional Courts Bill following the public hearings. This is what the Committee Chairperson, Mr. Tjetha Mofokeng, indicated would be done when the consultations were concluded in September. However, Mr. Mofokeng’s actions today have done serious damage, not only to the potential validity of whatever Bill is eventually rammed through Parliament, but also to the integrity of Parliament itself.

The stated purpose of today’s Committee meeting was to table its report of the public hearings. This did not happen. Instead, the Department of Justice and Constitutional Development (DOJ), on the invitation of the Committee Chairperson, presented its summary of the public hearings. The DOJ document only referred to two of the many submissions that were made at the public hearings in September. They were the submissions of the Department of Women, Children and People with Disabilities, and the South African Human Rights Commission.

The DOJ appears hell-bent on pushing this Bill through, even if it means being party to manipulation of the legislative process and undermining the rules of Parliament. If this was not the case, the DOJ would certainly have declined Mr. Mofokeng’s invitation, as this is no part of its function, and places the DOJ in a compromised position. Yet, instead, the DOJ seized the opportunity to reassert its own amendments to the Bill under the pretext of presenting a summary report of the submissions made by the public.

In a shocking move that flagrantly negates the participation of the public in the legislative process, Mr. Mofokeng stated that twenty of the twenty-two submissions the Committee had heard in Parliament were “irrelevant”. So irrelevant, in fact, that he instructed the DOJ to “disregard” them in preparing its summary of the recent public hearings. In Mr. Mofokeng’s view it is unnecessary for the Committee to note, let alone debate, the views of the many rural people who traveled to Parliament to make submissions opposing the Bill.

In response, some Committee members asked Mofokeng for clarity on the process, and for the summary of the hearings that is normally prepared by parliamentary researchers. They also queried why only two of the many submissions the Committee had heard were under discussion.

In response, Mr. Mofokeng dropped his bombshell: that he had personally instructed the DOJ to write the report, and that it was he, not the Committee, who had decided it was unnecessary to include any of the other submissions.

In reaction, one member pointed out that any account of the public hearings that fails to reflect the overwhelming opposition to the Bill presented to Parliament, would be inaccurate and could not qualify as a summary report of the process. Others members said that the accounts of abuse of power by traditional leaders described in submission after submission were deeply relevant, given that the Bill would exacerbate such realities and further restrict people’s ability to hold chiefs to account.

The Chairperson’s actions and attitudes toward the public hearings on the Bill are deeply insulting to the many rural people who traveled from afar to come to Parliament and put forward their views on the Bill. They proclaim that the public needn’t have bothered to make submissions as their views don’t even qualify to be part of the official record, let alone to be debated and considered by the Committee and provincial legislatures.

In May this year, under Mr. Mofokeng’s leadership, the Committee decided not to debate the provincial mandates on the Bill, many of which had rejected it. Instead it opted for yet another round of public hearings. Now that these further hearings have taken place – and overwhelming opposition to the Bill was voiced – Mr. Mofokeng has resorted to attempting to expunge these submissions from the public record and the legislative process itself.

The Constitutional Court has previously struck down laws on the basis that the legislative process did not adequately facilitate public participation. Section 72 of the Constitution specifically enjoins the NCOP to facilitate public involvement in law making. Human dignity, accountability, responsiveness and openness are founding principles of our Constitution, principles which Mr. Mofokeng’s leadership directly undermines.

Mr. Mofokeng was brazen in his approach today. What does that signal? It implies that he has the backing not just of the DOJ, but also of the Chairperson of the NCOP and the Speaker of the National Assembly. The time has come for these authorities to either distance themselves from Mofokeng’s approach, or to endorse it.

We, as the Alliance for Rural Democracy, call on the Chairperson of the NCOP and the Speaker of the National Assembly to indicate whether they consider Mr. Mofokeng’s actions to be consistent with his Oath of Office as a Member of Parliament – an oath to uphold the Constitution. Do they consider him a suitable person to oversee the legislative process of this Bill going forward?

If, as the Alliance believes, Mr. Mofokeng has failed in his duty, then Parliament should review his status as both Chairperson of the Select Committee and as a Member of Parliament itself.

Released on 24 October 2012

For more information contact:
Sizani Ngubane: 073 8405151
Nomboniso Gasa: 083 451 9321 or 083 7791435
Wilmien Wicomb: 078 9208366

The Alliance for Rural Democracy (ARD) is a cross-section of civil society organisations sharing a common concern about the detrimental effects that the Traditional Courts Bill will have on the rural constituencies they serve and support. The ARD includes the following organisations: Association for Rural Advancement (AFRA); Centre for Human Rights, University of Pretoria; Community Law Centre, University of the Western Cape (CLC);Corruption Watch; Co-operative Policy Alternative Centre (COPAC); Council for the Advancement of the South African Constitution (CASAC);Democratic Governance and Rights Unit, University of Cape Town (DGRU); Embrace Dignity Campaign; Empilisweni AIDS Education and Training Centre; Greater Rape Intervention Programme (GRIP);Institute for Justice and Reconciliation (IJR);Justice and Women (JAW); Land Access Movement of South Africa (LAMOSA);Law Race and Gender Research Unit, University of Cape Town (LRG); Lesbian and Gay Equality Project; Masimanyane Women’s Support Centre; Open Democracy Advice Centre (ODAC);Rural People’s Movement; Rural Women’s Movement; Section 27; Sonke Gender Justice; South African Constitutional Literacy and Service Initiative (CLASI); Students for Law and Social Justice (SLSJ); Thohoyandou Victim Empowerment Project (TVEP);Treatment Action Campaign (TAC);Triangle Project; Tshwaranang Legal Advocacy Centre (TLAC); Unemployed People’s Movement; Women’s Health Research Unit in the School of Public Health and Family Medicine, University of Cape Town; Women’s Legal Centre Trust. The Legal Resources Centre (LRC) acts as legal advisor to the Alliance.

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