SA Crime Quarterly no 35 • March 2011 3

The TraditionalCourts Bill

Sindiso Mnisi Weeks

sindiso.mnisi@uct.ac.za

This article introduces the Traditional Courts Bill (B15-2008). The Bill has caused controversy, anddrawn criticism from rural communities and civil society. Key to the concerns raised was the flawedconsultative process that the Department of Justice and Constitutional Development followed in bringingthe Bill before parliament. In addition, substantive concerns raised about the Bill relate to theimplications its provisions will likely have for rural citizens. The article discusses a number of majorconcerns that have been raised against the Bill and concludes with a brief assessment of the Bill in light ofthe Constitutional Court's decision in Tongoane and Others v National Minister for Agriculture andLand Affairs and Others.

In December 2009, the king of the amaThembu inthe Eastern Cape, Buyelekhaya Dalindyebo, wassentenced to 15 years' imprisonment for crimescommitted against his subjects in the formerTranskei in 1995. The conviction gainedprominence in the media in January 2010 when,in response to Dalindyebo's case, the amaThembutribe served official notice on the government thatit was seceding from South Africa and, as itclaimed, taking its due 60% of South Africa'sterritory with it. Of greater interest with regard tothe Traditional Courts Bill (B15-2008)(TCB),though, is the criminal case that was heard in theMthatha High Court, where Dalindyebo wasfound guilty of arson, kidnapping, defeating theends of justice, assault with intent to do grievousbodily harm and culpable homicide.

Dalindyebo was charged with these and othercrimes that he had allegedly committed against his

subjects when they failed to make amends foroffences that they had apparently committed, andfor which punishment had been imposed by theking. Among the alleged offences committed byhis subjects were three notable cases. The firstaccused was found guilty by the king ofpermitting his goats to wander onto the king'sland. He was fined R1 200. When he failed to payhis fine in full, the king instructed that hisfamily's belongings be removed and set their fourrondavels, livestock and kraal alight. Theoffender's wife and children were taken and heldcaptive at the king's home until the followingafternoon as leverage against the outstanding fine.The accused was ordered to leave the king's areaof jurisdiction.

The second accused was allegedly guilty ofmurder and thus fined six cows. This accusedargued that he did not pay his fine because he hadalready been charged with the same offence in themagistrate's court and the matter was still underthat court's consideration. Yet his home andbelongings suffered the same fate as those of thefirst accused. He also claimed that he was forcibly

* Senior Researcher, Law, Race and Gender Research Unit and Senior Lecturer in African Customary Law, Facultyof Law, University of Cape Town.

Controversy around process,substance and implications

of the crimes committed by Dalindyebo againsthis people, if not necessarily made lawful by theTCB, would at least have been more difficult toprosecute.

In the case against Dalindyebo, Judge SytzeAlkema was able to find, in terms of section 26(3)of the Constitution, that '[n]o one may be evictedfrom their home, or have their home demolished,without an order of court made after consideringall the relevant circumstances.' Yet, if the TCB hadexisted, Dalindyebo's decision as presiding officerof a traditional court would have had the samestatus as a judgment in the magistrate's court. Thiswould have required his people – who would havehad limited grounds of appeal, according to theTCB, and minimal financial resources available tothem – to challenge his decisions in the highercourts. This example leaves one wondering whatkind of justice ordinary people, who come beforesuch traditional leaders under the TCB, couldtruly have.

Customary courts form an important part of theinformal justice system of South Africa. They canprovide dispute resolution and justice, bothaccessibly and economically, to nearly 17 millionSouth Africans.2 Yet they represent manydifficulties, from inadequate resources rightthrough to dysfunctionality, corruption andabuse.3 Dalindyebo's 'customary justice'exemplifies the worst kinds of abuses possible incustomary courts. It is by no means typical. Infact, the variability between the practices andsuccesses of customary courts – not only betweenprovinces but sometimes within the same area – isone of their most notable traits.4 Hence theimportance of government in either aiding orhindering their improvement.

The Traditional Courts Bill was intended toresolve the problems with the courts and bringthem in line with the Constitution, as well asfacilitate their cooperation with the state courts.5 Itwould replace the remaining sections of thenotorious Black Administration Act (38 of 1927)(BAA)6 – namely, sections 12 and 20 – withlegislation that would reflect the new era ofdemocracy and primacy of rights such as equalityand dignity.7 It was also meant to give respect to

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delivered to the king by members of thecommunity, at the king's behest, and detained.

The third group of accused were three young menaccused of rape, housebreaking and theft. Theseyoung men were arrested, stripped naked andbeaten with sjamboks by the king who, when hegot tired, was relieved by the persons who hadassisted him in capturing the boys. One other boywas said to have only participated remotely in thealleged crimes. He was captured by communitymembers who, before delivering him to the king,beat him in the same way they had seen the kingbeating the other three. This beating resulted inthe boy's death. The king subsequently fined thedeceased boy's father 15 cows for the boy's allegedoffences.

In his criminal defence, Dalindyebo argued that hewas enforcing law and order. Thus, presumably, hewas simply exercising his authority as king. Thisauthority is confirmed by section 28(1) of theTraditional Leadership and GovernanceFramework Act (41 of 2003)(TLGFA) andembraced by the definition of traditional leader insections 1 and 4 of the TCB. The territorial basisof that jurisdiction and authority is also confirmedby the TLGFA in section 28(3) and adopted by theTCB. In terms of the TCB, even those individualsand sub-groups who resisted the imposition of(illegitimate) traditional authorities by theapartheid government are now subjected to them.

Plainly put, if the TCB had been in operation atthe time it would have lent statutory authority tosome of Dalindyebo's actions. In terms of theTCB, anyone within the traditional leader'sjurisdiction may be ordered to come before him(as presiding officer), where s/he may be fined andstripped of customary entitlements. As it was,Dalindyebo claimed that the fine against the firstaccused was a fine of one beast for disobeying thecourt. As will be seen in the detail set out below,the TCB outlaws banishment as a sanction in onlycriminal, and not civil, cases. It also permits thedenial of customary entitlements as a punishment.Though the TCB does not specifically say this,customary entitlements would ordinarily beunderstood to include land rights andmembership of the community.1 Thus, a number

the lived realities of the many poor, rural SouthAfricans who observe customary law,8 as well asgive expression to the customary law that is livedby them on the ground,9 as tempered only by theConstitution. It does not accomplish these things.

This article introduces readers to the TraditionalCourts Bill: how it came into being and what itsays and means (both literally and in practice). Itfocuses on five major points of controversyaround the TCB: (i) inadequate consultation withthe rural public, especially women, in the draftingprocess, (ii) the recognition and constitution ofcustomary courts, (iii) the courts' subject-matterjurisdiction, the exclusion of legal representationand the courts' powers of sanction, (iv) the courts'territorial jurisdiction and individuals' inability tochoose their forum, and (v) terms specificallyaffecting the rights and security of women.

The article concludes with a summary of concernsraised by the Constitutional Court in the recentdecision of Tongoane and Others v NationalMinister for Agriculture and Land Affairs andOthers,10 which declared the Communal LandRights Act (11 of 2004)(CLARA) 'unconstitutionalin its entirety'.11 It highlights that the concerns theCourt raised should have a bearing on how theTraditional Courts Bill is assessed forconstitutionality.

CONSULTATION AND DRAFTINGPROCESS

The Department of Justice and ConstitutionalDevelopment's consultation process in draftingthe TCB is controversial because no ordinarymembers of the public were included in thisprocess. However, traditional leaders at nationaland provincial level were consulted, with theNational House of Traditional Leaders playing theprime role of consultant in the drafting of thePolicy Framework and Bill. It is therefore nowonder that when the Bill was introduced inparliament in May 2008 there was an outcry fromordinary rural people and civil societyorganisations about the fact that the rural publichad not been consulted. There were alsosubstantive objections to the Bill. Despite this,after the Bill had lapsed with the change of

government in May 2009, the same (unchanged)Bill was re-introduced to parliament in July 2009.The stakeholder task group that had beenestablished by the previous parliamentary PortfolioCommittee on Justice and ConstitutionalDevelopment to investigate the possibility ofholding provincial consultations had also ceased toexist, and the new committee made no furthermention of this.

Public consultations have yet to be held in ruralareas. Because the TCB deals with customary law,it has to be passed by means of the procedure setout in section 76 of the Constitution. As discussedby the Constitutional Court in Tongoane, thisnecessitates provincial involvement and publicparticipation in law making. The committee has,since September 2009, expressly acknowledged thatthere are constitutionality issues with the Bill. Ithas delayed further consultations, rather proposingthat it might possibly hold these jointly with theSelect Committee of the National Council ofProvinces. There has to date been no indicationfrom the Portfolio Committee on Justice andConstitutional Development of plans to hold suchprovincial consultations, or of a timeline for theseconsultations. In the interim, the application of therelevant provisions of the BAA was extended till 30December 2012. The motivation for extension ofthe BAA, as contained in a notice to the Speaker ofParliament by the Chief Whip of the ANC, is toprovide 'for…obtaining greater public input andconsensus on contentious issues and allowingtraditional courts to continue functioning legally'.

Women and children make up most ruralconstituencies, and often find themselves in avulnerable position in relation to male-dominatedtraditional institutions. As discussed below, womenface particular problems in customary courts andare therefore the people most adversely affected bythe Bill's failings. Failure to consult them is one ofthe problems with the Bill.

The Traditional Courts Bill is not the first attemptto address the problems customary courts bothface, and raise. The South African Law ReformCommission (SALRC) made an earlier attemptthat was rejected by the Department of Justice andConstitutional Development. The department

SA Crime Quarterly no 35 • March 2011 5

instead developed a completely different (andoften contrary) model of regulation for thecourts.12 Yet it was never clear why the SALRC Billhad been abandoned and the flawed TCB put inits place, especially given the comparative extentof consultation by the SALRC. Instead ofbuilding on the SALRC's work, the departmentundertook to hold its own consultations, anddraft what appears to be almost entirely a new Billthat is particularly weak in the protection ofwomen's right to involvement in customarycourts.13

RECOGNITION ANDCONSTITUTION OF COURTS

The TCB defines a traditional court, in s 1, as 'acourt established as part of the traditional justicesystem which (a) functions in terms of customarylaw and custom; and (b) is presided over by aking, queen, senior traditional leader … andwhich includes a forum of community elders whomeet to resolve any dispute which has arisen.' TheBill goes on to give no role to the 'community ofelders' but only speaks of the senior traditionalleader as constituting the court in his role aspresiding officer. It also assigns no explicit role tothe potentially more gender-diverse traditionalTLGFA.

The only possible role it gives to headmen andheadwomen, in s 4(4) is that of having powerdelegated to them by the senior traditional leader.This point is important, because it means that theTCB does not recognise headmen's courts. TheBill only recognises the chiefs' courts at the levelof the 'traditional community', and a 'traditionalcommunity' is questionably deemed by section28(3) of the TLGFA to be any previouslyrecognised or invented 'tribe'. The Bill thus failsto recognise the full range of traditional courtsthat currently operate – family, clan, ward, villagecouncils and meetings. Traditional leadersthemselves say that this failure to (specifically)recognise lower level courts is inconsistent withcustomary law.14

It is important that the TCB makes no provisionfor the involvement of ordinary members of thecommunity, who would ordinarily participate in

the hearing and resolution of traditional courtcases. Given that senior traditional leaders arepredominantly male, this means that women areunlikely to be able to participate in disputeresolution and, hence, unable to contribute to thedevelopment of living customary law.

SUBJECT-MATTER JURISDICTION,LEGAL REPRESENTATION ANDSANCTIONS

The Bill grants civil and criminal jurisdiction totraditional courts. The civil matters excludedfrom the jurisdiction of the courts areconstitutional matters, divorce and separation,custody and guardianship of children, wills andproperty of a value that is yet to be specified, orfalling into yet unspecified categories.15 Anannexure of crimes that the courts may try isincluded with the Bill. These are theft (includingthat of stock of a value to be limited by theMinister), malicious injury to property (also of anas yet uncapped amount), regular assault, andcrimen injuria (of a value that is yet to belimited).16 By implication, therefore, severe crimessuch as murder, rape and assault with grievousbodily harm are excluded from these courts'jurisdiction.

Section 9(3)(a) of the TCB bars people appearingbefore traditional courts from being representedby lawyers. This arguably puts it in conflict withthe Constitution's protection of the right torepresentation of criminally accused persons.17

However, the counter argument that introducinglawyers to traditional courts would change theirnature and render them expensive for users isworth noting. The decision to exclude lawyersfrom traditional courts is alarming because of thepowers of sanction given to the presiding officerby the Bill, as well as the fact that people do nothave the option of opting out of a court, asdiscussed in the next section.

Certain of the sanctions are controversial becauseof the nature of the far-reaching powers given totraditional leaders acting as presiding officers. Forexample, according to clause 10(2)(g), thetraditional court may issue:

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SA Crime Quarterly no 35 • March 2011 7

an order that one of the parties to the dispute,both parties or any other person performssome form of service without remuneration forthe benefit of the community under thesupervision or control of a specified person orgroup of persons identified by the traditionalcourt.

According to this provision, even a person who isnot a party to the dispute before the court can beordered to provide 'free labour'. In light of thefact that most people in the rural areas arewomen and children, who already bear the bruntof manual labour, this work is likely to fall ontheir shoulders. Moreover, the persons most likelyto benefit from the 'free labour' are the traditionalleaders who claim that it is customary for their'subjects' to provide labour in the 'fields of therealm' and royal kraal.18

The TCB significantly limits the bases uponwhich rural people can apply for appeal andreview of traditional court judgments andprocedures.19 Startlingly, the powerful sanction insection 10(2)(g) as well as 'any other order thatthe traditional court may deem appropriate'20 arenot appealable, if imposed.21

Section 10(2)(i) authorises traditional courts todeprive defendants of entitlements that accrue interms of customary law and custom. Customaryaccess to land is one such entitlement;community membership is another. Even thoughsection 10(1) limits the traditional court's right toimpose banishment as punishment in criminalmatters, there is no such limitation in respect ofcivil disputes.

When it comes to ensuring enforcement of thesesanctions, the Bill requires investigation of thereasons for failure to comply and permits that:

If it is found that the failure is due to fault onthe part of the person, the traditional courtmay deal with the matter in accordance withcustomary law and custom and may imposefurther sanctions for such non-compliance.22

This provision brings Dalindyebo's cases againstthe first and second accused to mind as he most

severely abused this very power. Unfortunately,given that the TCB only speaks of 'any otherorder that the traditional court may deemappropriate' as needing to be 'consistent with theprovisions of this Act',23 further abuse is not ruledout.

TERRITORIAL JURISDICTION ANDCHOICE OF FORUM (THE ABILITYTO OPT OUT)

As previously mentioned, section 28(3) of theTLGFA deems 'tribes' invented and recognisedunder the Black Authorities Act 68 of 1951 to be'traditional communities' and recognises them asthe basic unit of administration in rural areas.The TCB entrenches these former apartheidhomeland boundaries established by the BlackAuthorities Act and perpetuated by the TLGFA.That is, the jurisdiction of traditional courts isdetermined by these territorial boundaries.Consequently, people will not have theopportunity to choose whether they want to fallunder a particular traditional leader's authorityand the laws he is able to make and enforce interms of the Bill. This authority and law will beimposed on rural communities, even those whoare contesting existing apartheid boundaries andimposed cultural affiliations.

Section 20(c) of the TCB specifically outlawssuch choice. It prescribes that anyone who

having received a notice to attend courtproceedings, without sufficient cause fails toattend at the time and place specified in thenotice, or fails to remain in attendance untilthe conclusion of the proceedings in questionor until excused from further attendance by thepresiding officer, is guilty of an offence andliable on conviction to a fine.

Currently, under the BAA, opting out is possible;the TCB therefore changes current law andpractice by outlawing opting out. The Bill alsohereby violates the consensual character ofcustomary law, as well as the constitutionaldemocratic principle that would at least allowpeople to choose their leaders.

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MATTERS AFFECTING WOMEN

There are still many places where women are notallowed to appear before, or address customarycourts directly – instead they must be representedby male relatives. This puts women at adisadvantage if they are without adult malerelatives, or if their relatives are the ones withwhom they have the dispute. This is so especiallywhen the matter before the court concerns amarital or family dispute, or the status of thewomen's rights vis-à-vis those of male relatives.Widows are at an additional disadvantage becausewomen in mourning face particular restrictionsin relation to entering court spaces. A well-known problem is that of the eviction of widows,arising out of disputes following the deaths oftheir husbands.

The Bill does not address this problem. Rather, itenables the continuation of gender-discrimina-tory practices in this regard. Section 9(3)(b)reads:

A party to proceedings before a traditionalcourt may be represented by his or her wife orhusband, family member, neighbour ormember of the community, in accordance withcustomary law and custom.

The qualification at the end undercuts thesupposed equitability of the former part of theprovision. This section is therefore an example offormal equality that actually masks substantiveinequality, because it is unheard of for wives torepresent their husbands in customary courts. Interms of most 'customary law and custom'women must be represented by male relatives.

The TCB says, in clause 9(2), that the presidingofficer must ensure that the rights contained inthe Bill of Rights are observed and respected, andin particular 'that women are afforded full andequal participation in the proceedings, as menare'. This section must be read in light of the fact,explained above, that the Bill does not make anyprovision for the role of councillors in traditionalcourts. Therefore, the provision is limited towomen as litigants and does not encourage

increased women's representation in theconstitution of traditional courts.

Moreover, the TCB does not provide specificprotections for women to address the particularproblems that they often face. It puts the onus onthe senior traditional leader to ensure theparticipation of women. This means that ruralwomen may have to challenge the actions of thesenior traditional leader to invoke their rights – adaunting task, given power relations in rural areas.This would also be difficult because of the Bill'slimitations on review, which is allowed only on thebasis that a traditional court acted outside thescope of the Act, lacked jurisdiction, proceededwith gross irregularity and was biased or acted withmalice.24

A number of women's groups argued to the SALRCthat the composition of traditional courts and theirpatriarchal character tend to favour male interestsand render women particularly vulnerable. Inconsideration of this, the 1999 submission by theCommission on Gender Equality, Centre forApplied Legal Studies and National LandCommittee to the SALRC recommended excludingall matters relating to the status of women from thejurisdiction of traditional courts, for these reasons.They specifically recommended that mattersrelating to the following be excluded:

• violence against women and children (including rape, attempted rape, indecentassault, domestic violence and child abuse)

• guardianship and maintenance (including determination of paternity); and

• marriage (both civil and customary)25

The TCB specifically excludes divorce andseparation, custody and guardianship of children,wills and property of not-yet-specified value andfalling into categories that are yet to be specified. Itdoes not expressly exclude domestic violence andother forms of violence against women andchildren.

CONCLUSION

In its 2003 report, the SALRC found thatcustomary courts are very important and serve as

SA Crime Quarterly no 35 • March 2011 9

a valuable resource in poor, rural communitieswhere people would otherwise have no access tojustice. This is a finding borne out by ourresearch.26 The SALRC raised the concern,however, that these courts did not always operateoptimally and needed to be made more functionaland accountable. They also needed to be assistedto give better effect to the rights and justicevisions articulated in the Constitution.

The general sentiments expressed at the NationalWorkshop on the Traditional Courts Bill held inJohannesburg in November 2009, involving amultitude of civil society organisations andcommunity representatives, captures well theproblems with the TCB and legislation of its kind:

People were generally horrified at the thoughtthat some of their chiefs – some of whom theysaid squandered community resources andfined people excessively for their own benefit –would be given the powers of sanction that theBill permits. They told of the limitations thatthey incur to their constitutional rights atpresent, which they felt would only befurthered by the Traditional Courts Bill. Theywere of the view that traditional leaders' powersshould be reduced, not increased, as theyperceived the legislation presently sought to do.Generally speaking, therefore, the perceivedaugmentation of autocratic chiefly powers bythe Bill was thought to breed incompetence andmaintain corrupt chiefs' attitudes of impunitybecause they did not then need to beaccountable to their communities in any way.… People had earlier raised the fact that mostchiefs act independently without consultingwith their communities. …

Some questioned the motives for thepromulgation of the Bill on the grounds thatthey questioned the very need for this Bill. Oneasked, would this Bill fix what appeared to besocial problems on the ground? Most weremore than skeptical that it would, feeling that itwould only exacerbate them.27

These issues of equal participation by allcommunity members, limited powers for

traditional leaders and accountability of officialsof traditional institutions, as well as the primary'social problems on the ground' of patriarchy andother power imbalances between traditionalleaders and ordinary people, are not addressed bythe TCB. As this article argues, the TCB hassevere flaws that will entrench corrupt, abusiveand unaccountable traditional leaders – and theDalindyebo saga provides a tragic illustration ofthe potential consequences.

Moreover, while the Bill presumes to conform tothe Constitution, if passed as it stands currently, itwould have to be found to offend constitutionalentitlements articulated by the ConstitutionalCourt in Tongoane.

• It builds upon the foundations of the Black Authorities Act of 1951 and repeats its errors(in a manner akin to that rejected by theConstitutional Court vis-à-vis CLARA).Rather than reject these territorial andjurisdictional boundaries, it reaffirms them.

• The department evidently failed to involve extensive public consultation in theformulation of the Bill.

• Respect for public participation in the development of customary law locally and byordinary people is a constitutional imperativethat the Bill does not observe.

With regard to the last principle, theConstitutional Court has declared previously:

As has been repeatedly emphasised by this andother courts, customary law is by its nature aconstantly evolving system. Under pre-democratic colonial and apartheid regimes, thisdevelopment was frustrated and customary lawstagnated. This stagnation should not continue,and the free development by communities oftheir own laws to meet the needs of a rapidlychanging society must be respected andfacilitated.28 (emphasis added)

This does not just mean that the participation ofcommunity members in the development ofcustomary law (and thus in the customary courts)would likely be protected under the Constitution.It also means that developments to include

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women's participation in the courts would beprotected. This would be so, regardless of whetherthey occurred under living law or explicitly underthe Constitution.

The Tongoane decision was based on proceduralconcerns about insufficient consultation onCLARA, following the use of incorrect legislativeprocedures in Parliament. However, this articlehas shown that, while there are proceduralproblems with the TCB, there are moresubstantive problems with the Bill that shouldpreclude Parliament from passing it.

The model of regulation that the TCB adopts isirredeemably flawed. New legislation is necessaryto replace it. Ideally, such legislation would relyon an entirely different framework for theregulation of customary courts. This replacementlegislation should focus on encouraging thedemocratic potential, progressive developmentsand general strengths of living customary law,while holding it and traditional authorities to firmaccount in terms of the Constitution wherecustomary law is weak, or the leaders corrupt.

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NOTES

1. For discussion on the social basis of land rights in terms of customary law see B Cousins, Characterising“Communal” Tenure: Nested Systems and FlexibleBoundaries in A Claassens & B Cousins (eds.), Land,Power & Custom: Controversies Generated by SouthAfrica's Communal Land Rights Act, Cape Town, UCTPress, 2008, 109-137.

2. An estimated 16,5 million South Africans live in the former homelands, according to analysis by DebbieBudlender, as cited in Claassens & Cousins (eds.),Land, Power & Custom, 4, fn 2.

3. Evidence of these deficiencies can be found in submissions made to the Portfolio Committee onJustice and Constitutional Development on theTraditional Courts Bill (B15-2008) in May 2008 and tothe Portfolio Committee on Rural Development andLand Reform on the Black Authorities Act Repeal Bill(B9-2010) in July 2010.

4. Ibid.5. See the headnote and Preamble of the TCB.6. See the Black Administration Act and Amendment of

Certain Laws Act 28 of 2005 and the Draft Repeal ofthe Black Administration Act and Amendment ofCertain Laws Amendment Bill, 2010 (B37-2010).

7. See Preamble, and sections 2 and 3 of the TCB.8. See headnote, Preamble, and sections 2 and 3 of the

TCB. Customary law is protected by sections 30, 31,39(2), 211(3) of the Constitution, and customaryinstitutions recognised in section 211(1) and (2).

9. Alexkor Ltd and Another v the Richtersveld Community and Others 2004 (5) SA 460 (CC), Bhe and Others vMagistrate, Khayelitsha and Others; Shibi v Sithole andOthers 2005 (1) SA 580 (CC), Gumede v President ofthe Republic of South Africa and Others 2009 (3) BCLR243 (CC) and Shilubana and Others v Nwamitwa 2009(2) SA 66 (CC) all acknowledge the 'customary law'referred to in the Constitution as that which is livedand developed through practice by the people whoobserve it.

10. 2010 (6) SA 214 (CC).11. Ibid at paras 110, 116.12. The SALRC elected to use the reference 'customary

courts' as most popular among the respondents andmost commonly associated with customary law (whichis what the courts would administer), and as mostwidely used in the rest of the continent.

13. See PMG report, http://www.pmg.org.za/report/ 20090901-department-justice-constitutional-development-traditional-courts-bill where thedepartment presented a briefing on the TCB to thenew Portfolio Committee on Justice andConstitutional Development in September 2009.

14. South African Law Reform Commission Report on Traditional Courts and the Judicial Function ofTraditional Leaders (Project 90), January 2003, 9. Alsosee Presentation by Nkosi Phathekile Holomisa (A! Dilizintaba), MP and Contralesa President at"Workshop on Cultural Heritage: The Role ofTraditional Leaders in the Preservation and Promotionof Intangible Heritage", UNESCO Convention on theSafeguarding of Intangible Cultural Heritage, 26-27July 2007, in Pretoria. Available at contralesa.org/speeches.html (accessed on 15 March 2010).

15. Section 5(2) of TCB.16. Schedule 1 of TCB.17. Section 35(3)(f ).18. See chiefs' affidavits in the Tongoane case.19. Sections 13 and 14 of TCB.20. Section 10(2)(l) of the TCB. 21. Section 13(1) of the TCB.22. Section 11(2)(c) of the TCB.23. Section 10(2)(l) of the TCB.24. Section 14(1)(a)-(d) of the TCB.25. Section 3.4 of the CALS etc. 1999 Report.26. A Claassens & S Ngubane, Women, Land and Power:

The Impact of the Communal Land Rights Act, inClaassens & Cousins (eds.), Land, Power & Custom,173-5; A Claassens & S Mnisi, Rural WomenRedefining Land Rights in the Context of LivingCustomary Law, South African Journal on HumanRights 25, 2009, 491.

27. Substantive Report on National Community Workshop on Traditional Courts Bill, 11-12 November 2009 at 3,6 and 5.

28. Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) at para 45.