December 02, 2020

Constitution and Traditional Courts Bill uneasy bedfellows

Discussions on the Traditional Courts Bill have been going around in the same circle for ten years, and what the law-makers are skirting, it would seem, is the Constitution itself; they cannot tramp over it, nor can they walk away from it.

The dilemma is that the Constitution has committed South Africa to defending traditional rights and customs, in respectful recognition and celebration of South Africa’s rich diversity. The problem is that in doing so, it has promised to defend traditional law, which amounts to a parallel legal system that sometimes gets uncomfortably close to breaching that very same Constitution.

What a pickle.

Perhaps the dilemma lies in the very roots of the proposed Bill, which emerged directly out of the Black Administration Act, one of those ghastly pieces of legislation that only colonialism could come up with and which laid the foundation of apartheid.

It effectively set in place racially bound geographic separation by decreeing that the Govenor-General could “banish a ‘native’ or ‘tribe’ from one area to another whenever he (it never was a she) deemed this ‘expedient or in the general public interest’. It created a separate legal system for the administration of African law in Black areas, and in so doing effectively moved the power of regulating African life from Parliament to the executive.

Perhaps the dilemma lies in the very roots of the proposed Bill, which emerged directly out of the Black Administration Act.

Signed into law in 1927, and amended regularly every few years, including most notably in 1952 by the inappropriately-named Blacks (Abolition of Passes and Co-ordination of Documents) Act 67, it was finally repealed by our democratic government in 2005.

Except that removing it from the statute books did not make it go away, and cannot do so for as long as those geographically designated areas with their own legal and leadership structures remain in place.

And/or until it is replaced by another piece of legislation, which is where proposed Bills like the Traditional Courts Bill come into the picture. At present in its place, there is now a legal gap.

That is what the Commission for Gender Equality (CGE) called it, and K Ahirudhra, Head: of the GCE’s Parliamentary and International Policy unit, warned that this gap poses a very real risk.

“It would be dangerous,” were his words, “because then traditional leaders would be left to their own devices and they could function with impunity. There would be no consequences for their conduct.”

Ahirudhra gave an impressive presentation to Parliament’s Women in the Presidency Committee in which he demonstrated how the Traditional Courts Bill should set the minds of sceptics at rest.

He said traditional law has to be aligned with the Constitution and the Bill of Rights. A judicial democracy cannot permit unregulated or even regulated practices that contravene the principles of the overriding law of the land.

Therefore if traditional law tramples on an individual’s rights, the high court will reserve judgement or set aside the finding of the traditional court. “That is the protective mechanism in this Bill.” He said. In fact, there are many such protective mechanisms in the Traditional Courts Bill.

Is this comforting to the woman, possibly a widow who has to find or have a man appointed to speak for her at the traditional court? Does she know that if she does not agree with the chief’s decision, for example to practise restorative justice by fining her some goats, she may take this case to the high court in the nearest city which has a high court? Would it help to know that if the chief retaliated by dispossessing her of her home and land, she could also take that to the high court?

“If they try to play this trick on the woman, their decision will be set aside,” said Ahirudhra. “All she needs to do is take it on review to a high court.”

It was at about this point that interjections began, all from women Committee members. Ms Bhengu-Kombe remarked that she was grateful to CGE for being on the ground and taking up the issue of traditional courts, but the questions came thick and fast and it was Ahirudhra’s turn to listen, which he did.

The first and most obvious point was - where would a rural woman finds the money to go to a high court. “This is not justice in my mind,” said Liezl Van der Merwe (IFP). The Bill offers remedial action, “but I just don’t see how it will work”.

“Let’s put it bluntly. The chief is the big dog. The woman is not allowed to attend the hearing. She will be seated at the extreme gate. They will then appoint a man to represent her. He knows nothing about her and neither does he care about the sentence. She will be robbed of her cattle or goats because that is the chief’s decision. And that decision will be taken without her understanding.

“As a woman in the rural areas I am not existing at all. We are saying just scrap that law, and [let us] fight for the rights of our people,” said Committee Chairperson Thandi Memela.

The Committee members appeared more weary than angry. They repeated that this Bill has come back eight times, and each time it has been rejected. What is going to make it work this time?

They expressed very clear preconditions: women who participate in traditional courts must only do so on a voluntary basis and they must be fully informed. All decisions must comply with the Constitution, and the point was made that if they are required to be represented by a man, that is itself discriminatory and therefore clearly in breach of the Constitution.

“They must not be allowed to use the excuse of culture and tradition to oppress women. How is the CGE addressing those things?” said Terri Stander (DA).

Examples were cited, personal stories were shared, and the Committee Chair allowed all to be aired:

What about a woman who is the first born child, but when her father dies she must defer to her younger brother, ask for his permission and accept that he makes decisions for her, asked Cynthia Majeke (UDM)?

What happens when the male head of the household passes away and that woman is sidelined while the family chooses who takes over, without even giving her a say, she said?

What of the women who are married according to customary law and who lose everything to their husband’s family when he dies? Or to his other wives, even if she, as the first wife, never gave him permission to take another wife? “The whole family is against you. You are alone, and you are forced to agree.”

If a woman wants land, she is not allowed to ask the chief for it. Someone must speak for her, maybe her son, sitting in chairs with the other men, while she must sit on the ground.

The CGE has heard this all before, and so has the Committee. Many times. They want the Bill to be taken to the rural areas for consultation where all should have a say, from the chief and his wife to the rest of the women and men of the community.

Ahirudhra reported that the CGE has visited four remote rural areas where they consulted men and women, chiefs and their wives, the disabled and “all vulnerable groups” about the relevance of the Bill. “Is it still appropriate to move forward with this Bill?”

He gave examples of where the Traditional Courts Bill would provide necessary checks and balances. It provides for officials to attend and observe proceedings and report back to the CGE, or even the Minister. There was talk of employing a Registrar, although this idea has come up against financial constraints.

Clerks of the court are already being employed in some traditional courts by local government to take minutes, make notes and generally support the women. There are also “convenors”, so called because they have no special legal training, who can act as representatives.

It all comes down to educating the community, and especially the women, about their rights. Ahirudhra and the Committee members agreed on this.

Ahirudhra said the important thing is that they must have the women’s backs – that too was agreed. “The women must know they can be represented, that the clerk of the court is there to protect them, and explain processes and procedures,” including the latest addition to the Bill which allows citizens to “opt out” if they choose to take their case to criminal courts.

“If they don’t have the women’s backs, they can be removed. Then these guys will learn,” said Ahirudhra.

Moira Levy

Additional information sourced from the Parliamentary Monitoring Group

Last modified on Tuesday, 27 March 2018 19:48

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Notes from the House is an independent online publication that tracks and monitors Parliament’s role in fulfilling its constitutional responsibilities to improve the lives of South African citizens. Published by Moira Levy with the support of the Claude Leon Foundation.

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