Proposed Traditional Courts Bill takes women’s rights back a decade

In a bid to satisfy traditional leaders, the government and parliament have been accused of ignoring the democratic rights of women and rural communities in envisaged traditional court legislation, and reneging on a promise to make it gender-friendly.

At least 11 years after the Traditional Courts Bill was first introduced, the legislation still left women at the mercy of traditional leaders, who were notorious for their lack of respect for equality, particularly pertaining to gender and sexual orientation.

Civil society bodies were concerned that even some gender representation agreed in the court’s composition and the sexual orientation issue were based on broad terms that bordered on being unconstitutional.

The department of co-operative governance and traditional affairs and the justice and correctional services portfolio committee were believed to have changed their minds due to pressure from traditional leaders.

The department and the committee allegedly removed an opt-out clause and reinstated the provision for the traditional courts to be presided over solely by a traditional leader, after discussions with the National Council of Traditional Leaders and the Congress of Traditional Leaders of South Africa.

The Bill was first introduced in 2008, but was opposed by rural citizens and eventually withdrawn from the National Assembly.

Civil society organisations rejected the legislation on the basis that it discriminated against women – who were not allowed to represent themselves in court – and for failing to allow a community member to opt out of the traditional court and seek other avenues of dispute resolution.

The Land and Accountability Research Centre (LARC), based at the University of Cape Town, claimed the legislation forced people to use the court of a traditional leader in whose area of jurisdiction they lived.

There was also general fear that this returned rural justice administration to the old Bantustan order, where women were treated with contempt by tribal courts, including cases where they were deprived of their land rights and widows not being allowed to represent themselves in a hearing.

LARC director Nolundi Lawaya said although legislation allowed for some representation in the traditional court composition now, there was still potential for gender discrimination because other things were not addressed.

“These jurisdictions aligned with previous tribal authority and Bantustan boundaries. Furthermore, the Bill provided for forced labour, banishment from the community, and deprivation of customary rights as punishment. Only the courts of senior traditional leaders were recognised in the Bill, while it also provided for traditional leaders to be presiding officers of the court with powers to summon people,” said Lawaya.

After meeting with organised traditional leaders, the opt-out clause was removed and instead it introduced an appeals process within the traditional courts system.

The accused would have to exhaust the appeal process before a matter could be taken on appeal to the magistrate’s court.

“In terms of the Bill, traditional courts had now become courts of law with traditional leaders as presiding officers.

“The committee has in many respects taken the Bill back to its 2008 version, which violated both the constitution and customary law,” Lawaya said.

Inyanda National Council chairperson Adam Mabunda said the civil society organisation was opposed to discrimination against women in the Bill.

He demanded that there should be at least 50% or more representation of women in traditional courts.

“It would be best if South Africa had one law for everybody. Presently there is one law for rural people and another for urban people and we are opposed to that,” Mabunda said.

An attempt to get comment from justice portfolio committee chairperson Mathole Motshekga failed and none of the spokespersons for the department, NCTL and Contralesa was available for comment yesterday.

– ericn@citizen.co.za

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