Traditional Courts Bill: Rural women’s access to justice is betrayed again

By Constance Mogale

The passage of the Traditional Courts Bill and the Traditional and Khoi-San Leadership Act through Parliament is clear evidence of a choice to betray the vision of South Africa as based on democracy and equal citizenship for all.

The new version of the Traditional Courts Bill (TCB) that I, and many other rural women have spent years grappling with, and are seeking to expose, is back in Parliament again. As before, there is nothing in the bill that acknowledges the structural exclusion and alienation that many women experience in such courts, and nothing but vague platitudes to address these burning issues. The more Parliament refuses to hear rural women’s voices against the TCB, the louder we will scream.

When the first version of the bill was defeated in Parliament, after five of the nine provinces refused to support it, Deputy Justice Minister John Jeffery established a reference group consisting of traditional leaders, four civil society individuals and government. I was one of the civil society participants in the drafting processes, and I remember that traumatic process very well. The keywords and content were changed so often behind our backs that we got confused about which version we were working on.

Now, as I hear Jeffery telling the Justice Committee in Parliament that the current version of the bill is the outcome of those negotiations, I am outraged. I remember the points of tension very well. A key issue was the position of women in the setting of customary institutions, the right of women to represent themselves (rather than be represented by male elders) and the right of rural people to opt out of courts they regarded as biased or illegitimate.

The Constitution guarantees the right to legal representation in criminal matters, and the TCB (then and now) denies that right to rural people. The fact that traditional leaders preside over such courts allows for potential conflict of interest and abuse of power in circumstances of unequal power relations. What about the Constitution’s promise that courts must be impartial and independent? What is to stop powerful parties from being able to achieve favourable outcomes for themselves?

To provide protection where there is structural inequality of this kind, individuals MUST have a right to opt out of proceedings if they feel threatened. A clear and explicit right to opt out is a necessary safeguard against the unequal power relations that exist on the ground. We gave many examples of the serious real-life problems faced by rural women in traditional courts during the negotiations. Mam Sizani Ngubane, who recently died a lonely death of Covid, never stopped giving such examples despite attempts at ridicule from some of the traditional leaders negotiating against us. This was witnessed by government officials and Jeffery.

The renegotiated bill made some minor changes to the earlier version, but it didn’t include all the progressive proposals that were inserted during the reference group process. We, as civil society representatives, were never shown the final version before it was published by the Department of Justice. When we saw what we considered a weak bill, further undermined by the portfolio committee in 2018, we were devastated.

We immediately launched a campaign called Stop the Bantustan Bills to oppose the Traditional Courts Bill, the Traditional and Khoi-San Leadership Bill (now an act) and other Bantustan bills aiming to strip away the land tenure rights of the millions of people living in the former Bantustans.

I reflect back to 2012 when the 2008 version of the bill was reintroduced in the same draconian form, through all the many fiery public hearings where rural people rejected the bill. Then I think of the traumatic negotiations to come up with a new version, and realise that all that effort and work has been in vain. I ask myself, what was the pressing need to introduce a law to regulate traditional courts?

In my view, traditional justice systems, where they still exist, do not need an act of Parliament to regulate them. Each functioning customary court is constructed within its own local context, and South African customary institutions differ from place to place. That is because customary law is not static and if you introduce this type of law you are assuming that all black rural life can be neatly controlled. The resources and time spent on this failed legislative process are also not disclosed.

We have made numerous submissions, marched to Parliament in Cape Town in September 2018, followed Parliament’s public hearings and even marched to the Union Buildings in the middle of winter in June 2019 to deliver a memorandum to the president with the hope that rural voices from the villages still matter. But nobody responded, nobody listened; instead they took advantage of the Covid-19 lockdown to proceed without proper consultation of those who will be affected.

In January 2020, the organisation I lead, the Alliance for Rural Democracy, convened a strategic planning meeting with representatives from all provinces, including former homelands. All delegates expressed a vote of no confidence in the law-making processes of Mzantsi.

The passage of the Traditional Courts Bill and the Traditional and Khoi-San Leadership Act through Parliament is clear evidence of a choice to betray the vision of South Africa as based on democracy and equal citizenship for all. We fought for this vision when we opposed the Bantustans and apartheid. It was the only viable alternative to apartheid-constructed tribal institutions.

I ask myself time and again, what else could we have done to draw back the dark lace curtain obscuring the eyes of our legislators, how many winter nights should we spend in the gardens of the Union Buildings, how loud must we scream, what else must we do to ensure that our voices are heard?

I support and love customary law. But how does that equate with the assumption that the 18 million South Africans living in the former Bantustans can only access justice through untransformed apartheid-constructed tribal courts?

As a nation, we cannot afford to legislate based on the assumptions of legislators who seem to have little experience of the realities of life in the former homelands. A proper assessment of the effectiveness of alternative social justice institutions from below, both customary and otherwise, should be done. That’s the reason we requested a regulatory impact assessment from the deputy minister during the redrafting process five years ago.

We need to understand the nature of the problem that the bill is designed to address. As one of the small civil society group members involved in the negotiations, I repeatedly asked why we need a law to regulate existing traditional courts. What is the nature of the problem and how will the bill address those problems? Is there not a very real danger of this bill causing far more harm than good? If so, why is it being rammed through Parliament without answers to these questions?

This article first appeared in Daily Maverick on 16 February 2021.

Constance Mogale is the national coordinator of the Alliance for Rural Democracy, a dynamic and flexible grouping of civil society organisations that have joined together to contest policy and legislation that undermines the rights of rural citizens living in the former Bantustans. She is also an MPhil candidate at the University of Western Cape.

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