PRESENTATION ON THE TRADITIONAL COURTS BILL [B 1-2012] 21 SEPTEMBER 2012
INTRODUCTION • CGE is an independent statutory body created in terms of section 187 of the Constitution of the Republic of South Africa • The vision of the CGE is to strive towards a society free from all forms of gender oppression and inequality. • The mission of the Commission is to promote, protect, monitor and evaluate gender equality through undertaking research, public education, policy development , legislative initiatives, effective monitoring and litigation.
CGE MANDATE The CGE legal mandate is as follows : • Monitoring and evaluating the policies and practices of government and the private sector to ensure that they promote and protect gender equality • Conducting research into gender issues. • Investigating/resolving gender related complaints • Reviewing existing and upcoming legislation from a gender perspective • Monitoring and reporting on compliance with international instruments relevant to gender equality
CGE POSITION ON BILL • THE CGE TAKES COGNISANCE OF THE FOLLOWING : 1.1 ARTICLE 7 (A) OF THE SADC PROTOCOL ON GENDER AND DEVELOPMENT WHICH REQUIRES SOUTH AFRICA TO PUT IN PLACE LEGISLATION THAT MUST ENSURE EQUAL TREATMENT BY WOMEN IN TRADITIONAL COURTS. 1.2 SECTIONS 211 AND 212 OF THE CONSTITUTION WHICH GIVES RECOGNITION TO THE INSTITUTIONS, STATUS AND ROLE OF TRADITIONAL LEADERSHIP.
CGE POSITION • THEREFORE, DEVELOPING A TRADITIONAL COURTS BILL IS AN OBLIGATION IN TERMS OF THE SADC PROTOCOL AND IS ALSO PROVIDED FOR IN THE CONSTITUTION. HOWEVER, IT MUST BE BORNE IN MIND THAT THE TRADITIONAL COURTS BILL MUST PASS CONSTITUTIONAL MUSTER TO THE EXTENT WHERE IT PROTECTS THE RIGHTS OF BOTH MEN AND WOMEN.
OFFICIAL POSITION 3. THE CGE ACKNOWLEDGES THE ROLE OF TRADITIONAL COURTS IN CONTEMPORARY SOUTH AFRICAN SOCIETY AND MORE ESPECIALLY IN A SOCIETY THAT IS TRANSFORMING ITSELF. THERERFORE, THE CGE EXPECTATION IS THAT THE TRADITIONAL COURTS BILL WILL PAVE THE WAY FOR A SINGLE JUSTICE SYSTEM FOR ALL SOUTH AFRICANS, IRRESPECTIVE OF THEIR CULTURAL BACKGROUND OR WHERE THEY RESIDE. ACCORDINGLY, THE CGE RECOMMENDS REDRAFTING OF THE BILL TO CURE ITS DEFECTS.
COMMENTS • CLAUSE 3 : GUIDING PRINCIPLES The guiding principles seek to align the bill to the Constitution but in reality the majority of the clauses go against the Constitution. These include the fact that individuals are denied legal representation in serious cases such as malicious damage to property and assault. Furthermore, no appeal lies when a conviction is made in terms of Clause 20. Jurisdiction may be imposed on individuals who have a right to choose the forum which can best adjudicate their dispute. Furthermore, a failure to take into account the full range of traditional justice structures such as traditional councils and those of headmen and headwomen is unconstitutional.
COMMENTS CONTINUED (ii) The fact that presiding officers can be exempted from training will lead to a skills gap where presiding officers will deal with similar matters differently. This will allow for differential treatment in similar disputes and amounts to unfair discrimination. Such a clause must be revised to ensure compliance with Section 9 of the Constitution.
COMMENTS (iii) The CGE receives numerous complaints by widows where they are deprived of their matrimonial property by family of their deceased spouse. These disputes are unlikely to be settled fairly by traditional leaders who enforce these unfair practices and are also presiding officers that will adjudicate in these matters. This is in conflict with the separation of powers and unconstitutional. Such matters must be excluded from the jurisdiction of traditional courts.
COMMENTS (iv) Settlement of criminal disputes by traditional courts as set out in the schedule violates the individual’s right to a fair trial as set out in Section 35 of the Constitution. The reason is that presiding officers are not required to have legal qualifications. This means that individuals tried in traditional courts and magistrates courts will be tried differently in similar offences. This is unfair discrimination and in conflict with Section 9 (1) of the Constitution. This cannot be condoned and the CGE proposes that presiding officers in traditional courts must have requisite qualifications or insert an opt out clause.
COMMENTS (vii) Sanctions that may be imposed by a traditional court include forced labour and deprivation of benefits that may accrue in terms of customary law. These clauses are unconstitutional because it may impose a burden on people who are already impoverished and disadvantaged. The CGE recommends specific and unambiguous sanctions which act as a general deterrent instead of measures that create undue hardship.
COMMENTS (v) The nature and sessions of traditional courts as contained in Clauses 7-9 are supported by the CGE in their existing form. (vi) Clause 9 which prohibits legal representation and allows for spouses to represent each other is a case of formal gender equality which may not necessarily translate into substantive gender equality because on many instances women are excluded from participating in traditional courts. In order to ensure compliance with this clause the CGE recommends the inclusion of a penalty clause to ensure compliance.
DISPUTES OF LGBTI (viii) Traditional leaders display intolerance towards the LGBTI community. Such individuals are perceived as unholy and unnatural by certain traditional leaders. There is a strong likelihood that disputes by LGBTI individuals will not be adjudicated fairly. Therefore, the CGE recommends the insertion of a clause which would protect the rights of such individuals.
CONCLUSION THE CGE UNDERSTANDS THAT MAKING LAW IS A PARLIAMENTARY PREROGERTIVE. FURTHERMORE, THE RECOGNITION OF TRADITIONAL LEADERSHIP AND CUSTOMARY LAW IS ENTRENCHED IN THE CONSTITUTION. HOWEVER, AS A KEY STAKEHOLDER WHICH HAS PARTICIPATED AND COLLABORATED WITH VARIOUS STAKEHOLDERS SINCE 2008 WHEN THE BILL WAS FIRST INTRODUCED THE CGE PLACES ON RECORD THAT DESPITE BEING STRONGLY CONTESTED THE TCB HAS NOT BEEN REVISED. THEREFORE, THE CGE REQUESTS THAT THIS COMMITTEE CONSIDER REVISION OF THE BILL IN ORDER TO ADDRESS THE CONSTITUIONAL SHORTCOMINGS AS WELL AS THE NEED TO OBSERVE GENDER EQUALITY RELATED INTERNATIONAL INSTRUMENTS WHEN CONSIDERING THE TRADITIONAL COURTS BILL IN TERMS OF SECTION 76 OF THE CONSTITUTION.
END • COMMISSIONER MR M. SHOZI • CHAIRPERSON – COMMISSION FOR GENDER EQUALITY.