Traditional Courts Bill: Commission for Gender Equality submission; CGE submissions to Parliament

Women, Youth and Persons with Disabilities

20 March 2018
Chairperson: Ms T Memela (ANC)
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Meeting Summary

The Commission for Gender Equality provided an outline of its role with regards to legislation. The Commission took members through specific clauses of the Traditional Courts Bill and pointed out areas that needed to be attended to. The Commission objected to an intention to ‘preserve’ tradition instead of looking at living custom as women had not received fair treatment in traditional courts in many areas of the country but also pointed out a number of ways in which the Traditional Courts Bill would remedy instances where women had been discriminated against.  However, the Black Administration Act had been repealed and the Commission was concerned that there was a gap because there was currently no Act of Parliament governing traditional courts and women would be disadvantaged in the vacuum created.

Members of the Committee gave examples of what happened in the traditional courts and some of the appalling traditional customs promoted by the traditional leaders. The Committee also requested CGE to address it on specific issues in the Bill which did not promote women rights. CGE explained how the TCB would do away with certain practices of traditional courts which oppressed women. It also pointed out that the Bill would require monitoring of the courts by the Commission for Gender Equality, which will be expensive and recommended that the Traditional Courts Bill should be costed.

The Commission for Gender Equality briefly looked at other pieces of legislation that affected the rights of women: the Prohibition of Forced and Child Marriages Bill and the Women Empowerment and Gender Equality (WEGE) Bill.

CGE and Members were in agreement that more consultations should be done with the women in the rural areas and that those women need to be educated concerning their rights. The Chairperson commended CGE for their efforts particularly in the area of traditional courts and stressed that monitoring of the traditional courts would have to be extensive.

Meeting report

Mr K Ahirudhra, Head: Parliamentary and International Policy, Commission for Gender Equality (CGE), began by introducing the mandate of CGE with regard to legislation. He pointed out that it was the responsibility of CGE to evaluate and make recommendations on any Act of Parliament, law, custom or practice in relation to the status of women and gender equality. He described ‘custom’ as a behaviour or conduct which was regarded as normal by society in a particular time, whereas ‘practice’ was an act that gave effect to a custom. 

In providing a background to the Traditional Courts Act (TCA), Mr Ahirudhra explained that the Black Administration Act had previously governed traditional courts. Section 20 of the Act had allowed the Minister of Home Affairs to confer power on a chief or a headman to punish any black person for any offence under common law, other than the offences prescribed in the Third Schedule to the Act. The Act removed jurisdiction of a large number of offences, including rape, bestiality and stock theft from traditional courts. The Black Administration Act had been repealed and there was a gap because there was currently no Act of Parliament governing traditional courts.

He reiterated that the Constitution recognized the traditional courts as a firm institution in the Constitution and referred Members to the case of Bhe Vs Magistrates court’, Khayelitsha. Under Section 211 of the Constitution, customary law and traditional courts could not be ignored.  They had a firm place in the Constitution. There was currently no legislation governing traditional courts and the vacuum spelt disaster for women because traditional leaders could take advantage of the position and rule with impunity.

Specific clauses in the Traditional Courts Bill
Mr Ahirudhra referred to specific clauses in the Traditional Courts Bill (TCB) that he considered problematic.

Clause 2 recognized that all people subject to the courts had to be allowed voluntary participation in the court. The Bill recognized consensual nature. One of the objects read that the purpose of the Bill was to preserve tradition. The CGE did not agree with the wording since customary law was living law and society changed all the time. The particular object should be amended to read ‘promote tradition and not preserve tradition because values of women should be promoted and not preserved’.

Clause 3: The guiding principles done well to align with the Bill of Rights. It recognized human dignity, equality and freedom. Nobody could be excluded. It introduced a concept of law called ‘strict liability’. If a person was excluded from the proceedings of a traditional court, that person could seek review to have the High Court set aside the order. The provision for review to the High Court was a protective mechanism. Historically traditional courts had been located near ancestral grounds.  That was done purposefully because the leaders knew that women were not allowed near the ancestral grounds.  TCB had been drafted to cure that trick because it provided that if decisions were given in the absence of women, such decisions would have to be reviewed or set aside.

Ms L Van der Merwe (IFP) interjected and recommended that the Bill should be amended to read “any decision that is found to be done unprocedurally is null and void” rather than requiring women to seek for review at the High Court. The review process was cumbersome and very laborious for some women and therefore would not serve the purpose.

The Chairperson provided an illustration of what happened in such meetings.  Once a woman was summoned, she would be seated at the extreme end and would have a man represent her. The man, in most cases, did not understand her situation and the women who were worst off, were the widows. She stressed that women in rural areas did not exist at all and that was the reason the Committee was insisting that such laws should be scrapped.

Ms T Stander (DA) thanked CGE for the good introduction and said that Members were familiar with what the TCB was trying to do and that the Committee’s concerns regarding the Bill were the lack of voluntary and informed consent; that no provision or processes in traditional law might undermine the Constitution; that traditional courts showed discrimination in terms of gender and participation, and the problem of representation when a woman had to be represented by a man.

She requested CGE to address the Committee on the aforementioned and agreed with CGE that culture, tradition and religion had to evolve. Tradition and culture could not be used as an excuse to oppress women.
Ms C Majeke (UDM) asked if CGE was taking cognisance of women who were first-borns but were side-lined when their fathers died. It was the uncles who elected who would take over as the leader of the home when the father died. She gave an example where the father who was a chief in Eastern Cape had died 12 years previously, and the first born, being a woman, was side-lined and her younger brother from the third wife’s home was made leader. She said that the Bill should look into that kind of situation.

Ms P Bhengu-Kombe (ANC) commented that the women in rural areas should be consulted and that hearings should not only be held in Parliament. Most of the women in rural areas were not educated about their rights. Women should be educated about customary marriages and civil marriages, otherwise one found cases of old women around the age of eighty who had not registered a customary marriage, being chased away once the husband died.  Women were also not allowed land on which to build.  Women suffered greater discrimination in rural areas.   

Ms van der Merwe added that Members should take note that hearings on the Bill had started and that their male colleagues had belittled representations made on the Bill. She, however, noted that the TCB was a step forward because it filled a gap. However, the focus should be on ensuring that the Bill became a tool to empower women.

The Chairperson remarked that her concern was that in the current era women were still downtrodden by their male counterparts. It was the ninth time that the Bill had been proposed. It did not make sense that the Bill had been brought up again, despite the atrocities.

Ms Bhengu-Kombe remarked that Members had an issue with the consultations being undertaken and she was grateful to CGE for being on the ground and taking up the area of traditional courts. CGE, through legal clinics, could help women to understand their rights.
Ms Tamara Mathebula, Acting Chairperson: CGE appreciated that the Committee Members were not rubbishing the TCB that had evolved through consultations with men and it was the men who were actually constructing the legislation. That was the reason everything had gone wrong. The TCB Bill needs to evolve with time and CGE was revisiting the Bill in order to fill in the gaps. On consultations, she responded that CGE was looking at the relevance of the legislation and it had consulted with women in four provinces in 2017 and had talked to all the vulnerable groups.
The Chairperson noted that it was the CGE which had engaged in consultation and not the people at the top, including the writers of the TCB.

Ms Bhengu-Kombe gave an example of women who have albino children or twins.  Custom demanded that children with disabilities had to be killed; some of the children were even stoned to death. The Bill had to be simplified so that people could understand it.  It had to be modernized.

In response, Mr K Ahirudhra gave an example of when CGE had had consultations in Rustenburg in a meeting attended by headwomen who were initially afraid to talk. The women requested a TCB that would protect them.  The previous Bill had stated that the senior traditional leader would be the presiding officer of the traditional court and yet the headwomen were tactfully never promoted. That had been changed in the current TCB which stated that members of a traditional court had to be both men and women. The TCB also stated that CGE had to monitor the courts annually. Clause 5 (3) (b) stated that CGE had to report to the Committee and the Minister and anyone CGE considered necessary. The only problem was the cost implications of such a requirement. In response to the query on the complexity of the review process, the TCB Bill obliged the clerk of the court to assist a woman seeking review.

Ms Van der Merwe agreed that the requirements for enforcement of the Bill would need massive resources.

Ms Majeke noted that the situation of the traditional courts in some areas had improved and that some of the courts had clerks from the Department to take minutes of the proceedings.

The Chairperson replied that that was a result of the pressure coming from the Magistrates’ Commission that had demanded that uneducated chiefs be done away with.

Mr Ahirudhra confirmed that traditional courts in some areas had started employing clerks of the courts who had legal knowledge. The Regulations for the Bill would spell out what had to be done so that there was uniformity in all the traditional courts. He pointed out that Clause 4 on the institution of proceedings provided that any person might institute proceedings. Women could also be conveners. The Bill had to provide meaningful steps to be more effective.  For example, the Department of Justice and Constitutional development had to educate both traditional leaders and women on their rights contained in the TCB. There had to be penalties associated where a contravention arose and infringed the rights of women and children under the TCB.  There were no sanctions and the regulations had to have punitive measures.

Another gap was the use of the term ‘conveners’.   The reason for convenors was to keep legal practitioners away from the proceedings. An aggrieved person had to represent himself or select a person he trusted. There was, however, a loophole because an aggrieved person might select a person who was a lawyer or, or one could have convener who had previously been a judge or magistrate. Once monitoring has been strengthened, CGE could report on what was happening on the ground. As a protective measure to ensure voluntary and informed consent, the court clerk had to explain to the person the details of the summons received and that an individual could choose for the traditional court not to preside.  Other cases that would not be heard by a traditional court was where the matter had been referred to the national prosecution authority, where theft exceeded an amount of R5000, or where the person had issues with the convener.

The Chairperson asked the CGE to cover backs of the rural woman because once a rural woman decided to opt out of the traditional court, she might be banished from that area.

Mr Ahirudhra responded that Section 20 of the Black Administration Act had had a gap because the traditional leaders had power to banish the people.  In the TCB certain sanctions that impacted on human dignity, or sanctions that were unconstitutional, such as banishment, would not be allowed. He could not say whether clerks were educating traditional leaders in the courts on the procedure as there had been no monitoring and until the monitoring was done, CGE could not tell what was happening.

On the question raised by Ms Majeke about women descendants of traditional leaders being excluded, CGE responded that the practice had been dealt with in the case of Bhe Vs Magistrates court’, Khayelitsha. The couple had been married under customary law and had children.  The husband had died and after the funeral, the-father-in law came wanting to evict the wife from her house and demanded the car keys. She took the matter to the magistrate’s court where the magistrate agreed with the father-in-law in accordance with custom. The Constitution, however, court ruled in favour of the spouse, saying she was entitled to inherit the estate, thus protecting the status of women married under customary law.

Mr Ahirudhra insisted that rights had been established, but women had to be educated. He agreed with Ms Van der Merwe that the Bill should not be tarnished, and that Members should have a TCB that protected women because if there was no law, then the traditional leaders would oppress the women.

Presentation on selected submissions by CGE that sought to strengthen Gender Equality

Maternity and Benefits

CGE had carried out public consultations in Durban and noted that professional women and informal traders were being excluded. Some men had also attended and requested an increase in paternal benefits, especially where the men are gay and decided to adopt children. The Human Research Council agreed to extend the scope of the benefits. CGE was currently part of the Advisory Committee appointed by the Minister of Justice and Constitutional Development on the revision of the law to promote comprehensive maternity and paternity benefits to all women and men.

CGE wanted to deal with unlawful forms of Ukuthwala where children were being forced to marry and were raped in the process. CGE had been involved in removing children from the clutches of elderly men and also impeding marriages, when it was alerted timeously. CGE wanted to keep traditional leaders on its side in order to work on criminalizing the conduct of any person who helped in any way, including persons who knew about the ukuthwala but kept quiet.  Mr Ahirudhra informed members that social workers did not respond correctly.  They did not report matters to the police or the National Prosecution Authority and that, when consulted, the social workers indicated that they were counselling victims of Ukuthwala. The SALRC was at an advanced stage in developing proposed legislation known as the Prohibition of Forced and Child Marriages Bill. CGE agreed with the provision of the Bill because it criminalized the act of Ukuthwala.

Land Issue
Individuals were disenfranchised from owning land and the worst off were women. The CGE was preparing a draft Land Rights Bill which would address land ownership by women.

The WEGE Bill was a wage Bill and also a woman empowerment Bill. The only advantage of the Bill was the 50/50 benchmark and the education programmes that had to be conducted. CGE recommended revision of the Bill because it did not deal with issues substantively. The lack of economic reform and discriminatory opportunities in political institutions, as well as the manner in which banks used the same standard for men and women when evaluating loans, was not right. The Minister needed to take the companies to task through compliance and penalty clauses. One had to bring proper steps if one wanted to improve the lives of women.

Ms Bhengu-Kombe asked how the CGE was working with other NGOs in addressing the issue of sex work considering that the Law Reform Commission was opposed to decriminalisation of sex work. She also stated that cases of assault where grievous body harm was inflicted had go to the police for investigations. On the limit of theft cases to R 5000 she asked what happened when all the cattle in a kraal were taken and the value of the cattle exceeded the R5000 limit.

The Chairperson wanted to know how HIV Aids would be fought, given the practice of Ukuthwala, she also wanted to know the implications of Schedule 2 (g) of TCB and how the CGE was dealing with incest.

In response to the question about the spread of HIV propagated by Ukuthwala, Ms Mathebula responded that CGE had made its submission to the Multi-Party Women’s Caucus on sex work and that it was also aware of recommendations by SALRC on partial criminalization. There was progress given that the recommendation of the conference in Johannesburg in November 2017 agreed that sex work had to be decriminalized. On working with NGOs, she confirmed that CGE was working with the NGOs and gave the example of SONKE Gender Justice which was commissioned by the CGE to undertake research in February 2017.  CGE was partnering with NGOs as well as the South African Police Service (SAPS).

Mr Ahirudhra responded on the implications of Schedule 2 of TCB and said that the draft regulations would give more guidance. For example, it would talk of the activities that counselling would involve, what was meant by counselling, who would be counselled because traditionally there were no counsellors, whether expert counsellors would be called and whether a counselling report would be tabled for the attention of the convener. On the matter of incest, he responded that it led to HIV and created severe psychological problems. It was a hidden phenomenon but, being a sexual offence, CGE aimed to make sure it was reported and prosecuted.

Ms Joan de Klerk, Acting Chief Executive Officer at CGE, pointed out that situations might arise where the pieces of legislation were in conflict with each other.  An example was where the Forced Marriages Bill prescribed decriminalisation, whereas the TCB allowed traditional leaders to advise on custom.  CGE would look at the legislation together and see how they spoke to each other, so that one looked at relevant legislation while drafting new legislation, so as to avoid contradictions in the pieces of legislation.

Mr Ahirudhra confirmed that in respect of the TCB, CGE would wait for the regulations so that it could deal with the issues substantively.  He also confirmed that CGE would work on looking at the contradictions between the pieces of legislation and that it would continue with consultations.

The Chairperson requested CGE to also address the plight of young boys who were sodomized, which was the reason that the number of street kids was increasing. She urged CGE to ensure that the plight of women, at all levels, was addressed because patriarchy was killing the family fibre. She thanked CGE and said that the Committee was banking on CGE, the Committee was prepared to go on oversight as a team, but the TCB had to be monitored intensively, otherwise it would be making slaves of women and children.

The meeting was adjourned.


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