Traditional Courts Bill: Committee Report & submission: National Gender Machinery Meeting, nomination of Deputy Chairperson of Committee

Monitoring Improvement of Quality of Life and Status of Women

24 October 2008
Chairperson: Ms M Morutoa (ANC)
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Meeting Summary

The Committee elected Ms F Mazibuko (ANC) as the Deputy Chairperson of the Committee. There were some concerns that the Committee should elect a Co-Chairperson, rather than a Deputy Chairperson, but it was explained that the Joint Rules stipulated only that a Deputy Chairperson and a Chairperson had to be elected.

The Committee discussed an invitation received from the Minister in the Presidency to the National Gender Machinery meeting. It was decided that nine Members would attend the meeting. Members noted that there had for some time been discussions, but no final decision, around a Women’s Ministry at the meeting, and resolved that this would be the ideal time to put a formal proposal. To this end, the Researchers were requested to draw up a document that members could talk to at the meeting, including what was meant by economic empowerment of women, how Women’s Ministries operated in other countries and what it was envisaged would be the work of such a Ministry in South Africa. It was also decided that a workshop would be held, where the Women’s Ministry would be thoroughly discussed.

The Committee noted that a submission was to be made to the Portfolio Committee on Justice and Constitutional Development on the Traditional Courts Bill. This outlined in full the Committee’s concerns and recommendations for amendments to clauses 4, 9, 10, 12 and 17 of the Bill. Most recommendations were made to improve the gender equality of the Bill, and to ensure that the drafters took into account the gender implications of certain traditional values and practices. The impact of the Bill upon women must be assessed. The Bill in its present form had some serious shortcomings that would impede the delivery of fair justice to women, was not gender sensitive, did not make provision for fair treatment of women either during proceedings, or allow them specifically to participate as presiding officers. The Committee therefore recommended that all processes relating to the promulgation of the Bill be halted completely until there had been proper consultation with women, particularly those from rural areas. Members also suggested that it be stated that it should be standard practice for legal services to be offered to women, and that a provision should be inserted in the Bill that would ensure that equal standing and equal treatment would be given to women during proceedings.  The Committee adopted the Report, and resolved to convey it to the Justice Portfolio Committee, whilst also suggesting that a joint meeting be held between the two Committees to debate the issues.

Meeting report

Election of Deputy Chairperson of Committee
The Chairperson informed the Committee that it was to elect a Deputy Chairperson for the Committee. She asked the Unit Manager of the Committee Section, Mr Albert Mamabolo, to take the Committee through the process.

Mr Mamabolo informed the Committee that the rules stated that the Committee was supposed to elect a Deputy Chairperson and not a Co-chairperson. In the absence of the Chairperson, the Deputy Chairperson would chair the Committee, and could be asked to do so by the Chairperson.

Mr N Mack (ANC, Western Cape) stated that the National Council of Provinces (NCOP) thought that there would be a co-chairperson and not a Deputy Chairperson. He stated that there was a pervasive impression that the second House of Parliament was “inferior” to the first House, and he thought, to eliminate this problem, that there should rather be a Co-Chairperson.

Mr Mamabolo explained that the Joint Committee Rules did not specify which House the Deputy Chairperson and the Chairperson should come from. It only stated that the Chairperson should come from one House and the Deputy Chairperson should come from the other. The Rules also stated that there should be a Chairperson and a Deputy Chairperson, not co-chairpersons.

Ms Phumelele Ngema, Senior State Law Adviser, Office of the Chief State Law Adviser, concurred. She added that the Chairperson and the Deputy Chairperson had different statuses and functions. The Deputy Chairperson would take over the role of the Chairperson in the Chairperson’s absence or when the Chairperson asked that this happen. 

The Committee Secretary, Ms Ayanda Boss, called for nominations for the Deputy Chairperson.

Mr Mack nominated Ms F Mazibuko (ANC), and Ms M Nxumalo (ANC) seconded the nomination.

There being no further nominations, Ms Boss announced the appointment of Ms F Mazibuka as Deputy Chairperson.

Invitation from the Office on the Status on Women  (OSW)
The Chairperson stated that the Minister in the Presidency, Hon Manto Tshabalala-Msimang, had sent invitations to Members to attend a high level National Gender Machinery (NGM) meeting. She informed the Committee that she was still waiting for recommendations from the NCOP as to which NCOP Members would be attending. She stated that she would confirm that nine Members would be attending of whom three were from the NCOP and six from the National Assembly (NA).

Ms S Rwexana (ANC) stated that if the Committee wanted to propose a Women’s Ministry at the meeting, then Members had to come with clear proposals for the Ministry. The Committee always spoke about it, but there were never any proper proposals put on the table.

The Chairperson added that the Women’s Ministry was one of the Committee’s objectives. The Committee had spoken about it, but nothing ever materialised from the discussions. The Committee therefore must formulate what it wanted. The Committee also needed to decide what was meant by the economic empowerment of women. The Chairperson reminded members to read through the report on the India Brazil South Africa (IBSA) meeting that took place in India recently.

The Deputy Chairperson stated that the Committee had researchers who could find out how other Women’s Ministries functioned in other countries. This information could be applied and adapted to South Africa’s situation. The researchers had to look at how feasible a Women’s Ministry would be in South Africa. Such a Ministry could put in benchmarks to ensure that women are really taken care of.

Ms B Ntuli (ANC) suggested that the Committee agree to have two or three Committee Members working with the Minister in the Presidency to find out what exactly the Women’s Ministry would do. She also suggested that the Committee hold a two-day workshop to thoroughly discuss the issue of the Women’s Ministry.

Ms Rwexana stated that everybody agreed that there was a need for the Women’s Ministry. By now the Committee should already have had information about it. She agreed that the Committee needed to be prepared with information about the Ministry so that it could make a proposal. In order to do so, the Committee needed the supporting documentation that would speak to the Ministry.

Ms Nxumalo asked if the Committee would agree to have the workshop in which they would discuss the Ministry.

The Chairperson stated that it seemed clear that Members agreed to the workshop.

Ms Ntuli stated that the researchers had to put together documentation before the workshop so that Members could discuss the information at the workshop.

Mr R Pieterse (ANC) added that the document had to speak about what the Committee wanted from the Women’s Ministry. He also suggested that the Committee look at new legislation that was coming out, to see if the legislation undermined or strengthened gender issues.

The Chairperson stated that the Committee would ask the researchers to prepare a one-page document for the Committee to take to the NGM meeting the following day and raise the idea of the Women’s Ministry. After the discussion at that meeting, the Committee would draw up another document to discuss at the Committee’s workshop. Therefore, participation at the next day’s meeting was very important.

Discussion on the Traditional Courts Bill
The Chairperson read out the submission that a Parliamentary Researcher had prepared on behalf of the Joint Monitoring Committee to the Portfolio Committee on Justice and Constitutional Development, which spoke about the Traditional Courts Bill.

The document was to the effect that the Committee recognised that the Bill aimed at promoting social cohesion, and speedier and more cost-effective access to justice. However, the Committee also noted that the Bill had some serious shortcomings that would impede the delivery of fair justice to women. It was important that the Bill proposed to create a legislative framework based on historical traditional systems and values. It was also important that the Bill took into account the gender implications of certain traditional values and practices. In particular, the Bill needed to be carefully scrutinised to assess its potential impact on women. Before the Bill could be passed, the Committee urged that it must achieve a balance between respect for customary law and the upholding of constitutional rights set out in the Bill of Rights.

Clause 4 of the Bill made provision for the designation and training of a senior traditional leader as a presiding officer of the traditional court. This meant that the role of the presiding officer was restricted to “a traditional leader of a specific community who exercises authority over a number of headmen or headwomen in accordance with customary law”. The majority of traditional leaders were men, thus creating disjuncture between the proviso and the equitable appointment of women to these positions of power. The Committee recommended that specific provisions be inserted in the Bill that would ensure that an equitable amount of women were appointed to preside in courts. Presiding officers would also have to undergo gender sensitivity training.

Clause 9 stated that the presiding officer had to ensure that women were afforded full and equal participation in proceedings, but it did not indicate how this would be achieved. The Bill needed to include provisions that would indicate how representation of women in decision-making capacities in traditional courts would be ensured. The Committee recommended that a provision be inserted in the Bill that indicated specifically that women would receive equal and just treatment.

Clause 10 had also been addressed by the Committee, which noted that it should be mentioned that orders that were given should not impact negatively on the families or the livelihood of families involved.

The Bill did not give any indication of any legislated monitoring tools to ensure women’s equal opportunity. The Committee was also concerned about rural women having to appear in these courts, particularly whether they would receive fair and equal treatment. Members felt that presiding officers designated to hear cases on domestic violence had to have a complete understanding of domestic violence legislation, so that they could adequately address the issues in keeping with the Constitution. The Committee noted that the Bill rarely mentioned gender equality. It concluded that the Bill, in its current form, was not gender-sensitive and did not make enough provision for women.

The Committee was concerned also that the opinions of the rural community had not been captured in the Bill. The process to date did not include adequate consultation with women, particularly rural women whose lives would be impacted upon by the Bill. The Bill also needed to clarify the type of training that would be given to designated leaders. 

Clause 12 of the Bill indicated that the order of the traditional court was final. The finality of Clause 12 could be regarded as an infringement on the rights of persons in communities governed by traditional or customary law. The Committee recommended that provisions be inserted in the Bill that would allow parties to challenge the order of the court.

The Committee was also concerned that there was no uniformity in the staffing structure in the courts. Clause 17 stated that the Minister may, depending on the resources available at the local magistrate’s court, assign officers to assist the traditional courts. The Committee believed that the Bill had to make specific provision to ensure that all courts would be staffed adequately and consistently to ensure speedy and fair delivery of justice.

The Committee recommended that all processes relating to the promulgation of the Bill be halted completely until there had been proper consultation with women, particularly those from rural areas. The Bill should not proceed unless it had a provision for the inclusion and appointment of women to traditional courts. Further, it must specify the form of training that the presiding officer and other members would receive, and there had to be some form of a legal oversight body to monitor the operations of the traditional courts. The Committee also recommended that a joint sitting be held between the Joint Monitoring Committee and the Portfolio Committee on Justice and Constitutional Development to consider the Bill.

Discussion
Ms Ntuli stated that the Bill should state that legal representation would be allowed in traditional courts, so that there was a balance between customary law and constitutional rights of women.

Mr Pieterse wondered if women had the option to go to another court, or if they were obliged to go to traditional courts if they lived in a specific area.

The Chairperson answered that there was a provision in the Bill that allowed women to go to a different court if they wanted to. 

Mr Pieterse believed the Committee should suggest insertion of a provision in the Bill that said that legal representation had to be offered to women, as a standard practice.

The Chairperson agreed.

Ms Ntuli addressed discrimination in traditional courts. She informed the Committee that when a man was charged, he was able to sit on a stool. However, when a woman was charged, she had to sit on the floor. She wondered if this was still going to be allowed and how this discriminatory tradition would be corrected.

Ms Crystal Levendale, Parliamentary Researcher, replied that the Committee could suggest inserting a provision in the proceedings in court that would ensure that equal standing and equal treatment would be given to women.

Mr Pieterse added that the proceedings also had to be dignified.

Members agreed to adopt the Report of the Committee, with the amendments just proposed.

The meeting was adjourned.

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