Deputy Speaker of the National Assembly Hon Madam Nomaindia Mfeketo
Minister of Women, Children and People with Disabilities, Minister Xingwana
Honourable Members
National Chairperson of the African National Congress Ms Baleka Mbete
Panellists and Delegates
Compatriots and Comrades
Ladies and Gentlemen
It is with deep honour and humility that I stand before this august gathering on the occasion that brings down the curtain on the month-long events that mark the 2012 Women’s Month. This is the month during which we honour and salute the women of all generations mostly profoundly signified by the 1956 generation for their act of bravery that heightened our historic struggle for human rights and equality.
They faced the tyranny and brutality of the apartheid government, but were united in one voice that has continued to reinvigorate both men and women in our struggle for freedom and justice over the years since the advent of colonialism and later apartheid.
As you all know, the voice that epitomised their relentless struggle for an equal and just society was - “Wathint’ bafaziwathint’ imbokodo”. These bold voices of women of 1956 continued to reverberate in the ears of activists over different generations whose fundamental values are now enshrined in the Constitution as an instrument of change to end all forms of discrimination, inequality, poverty and unemployment that most often than not bear the faces of women.
This ANC-led Government remain loyal to the cause that the ANC fought and stood for since 1912, and which our movement, as the democratic and organised Assembly of the people, will continue to advance as it enters its centenary. The movement’s refocus to address challenges that undermine social and economic transformation embraces the full emancipation of women, the eradication of all forms of discrimination and the fight against women and gender violence which our iconic leader the first President of our new democratic dispensation, former President Nelson Mandela eloquently described when submitting the South Africa’s First Report on the “Convention on the Elimination of all forms of Discrimination Against Women” (CEDAW) and I quote:
“Women constitute the majority of the South African population and, although we now have a democratic society, we concede that freedom will not be fully attained unless women have been fully emancipated and empowered in all spheres of life”.
Although some progress has been made in addressing the plight of women in certain areas, they are still hurdles that we need to overcome. I would like to thank the organisers of this event for providing an opportunity to discuss the Traditional Courts Bill before we tear-off the August page from our calendars. This is so because this Bill is about the plight of women as much as it about access to justice to communities that embrace and are affected by the institution of traditional leadership.
Honoured Guests,
Let me at the outset give the historical background of this Bill and the rationale behind its introduction into Parliament. Firstly, Courts of Chiefs and Headmen, as they were called before they became known as Courts of Traditional Leaders were inherited from the judicial system of the erstwhile Apartheid regime. These courts existed side by side with Commissioners’ Courts which were established in the traditionally Black areas and townships. The Commissioners’ Courts and Courts of Chiefs and Headmen had one thing in common, they were established exclusively for Africans, those living in rural areas and those in townships, respectively.
The Commissioners’ Courts were abolished in 1986 following the recommendations of the Hoexter Commission appointed in 1983 to investigate the desirability of retaining parallel court systems for Africans and other racial groups respectively. The Commission recommended that the Commissioners’ Courts be abolished and the Courts of Chiefs and Headmen be preserved on the basis that the Commission found them to be important for the preservation of African culture and customs. After the advent of democracy in 1994 the Courts of Traditional Leaders, as the Constitution came to refer to them, were retained under item 16(1) of to Schedule 6 of the Constitution which states as follows:
“16 (1) Every court, including courts of traditional leaders existing when the Constitution took effect, continues to function and to exercise jurisdiction in terms of legislation applicable to it, and anyone holding office as a judicial officer continues to hold office in terms of the legislation applicable to it, subject to-
- any amendment or repeal to that legislation, and
- consistency with the Constitution.”
In 2005 the democratic Parliament repealed the Black Administration Act of 1927 for obvious reasons - the Constitution did not sanction any law or policy that entrenches inequality and perpetuates different norms and standards on the basis of race and any other ground of discrimination. The repeal of the Black Administration Act paved the way for Africans to enjoy the same benefits and privileges that they were deprived of under the Black Administration Act.
These included the recognition of customary marriages as lawful marriages and the removal prejudices regarding intestate succession and the matrimonial property regime. When the Black Administration Act was repealed in 2005, Parliament, through a special Act of Parliament (Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Act of 2005) preserved sections 12 and 20 of the Black Administration Act and the Third Schedule to the Act.
The above sections confer jurisdiction on traditional leaders to hear criminal cases and adjudicate over civil disputes respectively. The schedule lists criminal offences which are heard by such courts.
It is important to note therefore that the Traditional Courts Bill does not seek to establish traditional courts, but rather to regulate the environment within which such courts ought to operate. The Constitution itself provide for a constitutional framework under which courts, fora and tribunals, which would include traditional courts, must operate. In particular, the following provisions of the Constitution are relevant in this regard:
Section 34: “Everyone has the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or, where appropriate another independent and impartial tribunal.”
Traditional Courts would constitute such fora.
Section 39: It is evident from the provision of sections 39 of the Constitution, that the interpretation and the development of customary law is not the preserve of the courts of law only. The section reads as follows, and I quote:
“39 (1) When interpreting the Bill of Rights a court, tribunal, or forum –
(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom,
(b) must consider international law, and
(c) may consider foreign law.
(2) When interpreting any legislation and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
(3) The Bill of Rights does not deny the existence of any right or freedoms that are recognised or conferred by common law, customary law or legislation to the extent that they are consistent with the Bill.”
Again, Traditional Courts as fora could be covered under the above provisions.
Lastly, Chapter 12 of the Constitution gives recognition to the status and role of traditional leaders according to customary law, subject to the Constitution. Subsections (2) and (3) of section 211 of the Constitution are relevant for this purpose and they provide as follows:
(2) A traditional authority that observes a system of customary law may function subject to any applicable legislation and custom, which includes the amendment to, or repeal of that legislation or that custom,
(3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specially deals with customary law.
Again a system of customary law would include traditional courts.
Importantly, subsection (2) of section 211 of the Constitution which I have referred to, underscores the view held that customary law and custom are not static but evolve with times and as such may be amended from time to time in accordance with the dictates of the Constitution. Some of the principles of the customary law which were amended include the abolishment of corporal punishment (through the Abolition of Corporal Punishment Act of 1997). This was against the view held by traditionalists who perceived whipping as the most effective corrective measure for errant behaviour.
Changes effected by the courts include the Bhe decision that accorded African women the right to inherit under the law governing intestate succession thereby the eroding the custom which regarded African women as a perpetual minors who must be looked after, first by the fathers, then husband and upon their passing on, by their own sons; and the recent Shilubana judgment which permits chieftainship to devolve to a woman consistent to the right of equality.
Distinguished Guest,
Having outlined the genesis of the Bill please allow me to reflect briefly on the history of the legislative process to date. The Bill was introduced in the National Council of Provinces (NCOP) in 2011 following its withdrawal from the National Assembly in June 2010. The reason for its withdrawal in the National Assembly and its re-introduction in the NCOP was with a view to allow greater public participation at local level, in particular communities in rural villages that will be affected by the Bill if enacted. The initial comments made on, and debates about the Bill during the public hearings in the National Assembly in 2009 clearly demonstrated a need for broad consultation, in particular with women and people living in rural areas.
Introducing the Bill firstly in the National Council of Provinces before it is referred to the National Assembly was considered a viable route to facilitate broad consultations on this Bill. This led to the Bill being withdrawn from the National Assembly and reintroduced in the National Council of Provinces, at my request. The public interest that the Bill has attracted attests to the character of our participatory democracy imbedded in our Constitution.
Programme Director,
I have also deemed it necessary to briefly outline the Parliamentary process in order to quash the speculations that there is a process under way to revamp the Bill outside the Parliament processes. I am not aware of any intention of withdrawing the Bill from Parliament.
Doing so will not only interrupt the vibrant discourse occurring in Parliament that will shape the end product of this Bill, but will allow the department to redraft another Bill somewhere in a dark corner of its corridors, away from the public eye. Let us remind ourselves that the Bill is still in gestation and it is not law yet and must be dealt with as such.
I am advised that following the introduction of the Bill in the NCOP, provinces have engaged with the Bill and have expressed their mandates thereon. I am sure members of the House here will give an accurate state of affairs far as the Parliamentary process regarding this Bill is concerned.
From our side as initiators of the Bill, we will give our input on the Bill based on the analysis we have on the comments and views made in respect of the Bill. At official level an inter-departmental team comprising the affected departments has started to formulate concrete ideas on the Bill based on the comments made.
Similarly, at the level of the Ministries, I will also canvass the views of my colleague, Minister Xingwana, and Ministers for Cooperative Governance and Traditional Affairs as well as Rural Development and Land Reform whose portfolios are affected by the Bill. I will then make an informed input to Parliament, probably ahead of the public hearings which I am advised are scheduled to take place at the NCOP from 10 – 12 September 2012.
Preliminary, below some of the views that are likely inform my input on some of the provisions of the Bill, namely:
- that traditional courts should be distinguishable from courts of law that are part of the judicial system as contemplated in section 166 of the Constitution. The distinction must be reflected both in the name, description and type of these courts which by their nature are fora of community elders (makgotla/inkundla) who meet to dispense justice. It is unavoidable that these makgotla must adhere to the requirements such as independence and impartiality, among others, as prescribed in section 34 of the Constitution. There is acceptance generally that these makgotla not only dispense justice expeditiously and cheaply, but deal with some of the matters that could burden the already overstretched court rolls;
- the right to legal representation and opting out which were raised strongly in the comments received will possibly have to be looked at differently if these makgotla are seen as section 34 fora than as courts contemplated in section 166 of the Constitution.
- the recognition that Customary Law, similar to the Roman Dutch Law and English Law which remain part of our legal system, have equal status and are equally subject to the Constitution;
- Women as equal members of the communities must have the right to attend and participate in these makgotla consistent with the right of equality enshrined in the Constitution. The issue however, is not just about numbers of women, but the inviolable principle of gender equality that the Constitution eloquently promotes.
- Whether appeals to the magistrates’ courts may be desirable the two court systems adopt different value systems. However, this is one issue that Parliamentarians must critically evaluate. It could be argued that traditional courts have the force of social hegemony as opposed to State hegemony and as a result they instil social values and give each given community the particular identity consistent with localised cultures, traditions and values systems. In this regard, traditional courts are responsible for the continued social cohesion in traditionally inclined societies and for this express purpose their existence is important to the extent that the majority of people living in those areas view them as collectively desirable. An appeal to a magistrates court may therefore be seen to be undermining this exclusive social cohesion that speaks to values that magistrates courts are not inclined to recognise nor efficiently and ably deal with as the sanction of traditional authority is fundamental to traditional justice system.
The above and other principles will be elucidated in the inputs or comments that I will submit to the NCOP after I have had the benefit of obtaining the intelligible views of my colleagues as I have stated above.
Distinguished Delegates
Let us be mindful of the urgency in finalising this Bill, as further delays would mean the extension of operation of the saved provisions of the Black Administration Act No 38 of 1927. These saved provisions I have mentioned above hopelessly inadequate and unsuited for the post 1994 democratic society. The current abuses experienced in some traditional communities are as a result of the absence of a comprehensive and effective regulatory and legislative framework which the Traditional Courts Bill seeks to address, in accordance with constitutional imperatives.
I therefore urge that we all allow the Parliamentary processes to take its course and would like to discourage commentators from calling for the scrapping of the Bill. Doing so will be throwing the baby with the bath water. Parliament and the courts have the competence of capacity of preserving the baby and dispense with the unwanted water.
Distinguished Delegates,
In conclusion, it will be remiss of me not to mention some of the key legislation and programmes that resonate with the theme of today’s discussion. Through the reform to our State Legal Services we have started to implement measures that seek to broaden the allocation of legal work and briefs to women practitioners and other categories of previously disadvantaged individuals. Parliament is now seized with the Legal Practice Bill which among others, seeks to address the gender based prejudices that continue to limit equal access to the legal profession by women.
Through the transformation of the legal profession we also seek to expand the pool for the appointment of more women judges in our quest to transform the judiciary. We are stepping up the fight against gender based violence and in particular sexual offences and domestic violence and we continue to enact progressive laws in this respect. I will soon make an announcement regarding the special sexual offences courts after I have studied the report of the task team on the desirability for reviving such courts.
We will leave no stones unturned in rooting out the scourge of rape and other heinous crimes which are in the main perpetuated against women and children.
In conclusion may I say that the Justice Crime Prevention and Security cluster continues to appoint women to significant positions within the cluster. As we are aware, the Director-General of Justice and Constitutional Development, the Commissioner of Police, the Acting Director of Public Prosecutor and the Acting Head of the Special Investigating Unit are all women.
As we develop legislation and implement programmes to address patriarchy and inequality, we continue to listen to the loud voice of women vibrating in our ears, “wathint’ bafaziwathintimbokodo”. We dare not fail.
I thank you!
