In Pursuit of Equality in South Africa

Resisting the Traditional Courts Bill

WILMIEN WICOMB

 

INTRODUCTION

One of the most radical but lesser known innovations of the South African Constitution was the recognition of customary law as an independent system of law equal to the common law. Some recognition of customary law has been a feature of most African legal systems for decades; in fact, selective recognition of customary law rules, often officially distorted for convenience, was a feature of colonial projects of indirect rule. The Constitution rejects that approach. It rejects a notion of customary law as a peculiar set of rules applicable only within the boundaries of traditional communities. Instead, it recognises that it is a system of law with its own operational rules and insists that it be understood within its own context. Wherever it is applicable, it must be applied subject to the Constitution.

With that recognition, the Constitution took a significant step in eradicating racial discrimination, which was at the root of the historical rejection of customary law as a lesser form of law. At the same time, a progressive approach would ensure that the discriminatory and harmful aspects of customary law be developed, as these are brought under the same constitutional scrutiny as the other sources of South African law rather than being hidden from view.

Regrettably, the progressive approach to customary law of the Constitution and the Constitutional Court has not resonated with the legislature. Apparently under some political pressure to appease the increasingly significant constituency of traditional leaders, the statutory regulation of customary law has remained a top-down affair, with the recognition, status and powers of traditional leaders being virtually the exclusive focus.

There are many problems with this approach. It has ensured that traditional leaders remain accountable to government, who pays them, rather than to the communities they purport to serve. Contrary to actual customary systems of governance, it centralises power in the hands of a single leader and, as we shall see, attempts to place legislative, judicial and executive power in those same hands. Perhaps most significantly, it turns customary law into the law of the chief rather than the law of the people – with significant impacts for women.

The outcome is the entrenchment of crude forms of discrimination against the people of the former homelands: some pay forms of taxes to their chiefs for basic citizenship rights such as proof of identity and of residency, which other South Africans don’t. Others are often refused the right to lay charges with the police for crimes committed against them – crimes that may include rape1. Almost all these communities are routinely denied the right to access the formal courts, as they are considered to have no standing outside the representation of their (often imposed) traditional leader. This is made worse by the fact that the former homelands continue to be the poorest and most deprived areas of South Africa, with women disproportionately impacted.

The Constitutional Court has repeatedly confirmed its understanding of customary law as a living, evolving system. In fact, it has distinguished between the history and the practice of customary law: there is the law that the elders remember and there is the law as the community (and not its leaders) practises today. Both help the Court in understanding the content of the law.

Most interesting is the evidence that has emerged in the last decade of how women in traditional communities use the new language of the Constitution, notably concepts such as ‘equality’ and ‘women’s rights’, to develop the often deeply patriarchal systems in line with the new South African rights’ landscape. A survey in three former homeland areas in South Africa by the Community Agency for Social Enquiry, released in 2011, indicated that unmarried women were gaining increasing access to land despite no relevant legislation being in place. These women were negotiating better deals for themselves through the empowering discourse of women’s rights and the Constitution. As a result, new rules and new rights emerged. This happened in the case of Ms Shilubana, whose community decided to develop their customary law to allow a woman to become their chief – a development later confirmed by the Constitutional Court.

The problem is that legislation that entrenches top-down power fails to provide the necessary room and recognition for law to be developed by the community practising it.

THE TRADITIONAL COURTS BILL

The Traditional Courts Bill (TCB) was first introduced in the South African Parliament in April 2008. It followed the introduction of two other pieces of legislation 2 that seemed relatively benign at first, but turned out to have devastating impacts on communities living under the jurisdiction of traditional leaders.

Accordingly, when the TCB arrived in Parliament in 2008, communities were far more aware of the dangers of seemingly ‘toothless’ regulatory legislation. The TCB allowed for traditional leaders to have their powers further extended to make, administer and dispense with the law within their communities, and it caused such an uproar that it was quickly withdrawn.

In 2011, an identical TCB was reintroduced. What made it so offensive?

For one, it provided that anyone who refused to appear at the chief’s court when summoned was guilty of a criminal offence. Given that thousands of South Africans find themselves within the boundaries of jurisdiction of traditional leaders they do not recognise – but who assert their authority over them anyway – this provision has obvious problems. 3

The TCB further allowed for forced labour to be meted out as a sanction and, worse still, for ‘customary entitlements’ – which would include rights in land – to be taken away by the presiding officer. Given that the TCB envisioned very limited opportunities to appeal, this would give abusive traditional leaders carte blanche to deal with dissenting voices as they wished.

These fears were far from hypothetical: in some communities where traditional courts operate, these are used to mete out interdicts stopping people from meeting without the consent of an leader or paying excessive fines for ‘crimes’ such as ‘disrespecting the chief’. It thus came as no surprise that the few rural communities who came to know of the TCB rejected it outright. In addition, some constitutional lawyers and activists bemoaned the fact that the TCB made no attempt to reflect the law as it was  practised on the ground, i.e, bolstered by strong accountability mechanisms that are customary and bottom-up (rather than exclusively top-down, as set out in the TCB). Traditional leaders, on the other hand, made no secret of their reasons for supporting the TCB: without this law, they argued, they had no power over their communities and thus could not perform their ‘functions’.

But perhaps the loudest resistance came from women’s groups. In particular, they voiced their deep concern with the TBC’s lukewarm response to the very real discrimination against women in many existing traditional courts. From across the country, women from traditional communities attended Parliament to tell MPs that they are not allowed to enter the traditional court, even when they are the ones on trial. One brave woman from KwaZulu-Natal raised her hand to show the MPs where her traditional leader had bitten off her finger in anger over her rejection of his advances. The Rural Women’s Movement described how women in mourning dress were not allowed near the courts. Often, they said, this resulted in women being evicted from their houses. In addition, as courts are most often presided over by male councillors, this meant that the court favoured men, regarded it inappropriate for women to get involved in family disputes, and found those who do to be unruly. From Limpopo, women related the trauma caused by rumours of witchcraft and the frustration at not being allowed to defend oneself against these claims.

It was difficult to understand how these stories could emanate from a constitutional democracy that prides itself on its founding principles of equality and freedom. More worrying was the TCB’s response to these realities: it proclaims, on the one hand, that women must be afforded ‘full and equal participation’ in the proceedings (s9(2)(i)), but on the other, that a, ‘party to proceedings before a traditional court may be represented by his or her wife or husband, family member, neighbour or member of the community, in accordance with customary law and custom’ (s (3)(b), thereby ensuring that women in particularly patriarchal communities will continue to be represented by men.

1. Resistance campaign

It quickly became clear that the TCB was introduced in 2011 with every intention of getting it passed in Parliament at all costs. Stopping the TCB would thus not merely be a matter of ensuring the rejection of the TCB at public hearings in Parliament – it would require an attack on multiple fronts. The problem was that the women and men most deeply affected by the TCB lived in the provinces farthest away from Parliament, in inaccessible areas where communication (other than text messaging) was near impossible. In addition, the TCB did not offer the threat of clear-cut abuses around which communities and organisations across a spectrum could easily unite; rather the real problem with the TCB was its position within the existing legislative framework and the implications of many of the provisions read together with existing legislation. In the same way, the formalistic ‘protections’ for women that the TCB did provide, meant nothing in the context of deeply entrenched patriarchy. Within this context, a thoughtful and coordinated strategy was required.

A handful of the organisations most active in this field4 decided to form the Alliance for Rural Democracy (the Alliance) for this purpose. The Legal Resources Centre (LRC) became the legal representative to the Alliance. The objective of mobilising the Alliance was to provide a vehicle for many more organisations to support the struggle, even those that did not work on rural governance issues directly. It also meant that the Alliance could design a multipronged strategy to resist the passing of the TCB by drawing on the strengths of different organisations and delegating tasks accordingly.

A question emerged early on: should the focus be on the TCB as a narrow issue or on the broader struggle for rural democracy and entrenched patriarchy? After broad discussions, the Alliance decided that it was better to pick a battle that could possibly be won – thus, the campaign focused only on the passing of the TCB.

The struggle emerged on multiple fronts: some member organisations, in particular community-based organisations (CBOs), raised awareness in communities across all the provinces about the TCB and its problems, mobilising them to make comments to Parliament and encouraging them to attend hearings. Endless workshops were held where more experienced organisations trained those entering the Parliamentary fray for the first time. Information went out through text messages, on community radio stations and, where appropriate, through email chains.

Others ensured that multiple opinion pieces and articles appeared in various newspapers, and inserts were aired on radio and television as often as possible, in particular every time the TCB was discussed in Parliament. The strategy was to elevate a discussion about rural people – in many ways completely marginalised from the mainstream media – to the public discourse. The challenge was to find ways to communicate the nuanced and complex difficulties of the TCB and its potential impact on rural women in ways that would appeal to listeners and readers unfamiliar with the legislation and rural realities. For this purpose, the campaign mixed academic and activist pieces with human interest stories. For example, it profiled stories of women who had faced discrimination and traumatic experiences at the hands of chiefs and traditional courts, and who were now afraid of the TCB’s potential to further enhance the chiefs’ powers. In the process, traditional courts became the hot topic of the day.

2. Harnessing the law

The South African Constitution provides that legislation that has impacts on certain issues, including customary law, must be passed by Houses of Parliament. Both houses, and their committees responsible for debating the TCB, have independent mandates of public participation. As the lawyers to the Alliance, the LRC focused on ensuring that Parliament took its mandate in this regard seriously – and would not get away with simply ‘ticking the box’ by only holding meaningless public hearings. The LRC studied the rules of Parliament and all applicable legislation in intricate detail and wrote on a regular basis to whichever committee was seized with the TCB at any given time, reminding the committee members of their responsibilities and, in particular, pointing out to what extent their public participation procedure was inadequate. All the while, the Alliance dangled the threat of litigation if the process of public participation failed to pass constitutional muster.

3. Outcomes

The pressure from non-governmental organisations, CBOs and communities had a remarkable effect. The Select Committee of the National Council of Provinces tasked with considering the TCB, held round after round of public hearings, apparently unable to choose between rejecting the TCB and risking the political consequences, or pushing it through and facing the wrath of rural communities. In February 2014, the committee seized with the TCB at the time held a meeting to consider the views of the various provinces on the TCB. The LRC prepared and circulated a document reflecting the widely opposing views of the provinces expressed before the meeting, indicating that the Committee could never pass the TCB and pass constitutional muster.

The meeting all but descended into chaos, with various members expressing disbelief at the fact that the TCB was still in Parliament. Two quoted directly from the document we provided to support their case. Most remarkable was the fact that the objecting members represented all the political parties – including the ruling party. It was the first time since 1994 that the ruling party had turned on itself.

After an abrupt end to proceedings, a quiet announcement followed some days later: due to an apparent ‘oversight’, the TCB had not been correctly reintroduced and had thus lapsed on the basis of a technical knock-out. While this outcome denied rural communities the opportunity of a public celebration, it could do little to erase what was an exceptional victory for democracy.

In an address to the University of the Western Cape soon thereafter, former Constitutional Court Judge Albie Sachs cited the victory over the TCB as one of the most significant post-constitutional indications that the South African democracy is indeed alive and well.

A key moment in the Alliance’s campaign came when the Minister of Women, Children and People with Disabilities (whose political career seemed in jeopardy) decided to strongly oppose the TCB as an election strategy. It was proof that the issue had taken on a significant public interest dimension and that the Alliance had won a significant political battle of elevating the marginalised rural poor to the front of the political contestation over votes.

At the same time, the LRC, as the legal representative of the Alliance, insisted on keeping the Parliamentary debate within the confines of the law – regardless of the political storm brewing. This served two purposes: it ensured that, whatever the outcome of the activism, there would always be a constitutional challenge as a backup plan and, secondly, it provided the relevant politicians with an alternative if they had to save their reputations – they could ‘blame’ the law, rather than public pressure, for having to change their minds.

  1. The Chief would insist on dealing with the matter himself.
  2. The first piece of legislation, the Traditional Leadership and Governance Framework Act, introduced in 2003, gave every indication that Parliament sought to protect the power of traditional leaders, rather than the people they are meant to serve and represent. The Act entrenched the distorted and illegitimate boundaries of so-called ‘tribal authorities’ (created by the colonial and apartheid governments) to facilitate separate development and ensured that these leaders would be accountable to government rather than to their people. Few communities or activists realised exactly how dangerous the Act was when it was first passed.

    In 2005, the second piece of legislation – the Communal Land Rights Act (CLRA) – sailed through Parliament despite severe opposition from rural people. By that stage, the trajectory of rural democracy under the new Constitution was clear: power and decision making was centred in the hands of traditional leaders who could barely be held accountable by their ‘subjects’. The CLRA, which formalised the transferral of control over land to traditional leaders, was challenged by four communities and declared unconstitutional in 2010.

  3. This provision should be understood in the context of traditional leadership in South Africa. Here, as in many other African countries, colonial legislation and the later apartheid project of forced segregation distorted customary governance systems into key building blocks of a system of indirect rule. Rural people became the subjects of traditional leaders no longer accountable to them in terms of customary law, but accountable to the government. Traditional leaders who sought to give a voice to the resistance of rural people against forced removals and draconian laws were pushed aside in favour of incumbents who were willing to abide by government policies for the sake of a salary and, at times, a piece of land. In addition, those very forced removals ensured that tens of thousands of people were moved onto land under the jurisdiction of a leader who they did not recognise and forced into a ‘tribe’ where they did not belong.

    In order to supress the obvious opposition that emanated from these measures and to replace the systems of accountability that constrained traditional leadership powers under customary law, the apartheid government introduced, in 1951, the Bantu Authorities Act. The legislation solidified government-drawn boundaries in the spirit of ethnic division of the time. It clothed traditional leaders with the untouchable status of government officials and afforded governmental powers to those leaders to make and dispense justice within their now official boundaries. Whereas customary governance systems were based principally on the ability of people to move between chiefs – as a means of holding them to account – these legislated boundaries.

  4. Coordinated by the Centre for Law and Society at the University of Cape Town.