An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
In its submission to Parliament on the Traditional Counts Bill today, the Department of Justice and Constitutional Development (DOJ) presented proposals for what is, in effect, a new Bill.
The DOJ’s far-reaching proposals, submitted to the National Council of Province’s Select Committee on Security and Constitutional Development, will not fix the fundamental problems with the Bill. Instead, they signal a move backwards in the debate. In addition, the way in which the DoJ has introduced these new and substantive proposals is procedurally questionable.
The DOJ proposes that “the traditional courts as they currently exist be integrated into the Traditional Councils, which are democratic institutions where all sectors of society represented”. The Alliance believes that this will entrench, and indeed exacerbate, the fundamental problem identified in most submissions, that being the imposition of a separate legal system for people living in the former homelands. By proposing that traditional courts be subsumed into the traditional councils, as created in terms of the Traditional Leadership and Governance Framework Act of 2003, the Bantustan boundaries will be further strengthened.
The boundaries of the Traditional Councils were established in terms of the hated Bantu Authorities Act of 1951 and are historically controversial. In many areas disputes about these ‘tribal’ boundaries, imposed by apartheid, are ongoing, and the councils remain untransformed and undemocratic.
When a member of the Select Committee asked for clarity as to whether the DOJ proposals represent a new Bill in light of the face that a revised name was put forward, namely the “Resolution of Certain Disputes by Traditional Councils Bill”, the DoJ avoided answering the question.
The proposals include denying people the right to “opt out” of the traditional courts system thereby undermining the constitutional guaranteed right to choose whether to be part of a particular cultural system.
The DOJ’s submission takes the debate backwards by also refusing to acknowledge any grounds for appeal, either within the traditional system or outside of it. This denies people living in the rural areas the choice as to which forums, or justice system, they wish to use.
Furthermore, the DOJ proposals reduce gender inequality to mere representation, in that they refer to the quota system of 33.3% women in the traditional councils, however do not engage with the patriarchal inequalities or experience of women within these councils.
The Alliance for Rural Democracy is also concerned by the manner in which today’s public hearings were conducted. We believe that this was done in an adversarial manner, which sought to discredit and deny the lived experiences of those who made submissions that raised objections to the Bill. We note with grave concern the way in which the intelligence and integrity of those women who spoke out against the abuses they face within customary courts, was undermined in Parliament. This ethos goes against the public participation process and the nature of a participatory democracy.
We reiterate our position that neither tinkering with the existing Bill, nor underhanded tactics, such as the DoJ’s new proposals of today, will address the fundamentally flawed process and content of this Bill.
18 September 2012
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The Alliance for Rural Democracy (ARD) is a cross-section of civil society organisations sharing a common concern about the detrimental effects that the Traditional Courts will have on the rural constituencies they serve and support. The ARD includes the following organisations: Association for Rural Advancement (AFRA); Centre for Human Rights, University of Pretoria; Community Law Centre, University of the Western Cape (CLC);Corruption Watch; Co-operative Policy Alternative Centre (COPAC); Council for the Advancement of the South African Constitution (CASAC);Democratic Governance and Rights Unit, University of Cape Town (DGRU); Embrace Dignity Campaign; Empilisweni AIDS Education and Training Centre; Greater Rape Intervention Programme (GRIP);Institute for Justice and Reconciliation (IJR);Justice and Women (JAW); Land Access Movement of South Africa (LAMOSA);Law Race and Gender Research Unit, University of Cape Town (LRG); Lesbian and Gay Equality Project; Masimanyane Women’s Support Centre; Open Democracy Advice Centre (ODAC);Rural People’s Movement; Rural Women’s Movement; Section 27; Sonke Gender Justice; South African Constitutional Literacy and Service Initiative (CLASI); Students for Law and Social Justice (SLSJ); Thohoyandou Victim Empowerment Project (TVEP);Treatment Action Campaign (TAC);Triangle Project; Tshwaranang Legal Advocacy Centre (TLAC); Unemployed People’s Movement; Women’s Health Research Unit in the School of Public Health and Family Medicine, University of Cape Town; Women’s Legal Centre Trust. The Legal Resources Centre (LRC) acts as legal advisor to the Alliance.
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