Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
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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