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.
Civil society organisations in alliance to stop the Traditional Courts Bill.
Civil society organisations from across the country have come together in a broad alliance that rejects the Traditional Courts Bill that is presently before the National Council of Provinces. The Alliance for Rural Democracy includes a cross-section of civil society organisations that are concerned about the detrimental effects the Bill will have on the constituencies they serve and support.
Alliance partner organisations include the Law, Race and Gender Research Unit, UCT; the Rural Women’s Movement; the Rural People’s Movement; Sonke Gender Justice; the Women’s Legal Centre; the Community Law Centre, UWC; Section 27 and the Treatment Action Campaign.
The Bill will directly affect at least 17 million South Africans and has serious implications for democracy as a whole. Despite having sparked an outcry in 2008 when tabled in the National Assembly (NA), the Bill’s original provisions remain intact. The Bill has since been withdrawn from the NA and was reintroduced in the National Council of Provinces this January. As part of the legislative process, it will now be taken into public hearings in the provinces during April and May.
The Alliance for Rural Democracy contends that the Bill, in its current form, undermines democracy and constitutional rights and values. Because few rural people know about the Bill and its likely impact, alliance partners are assisting rural communities and organisations in raising awareness of the Bill’s content and implications. Alliance partners will keep a close eye on the provincial hearings and parliamentary process to ensure they pass democratic muster, and will put forward submissions demanding that the Bill be scrapped.
Sindiso Mnisi Weeks from UCT’s Law, Race and Gender Unit states that, “This Bill creates separate categories of citizenship reminiscent of apartheid. It strips rural people of basic citizenship rights. Those living in the former Bantustan areas will be second-class citizens, with no right to the legal representation and recourse the law allows for.”
The alliance believes that customary law continues to play an important role in the lives of many rural South Africans. However, the Bill does not appreciate the real-life experiences of people on the ground. The Bill was developed in close consultation with traditional leaders, rather than in consultation with the people who will be most affected by it, namely rural citizens, particularly women.
Says Desmond Lesejane from the Sonke Gender Justice Network, “This is a Chiefs’ Bill and not a people’s Bill. It will centralise power in the hands of a senior traditional leader and distort living customary law.” Nomboniso Gasa, researcher and analyst, adds, “The Bill will empower traditional leaders to single-handedly make, apply and adjudicate customary law. This undermines the separations of powers that are fundamental to the Constitution.”
As women form the vast majority of rural citizens and often find themselves in a vulnerable position in relation to male-dominated traditional institutions, they face particular problems in customary courts and will therefore be most adversely affected by the Bill’s failings. “The subordinate position of women is likely to be made worse by this Bill and our right to legal protection from gender discrimination will suffer a huge set-back,” says Sizani Ngubane from the Rural Women’s Movement.
On 10 April, the Department of Justice and Constitutional Development presented the Bill to members of the Western Cape Provincial Parliament. Henk Smith from the Legal Resources Centre, acting as legal advisor to the alliance, states that “at the Western Cape briefing, the Department conceded that there is valid criticism of the 2008 Bill and that there was insufficient consultation before it was introduced to Parliament. We, as the LRC, believe this Bill is ill conceived.”
The alliance calls for the Bill to be scrapped and for replacement legislation to take as its starting point the Constitution’s commitment to the social justice principles of equality, dignity and human rights, as well as the rights of ordinary rural people to participate in the formulation of laws that affect them.
STOP THE BANTUSTAN BILL
The Alliance for Rural Democracy includes the following organisations: 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; Institute for Justice and Reconciliation (IJR); Law, Race and Gender Research Unit, University of Cape Town (LRG); Masimanyane Women’s Support Centre; Open Democracy Advice Centre (ODAC); Peddie Women’s Support Centre; Rural People’s Movement; Rural Women’s Movement; Section 27; Sonke Gender Justice; Students for Law and Social Justice (SLSJ); Treatment Action Campaign (TAC); Tshwaranang Legal Advocacy Centre; Unemployed People’s Movement; Women’s Health Research Unit, School of Public Health and Family Medicine, University of Cape Town; Women’s Legal Centre Trust. The Legal Resources Centre (LRC) acts as legal advisors to the Alliance.
Released on 11 April 2012.
For more information contact
Sindiso Mnisi Weeks (Law, Race and Gender Unit):
Cell: 072 616 8299
Desmond Lesejane (Sonke Gender Justice Network):
Cell: 084 5816305
Sizani Ngubane (Rural Women’s Movement):
Cell: 073 840 5151BACK TO TOP