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.
DEMOCRATIC LEFT FRONT
15 February 2012
PRESS STATEMENT: GOVERNMENT MUST CONSULT RURAL WOMEN ON THE TRADITIONAL COURTS BILL
The Democratic Left Front is extremely concerned that today’s deadline for public submissions on the Traditional Courts Bill (TCB, Bill 15 of 2008) to the National Council of Provinces (NCOP) is passing without much notice and without government engaging in genuine consultation with those who will be most affected by it, in particular rural women.
The DLF calls on the NCOP, the National Assembly and government to create adequate opportunity for all rural people to be consulted on, and make their views heard on this Bill. Specifically, we call on the NCOP to ensure that such consultations are not held at the homesteads of chiefs or headman under the guise that those are tribunes of custom. That would be a sham.
We are extremely concerned that this Bill is anti-democratic in both content and process. No matter what our critiques of the post-1994 socio-economic and political dispensation are as the DLF, however South Africa is one country with a constitutional framework that commits to human rights, equality and consultation. It is therefore unacceptable that through the TCB close to 17 million South Africans living in the former homelands are about to be stripped of their constitutional rights. This Bill will create a separate legal regime under the jurisdiction of unaccountable traditional leaders: rural dwellers in former homeland rural areas will effectively become subjects yet again.
In our analysis, the Bill embodies the increasingly autocratic and patriarchal approach of government – making it virtually impossible for rural people to be heard in their own right without the mediation of unaccountable and unelected traditional leaders. In this way, government renders rural women and other rural dwellers essentially voiceless. Already, many traditional leaders are mired in corrupt mining and land deals in the poorest parts of South Africa. This has been done in ways that violate the rights and interests of broader communities. If passed, this Bill will reinforce the power and such practices of unaccountable traditional leaders.
The DLF calls on rural women and other rural dwellers to stand up and fight this Bill. It is their organised social power and not boardroom negotiations or promises by this or that leader that will ensure that government listens to them and that they achieve real democracy and socio-economic change in the rural areas of our country. Given the broader anti-democratic content and implications of the Bill, the DLF calls on South Africans who can to speak out in support of the rights of rural people as well as in support of ongoing mobilisation taking place in some of the rural areas.
The DLF calls for a new law to govern community-based access to justice mechanisms that would be deeply democratic in content and process. Such a law must establish a broad national legal framework to standardise common systems, principles and procedures for community-based access to justice that are fundamentally founded on the promotion, advancement and deepening of justice, gender equality, democracy, accountability and human rights. Key principles in such a law must include the following:
1. Such a law must ensure access to justice through mechanisms that are democratic, accountable and challengeable. This therefore means that such mechanisms must not be reduced and integrated with the powers of chiefs.
2. Rural people must also be able to opt whether to use such mechanisms. They must not be forced into one regime as the TCB does by not allowing them to opt out of the TCB regime.
3. Women must be adequately represented (50-50) in such structures.
4. Gender equality must be effectively integrated and actively promoted in content and practice.
5. People’s customs and practices must be respected whilst also harnessed to be consistent with the freedoms of association and expression as well as the rights to equality, non-discrimination, legal representation and other democratic rights.
6. The approach to judgments to be followed must not deprive people of their rights including land. The judgments must actively promote the social justice principles of equality, solidarity, dignity and human rights.
7. Community-based mechanisms or customary law must not be used to limit and hollow out democracy, human rights, gender equality, non-discrimination, and the freedoms of association and expression.
Working with our rural affiliates, as the DLF we will elaborate the above principles into a detailed submission on the TCB. This will also be part of the DLF Speak Out! … Listen to the People Campaign!
Don’t be Afraid…Speak Out!
The People Have Solutions…
We Demand…Listen to the People!
FOR COMMENTS, CONTACT:
Mazibuko K. Jara – 083 651 0271
Brian Ashley – 082 085 7088
Vishwas Satgar – 082 775 3420