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.
THE ALLIANCE FOR RURAL DEMOCRACY CALLS FOR THE IMMEDIATE WITHDRAWAL OF THE TRADITIONAL COURTS BILL AND FOR THE DEMOCRATISATION OF RURAL AREAS
The Alliance for Rural Democracy calls upon all provincial legislatures to vote against the Traditional Courts Bill in the lead-up to the National Council of Provinces (NCOP) meeting on 30 May in Cape Town. We contend that the provincial legislatures can come to no other conclusion following the public hearings held in the provinces over the past 6 weeks. We affirm and appreciate the position adopted by the North West legislature earlier this week that, during that province’s hearings, ‘most people rejected the Bill’.
Alliance organisations attended the hearings. We witnessed many communities raising fundamental concerns, based upon which they called on the legislatures to vote against the Bill in its entirety. These communities also demanded that the legislature embark on a new process of thorough consultation – not only to redraft the Bill, but also to settle the unfinished business of democratic transformation in rural South Africa and to effectively deal with the apartheid legacy of the former Bantustans.
During the public hearings we observed that not nearly enough was done to inform and educate communities on the contents of the Bill, or to mitigate the considerable imbalance of power between citizens and the traditional leaders present. We commend the fact that, despite these failings, rural citizens used the opportunity to express their outrage over the detrimental impact of unaccountable and often illegitimate leaders imposed upon them by the Traditional Leadership and Governance Framework Act (TLGFA) of 2003.
We welcome the statements by Ministers Lulu Xingwana and Jeff Radebe conceding that the Bill fails to protect the gains made by women over the last 20 years. However, we remain concerned that important as their position is, rural communities painted a bigger picture during the hearings: that of systemic inequalities, injustices and the denial of democratic rights. The Bill will entrench these violations.
The bigger picture that emerged in the stories of ordinary people at the hearings included:
This is by no means an exhaustive list of the issues that communities raised. The Bill, if passed into law, will exacerbate these injustices – enabled by the TLGFA and built upon by the Traditional Courts Bill.
The TLGFA closed off the opportunity for rural people to democratically transform their lived realities. While it provides for traditional councils to be 40% elected, the elections that have taken place in all relevant provinces but one were farcical to say the least, with a recent report showing a 150% voter turn-out in one province and 2% in another. In Limpopo, the Premier embarked upon an urgent attempt to ameliorate the damage in disgruntled communities that find themselves within traditional community boundaries they don’t recognise and under leaders they don’t regard as their own. A commission was recently appointed to deal with the staggering 568 complaints of this nature in Limpopo alone.
We believe that this matrix of problems related to applications of customary law can only be solved through a proper and considered revisit of the democratic transformation of the former Bantustans. This requires the state to attend to the unfinished business of addressing the fundamental and substantive issues arising from both the TLGFA and the current Bill.
The immediate withdrawal of the Bill is the first step. Equally pressing is the repeal of section 28 of the TLGFA that entrenches the disputed tribal boundaries, created by apartheid, as the jurisdiction of the traditional councils.
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 advisor to the Alliance.
Released on 27 May April 2012
For more information contact:
Cell: 083 451 9321 or 083 7791435
Cell: 084 581 6306
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