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DRAFT SUBMISSION FOR COMMENT: Traditional Courts and the Judicial Function of Chiefs

CALS, CGE and NLC November 1999

Introduction The Gender Research Project of the Centre for Applied Legal Studies, the Commission on Gender Equality and the National Land Committee have all separately and jointly sought ways to ensure that rural women are able to access the legal system and that the system of customary law itself is transformed to become a vehicle for “promoting gender and social equality.”1 This submission is a response to the South African Law Commission’s (SALC) Discussion Paper 82: Traditional Courts and the Judicial Function of Traditional Leaders. The discussion paper deals with the question of the judicial function of traditional leaders under a new constitutional dispensation. The document takes the position that traditional courts should continue to be recognised, but argues that the system must be improved to conform with the values enshrined in the constitution. The document sets out recommendations pertaining to the structure, jurisdiction and procedures of these courts. Of immediate concern to the three organisations was the failure on the part of the Law Commission to adequately canvass the views of the women who would access the services of the courts. The Law Commission acknowledged that “[D]ispute resolution like other aspects of traditional African society is dominated by patriarchy.”2 The Discussion Paper indicates that there are certain concerns about how women could and would participate in the courts, but fails to advance any comprehensive explanation as to how these barriers are to be overcome. The research which underpins this submission has attempted to identify some of the key issues for women in accessing full and equal participation in the courts. It does not attempt to provide a comprehensive response to all the recommendations advanced by the Discussion Paper. In many instances, it asks more questions that it answers. It does, however, attempt to alert the Law Commission and various other role players to some of the key concerns and problems in regard to traditional courts that have been identified by rural women and stakeholders working in the rural context. Where possible and appropriate, this submission makes firm recommendations to the Law Commission. This submission takes as it’s starting point the position that the institution of traditional courts be retained with the proviso that the necessary systems and processes be put in place to ensure that the traditional courts are radically transformed to provide better access to justice for women. The submission acknowledges that traditional courts play an important role in dispute resolution within many rural communities. They are speedy, more geographically accessible than western style courts and provide a less expensive form of justice. For these reasons, it is necessary that traditional courts be given legal legitimacy and support. 1“Women’s Access to Justice”, Rosalee Telela 1999, pg 1

2 South African Law Commission, Discussion Paper No. 82, pg 4

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Many of the research participants, however, pointed to numerous problems with the structure, procedures and jurisdiction of traditional courts. Some of the research participants rejected the traditional courts outright, arguing that they will never provide women with justice. Some women expressed support for the traditional courts, while at the same time acknowledging need for change in the areas of women’s representation (Section 1), and the systems and procedures of the courts (Section 2). Many of the research participants further argued that the jurisdiction of traditional courts be limited, such that these courts are not empowered to hear cases in which women are likely to be disadvantaged by the patriarchal nature of the traditional courts. This submission sets out the types of cases which research participants argued may not be heard by the traditional courts (See Section 3). The organisations involved in the research project and their interest in traditional courts are as follows: The Gender Research Project, Centre for Applied Legal Studies The Gender Research Project (GRP) of the Centre for Applied Legal Studies researches gender and the law in South Africa. The project has been in existence since 1992 and is also involved in advocacy, litigation and training in the field of law and gender. Commission on Gender Equality The Commission is a statutory institution established by section 187 of the Constitution. It is mandated by the Commission on Gender Equality Act 39 of 1996 to “evaluate … any system of indigenous law, customs or practices …” In its Vision and Mission statement, the Commission has identified poor, black, rural women as its target constituency.

National Land Committee

The National Land Committee (NLC) is a network of land service organisations which have committed themselves to the promotion of social justice in South Africa in relation to access and control over land and related resources. In recognition of the extent to which rural women are affected by traditional law, the NLC has committed itself to advocate for legislation relating to customary law and traditional leadership that respects and affirms the rights of rural women.

Research methodology This submission draws on both primary and secondary research. The primary research, conducted for the purpose of developing this submission, was undertaken in the following provinces: • Northern Cape; • North-West Province; • Northern Province; • Eastern Cape; and

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• KwaZulu-Natal. These provinces were identified with the assistance of the South African Law Commission. All five provinces are disproportionately rural, include areas under the jurisdiction of traditional leadership and are diverse in the constitution and functioning of traditional courts. Five focus groups of rural women were conducted in the communities of Groenwater and Skeyfontein (Northern Cape) and Ga-Mothapo and Ga-Modjadji (Northern Province). In addition, two focus groups of men and women were conducted in the Madibogo-Pan, Manyeding and Ganyesa communities in the Northern Cape and North-West Provinces. A focus group of members of a Royal Kraal was also conducted in the Northern Province. Three focus groups of field workers working in rural communities in the North-West Province, KwaZulu-Natal and the Eastern Cape were also conducted. The field workers were selected on the basis of their long experience working with rural communities under the jurisdiction of traditional leaders. In-depth interviews were conducted with one woman Chief and a woman magistrate familiar with rural communities in the Eastern Cape. Individual and group interviews were structured to ensure uniformity in the information gathered. The researchers, however, conducted the interviews in such a way that participants were able to raise issues and concerns regarding traditional courts and traditional leadership outside of the particular focus of the research process. The research has also drawn on secondary sources of information which include, but are not limited to, policy papers and submissions, publications, workshop reports, key pieces of legislation and other relevant research reports. The three organisations were of the view that the focus group interviews were helpful in developing an understanding of the complicated issues that women face. "Focus groups allow for often contradictory answers which people express about issues in their lives, providing a richer and more textured understanding of the issues than data from structured questionnaires…"3 The primary research cannot be seen as a comprehensive survey of the opinions and interests of rural women and men across South Africa. Given time and budgetary constraints, the research aimed rather to provide a snapshot and view into just some of the perspectives and interests of ordinary men and women living in rural communities. It was strongly felt that these were the perspectives in the main absent from the research undertaken by the SALC. The participating organisations also felt it important to obtain the views of field workers who have long been involved in work with rural communities on land reform and rural development. The researchers felt that these field workers could provide a more impartial and informed view on the issue of traditional courts and leadership. Structure of the submission 3CASE research, 1998, pg 2

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The submission reads as follows: Section 1, which follows, deals with the structure and procedures of traditional courts. Section 2 deals with access, representation and the participation of women in traditional courts. Section 3 examines the jurisdiction of traditional courts and the types of cases that should be dealt with by the traditional courts. The submission concludes with a set of general recommendations to be considered and carried

forward by the South African Law Commission and the Department of Justice.

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Section 1: Structure and Procedures of Traditional Courts 1.1 Introduction The purpose of this section is to look at what the SALC understands a traditional court to be and whether its definition correlates with the data that we have collected. We also look at the structure and personnel of traditional courts. Finally, this section discusses concepts ’traditional’ and ’custom’ which in our view will continue to have a negative effect on procedures and structure of traditional courts if they are to be reformed and recognised as courts of law.

1.2 Definition of concepts. In this paper the two concepts, ‘custom and ‘tradition’ have been used because in practice ‘custom’ and ‘tradition’ mean the same thing and are used interchangeably. ‘Tradition’ and ‘custom’ in this paper means a practice that has been there since time in memorial, and is transmitted from one generation to the other and learned through socialisation. Through this process it has changed, often modified and used according to the context that people find themselves in and the benefit that they will derive from it. 1.3 Structure of Traditional Courts 1.3.1 What is a ‘traditional court’? The discussion paper does not give a full definition of what a ‘traditional court’ is, and the way the structure of traditional courts is discussed by the SALC contradicts what the literature and people understand to be a ‘traditional court’. In the discussion paper, it is assumed that traditional courts are made up of chiefs and headmen as presiding officers. This is not the case in practice. The discussion paper also fails to discuss the role played by bakgomana/bagolo (advisers) to the council, in ‘traditional courts’. Anthropological literature define ‘traditional courts’ as “some kind of more or less formal assembly presided over by a designated person (group of persons) who has both the responsibility and the authority to hear cases of the disputants, their witnesses, and arguments; and to determine and pronounce the decision. This individual does not necessarily have to be a chief of a village”. For example in the case of Kwena ‘tribe’ which is a one of the Tswana speaking groups in Botswana, “a kgotla which is a traditional court is presided over by one of the kgotla members i.e. a councillor. The Kwena councillors only go to the chief for guidance and they expect him to initiate and enforce what he thinks will help them. The chief does not necessarily preside over the court”. What these authors have stated is similar to how respondents describe a ‘traditional court’. In all the areas researched, traditional courts operate ’independently’ of the chief and are made up of councillors. It is these councillors hear the cases and give judgements. One of the councillors presides over the case. After they have reached a decision or made a judgement, they report their decision to the chief. If unable to reach a decision, they consult the chief for advice on their judgement. The councillors or/and the chief may approach advisors to assist in reaching a

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decision. These advisors are known as bakgomana in Sepedi or bagolo in Setswana. They are elders of the village and are people are regarded as knowledgeable about customs and tradition of the past. They are present at court by they do not participate. Their advice is not binding rather they are used as sources to past customary rules. For example Ga Mothapo village councillors hear a case without the queen. She is only called for advice and consultation on issues when a decision can not be reached. Thereafter the councillors and the queen meet with the advisors (bakgomana) who will tell them how the case could be handled or dealt with. This means that in practice a ‘traditional court’ is not constituted by a chief and he or she does not preside over cases. The recommendation made by the discussion paper that chiefs and headmen should preside over courts amounts to the creation of a new cultural practice or a reinvention of culture that contradicts the practices in the villages that we have researched. It will also have the effect of the courts being monopolised by one family lineage. This will increase the danger of excluding women and other members of the rural communities from the position of presiding officers as, according to ‘tradition’ and ‘custom’ men are the ones who inherit chieftaincy from their fathers. We suggest that if the actual practices of communities are promoted, namely to have councillors as presiding officers, the likelihood will increase that women and other people outside chieftaincy will become presiding officers in ‘traditional courts’.

1.3.2 Who can become a councillor? The discussion paper makes two recommendations on the issue of choosing councillors. It recommends that councillors could be popularly elected by the people of the village to sit with the chief or the headman in his or her adjudication of disputes. It states, alternatively, that councillors could be appointed by the presiding chief or headman from a panel elected by the relevant community. ‘Traditionally’, the chief’s sons are the ones who become councillors or headmen. Each son will be headmen of a certain section of the village and also form part of the chief’s council. If the chief does not have enough sons to be allocated to each sub village, then his relatives will become his councillors or headmen. In the Eastern Cape, senior male members of the principal clans will make up either the headman or the chief’s council. The principal clans are usually relatives to the chief of the area. Some of the practises we discovered were similar to ‘traditional practices’ stated above. But these were subject to the environment of the time. There are other innovative ways (some of which are not fair) that people have used to choose councillors outside of traditional customs. For example at Modjadji and Ga Mothapo village we were told that councillors are either born into their positions or popular justice is used were community members elect councillors. However, some of choosing councillors referred to by respondents were biased and unfair, with elements of favouritism, discrimination and corruption. These were practices in which one’s social and economic status determines whether he/she will be in the council or not. Those who do not achieve certain social status in the community will never form part of the council. This will impact heavily on women in rural areas as they are seen as people of lower social status and without economic power. Once more, women won’t stand a chance of being part of the council.

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At Ga Mothopa village it was reported that some of the councillors occupied those positions without the knowledge of the community. These are people who were reported to be friends of the headman, people with high economic and social standing with those communities. In the Eastern Cape, the credentials for being a councillor also illustrate that one’s socio-economic status and alliance to the chief determines who will be a councillor or not. These are: • The individual has to be from a principal clan; • Wisdom of one’s great grand father. One’s great grand father has to be known as someone

who was great, wealthy and a hard worker; • The level of association between the individual and the chief. The individual maybe went to

the same circumcision school with the chief and over time has developed a good relationship.

We recommend that chiefs should not be given the final decision on who should be in the council given some of the unfair practices when choosing councillors. Instead we agree with the discussion paper that democracy should be used were community members will chose council members. But most importantly a quota system should be legislated for women members of those communities to be councillors. If the chief or headman is given the final powers to determine who will be in the council, the present situation will not change. Women will be discriminated against because of their gender and people with low social and economic standing will not form part of the council.

1.4 Procedure in Traditional Courts The discussion paper uses concepts like ’traditional’ and ’custom’ in explaining procedures of, and participation in traditional courts. This section will look at how the use of these concepts (‘custom’ and ‘traditional’) will have negative effect on rural community members especially women. Examples will be drawn from the three communities that interviews were conducted at to show how ’tradition’ and ’custom’ are used to discriminate and, as a source of power and resistance to change. The recommendation made in the discussion paper is that procedures to be followed in traditional courts should be the same as those stipulated in the Black Administration Act and the statutes on traditional courts in former homelands whereby disputes are resolved according to customary procedure. It further states that most commentators on customary procedure agree that it is simple, informal and flexible and puts parties at ease. The discussion paper also recommends that the traditional element of popular participation whereby every adult was allowed to question litigants and give his opinion on the case should be maintained and encouraged as this boosts the legitimacy of the courts. Further the discussion paper states that, to comply with S.9 of the Constitution, consideration should be given to the full participation of women members in the community. The discussion in this paper concentrates on the procedures that women have to follow when reporting a case based on data collected from the field. 1.4.1 Procedures to be followed by women

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According to our respondents traditional proceedings followed in their communities are as follows: When a woman has a complaint that she wants to report to a traditional court, she firstly has to report the complaint to one of the male elders in here family. The elder will act as her witness and representative and will report the case to the councillors at the headmen’s court. During the court proceedings a women only talks when talked to or asked questions and is not allowed to give impute during the court proceedings. Single women and girls are not allowed to attend a court session. In other instances after being asked questions a woman will be told to leave. This means women are only allowed to courts when they are complainants. On the other hand according to our respondents, men can bring their cases to court without a witness, participate during the court proceedings and ask questions. In the Eastern Cape specifically we were told that traditional courts are situated next to a kraal which is said to be a ’place for men’ and where ancestors are. It is said that ancestors relate better with men than with women because women are believed to be un-pure and are associated with witchcraft. As a result women are not allowed near to the court, which is situated next to the ancestral kraal. We were told that, traditionally, if a woman has to attend a court session, she sits very far from the councillors who constitute the traditional court. Women are not allowed to speak or interrogate men. Even if she is a woman chief she is treated in a similar way and she has to appoint a male representative to talk and interrogate people on her behalf. All these procedures which are practised under the label of tradition show total discrimination against women. However concepts like tradition and custom as procedures to be followed in traditional courts are very problematic. ‘Custom’ and ‘tradition’ as practices or concepts are often used and understood differently. “In a limited sense ‘tradition’ refers to the transmission of culture-the repeated handing down of ideas, conventions and practises which humans need in social interaction. Popular understanding of the term goes beyond this neutral sense. This when people are told something is ‘tradition’ they will assume that it is age-old and unchanged since its inception”. This is similar to how our informants understood these terms to mean. That if a practises is ‘customary’ or ‘traditional’ it means that it cannot change nor can the chief or council be forced to change it through legislation. These concepts can be used as a form of identity, but also a resource for personal or group benefit whereby the past is “either used or herald as the source of unquestioned legitimacy or used to refer to conservatism”. In relation to those in power positions in traditional courts, whom are men, use tradition and custom as a resource for their own personal benefit as a legitimate way of holding on to power; authority, a way to discriminate against women and other members of their communities. In this way using ‘tradition’, ‘custom’ or ‘culture’ “ creates boundaries, among other things, of gender” (in the context of traditional courts) to exclude women. For example, some of the chiefs might prevent single, widowed and divorced women from participating on the bases that according to ‘tradition’ they are not allowed full participation in the courts. This is supplemented by what women said, namely, that tradition increases the level of discrimination that they suffer in their communities (as women). We are of the view that since ‘custom’ and ‘tradition’ as a practise used in these courts which promote the discrimination of women, the commission should look at other procedure to be used in these courts.

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Using ‘traditional’ and ‘customary’ procedures constitute a barrier to the transformation of these courts whereby the two concepts (‘tradition’ and ‘custom’) provide a way of challenging the existing democratic rule and a focus to resisting transformation of these courts. Those already in positions of power within the traditional court structure might also hide behind tradition to resist change within the institution We are of the view that the term ’traditional’ or ‘customary’ with regard to ‘traditional courts’ should not be used given the complications and problems that arise with the concepts of tradition and custom we suggest that the courts be called community courts. The reason being that traditional courts in practice are not presided over by chiefs but by ordinary men or women.

Section 2: Access, Representation and Participation of Women in Traditional Courts This section of the submission discusses the issues of women’s representation, participation and access to traditional courts. It draws on the qualitative research conducted in KwaZulu-Natal, the Northern Province and the Eastern Cape in September 1999. The section is divided into three parts: • The first part looks at the barriers that women experience when accessing justice through

the courts; • The second part discusses women’s participation in court proceedings; • While the third part examines the issues of representation of women in traditional courts as

councillors and presiding officers. This section draws on the following recommendations for comment: 4 (a) Councillors should be popularly elected by the people of the village or ward to sit with the

chief or headman in his or her adjudication of disputes. Decisions should be taken collectively, treating the councillors as full members of the court.

(b) Alternatively, Councillors could be appointed by the presiding chief or headman from a panel elected by the relevant community.

5. The traditional element of popular participation whereby every adult is allowed to question

litigants and give his opinion to the case should be maintained. 6. To comply with S 9 of the Constitution, the full participation of women members of the

community as councillors and presiding adjudicators must be allowed. 2.1 Traditional Courts as a means of access to justice The socio-economic and legal status of women in South Africa has been shaped and informed by various institutions and structures. These include Apartheid policy and legislation, culture, customary law and practice, as well as more recent political reform. In the past women have been largely marginalised and denied access to justice. However today accessing justice is viewed as a fundamental human right. For black women living in rural areas however, accessing justice has always been difficult because of their socio-economic circumstances, low levels of legal literacy, discriminatory cultural practices, and poor infrastructure and so on. In this

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submission, we argue that recognising traditional courts may have positive implications for women in terms of accessing justice, however we believe that it is critical to consider the barriers that women face in accessing justice through these courts. Often these barriers have little to do with the courts themselves, but more generally with the cultural and religious stereotypes around women and men’s roles in broader society. While traditional courts may be viewed as a cheap, less complicated form of access to justice, it is important to consider the barriers women face in accessing these structures. While the Recommendations listed above may result in significant and positive changes for women, they do not adequately address the specific problems that women may experience in accessing and participating in traditional courts. The next section highlights some of these barriers, and recommends that the SALC consider the broader implications of these in the lives of women whose only means of access to justice is through traditional courts. 2.2 Barriers faced by women in accessing traditional courts While the discussion document makes reference to women’s equal participation, it does not acknowledge the problems that women may experience in accessing traditional courts, which seriously impede their participation. The research conducted in the three provinces indicated that women generally did not access traditional courts. There were various reasons for this, which are dealt with below. 2.2.1 The role of cultural beliefs, norms and practices: Men as gatekeepers of culture. Tradition and cultural beliefs play an enormously important role in the lives of women and men. Historically these beliefs have been formed and shaped by men, and it is often men’s interpretations and views that are sanctioned and propagated. Culture was often cited as a reason for women’s inability or unwillingness to access traditional courts. Many respondents indicated that “it is not in our culture for a woman to take a case to a traditional court.” The social stigma attached to reporting a case has particularly negative consequences for women. It was generally agreed that a major reason for women not accessing traditional courts is because of the practice that only a man can bring a case to court. If a woman requires some form of remedy from a court, she has to ensure that she is represented by a male relative. If she does not have a father, her nearest male relative represents her. In some areas of KwaZulu-Natal where women are allowed full participation in traditional courts, an additional prohibiting factor is that the first point of departure is the family council. The council comprises elderly members of the community, who are usually men and who have much to gain from silencing women. If a family has never reported a case to a traditional court, it implies that the family head can effectively run his household and is a strong disciplinarian. It is often a sign of weakness if a family reports a case to the court. Cultural beliefs, norms and practices therefore are important factors that contribute to the inaccessibility of traditional courts, for women. The research also indicated that widows and single women might not have a fair chance of accessing traditional courts unless the widow had a well-respected husband, and the single woman is from a good family. Young men and women experience great difficulty in accessing justice through traditional courts. If they are minors, or are unmarried, they have no voice. The issue of age and status therefore are important considerations when deciding who may access justice. The geographic locality of traditional courts can sometimes lead to women’s exclusion. In Mount Frere and other regions in the Eastern Cape, traditional courts are often situated close to stock

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kraals. According to tradition, women are not allowed near the stock kraal because it is believed that the ancestors of the community congregate near these kraals. The underlying belief is that ancestors relate better to men, and that women may be regarded as unclean due to menstruation. 2.2.2 The Public/ Private Dichotomy In the Northern Province, focus group participants indicated that indicated that they did not generally access traditional courts because chiefs did not want to resolve disputes brought by women, as these were usually considered private. In particular cases involving domestic violence were usually referred back to the family head for consideration. While the section on jurisdiction deals extensively with this issue, it is important to raise this point under the question of access. Women usually require legal remedies for problems that are confined to their private lives. These problems usually involve immediate family like husbands or fathers. The practice in rural communities is that cases are referred to the family first. The family council is therefore the first point of departure, and it is often here that women experience most resistance. 2.2.3 Procedural Issues The previous section on structure and procedure of traditional courts highlighted the main concerns of this submission. It should be noted however that traditional courts are not homogenous in nature; they vary in structure and composition and often have very different rules of procedure. A case in point is the Amahlubi and Mchunu Tribes situated in KwaZulu-Natal. In the Amahlubi tribe women are allowed to bring cases to court. However they must be accompanied by a male member of the community who has both social standing and oratorical gift. In contrast to this, the Mchunu tribe does not permit women to bring a case before a traditional court. The court proceedings themselves are quite conservative and men and women occupy different spaces in the courtroom, and are not allowed to mingle. The formal rules of procedure, as well as the insensitivity of traditional chiefs to women’s issues, prevent many women from viewing traditional courts as a desirable means of access to justice. 2.2.4 Traditional Authorities The relationship between traditional authorities and women is one that is fraught with ambivalence and tension particularly in KwaZulu-Natal. The research conducted in this province indicated that chiefs often demanded sexual favours from women in exchange for assistance. The unequal power relationship between chiefs and women ensures that women are placed in a precarious position that requires some form of intervention. Ensuring that traditional authorities do not abuse their positions of power within their communities therefore needs consideration. In this regard, we recommend a code of conduct to be signed by presiding officers and councilors. The barriers that women face in accessing traditional courts is therefore of critical concern. If traditional courts are to be recognised as law enforcement agencies, then the issue of women’s access needs careful analysis and consideration. While the SALC’s discussion document has acknowledged that women do experience difficulties in accessing traditional courts, they have not adequately explored how these difficulties will be overcome. Although the constitutional guarantee to equality has been mentioned, the SALC has not indicated how principles of gender equality will be included in the operations of the courts. Customary laws, and the social and cultural practices that flow from this, often prevent women from exercising this right to equality.

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We therefore recommend the following:

2.3 Representation: Women as councillors and presiding adjudicators. To comply with S 9 of the Constitution, the SALC recommends that the full participation of women members of the community as councillors and presiding adjudicators be allowed. An important concern in this submission is whether representation will ensure that women’s needs and interests are accommodated in traditional courts. While the research indicated that this was not necessarily a natural progression, it was seen as a necessary point of entry. The research further noted that women in positions of authority experienced many difficulties. This section deals with the issue of representation, by focusing on the problems that women chiefs in traditional leadership experience. Women in positions of authority often have to operate within very clearly defined parameters, which are usually patriarchal in nature. Interviews with women chiefs in KwaZulu-Natal and the Northern Province indicated that they often experienced a great deal of resistance from members of the community. In particular a chief in the Northern Province indicated that she had enormous problems with regard to attaining the trust and respect of the people in the community. This was the case in KwaZulu-Natal and the Eastern Cape as well. Women chiefs often have to struggle to gain acceptance, not just from men but from other women as well. A field worker in KwaZulu-Natal commented that male chiefs dictate the “qualities and practices of a good chief”. It is not in the best interest of women chiefs to challenge these guidelines, and they often accept these to gain credibility, respect and social status in the community. A fieldworker in the Eastern Cape commented:

Women need to be encouraged to participate and influence decision-making. Even if women are present as councillors, they are on a man’s mandate. If women are appointed as councillors, the rules of the game need to be changed to accommodate this and make it better for women.

While an increase in the proportion of women may alter the patriarchal nature of traditional leadership with positive effects for women, it may also result in ensuring the women are further marginalised and alienated. The discussion document further recommends that councillors should either be appointed by the presiding chief or headman, or by the people of the village or ward. The election of councillors proved to be a popular suggestion. Many respondents indicated that if traditional courts are to serve as law enforcement agencies, they needed to be representative of the community. Electing councillors therefore was a very important part of the process of openness and accountability. The submission therefore agrees with the following recommendations: 4 (a) Councillors should be popularly elected by the people of the village or ward to sit with the chief or headman in his or her adjudication of disputes. Decisions should be taken collectively, treating councilors as full members of the court. In addition to this, we recommend that a quota be put in place to ensure that women are represented at all levels of traditional leadership.

2.4 Participation of women in courts proceedings

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This section examines the issue of women’s participation in traditional court proceedings. It argues that women are often precluded from participating freely and equally in the courts. This is largely due to cultural practices that prescribe subservience of women. The research indicated that women were generally excluded from participating in traditional courts. Various reasons for cited for this situation. Women in Modjaji felt that they were uneducated and did not want to attend hearings because they would not understand the proceedings. In all three provinces culture was often cited as a reason for women not participating in court hearings. Kgoro kea bana, or the courts belong to men, was often used as an explanation. Focus group participants from other regions indicated that they would like to attend and participate in hearings, however they felt that it was inappropriate for a woman to attend. They indicated that the councilors were often rude and humiliated them. Women were shouted at by presiding officers and were forced to kneel even when addressing the court. It also emerged that court proceedings were often intimidating in nature. In a village in the Northern Province women are neither allowed to attend court proceedings, or question litigants. They are only allowed in court as complainants. In this particular village, women were not allowed to address the court even if she has a complaint. A statement is taken from the complainant, who is requested to return to the court when the judgment is delivered. In contrast to this any male member in the community is permitted to question litigants, and participate in the proceedings. It therefore is clear that women are severely prejudiced because they are unable to fully participate in traditional court proceedings. While they are not permitted to question litigants, they may be called upon to answer questions. Male members of the community are permitted to ask questions even though they may not be directly involved in the case. On the issue of locus standi, a female chief indicated that women could only bring cases to a court if they are party to a dispute. Court proceedings were generally intimidating and, in this particular village, women are instructed to kneel when they address the court while men are allowed to stand and address the court. She further indicated that women should be accorded equal status in court and should be allowed to question witnesses and appear on behalf of others. The following phrase provides some indication of the criticisms that women face even when addressing the court:

When a man does not speak eloquently them he is accused of speaking like a woman. However, when a woman speaks articulately and eloquently, then she is congratulated for speaking like a man.

In recent years legal reform has often been used as a tool to provide justice to marginalised women. However legal reform cannot take place in a vacuum; changes in social and cultural practices that discriminate against women need to accompany this. Many of the issues highlighted in this section cannot be addressed through legislative reform alone; they require changes in cultural attitudes and perceptions as well.

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We therefore endorse the following recommendation: • The traditional element of popular participation whereby every adult member is

allowed to question litigants and give his opinion to the case should be maintained.

• In addition to this, we further recommend that it be expressly stated that women are accorded equal status in traditional courts and should be allowed to participate freely.

Section 3: Jurisdiction of Traditional Courts 3.1 Introduction This section of the submission will inter alia comment on the following specific recommendations contained within the South African Law Commission’s discussion paper no. 82 dealing with traditional courts and the judicial function of traditional leaders: a) the recommendation that matters relating to nullity, divorce and separation with regard to civil marriages should continue to be excluded from the jurisdiction of traditional courts and that such cases should be taken to a family court; b) the recommendation that disputes over customary land rights be handled by chiefs and headmen and their courts in their adjudicative rather than administrative capacity and that appeals should go to other courts in the usual way; and c) the question concerning whether traditional courts should continue to exercise criminal jurisdiction and, if so, whether relatively minor offences should be within their jurisdiction while the more serious offences are left to be dealt with by magistrates’ courts or higher. The list of scheduled offences which are outside the jurisdiction of traditional courts should be reviewed and reassessed with a view to ensuring that these courts only preside over very minor and simple offences. 3.2 Sampling of Cases Heard in Practice within Traditional Courts There is need to acknowledge the tremendous difference and variation between traditional courts across the country and, hence, also the types of cases heard by these courts. Their functioning is contingent on context and, in particular, the attitude and position of the Chief and senior councillors of the courts. It is, therefore, extremely difficult to make broad generalisations regarding the types of cases heard by traditional courts. The primary research has, however, pointed to some similarities in practice across the various traditional courts which have been examined for the purpose of this submission. The research has importantly highlighted examples of cases heard which do not legally fall within the jurisdiction of traditional courts. The contradictions evident in the following classification reflect the very real differences in how traditional courts function from one area to another. Cases which are dealt with by traditional courts (headmen’s courts and chief’s courts)4 are 4 For ease of discussion, we refer to traditional courts broadly and do not distinguish between the different levels of courts. We do, however, note that the chief’s courts may deal with cases which are different and, in some cases, more serious than those considered by the headman’s courts. We further note that certain cases may only be tried in the chief’s and not the headman’s court. This aspect, and proposals around structure, are dealt with in Section 1 of

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broad and include:

this submission.

• damage to property (focus group 1, Ga-Mothapo) • customary marriage (focus groups 1 and 2, Ga-Mothapo; Ga-Modjadji focus group;

ANCRA research) • inheritance (focus groups 1 and 2, Ga-Mothapo; Ga-Modjadji focus group; AFRA focus

group) • disputes between neighbours, siblings and husband and wives (focus group 2 and 3,

Ga-Mothapo; Ga-Modjadji focus group; TRALSO focus group; ANCRA research) • refusal to pay debt (Ga-Mothapo) • damages for pregnancy/paternity (Ga-Mothapo; TRALSO focus group) • theft of livestock/other property (TRALSO focus group; ANCRA research) • disputes over land/boundaries (TRALSO focus group; AFRA focus group; TRAC focus

group) • disputes over other resources, such as water (TRAC focus group) • witchcraft (ANCRA research) • seduction (focus group 1, Ga-Mothapo)

Cases which are, in practice, not heard by the traditional courts, but which are instead taken up through the western judicial system:

• attempted murder (focus group 1, Ga-Mothapo) • murder (focus group 1, Ga-Mothapo; TRALSO focus group; AFRA focus group)

Cases on which there is less clear definition and jurisdictional practice. By this we mean that some research respondents maintained that such cases are heard by traditional courts, whilst others maintained the opposite:

• domestic violence • a reluctance to hear such cases - AFRA focus group • traditional courts hear such cases - focus groups 2 and 3, Ga-Mothapo;

TRALSO focus group

• rape • often dealt with by traditional courts - AFRA focus group; ANCRA research • not heard by traditional courts - focus group 1, Ga-Mothapo; TRALSO focus

group 3.3 Perceptions Regarding the Handling of Cases Affecting Women There was a range of different opinions expressed about traditional courts. Some women indicated support for the traditional courts, while at the same time acknowledging need for change in certain areas. Many women, however, rejected the courts, arguing that they disadvantage and marginalise

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women. These respondents felt strongly that the traditional courts should not have jurisdiction over matters which concern women. Grassroots women were supported by other research respondents in their criticism of the courts and how they handle cases which affect women. Respondents complained generally that:

• Women are ill-treated and not respected in the courts; • Traditional courts are biased toward women; • Women’s cases are treated lightly and women are undermined to the extent that they

frequently withdraw their cases. Men’s cases, on the other hand, are seriously considered;

• Traditional courts do not try and resolve cases which affect women and they usually refer these back to the family; and

• Judgements passed in the traditional courts are biased, unfair and usually benefit men. Many research respondents indicated that the poor treatment of women in the traditional courts has led to many women no longer choosing to access the traditional courts to solve their disputes and problems. 3.4 Cases Affecting the Rights of Women and Children

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The SALC has asked stakeholders whether traditional courts should continue to have jurisdiction over matters relating to the status of women and children. They cite Zimbabwe as an example of a country which has excluded from the jurisdiction of customary law courts matters where women are likely to be prejudiced by the patriarchal attitudes of the male dominated traditional courts. The matters which they have excluded from the jurisdiction of traditional courts include claims to maintenance, custody or guardianship of minor children, dissolution of marriage and interpretation, validity and effect of wills. We recommend that the SALC investigate further the option of excluding from the jurisdiction of traditional courts all matters relating to the status of women given the wide-ranging implications of such a decision. We are further of the opinion that certain cases which very directly affect women must be explicitly removed from the jurisdiction of traditional courts. The cases which we recommend are excluded from the jurisdiction of traditional courts include, but are not limited to:

• Violence against women and children, including rape, attempted rape, indecent assault, domestic violence and child abuse;

• Cases of guardianship and maintenance, including determination of paternity; and

• Marriage, both civil and customary. • We further recommend that the SALC carefully considers the question of

jurisdiction in their existing research project on inheritance. This issue needs a great deal more work before clear recommendations may be formulated, and we therefore suggest that a decision on this matter be held over for more comprehensive research and discussion with affected groups, with particular attention to the interests and needs of rural women.

• The legislation which emerges from this discussion paper must clearly spell out the cases which fall outside of the jurisdiction of traditional courts, with particular emphasis on violent crimes against women and children.

• The traditional courts must be carefully monitored, through an appropriate mechanism (possibly the suggested traditional courts’ secretariat), to ensure that traditional courts do not hear cases which fall beyond their jurisdiction.

3.4.1 Violence Against Women Many of the respondents complained bitterly about the way in which traditional courts handle cases of violence against women. They maintain that women often do not receive a fair hearing, in particular in cases of domestic violence. Women are made to feel guilty and headmen and councillors instruct women to return to their husbands. One respondent indicated that the councillors and the presiding officer will often take the position that lobola was paid, or that there was a good reason for why the woman was beaten. This position was contested by one focus group of women who maintained that traditional courts deal with cases of domestic violence fairly. They state that if the Court finds that the woman is ‘wrong’, then the domestic abuse is justified. This is founded on the conservative and patriarchal notion that women are unequal and that beatings by husband are justified where women ‘misbehave’. The research suggests that some traditional courts are reluctant to deal with cases of domestic violence. Where such a case is heard, very infrequently by the traditional courts, the councillors

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will often chastise the ‘male head’ for failing to fulfil his responsibilities. The traditional courts prefer to see ‘family’ matters, even cases of violence, dealt with by the family. An interview with a woman Chief confirmed many of the views of grassroots women. In fact, the woman chief maintained that while cases of violence against women (she specifically referred to domestic violence) were brought before the court, she was reluctant to hear such cases. She refers domestic violence cases to the magistrate, despite objections by some of the bakgomana (councillors). Her position is that the magistrates have more appropriate legal powers to deal with cases of violence against women. She narrated a story which had informed her position on jurisdiction over cases concerning violence against women. At the time she came to power, a woman was murdered by her husband. After the funeral, the chief proceeded to conduct her own investigations and discovered that the woman had reported several cases of physical abuse to the traditional authorities who had failed to respond. The woman was repeatedly forced to reconcile with her husband, who eventually killed her. Participants in focus groups in an area in which a woman Chief has jurisdiction maintain that where cases of violence against women were heard by the Chief’s Court there was more fairness because the complainant and the defendant were often not known to the councillors. The women further noted that the Chief, a woman, is more sympathetic to them (they can ‘be free in front of her’) and that the procedures of the Court are different because of the influence of the Chief. The women indicated that the Chief usually encourages women to express themselves, and they are not compelled to sit down when spoken to as tradition usually dictates. Respondents, further, feel that if women were represented in the courts they would offer a woman’s perspective, especially in cases of domestic violence. If there were women in the courts, they would better understand women’s position. Men often protect and advance the interests of men in a way which prejudices women. There are, therefore, certain preconditions to traditional courts dealing fairly with cases of violence against women - a woman chief, women councillors, fairer procedures and systems of the Court and a higher level of Court. These conditions would be difficult to fulfil in the medium to long-term, which suggests that it is appropriate that cases of domestic violence be located outside of the jurisdiction of traditional courts. This position is supported by many of the women reached through the research who indicated that they would rather have cases of violence against women dealt with through the western judicial system. They felt that the magistrate’s courts were more appropriate as the woman may acquire a court order preventing the man from abusing her. Implementing the recommendation that traditional courts not hear cases of violence against women would merely confirm the practice of many women taking their cases outside of the traditional courts. A woman magistrate confirmed the recommendation that traditional courts not be permitted to try cases of domestic violence as they are biased and unfair to women. She advises that traditional courts not deal with disputes between husband and wife, where the wife is severely prejudiced by custom and cultural practices. As the main aim of traditional courts is to reconcile disputants, the traditional courts may not be the best route should the woman desire the outcomes of separation or divorce.

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Many of the research participants explicitly recommended that the traditional courts not try cases of rape. While legally this is currently the case, the research strongly suggests that traditional authorities are hearing cases of rape and attempted rape. This is confirmed by the discussion paper which cites at least two examples of cases which were tried as seduction cases, but could possibly have been cases of rape or attempted rape. In accordance with the above views of women and other key respondents, we recommend that all cases of violence against women, including but not limited to rape, attempted rape, domestic violence, indecent assault and child abuse be explicitly removed from the jurisdiction of traditional courts.

3.4.1.1 Clearer Definitions and Understanding of Violent Crimes Against Women A clear definition of crimes and unequivocal positions on jurisdiction over those crimes is needed. There are many abuses of human rights defined as crimes in the western legal sense which are not recognised as such within the traditional system, for example, domestic violence. Crimes are defined in terms of prevailing social norms and customs; that we live in a patriarchal society means that crimes are interpreted differently depending on who is affected and who is in a position to define the crime. By example, some seduction cases may involve minors and, in terms of western law, therefore be cases of statutory rape. The discussion document, moreover, cites specific cases which have been dealt with by traditional courts as minor crimes, but could actually be interpreted as the more serious crimes of rape or attempted assault. This submission has also pointed out that disputes between husbands and wives handled by the traditional courts are, in many instances, actually cases of domestic violence and, therefore, more serious than the disputes between neighbours which may require mediation through the traditional court. In the western legal context, domestic violence is interpreted, but not necessarily acted upon as a serious crime. Conversely, in many rural and other communities, and within the traditional courts, domestic violence is often treated as an acceptable practice of men disciplining their wives. So, in traditional systems the case of a man beating a woman (not his wife) is treated seriously. The case of a man beating his wife, however, is taken as acceptable practice. Crimes against women and children (because of their status and standing within families and communities) do not feature as serious and legitimate crimes to be dealt with openly and publicly. Battery, rape and child abuse within the family (as is ordinarily the case) are, this research suggests, to be dealt with in the family and not in the public domain. Some research participants mentioned that rapists often tend to be characterised as thugs and thieves by the traditional courts. This suggests that the traditional courts apply a rather limited definition of rape which would exclude the more prevalent rapes of women and children within families. This perception is not peculiar to the traditional courts but is shared by many in the western judicial system and broader society.

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We recommend the following: •the legislation which emerges from this discussion paper must make it abundantly clear that traditional courts do not have jurisdiction over any violent crimes against women and children; •that the chiefs, headmen and councillors of the traditional courts are made aware of the various violent crimes against women, the definition of these crimes and are informed about the severity of these crimes; and •that the Department of Justice set aside funds for a widespread education and communication campaign on violence against women which targets both men and women in rural areas.

• 3.4.2 Cases of Maintenance, including Paternity A substantial number of the research participants recommended that maintenance cases be taken up through the western judicial system. Key reasons given by woman participants were that the magistrate’s courts are quicker and there is a clear legal process to deal with defaulters. Some of the women maintain that the above is already the practice within many rural localities under the jurisdiction of traditional courts. Cases of maintenance go straight to the magistrate’s courts, and not through the traditional courts. Locating maintenance outside of the jurisdiction of traditional courts may then be a matter of confirming an existing practice. In regard to paternity, many of the respondents complained that if a man denies paternity he is often fined a head of cattle, after which the councillors, headmen and chiefs do not compel the father to support the child. Neither do they follow up cases where the father has defaulted on maintenance payments. The traditional court system clearly does not have the capacity to deal with maintenance; it makes sense to build on and improve the existing system of maintenance, rather than attempting to develop and institute a new parallel system. There were many concerns expressed around how paternity is established. Respondents complained that the traditional courts do not apply scientific methods for establishing paternity. In accordance with the above, we recommend that:

• issues of guardianship and maintenance not be included within the jurisdiction of traditional courts; and that

• in so far as the determination of paternity is related to the payment of maintenance and access to and custody of a child or children, these should not be included in the jurisdiction of traditional courts.

3.4.3 Marriage We are in agreement with recommendation 12 of the SALC which states that:

Matters relating to nullity, divorce and separation with regard to civil marriages should continue to be excluded from the jurisdiction of traditional courts. Such cases should be taken to a family court.

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We further recommend, in accordance with the Customary Marriages Act, that the legislation which emerges from this discussion paper not distinguish between customary marriages and civil law marriages in terms of how they are treated by any judicial forum. Both forms of marriage should be treated the same and excluded from the jurisdiction of traditional courts.

3.4.4 Succession Given the current highly discriminatory nature of customary law, the exclusionary systems and procedures of the traditional courts and women’s complaints about the courts, we have serious reservations about locating jurisdiction over inheritance in the traditional courts. In the absence of sufficient information on the issue and with little information on the perceptions of ordinary women and men on the question of succession and jurisdiction, we do not feel in a position to advance specific recommendations on this issue. We strongly recommend that the SALC carefully considers this issue in their existing research project on succession. A great deal more work is needed before clear recommendations may be formulated, given the wide-ranging consequences for rural women in particular. A decision on this matter should, therefore, be held over for more comprehensive research and discussion with affected groups, with special emphasis on rural women.

3.5 Other Cases 3.5.1 Disputes around Land Rights The SALC has recommended (recommendation 13) that the adjudication of disputes over land rights in customary settings fall under the jurisdiction of traditional courts and chiefs:

Disputes over customary land rights should be handled by chiefs and headmen and their courts in their adjudicative rather than administrative capacity and appeals should go to other courts in the usual way.

There are a number of concerns which must be addressed in regard to the above: A. Distinction between administration and adjudication and inherent contradictions The distinction between administrative and adjudicative capacity must be made clear. In tribal and traditional communal tenure situations, chiefs and headmen often, but not in every instance, allocate land rights. It is important to note that this role is not always an uncontested one. Is it correct then that the discussion document draws a distinction between the two functions, and how easy or difficult is it to distinguish these functions in practice? The functions clearly

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need to be split and located in different places - it is considered inappropriate that chiefs, headmen and their courts allocate rights (in their administrative capacity), and then seek to adjudicate disputes over these rights (in their adjudicative capacity). There may well be tensions and contradictions in attempts to fulfil both roles. The functions and responsibilities of chiefs, headmen and traditional courts in relation to customary land rights must be clearly defined to avoid disputes. B. Defining customary land tenure systems What is meant by customary land rights and how is the system defined? What conditions must be met in order for a tenure system to be characterised as one which is customary? C. Defining jurisdiction to resolve disputes There are complex questions around jurisdiction which the SALC must answer. Where would chiefs, headmen and their traditional courts have the right to adjudicate disputes around land rights? What criteria would be applied and who may decide on questions of jurisdiction? This ties to the broader question regarding the jurisdiction of traditional courts and chiefs as these are often disputed structures within rural communities. People should be able to choose the system of adjudication which is applied within a given community or situation; it should not be a requirement that chiefs, headmen and their courts adjudicate disputes in every instance. We note that women would be especially disadvantaged in this regard. D. Potential conflict with other state policy The Department of Land Affairs (DLA) is currently defining land tenure policy which seeks to confirm the rights of people living on state-owned land, most of which is held and managed by groups of people on a customary, traditional or tribal basis. It is recommended that the SALC consult the DLA on this specific recommendation to ensure that the policy and law of the Commission and the DLA are not in conflict.

3.5.2 Damage to Property In so far as damage to property is not related to violence against women as envisaged by the new Domestic Violence Act, damage to property cases should remain within the jurisdiction of traditional courts. 3.5.3 Refusal to pay debt cases While we are satisfied that refusal to pay debt cases remain within the jurisdiction of traditional courts, we would propose that a ceiling or monetary cap be developed. 3.5.4 Damages for pregnancy The traditional courts should continue to hear cases brought for damages for pregnancy, as long as these damages are not related to cases of rape and child abuse.

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3.5.5 Seduction cases The law must make very clear the distinction between seduction and rape, statutory and criminal. The research strongly suggests that many traditional courts do not make such a distinction and may sometimes treat rape as a case of seduction. The legislation must point out the difference between these offences, and make abundantly clear to chiefs, headmen and councillors that traditional courts are not empowered to preside over the serious crimes of rape, attempted rape and indecent assault. 3.5.6 Other We agree with the position of the SALC that

[i]f traditional courts are to continue to exercise criminal jurisdiction, only relatively minor offences should be within their jurisdiction, while the more serious are left to be dealt with by magistrates’ courts or higher (6.6.3). The list of scheduled offences which are outside the jurisdiction of traditional courts, should be reviewed and reassessed with a view to ensuring that these courts only preside over the very minor and simple cases (6.5.2).

Further, we would argue that there are some cases which require clearer definition, ‘man-stealing’ being a case in point. In terms of Section 9 of our constitution, ‘sodomy’ is no longer constituted as a crime and should, hence, be removed from the list of scheduled offences. Summary of Recommendations: The following recommendations are made in this submission: Section 1: Structure and Procedures of Traditional Courts 1.1 Councillors should be empowered to act as presiding officers of traditional courts. This

would increase the likelihood of women and other members of the community outside of the chieftaincy becoming presiding officers.

1.2 Chiefs should not be given final decisions on who can become a councillor due to some

corrupt practices. 1.3 Concepts ‘traditional and ‘customary’ as procedure to be followed are problematic given

the different ways that those terms can be used as a barrier to transformation. Section 2: Access, Representation and Participation of Women in Traditional Courts Summarise and add recommendations from body Section 3: Jurisdiction of Traditional Courts 3.1 Certain cases which very directly affect women must be explicitly removed from the

jurisdiction of traditional courts. The cases which are to be excluded from the jurisdiction of traditional courts include, but are not limited to:

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• Violence against women, including rape, attempted rape, indecent assault,

domestic violence and child abuse; • Cases of guardianship and maintenance, including determination of paternity;

and • Marriage, both civil and customary.

The legislation which emerges from this discussion paper must clearly spell out the cases which fall outside of the jurisdiction of traditional courts, with particular emphasis on violent crimes against women and children.

3.2 The traditional courts must be carefully monitored, through an appropriate mechanism

(possibly the suggested traditional courts’ secretariat), to ensure that traditional courts do not hear cases which fall beyond their jurisdiction.

3.3 Related to recommendation 1 (above), that the SALC investigate further the option of

excluding from the jurisdiction of traditional courts all matters relating to the status of women given the wide-ranging implications of such a decision.

3.4 It is recommended that the Law Commission hold over any decisions on jurisdiction over

matters of succession until further information is available on the issue. The submission advises the Commission to take up the question of jurisdiction in their existing research project on inheritance. The submission further argues that the Law Commission must undertake more comprehensive research and consultation on the matter of inheritance with particular attention to the needs and interests of rural women.

3.5 The submission further recommends that the chiefs, headmen and councillors of the

traditional courts are made aware of the various violent crimes against women, how these crimes are defined and be informed about the severity of these crimes.

3.6 The Law Commission must advise the Department of Justice of the need to set aside

funds for a widespread education and communication campaign on violence against women which targets both men and women living in rural areas.

3.7 In regard to disputes about land rights in customary and tribal tenure systems, the

submission points to a range of problems of definition and jurisdiction and specifically recommends that the SALC consult with the Department of Land Affairs (DLA) to ensure that the policy and law of the Commission and the DLA are not in conflict.

3.8 In so far as damage to property is not related to violence against women as envisaged

by the new Domestic Violence Act, damage to property cases should remain within the jurisdiction of traditional courts.

3.9 A ceiling or monetary cap should be established for refusal to pay debt cases heard by

the traditional courts. 3.10 The traditional courts should continue to hear cases brought for damages for pregnancy

as long as these damages are not related to cases of rape and child abuse. 3.11 The legislation which emerges from the Discussion Paper must point out the difference

between cases of seduction and rape and make abundantly clear to chiefs, councillors

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and headmen that traditional courts are not empowered to preside over the serious cases of rape, attempted rape and indecent assault.

3.12 The submission supports the position of the Law Commission that the jurisdiction of

traditional courts be limited to minor criminal offences, while the more serious offences are left to be dealt with by magistrate’s courts or higher. We further support the recommendation that the list of scheduled offences be reviewed and reassessed with a view to ensuring that the traditional courts only preside over very minor and simple cases.