A Commission of Inquiry will be held in Pretoria on 24th and 25th July in order to address the paucity of women in the judiciary.
The Inquiry comes as the result of a complaint lodged by the Democratic Governance and Rights Unit (DGRU) of UCT and Sonke Gender Justice in October 2012 to the Commission for Gender Equality (CGE).
Download the Press Release: CGE to Take Action on Gender in the Judiciary
President Jacob Zuma on Thursday acknowledged to the National House of Traditional Leaders that the Traditional Courts Bill is flawed because, among others, it balkanises black rural people according to the tribal boundaries of the defunct Bantustans.
The President’s concession that the current Bill cannot be passed is a great victory for the rural people who travelled far, and at times under difficult and dangerous circumstances, to voice their opposition to the Bill. This victory is particularly significant hot on the heels of the Select Committee of the National Council of Province’s attempt to eliminate the overwhelmingly negative public submissions on the Bill from being considered in the parliamentary process.
Regrettably, President Zuma undermined the principle of separation of powers, and the Constitution itself, when he launched an attack on those who participated in the hearings. He accused the detractors of the Bill of saying they are merely “dealing with cold facts. They will never tell you that these cold facts have warm bodies”.
If President Zuma was at the public hearings, he would have noticed the many ‘warm bodies’ testifying to the abuses of some unaccountable traditional leaders. Given the consistent disdain with which Parliament has treated the many South Africans who reject this Bantustan Bill, the President’s accusation is outrageous.
President Zuma reportedly painted the detractors of the Bill as “Africans most eloquent in criticising their cultural background”. In fact, ironically, opposition to the Bill stems from its distortion of living customary law which is about participation and accountability.
President Zuma’s reference to “Africans and the ‘white law’” is a cheap shot to silence those who oppose the Bill. However, a fundamental question must be asked, is the President saying the Constitution is white law? And, if so, what does this say about that the many black rural opponents of the Bill?
Yesterday, the Presidency accused the media of sensationalising Zuma’s utterances and misleading the public. In fact, it is the deeply flawed legislative process and the President’s doublespeak about the Bill that aim to mislead and silence a broad public that has rejected this Bill since 2008.
Given the procedural flaws and the fundamental problems with the Bill, the Alliance for Rural Democracy reiterates that it must be withdrawn. No measure of tinkering will make this Bill pass the constitutional test.
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 Bill will have on the rural constituencies they serve and support. The ARD includes the following organisations:
On Friday 12 October, the Democratic Governance & Rights Unit (DGRU) of the University of Cape Town (UCT) and Sonke Gender Justice, lodged a formal complaint with the office of the Commission for Gender Equality (CGE) calling on the CGE to investigate the lack of gender transformation in the judiciary.
Research conducted by the DGRU reveals that:
Section 174(2) of the Constitution of South Africa, states that the judiciary needs to ‘reflect broadly the racial and gender composition of South Africa’ and that this ‘must be considered when judicial officers are appointed.’ This obligation reinforces the constitutional duty placed upon the state to uphold the right to equality enshrined in Section 9 of the Constitution.
Speaking in Cape Town shortly after having laid the complaint, DGRU Researcher Tabeth Masengu said:
“On the basis of our research, it is self-evident that there is a glass ceiling for potential women judges. This systematic discrimination goes to the heart of our constitutional values. Since the CGE is tasked to promote gender equality, we believe it is high time that they give full attention to this vital concern and we look forward to the Commission conducting an appropriate investigation”.
The Complaint cites as respondents:
Cherith Sanger, the Policy Advocacy and Research Unit Manager of Sonke said:
“The current status of the representation of women in the judiciary is concerning under a democratic dispensation. Improved representation of women in the judiciary can go a long way in advancing women’s interests by setting standards to increase the pace of gender transformation in communities.”
Starting on Tuesday 16 October, at the Grand Westin Hotel, Cape Town, the JSC will be interviewing candidates for a total of 13 positions on the High Courts of Kwa-Zulu Natal, North and South Gauteng, Western Cape and Eastern Cape. They will also interview for the Labour Court and Electoral Courts.
The Alliance for Rural Democracy represents organisations and individuals committed to democracy, equality and access to justice for all who live in South Africa. We recognise that our freedom is interdependent with that of all citizens.
We call on delegates at the ANC policy conference, presently underway at Gallagher Estate, to recommit themselves to protecting and advancing the basic human rights of all citizens in South Africa, including those in rural areas.
For many reasons, and since it was first tabled in the national assembly in 2008, we have consistently expressed our opposition to the Traditional Courts Bill (Bill), presently before the National Council of Provinces (NCOP). We believe that it does not meet constitutional muster and must be scrapped in its entirety.
We note with disquiet the NCOP’s decision on 30 May, not to consider the provincial mandates on the Bill, many of which were opposed to it in whole or in part. This flies in the face of all those rural people who made their voices heard during the provincial legislatures’ public hearings on the Bill, despite attempts to intimidate and victimise them for speaking out against the Bill.
We wish for the ANC to reassert the principle of ‘one law for one nation’ – which represents a fundamental departure from colonialist and apartheid attempts to ghettoise some sections of our nation merely on the basis of their race and location. We appeal to the ANC to make real on its commitment to economic justice and to address the continued economic exploitation of rural people through the unregulated practices of some traditional courts.
We urge the ANC to show political leadership consistent with the founding principles and values of South Africa’s constitutional democracy.
We call on the ANC to stand with all people who support the recognition of cultural freedoms and belief systems, in the context of a constitutional democracy, and to join us in our call:
ONE LAW FOR ONE NATION!
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.
Nomboniso Gasa Cell: 083 451 9321 or 083 7791435
Mbuyiselo Botha 082 518 1177
Sizani Ngubane 073 8405151
The Alliance for Rural Democracy celebrates the resounding rejection of the Traditional Courts Bill by many provinces at yesterday’s sitting of the National Council of Provinces’ Select Committee on Security and Constitutional Development. However, we reject the decision by the Committee to re-open the public hearing process. We call for the drafting of an entirely new Bill, informed by the views of rural people.
Yesterday was a victory for the many South Africans who spoke out against the Bill at the recent public hearings, despite the many shortcomings of the hearings. Four provinces rejected the Bill outright, namely the Eastern Cape, North West, Gauteng and Western Cape. The ambivalence of Limpopo and Mpumalanga, and the far-reaching amendments proposed by the other provinces, support the Alliance’s consistent stance that the Bill in its current form is fatally flawed and cannot be salvaged by mere amendments.
A delegate from Limpopo was at pains to emphasise that the province’s proposed amendments do not suggest that they support the Bill. The mandate of the Eastern Cape states that, “no amount of amendments and redrafting can salvage this Bill”. That provinces have come out so strongly in opposition to a Bill is unprecedented in ANC parliamentary politics.
The Bill was sold by traditional leaders as upholding African custom, dignity and tradition. Yet it was roundly rejected by rural people, particularly women, on the basis that it does nothing of the sort. Instead it seeks to entrench colonial and apartheid distortions embedded in ‘official’ customary law at the expense of women’s rights and equal citizenship. It creates a separate and highly coercive legal regime for those living in the former Bantustans.
The public contestations around the Bill have been falsely framed as pitting human rights against custom. This is not the case. What communities across all the provinces are contesting is the apartheid boundaries and autocratic chiefly powers, entrenched by the Bill, which rural people insist are inherently inconsistent with living custom.
An entirely new Bill is required, one which takes into consideration, amongst others, women’s human rights, proper adherence to the Constitution and living customary law, and the real lives of rural South Africans.
The Select Committee created confusion when, instead of processing the provincial mandates as required by the Constitution and the Rules of Parliament, it decided to re-open the public hearing process. The Alliance contends that this move obfuscates the required engagement with substantive issues arising from the Bill.
We call on the Committee to deliberate on the Bill on the basis of the mandates received from the provinces. These mandates are informed by the opinions expressed in the public hearings, which although flawed in process, should not be ignored.
We demand that the Bill be scrapped in its entirety, and that a new Bill be drafted which takes as its starting point the Constitution and the concerns expressed by rural communities.
There was uproar in 2008 when the Bill was introduced in the National Assembly and it was shelved as a result. The very same Bill was resuscitated this year. How many times do rural people have to say NO for Parliament to hear? The Alliance demands that the voices of South Africans be heard and that the Bill be immediately withdrawn.
Nomboniso Gasa Cell: 083 451 9321 or 083 7791435
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.
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
Nomboniso Gasa
Cell: 083 451 9321 or 083 7791435
Desmond Lesejane
Cell: 084 581 6306
The MenEngage Africa Network, and its member Men for Gender Equality Now Malawi (MEGEN), calls for an immediate crackdown on suspects who recently stripped naked and beat up women in the Malawi cities of Lilongwe, Mzuzu and Blantyre. These acts were barbaric and unjust, and not fit for a democratic county with a comprehensive Bill of Rights to protect all its citizens. We commend President Bingu wa Mutharika’s strong stance on this issue, and the Malawi Police Service for trying to bring to justice anyone who attacks women in this way.
The Sonke Gender Justice welcomes the ruling passed down in the Equality Court today finding that Julius Malema’s comments about rape survivors amount to hate speech and harassment. Sonke spokesperson, Mbuyiselo Botha says, “Magistrate Collis has shown that we have a solid and strong justice system in South Africa which upholds the values of the Constitution, and this ruling demonstrates that the court system can protect the rights of rape survivors.”
This case makes it clear that our country’s leaders need to be more responsible in their public statements and that civil society can and will hold them accountable. We hope that this ruling will alert public figures to the potential repercussions of their words, both in terms of the impact that public statements can have in perpetuating gender-based violence and other forms of discrimination, and in terms of the legal implications.
In a country where it is estimated that one in three women is raped, we need to take strong action to counter myths and stereotypes which can lead perpetrators to believe that they can act with impunity, and which can dissuade rape survivors from seeking health care or justice.
It is not sufficient, however, for leaders to refrain from making irresponsible comments; we need proactive leadership to mobilise men and boys to take action against gender-based violence. We reiterate our call for men in public positions to be clear and consistent in their explicit support of gender equality and to condemn openly and unequivocally all forms of gender-based violence.
“Instead of perpetuating rape myths, public figures should make it clear that rape can happen anywhere, and that the rapist could be anyone: a stranger, a friend, a boyfriend, a husband. There are no rules that say a woman who has been raped will behave like this or like that. We need to make sure that women who have been raped are not stigmatised and are not made to feel like the crimes against them were their fault,” says Botha.
During the court case, Malema has repeatedly pointed out his commitment to gender equality and we call on him now to retract the statements he made to students at Cape Peninsula University of Technology that form the basis of our complaint against him and issue a public apology. We urge him to demonstrate his support for women’s rights by mobilising the significant resources and influence of the ANCYL to prevent gender-based violence and advance gender equality – and specifically to educate men and boys about the role they can play in advancing gender transformation.
Sonke would like to thank all the partners that supported us through this case, especially Chris Todd and his associates at Bowman Gilfillan who graciously provided pro bono legal representation, and also Lisa Vetten at the Tshwaranang Legal Advice Centre who appeared as an expert witness in this matter. We would also like to thank members of the media who have followed this case and have kept the public informed about the progress of the matter and the issues at the centre of the case.
Sonke Gender Justice works engages with men and boys around issues of gender, gender-based violence and HIV. We work across Africa strengthening government, civil society and citizen capacity to support men and boys to take action to promote gender equality, prevent domestic and sexual violence and reduce the spread and impact of HIV and AIDS.
This case is the result of action that Sonke took in March 2009, in response to ANC Youth League President Julius Malema statements he made to Cape Peninsula University of Technology students on January 22, 2009. He said of women making accusations of rape that “when a woman didn’t enjoy it, she leaves early in the morning. Those who had a nice time will wait until the sun comes out, request breakfast and ask for taxi money.”
Rev. Bafana Khumalo
Sonke Co-Director
Work: 011 339 3589 x 207
Cell: 082 905 7587
Mbuyiselo Botha
Government and Media Relations Manager
Work: 011 339 3589 x 209
Cell: 082 518 1177
Regis Mtutu
National Programmes Manager
Work: 021 423 7088 x 215
Cell: 084 310 8614