Evolution of provisions relating to violence against women in South Africa’s Traditional Courts Bill

• Jurisdiction: South Africa
• Pages: 87-133
• Date: 14 September 2020
• Published date: 14 September 2020
• Author: De Souza Louw, M.
• Citation: 2020 Acta Juridica 87

87

Evolution of provisions relating to

violence against women in South

Africa’s Traditional Courts Bill

MONICA DE SOUZA LOUW*

Three version s of the Traditional Cour ts Bill (TCB) have been ta bled

before Parliament in the la st two decades. Each version ha s raised

questions about its impact on women’s experiences in custom ary law

dispute resolut ion forums and whether suc ient protection is being

provided for women’s rights. Concerns relate to the subject matter

dealt with in traditional courts, the ex tent to which women’s voices

are heard and t aken seriously, and the impact on women of processes

used to resolve disputes, includ ing whether t here are avenues for

accountability. This article describes the evolution of the TCB’s

approach to these matters with part icular reference to women who

have experienced violence or threats of violence and a re involved in

traditional court processes. T he drafting process that occu rred af ter

the lapsing of the 2012 TCB version, and which gave rise to the

2017 TCB version, is highlighted. The ana lysis suggests a cor relation

between the preva iling gender dynamics w ithin a particu lar

draft ing foru m and the treatment of women’s concerns in the

TCB’s provisions. Yet the TCB, and customary law more generally,

could play an important role in protecting women from violence

and providing appropriate recourse. It is t herefore argued that the

TCB law-mak ing process must take public partic ipation seriously

and incorpor ate sincere eor ts to bui ld on women’s experiences of

traditional courts and violence.

I IN TRODUCTION

The Traditional Courts Bil l (TCB) has been introduced in Parlia-

ment three times with the aim of regulating dispute resolution in

* L LB LLM (Un iversit y of Cape Town); Deputy Dire ctor, Land a nd

Accountabi lity Re search Cent re, Facult y of Law, Univers ity of Cape Town.

The author gr atefully ack nowledges the work of all t hose who have contributed

to the str uggle for a Trad itional C ourts Bi ll that foregrou nds const itutiona l

and custom ary l aw right s. Partic ular t hank s are extend ed to Ani nka Claassen s,

Constance Mogale, Wi lmien W icomb, Siza ni Nguba ne, Nolundi Luw aya and

Sindiso M nisi Weeks for shaping the t hink ing that resulted i n this article.

2020 Acta Juridica 87

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88 VIOLENCE AGAI NST WOMEN

customar y law forums and increasing access to justice for mil lions

of South Africans. The rst two versions of the Bill – introduced

in 2008 and 2012 – provoked multiple concerns about the eect

it would have on women and other vulnerable groups. Blatantly

discriminatory provisions and a failure to acknowledge how the

Bill would im pact women in practice prompted many to reject it a s

unconstitutional. Neither of these ver sions successful ly completed

the parliamentary process.

Concerns about the rst two versions of the Bill related to the

participat ion and representation of women in traditional courts – as

members and litigants – and the ways in which women would be

prejudiced by the types of matters, orders, procedures and recourse

mechanisms permitted in trad itional cour ts. Moreover, traditional

courts did not provide automatic channels to social and health

services for women. Some of the concerns were about practices

already ex isting in some traditional courts, while others related to

the unequal power relations that would be established or reinforced

by the respective Bil l’s provisions. If promulgated, the 2008 and

2012 Bills threatened to exacerbate or reinforce instances of

violence agai nst women or the inequitable treatment of such case s in

traditional settings. Underpinning this threat was women’s inability

to opt out of (or into) disputes brought before traditional courts and

to choose alternative forums that might better suit their needs.

When these previous versions of the Bill failed, there was hope

that any new Bill put forward by government would explicitly

and thoughtfully foster a safe environment for women wishing to

resolve disputes i n customary law for ums, discourag ing bad practices

and encouraging those courts already taking steps against gender

discrimination. The Depart ment of Justice established a reference

group in late 2015 to under take the task of dra fting a new Bill , which

was eventual ly introduced in the Nation al Assembly in Janua ry 2017.

Stakeholders who par ticipated in initial parliamentary consultations

on the 2017 Bill indicated that the new version included several

improved gender protections, notwithstanding concerns about

their implementation. However, various draft versions of the Bil l

from the reference group process suggest that an internal str uggle

preceded the iteration that was nally introduced in 2017. The end

result seems to be attributable to the eorts of prog ressive voices in

the reference group, and a government department that recognised

its obligations to the Constitution.

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TRA DITIONAL COURTS BILL PROVISIONS 89

While the legislative process is still ongoing, debates in

Parliament have shifted away from ensuring that the Bill

upholds constitutional rights and values and prevents gender

discrimination. As will be discussed further below, Members of

Parliament have gone so far as to dismiss the need to account for

gender in any of the Bill’s provisions or their potential appl ication.

The conservative and oensive attitudes shown by some Members

during hearings and committee discussions were also evident in

Parliament’s subsequent changes to the 2017 Bill. Most of the

progress made since 2008 is at risk of being undone.

This article traces how gender-related protections and threats

in the TCB have evolved through various versions and drafting

forums, with particular emphasis on the period since the lapsing

of the 2012 version in Parliament and the potential repercussions

for women threatened with v iolence in traditional communities.

In doing so a correlation emerges between the Bill’s provisions at

a particular time and the dominant gender politics of the forum in

which they were craf ted, takin g into consideration the position ality

and interests of actors within those forums. It is hoped that by

understanding the dy namics and negotiations underlying the Bill ’s

provisions, activists and progressive government sectors will be

able to avert dangerous provisions before the Bill becomes law.

II TRA DITIONAL COURTS AND VIOLENCE AGAINST

WOMEN: WHAT IS THE CONNECTION?

Despite the ongoing controversies surrounding their legislative

recognition, it is acknowledged that traditional dispute resolut ion

forums – also called ‘customary courts’, ‘traditional courts’,

‘vernacular forums’ and various vernacular n ames in the literature1

1 F or convenience, I w ill use t he term ‘tr aditional court’ t o refer in gener al

to a customa ry di spute resolut ion forum . Please note th at although the ter m

‘tradit ional court’ i s used by the proposed le gislation to d enote only those for ums

ocial ly recogn ised by the st ate, thi s is not the mea ning th at I am att ributi ng

to the term . Indeed, by re ferri ng to a part icular forum as a ‘tradit ional court’, I

am in no way com menting on its stat us either under ocia l or living custom ary

law. I also occasionally use the ter m ‘trad itional cou rt’ inte rchangeably with

‘customar y court ’ and ‘trad itional dispute re solution foru m’, again wit h no

intention of de noting that the foru m bears a particu lar status or nat ure.

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