The role of traditional leaders has changed a lot in the 17 years since South Africa ushered in a new era of democracy. This recent dispensation accompanied by the Constitution as the supreme law of land has left many traditional leadership roles in a state of confusion.
As a rural woman who grew up guided by African values and culture I would naturally welcome any positive intervention our government is making in order to restore dignity and preserve some cultural practices among South African tribes. I am one of those who would like to see tribal leaders given recognition and a role they could play in nation building.
If ever there was such a move by government, the Traditional Courts Bill which is currently tabled before the National Council of Provinces (NCOP) is just not it. Rather than bring any positive change, the Bill will drive back many rural communities that are only beginning to appreciate and understand the benefits of a democratic country back to the times when they were at the mercy of traditional leaders.
In many villages traditional courts are still relied on to bring about justice to disputes that cannot be resolved by individuals. Women, mostly, have been found themselves at a disadvantage at these particular courts. African culture dictates that a woman should know her place and not speak in the presence of men unless asked to do so. My impression of the traditional courts has always been how oppressive and biased towards women they can be. Even when asked to speak, there are certain things a woman cannot say in public. This is a taboo in African cultures and a customary law that is viewed as an offense that could result with fines being imposed. In traditional court without legal representation a woman’s case would be disadvantaged because traditionally they don’t hold the same power as men. One of the fundamental flaws in the TCB is that it does not allow provisions for legal representation.
The offenses brought to our court were usually domestic issues for example; a woman involved would have spoken back to her husband or refused to perform certain duties for her husband. The reasons for this behaviour by a woman were never evaluated just that the wife has failed to perform her matrimonial duties and therefore must be held accountable. It used to disturb me to observe how biased the courts would be towards women who were outspoken and headstrong when going against men because naturally it meant they were disrespectful and found in contempt of court for what I would basically say is putting a better case than a man.
The Bill also fails to address how rural communities can overcome the problem of patriarchy that sometimes leads to many abuses and oppression of women and children. The cultures it seeks to preserve are the ones we should be finding ways to move away from. Perhaps very disturbing is that when drafting the Bill ordinary rural folks and not all traditional leaders representing every small tribe in South Africa was consulted.
On encouraging the understanding of South African cultures among different tribes the TCB doesn’t cut this front either. What’s acceptable in one culture is unacceptable in another. For example if a Xhosa man who practices his culture, practices his culturally acceptable “Ukhuthwala” practice in Ga-Modjadji village he will be contravening the Modjadji culture and culturally will be held liable. This I think might contribute to hostility towards different cultural groups as they clash on whose cultural practices are right and whose are wrong. Particularly where I come from in Bolobedu which has been under the authority of Queen Modjadji since 1800, I grew up listening to stories of generational clashes among the Balodedu and the Tsonga tribes within the area.
The TCB doesn’t outline how to it will help achieve cultural tolerance among different tribes. For a Tsonga person, who was born and bred in Bolodedu to be prosecuted under customary laws governing the Balobedu tribe for practices that are acceptable in his Tsonga culture would be an infringement of that individual’s constitution rights. No every conviction handed out by a traditional court under the TCB is subjected to an appeal.
The implications of the TCB in its current form can have far reaching effects that might negatively impact on local tourism. Effectively, if passed the Bill would mean everyone entering or passing through a certain area would be subjected to the customary laws governing that area, even if they don’t subscribe to practices observed within that tribe’s jurisdiction. Government would do well to heed opposing voices that demand for the TCB be reviewed in consultation of everyone whose life would be affected by it.
To read the Traditional Courts Bill: http://www.info.gov.za/view/DownloadFileAction?id=159447
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