WhilE we celebrate Women’s Month, the Traditional Courts Bill (TCB) looms large and threatens to exacerbate existing challenges women face in rural areas.
The following real-life experiences of women in Mpumalanga are illustrative of practices that occur across rural contexts.
In the Sikhwahlane area, a woman was accused of being a witch by her neighbours and they threatened to shoot her. She reported the matter to the headman, who advised her to report it to the police, which she then did. The next day she was attacked in her house by people throwing rocks.
Again, she went to the police, who then told her to take the matter to the headman. Neither the police nor the headman came to her assistance. She remains stigmatised and fearful, with no protection.
Thandi’s* father would sometimes threaten her and her mother with a gun.
Her mother reported the matter to the headman numerous times but he sent her away and instructed her to resolve things directly with her husband.
One day Thandi’s father chased her and her mother out of their family home.
Yet again they went to file a complaint against her father to the headman.
When the case was discussed before a traditional court, Thandi’s mother was not even given a chance to speak and present her side of the story. Instead, the court found that Thandi’s father was within his rights to throw them out of “his” house.
They had no choice but to leave. After 27 years of marriage, Thandi’s mother was left with nothing, and the case was “closed” by the traditional authorities.
We know that the composition of traditional courts and their patriarchal character tend to favour male interests.
There are still many places where women are not allowed to appear before, or address, customary courts directly, even if accused. Instead they must be represented by male relatives. This puts women at a disadvantage, especially when the matter before the court concerns a marital or family dispute, or a woman’s rights as opposed to those of a male relative. The TCB reinforces this pattern as it does not provide explicitly that women should be allowed to represent themselves before the court if they want to.
Rather than protecting women and enabling their greater participation in traditional courts, the TCB entrenches the continuation of these gender-discriminatory practices. The TCB also does not adequately deal with the reality that domestic violence cases are often not handled to women’s benefit in traditional courts.
And, where women – especially older, single women – are most vulnerable to accusations of witchcraft and criminal or vigilante attack, traditional authorities are seldom able to give them protection.
Because women’s rights are particularly compromised by traditional authorities in matters related to violence against women, guardianship and maintenance, and both civil and customary marriage, we argue that such cases should be excluded from the jurisdiction of traditional courts.
The TCB fails to do this. Instead of providing specific protections for women to address the problems they face, the TCB puts the onus on the senior traditional leader to ensure women’s participation.
This means rural women would have to directly challenge their senior traditional leaders to claim their rights, a daunting task given power relations in rural areas.
Joyce*, who lives in Nkomazi, is a widow. When her husband was alive, her parents-in-law invited them to live in their family home. After some time, Joyce and her husband built their own house on the property.
In 2008 her husband and mother-in-law died. Joyce’s sister-in-law came to her home and started selling her belongings. She also took the car that belonged to Joyce’s husband. The sister-in-law transferred the property into her name, claiming that the chief had given the go-ahead.
Because she faced the threat of having to leave her home of many years, Joyce reported the matter to the traditional authorities, then the magistrate’s court. The magistrate found in favour of her right to the house and her husband’s belongings, but the traditional authorities said the sister-in-law could sell her belongings and register the property in her own name.
In Schoemansdal, Pauline* had been living with a man from Maputo for 20 years. She wanted to build a house, and went to her headman to register a plot of land in her name. The headman, with other men from the community, told her not to register the house in her name, saying a house should only be registered in a man’s name. The site was then registered in her partner’s name.
After the house was built, her partner went back to Maputo and returned with his wife, who Pauline never knew about. He then chased Pauline out of their house.
Pauline took the matter to the headman, who told her that because the site was registered in the man’s name, Pauline had no right to the house.
He disregarded the fact that the home had been built mainly using her resources.
Pauline’s attempts to approach the chief for assistance have proved unsuccessful: she is still waiting for a response.
The eviction of widows arising out of disputes following the death of their husbands is commonplace. Women’s vulnerability to eviction is exacerbated in the case of disputes concerning land rights that come before traditional courts. This is because traditional leaders have both the executive role of administering and allocating land, on the one hand, and the power to decide disputes about land rights, on the other.
The TCB fails to meet its own key objective, which is to increase access to restorative justice for ordinary rural people.
As the accounts above illustrate, the TCB does not consider the life experiences of women on the ground. In the drafting of the TCB, rural women have not been consulted at all, let alone extensively consulted in safe spaces where they feel free enough to speak their minds and tell of their experiences.
We would have cause to celebrate this August if the TCB was withdrawn in its entirety, and if a new piece of legislation was drafted that puts rural people, particularly women, at the centre of the drafting process. Until then, the lives of rural women will remain compromised.
l The names of the women mentioned in this piece have been changed in order to protect their identities.