Lived Realities Under Traditional Authorities

governance women discrimination traditional courts
Monday, 28 May, 2012 - 12:59

Government should revise the Traditional Courts Bill, which activists argue is promoting patriarchal practices in rural areas and also discrimination against women

The Rural Women’s Movement (RWM), a KwaZulu-Natal NGO, has in the course of its work with more than 50 000 rural women extensively documented the harsh realities of rural lives under the unaccountable authority of traditional leaders and their institutions of power.

In a district that cannot be named for fear of reprisal the traditional leader unilaterally controls community resources and access to land. In most instances, where there are projects that rural women have initiated without him, for example a sewing machines project, he tries to undermine the projects and threatens to remove the resources needed for the project, e.g. sewing machines. His ‘justification’: he feels like he has no control over the project and the money involved.

At amaHlubi, RWM is working with an elderly woman who is a widow living alone. Her only source of income is the state social grant. She compliments the grant by growing food in her garden. Cattle from neighbouring eMangweni kept destroying her food garden. In trying to support her, we encouraged her to report the matter to the eMangweni traditional court. She approached the eMangweni traditional court, which is about 10 kilometres from her home, but was sent away because the court “does not speak to a woman”. The court demanded that she be represented by a man. As she does not have a man in her home she cannot return to the court and has stopped growing food in her garden. As RWM, we regard this as an example of the feminisation of poverty.

In Zululand, RWM is working with a young woman, whose father’s body could not be buried for three months because the senior traditional leader deprived her and her family the ‘right’ of burial. The chief claimed he had never paid his ‘Khandampondwe’ (male tax). In this community, men are subjected to paying R20 per annum for Khandampondwe. The family was only able to bury their father after borrowing money from a neighbour.

In the same community, a young woman has been deprived her right to access low cost housing because she gave birth to a baby while being unmarried and the father of the baby did not ‘cleanse’ the traditional leader by paying an amount of R300.

Residing in the rural areas is becoming more expensive, compared to urban areas where people are assured of taxation being limited to, most commonly, VAT, income tax and property rates. Traditional leaders arbitrarily impose heavy levies on community households.

As an example, the levies in KwaDlamini - uKhahlamba municipality are as follows: land allocation costs R500 plus a bottle of liquor; cold drinks and beers, pregnant young women’s parents have to pay R80 to the traditional leader, Ihashi lenkosi (the chief’s vehicle) costs R100 per household, and the payment for hosting a party or a ritual where one slaughters a cow is R50.

In Loskop - Mbabazane municipality, residents are forced to pay R25 for the education of the traditional leader’s son, and it has just been announced that members of the community are expected to pay R200 to access government’s low cost housing.

At eMakhuzeni in Sisonke-Ingwe; land allocation costs R150, cases of beers, cold drinks and meals; children born to single parents have to pay between R200 - R250 per child, which has recently been raised to R1 000. There are reports that traditional leaders ‘raid’ households to check if couples living together are married. If they are not married, they have to pay R200.

While conducting a workshop in Ilembe on the Traditional Courts Bill (TCB), we tried to ascertain how much money the traditional leader is getting for imposing levies for his ‘isibaya’ (cattle kraal) to be repaired each year. We learned that each household pays R10, in a community numbering about 60 000 households. However, women of the community reported that they and their families collect the poles and fix the chief’s isibaya. So where this does estimated amount of R600 000 go?

A family that does not pay their levies or penalties gets sidelined: they cannot have, for example, a wedding or a party in their own homes or a letter to confirm their residence in case they want to open a bank account. Members of the community are discouraged from assisting the family to bury their loved ones as people are scared that they could be banished.

RWM is deeply concerned about this imposition of levies, an abuse of power which the TCB will not end.

Many women in the rural areas rely on customary dispute resolution processes and institutions as their primary means of access to justice - both because they value these systems and also because in many instances other courts are inaccessible to them.

However, the TCB does not guarantee women’s effective participation in traditional courts - neither as members of the body of people who make decisions in the courts, nor as litigants. Rural women are most often excluded from traditional courts. They are commonly refused self-representation and attendance of these courts, paving the way for their further exploitation and economic vulnerability.

The TCB does not require that this customary law practice change but instead permits that women may continue being represented by husbands or neighbours, ‘in accordance with customary law’ which favours men.

The institutional arrangements contemplated in the TCB have been shaped largely by a desire to protect the interests of traditional leaders - the only group we know which has been consulted by the government in the drafting process. Women, rural women in particular, were not consulted at all, even though they make up the highest proportion of people living in rural areas and are the ones who will be most affected by the TCB. The formalisation and recognition of traditional courts in the TCB presents an ideal opportunity to take proactive and concrete steps to address these inequalities, which the administration of justice in the existing traditional courts has perpetuated. The TCB’s drafters have, however, failed to take the opportunity to ensure compliance by traditional courts with the requirements of the constitution in relation to the rights of women.

Rather than ensuring that women are no longer discriminated against in tribal court settings, the real impact of the Bill will be to perpetuate the existing discriminatory patriarchal power relations with state-backed sanction.

The ones who will pay a price in this regard will primarily be the poorest and most vulnerable women in rural areas (i.e. single women, women without sons or women without land rights and widows) even though our Constitution guarantees access to justice, non-discrimination and equality for all.

Sizani Ngubane is founder and leader of the Rural Women’s Movement.

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