Published September 26, 2012
If a woman brings a case to court she cannot set foot in the courthouse. A man must represent her.
If a woman wants to acquire land, she cannot apply for it on her own. A man must assist her.
She has no say over who her traditional leaders are. She can be subjected to forced labor or harsh punishment at the whim of her chief.
These stipulations are bits and pieces of the controversial customary law still practiced in rural South Africa. Many South Africans who live in these desolate former “homelands,” as the territory was referred to under apartheid, live as if they are citizens of two countries. The South African constitution provides equality between the sexes while customary law divides them, subverting women to male control.
The Traditional Courts Bill, a piece of legislation first introduced in 2008 and currently under review in South Africa, would make these practices within customary law legal and a part of the constitution. Almost, if not all, of those affected are Africans who are living in various levels of poverty.
Those within the African National Congress who support the bill say customary law represents the law of the land and the guiding principles by which they want to live. They feel no one better understands their life and problems than their traditional leader.
Those opposed say the bill gives the traditional leaders extensive, unchecked power, which could significantly undermine women’s rights. NGOs like the Women’s Legal Centre and the Rural Women’s Movement oppose the bill and are angered because they feel no one in the communities affected by the bill was properly consulted. The bill also invokes apartheid-era systems by creating traditional court jurisdictions based on the lines that once defined this same area in terms of the former homelands. They feel that because traditional leaders are appointed, not elected, they are undermining democracy. The ability the leaders are given to impose harsh punishment at their whim could be detrimental to anyone, but especially to women.
Sizani Ngubane, founder of the Rural Women’s Movement (RWM), has been working for decades to inform women living in these primarily poor, agrarian communities, hours away from major cities, of their rights under the constitution. She says many are unaware of the legal protections to which they are entitled and rarely question their traditional chiefs who impose customary law.
"I asked these chiefs why do we have to be represented. Because according to the constitution we are human beings and we have full potential of speaking for ourselves. Why do we have to represented?” said Ngubane.
Their response? “We don’t want to convict somebody else’s wife.”
One of the biggest concerns for Ngubane under this legal system is that the men representing women in court may not look after their best interests.
“Because he is looking at this through his patriarchal lenses, we fear that when he goes to court it is something completely different from what she says are her own needs and aspirations,” Ngubane said.
One female member of the RWN said her daughter was raped at a young age. Instead of calling the police they took the matter to their traditional leader. Traditional leaders don’t typically tackle those issues, she said, and they will send you back to your family to discuss it. In her case, he said this was not a court issue but a family issue and he denied her plea for justice. Without a case her daughter was unable to seek medical treatment. At age 21, her daughter died from complications related to HIV. It cannot be proven that her rapist infected her, but her mother is certain that is so.
No matter if the traditional leader can assist you with the issue or not, the complainant still has to pay a fee. They are required to pay a fee for almost any taxable event from marriage to bearing a child out of wedlock. These fees vary by community. One female member of RWM said it cost a fine of 200 ZAR (about $25) to have a child out of wedlock. Another member said in her community just miles away it cost 300 ZAR.
Ngubane calls the entire system of traditional leaders a moneymaking scheme. She sees it as a way to tally a woman’s worth as being equivalent to the cows she is paid for lobola—a gift presented from a husband to the family of his wife at the time of marriage. A woman’s life is meant to serve, she says shaking her head, and for a woman to question her role would greatly dishonor her family.
“For a woman to be seen as a good woman she must stay in the kitchen and not talk about what is happening in your own family,” Ngubane said. “By just taking your matter to a traditional court you are seen to be an unruly woman—you are no good.”
Ngubane began fighting years ago to end apartheid. She continues fighting today to end patriarchy and grant equal rights to all women. Her number one interest now is blocking the passage of the Traditional Courts Bill.
“RWM is about changing the patriarchal society,” Ngubane said. “Because the struggle is not over.”