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The Commission for Gender Equality (CGE) briefed the Portfolio Committee on Women in the Presidency on its written submission regarding the Traditional Courts Bill.
 
The committee noted the following:

• Having a core mandate that pertains directly to women, the committee reiterates the importance that the rights of women that are protected, promoted and fulfilled within the development of legislation. This must include proper public participation.
• Having undertaken oversight in various provinces and engaged with several Government Departments, entities and institutions including the CGE, the committee acknowledges the extent to which women, widows, women with disabilities and young girls are discriminated against particularly in rural areas. To this end, it is imperative that any law being developed should ensure that women are not discriminated against.
• Acknowledges the extensive and broad consultation undertaken by the CGE on the Traditional Courts Bill.
• It is imperative that the Traditional Courts Bill, ensures that the Constitutional rights of women and children are respected, not violated and that treaty provisions contained in the Committee on the Elimination of Discrimination Against Women (CEDAW), Southern African Development Community (SADC) gender protocol, United Nations Conventions on the Rights of Persons with Disabilities, and the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child are adhered to and are given expression in domestic law. Thus the Bill serves as an opportunity to facilitate the empowerment of rural women.
• Public participation of women and girls from rural areas on the Traditional Courts Bill is important and is encouraged. Given the lack of knowledge on women’s rights and children’s rights it is equally important that education initiatives are implemented alongside engagement with women in rural areas on the Bill to ensure active and meaningful participation.

The committee is in full support of the “Opt out” option that the Bill currently provides for persons who choose not to participate in a matter concerning him/her before a traditional court and instead choose to deal with the matter within another court given that customary law is premised on the principle spirit of voluntary affiliation as stated in the Preamble to the Bill.

The committee reiterates the importance of the representation of women within the processes and procedures as it relates to the “Institution of proceedings in traditional courts” and the “Composition of and participation in traditional courts”.

The committee noted with concern the provisions currently outlined in Schedule 2 particularly subsection (c) and (g) as this is not clear in terms of synergy with existing legislation that deals with gender based violence, customary marriage and legislation relating to the protection of children’s rights as outlined in the Children’s Act and the Child Justice Act. Moreover, the committee was made aware of the work currently undertaken by the CGE with the South African Law Reform Commission (SALRC) on forced child marriages as a means of addressing ukuthwala.

Similarly, the Committee reaffirms that all matters related to gender based violence be dealt with in terms of the applicable legislation for example the Domestic Violence Act and Criminal Law (Sexual Offences and Related Matters) Amendment Act. To this end, the reference to “advice” in Schedule 2 of the Bill is thus problematic if not clearly defined to ensure that women and children’s rights are not infringed.

The committee commends the progressive provision in the Bill that enables the CGE to monitor and evaluate traditional courts. However, given the financial implications and constraints faced by the Commission it would be imperative that the Bill is adequately costed to ensure that the CGE is able to monitor, evaluate and report on traditional courts effectively.
 
 

Issued by Parliamentary Communication Services on behalf of the Chairperson of the Portfolio Committee on Women in the Presidency, Thandi Memela