With the advent of democracy, South Africa’s Constitution, declared as the “supreme law of the Republic,”(2) was intended to right the inequality and injustices imposed in the colonial and apartheid eras. Hence, the founding values of the South African state, in Chapter 1 of the Constitution, include the right to “human dignity, the achievement of equality and the advancement of human rights and freedoms; non-racialism and non-sexism,”⁽³⁾ among others. The Bill of Rights elaborates all the rights and freedoms that South Africans can expect to enjoy. Paramount among these is the right to equality “before the law and the right to equal protection and benefit of the law;”⁽⁴⁾ prohibition of unfair discrimination: “directly or indirectly against anyone on one or more grounds including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”⁽⁵⁾ However, in addition to these, Chapter 12, 211(1) of the Constitution recognises “the institution, status and role of traditional leadership, according to customary law,”⁽⁶⁾ which can at times conflict with other rights such as gender equality.

This CAI paper explores whether the South African Constitution and other legal provisions adequately protect women and their pursuit of gender equality. A case from rural traditional areas of the Eastern Cape Province, illustrates the tensions in this argument. South Africa’s Constitution has been hailed as one of the best in the world promising equality and protection for all its citizens, but for the amaXhosa women living in traditional rural Eastern Cape, the existence of a traditional system of governance within the democratic society has led to some contradictions in the administration of justice, and to questions of whether the Constitution provides adequate protection.

Colonialism and apartheid

During the apartheid and colonial periods, respect for the dignity of individuals, their life chances, rights, and access to goods and services were determined along racial lines. Gender designation played a major role within all the racial groupings and women were defined as inferior to men. The Black Administration Act of 1927 treated black women, regardless of age, marital status and ability, as minors. Women were not allowed to own property, sue or be sued in court, or exercise the power of contract. They could not negotiate or terminate their marriages and could not have legal custody of their children.⁽⁷⁾

In addition to their status as minors, black women were kept out of urban areas, while black men were recruited to work in the industrial centres, especially the mines. The separation from their spouses resulted in a lot of hardship for the women as they were left alone to raise children in rural areas and maintain the rural homestead to which the men returned only after many months or years. As early as 1913, originating in the then-named Orange Free State Province, women’s movement into urban areas was restricted and controlled with the introduction of passes or reference documents. This requirement was resisted by women of all races.  As a result, the requirement for women to carry passes was relaxed when World War I broke out, but there were further attempts by the state to reinstate this requirement after the war. Groups of women led by supporters of the African National Congress resisted these attempts until passes for women were abandoned in 1922. Black women’s rights and freedom of movement were eventually controlled and restricted by the Native (Black) Urban Areas Act no. 21 of 1923, which extended the existing pass system so that domestic workers were the only black women allowed to live in urban areas.⁽⁸⁾ As such, a combination of the migrant labour system for males and the restrictions of women’s movement to urban areas contributed to the disintegration of the African family.

More broadly, traditional culture was suppressed during the apartheid and colonial periods in a process that had started with the advent of Christianity that demonised the African culture.  The new democracy set out to reverse this and restore the dignity of traditional leadership and culture. However, the apartheid regime had used traditional leaders to prop up the Bantustan system,⁽⁹⁾ the cornerstone of apartheid, in a way that broke down the institution of traditional leadership and resulted in loss of legitimacy of the traditional leaders. Traditional leaders were controlled through different political, constitutional and legal practices and methods, and were allowed very little independence in their traditional role. Traditional authorities were created and used as mere “puppet institutions operating on behalf of the Bantustan regime”⁽¹⁰⁾ with token or limited authority within the Bantustan state. The main purpose of traditional authorities was to curb revolutionary activity against the apartheid state and the Bantustan system as well as to extend control of the Bantustan government.⁽¹¹⁾

While the system of traditional governance was prevalent in South Africa, as in other African societies, Ntsebeza (2004) argues that it was severely undermined and distorted in South Africa to serve the purposes of the apartheid regime. He argues that during the apartheid era, “a large number of traditional authorities became collaborators and stooges in the colonial and apartheid systems” and the institution of traditional leadership lost much of its legitimacy.⁽¹²⁾ Some present day chiefs attained their status because of their loyalty to the apartheid state but would otherwise not have ascended to chieftaincy according to the traditional norms of ascendancy in their communities. However, the democratic constitution of 1994 protected both traditional values and women.

The Constitution and women

With the advent of democracy, several constitutional measures were taken with the specific intention of protecting women, their rights, and the pursuit of equality. For instance, Section 9(3) of the Constitution obligates the state to take practical measures to deal with discrimination and inequality. The Constitution made further provisions to enhance the protection of women’s rights and attainment of equality, particularly in the work place. A legislation framework comprising a number of Acts supported by policies, charters and codes was mandated and developed to ensure that all, particularly women, enjoy equal treatment, equal rights as well as equal access to resources and opportunities. Prominent among these is the Promotion of Equality and Prevention of Unfair Discrimination Act no. 4 of 2000, which is meant to strengthen and support the equality provisions of Section 9.⁽¹³⁾ Additionally, the Commission for Gender Equality, established in Chapter 9 of the Constitution, has the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning gender equality.⁽¹⁴⁾ Along with other Chapter 9 institutions, including the Human Rights Commission and the Public Protector, the efforts of attaining gender equality and justice for all are strengthened.

The creation of a national gender programme, and placing its jurisdiction in the presidency, is evidence of the seriousness with which the government approached gender equality. Additionally, the Office of the Status of Women was tasked with producing a Gender Policy Framework,⁽¹⁵⁾ which proposes principles and guidelines for government departments to achieve gender equality. With respect to rural women in traditional societies, the Gender Policy Framework document mentions under a discussion on poverty, that one of the challenges facing South Africa is “the systematic and socially engineered location of women in rural areas… [which] coupled with repressive customs and traditions, disempowered women.”⁽¹⁶⁾ Apart from a mention under Principles and Guidelines of the same document that “customary, cultural and religious practices be subject to the right to equality,”⁽¹⁷⁾ the task is mostly left to legislative processes to deal with rural women’s equality and gender issues. Yet, the traditional leadership legislation which controls all aspects of rural women’s lives is based on custom and tradition which does not recognise equality of men and women. Traditional leaders are expected to voluntarily change aspects of their culture to comply with the constitutional requirement of gender equality but so far there is no indication that they are willing to change. By contrast, women in urban areas benefit from a range of policies that require employers and other urban area service providers to comply with the constitutional requirement of gender equality.

The Constitution and traditional leaders

The Constitution allows “A traditional authority that observes a system of customary law…to function subject to any applicable legislation and customs, which includes amendments to, or repeal of that legislation or those customs.”⁽¹⁸⁾ Further, the courts are required to apply customary law when that law is applicable.⁽¹⁹⁾ With these constitutional declarations, the institution of traditional leadership and its role in the democracy is fully recognised and acknowledged. The Traditional Leadership and Governance Framework Bill was promulgated and later passed into an Act in 2003, “to provide for the recognition of traditional communities; to provide for the establishment and recognition of Traditional Councils; and to define the functions and roles of traditional leaders.”⁽²⁰⁾ Also mandated by the Constitution is the establishment of a Council of Traditional Leaders and Houses of Traditional Leaders as well as legislation controlling matters affecting local communities.⁽²¹⁾

Traditional Councils were themselves undemocratic in their composition. The Traditional Leadership and Governance Framework Bill stipulates that the members of a traditional council must be no more than 30 depending on the needs of the traditional community concerned, and that at least a third of the members must be women.⁽²²⁾ The rest of the members must be traditional leaders and members of the traditional community selected by the principal traditional leader concerned in terms of custom. This gives the traditional leader power to select the majority of the members of the Traditional Council. The small number of women in the Traditional Council can be overwhelmed by the majority traditional male members and women who support them. With only 25% of the members of the Traditional Council democratically elected,⁽²³⁾ the hand-picked majority are most likely loyal to the traditional leader. Besides, not all women will represent women’s interests. This is more likely if they were elected by the community on the basis of their demonstrated interest, ability and strength to stand up for women’s interests against a majority of conservative males and loyalists.

The Communal Land Rights Act gives Traditional Councils powers to administer land in traditional areas.⁽²⁴⁾ In the absence of a Traditional Council, these powers are given to a land administration committee whose members comprise one third women, and only one member represents the interests of “vulnerable community members including women, children, and the youth, the elderly and the disabled.”⁽²⁵⁾ Traditional Councils thus have enormous power to control the most critical productive resource, land from which women are often excluded. This power over land, in addition to the partnerships Traditional Councils have with local government officials who administer development programmes in the rural areas, put women in a very vulnerable position with regard to access to resources. 

Further legislation to enhance the role of traditional leadership includes the Traditional Courts Bill proposed “to enhance customary law and the customs of communities observing a system of customary law.”⁽²⁶⁾ This Bill has caused much concern among members of the public, gender and human rights activists with the realisation that the parallel justice system being created will affect many South African citizens.⁽²⁷⁾ The campaign brochure put out by the Human Rights Commission in the run-up to public hearings on this Bill, claims, among other things, that the Bill “creates a second-class justice system for over 17 million South Africans”⁽²⁸⁾ and excludes other community members, including women and young men, from decision making. Further, the Bill negatively affects women especially, by supporting rules that prevent women from representing themselves, while “it removes checks and balances on power.”⁽²⁹⁾

Constitutional clashes: The case of a Gcaleka princess, NomaXhosa

The case of NomaXhosa, theamaGcaleka princess in the Eastern Cape highlights the contradictions of applying customary law rule based on traditional culture that discriminates against women, in a democracy that guarantees gender equality. Princess NomaXhosa Sigcawu was denied the right to succeed to the throne of the AmaGcaleka kingdom because she is a woman. In the amaGcaleka culture, only males can succeed to the throne. The princess decided to put the Bill of Rights to the test. She claimed that she should have been the rightful heir to the throne after the death of the then reigning monarch, King Xolilizwe Sigcawu, in 2006. Her claim is based on the fact that that Xolilizwe only became monarch because she, the first born child of King Zwelidumile Sigcawu’s first wife, Queen Nozizwe and the rightful heir, was only a baby when her father, King Zwelidumile Sigcawu, died. Xolilizwe, a male child in the extended family of the King was installed as monarch instead. NomaXhosa’s expectation was that on the demise of Xolilizwe, she would take over the reign. Instead, Xolilizwe’s son, Mpendulo took the throne. NomaXhosa claimed that this action based on the customary law rule in that community that only the oldest male heir could become king or chief, discriminated against her on the basis of her gender and was unconstitutional.⁽³⁰⁾

According to the Traditional Leadership and Governance Framework Act, “the royal family or extended royal family must…identify a candidate in terms of customary law to assume the position of a king or queen.”⁽³¹⁾ The Act also states that “a community must transform and adapt applicable customs and customary law so as to comply with the relevant principles contained in the Bill of Rights.”⁽³²⁾ In this case, the amaXhosa royal family had not amended or transformed their custom. With this in mind, the family was within their right, according to the Constitution, to identify a successor to the throne according to their custom. In the debate that ensued, Chief Patekile Holomisa, President of the Congress of Traditional Leaders of South Africa (CONTRALESA) said, “Legitimacy of ubukhosi [kingship] is derived from custom, not from the Constitution and the Bill of Rights. It is not automatic that a woman as the first-born is a successor. If a Traditional Council decides to go against the custom, the court can allow that but we do not accept it.”⁽³³⁾ NomaXhosa took the case to the Constitutional court and a decision is yet to be made. The outcome of this case will be watched with interest by gender and constitutional rights activists, as it will give an indication of the direction the struggle for gender equality for rural women will take.

While the state seeks to transform the institution of traditional leadership in line with constitutional imperatives, at the same time it seeks to restore the integrity and legitimacy of the institution in line with customary law and practices. Herein lies a contradiction, for some of the customary laws and practices are inherently undemocratic, place women in a subordinate position to all men and discriminate against them. The Traditional Leadership and Governance Framework Act implores traditional leadership to “derive its mandate and primary authority from applicable customary law and practices; [and] strive to enhance tradition and culture.” ⁽³⁴⁾

It will take serious analysis and understanding of what exactly is going on in the rural areas where traditional law is mostly applied and what needs to be done to rectify these contradictions that deny women, in particular, their constitutional right to equal treatment and equal access to land and other resources. As long as traditional leadership is seen to violate women’s rights to equal treatment with impunity, which derives from their constitutional imperative to practice their culture in traditional law, it is going to be a long haul for South African women to attain gender equality. The fact that there does not seem to be a way to compel traditional leadership to transform their cultural practices that discriminate against women calls for serious reconsideration of the provisions and role of traditional leadership in the democracy.

However, achievement of non-sexism and gender equality in societies under traditional rule in South Africa contradicts the Constitution that protects and guarantees the rights of cultural communities.⁽³⁵⁾ These rights are further protected by the establishment of a Chapter 9 Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities whose ‘primary’ objective is to promote respect for the rights of these communities.⁽³⁶⁾ This Commission exists alongside the Commission for Gender Equality, which must “promote respect for gender equality and the protection, development and attainment of gender equality.”⁽³⁷⁾ The existence of these two commissions simultaneously presents a clash of constitutional mandates. While Section 9 of the Bill of Rights emphasises protection of the individual’s right to equality,⁽³⁸⁾ Section 31 emphasises the right of cultural groups to practice their culture.⁽³⁹⁾ This clash of rights has created contradictions that have made it impossible for women in traditional rural Eastern Cape (and likely more widely) to enjoy their full constitutional rights to equality both as individuals and as a group.

Concluding remarks

Evidently, constitutional measures taken to attain gender equality for all South African citizens are rendered impractical in rural Eastern Cape Province by the existence of a parallel traditional justice system, also mandated by the Constitution. There are serious issues regarding the requirements of the Bill of Rights for equality in the context of traditional law and custom in which women have a designated inferior position to men. Though the Constitution expects the traditional leadership to voluntarily transform itself, and traditional law to comply with the Bill of Rights, there is a question as to whether they are, in fact, willing to do so. Nineteen years after the attainment of democracy, there is no sign that the institution of traditional leadership is transforming itself to comply with the constitutional requirement of gender equality.

It was impractical to import traditional leadership as it existed into the democratic system without fundamental changes to it. The institution had lost much of its original character and most of its original values during apartheid. It had undergone such distortions and corruption by colonialism and apartheid, it might have been better to review the entire system with a view to reconfigure and redefine its role and structures that would complement democracy.

The renegotiated roles could focus on the restoration of the African value system of Ubuntu,⁽⁴⁰⁾ revival of culture, cultural pride and cultural identity, conflict resolution and peace-keeping. This approach would enhance the respect and status that traditional leaders enjoyed in the pre-colonial and pre-apartheid eras. Structures resulting from the review would have to be equally representative of men and women and democratically elected to reduce potential for corruption. Those aspects of the culture that discriminate against women and other groups, such as in royal succession, would have to be declared unconstitutional and relevant traditional rulers would be required to co-operate in transforming the customs to comply with the Constitution.

Alongside this process, a review of the entire South African justice system to incorporate the democratic aspects of the much touted restorative justice of customary law, as against retributive justice of common law, into a unitary justice system, would not only recognise and acknowledge the value and relevance of the African values and systems, but would also put South Africa on a path of true transformation. This would allow South Africa to administer equal justice to all its citizens and to live up to its Constitution.

Written by Nombulelo Siqwana-Ndulo ⁽¹⁾

NOTES:

(1) Contact Nombulelo Siqwana-Ndulo through Consultancy Africa Intelligence's Gender Issues Unit ( gender.issues@consultancyafrica.com). This CAI discussion paper was developed with the assistance of Claudia Forster- Towne and was edited by Kate Morgan.
(2) ‘The Constitution of the Republic of South Africa no. 108 of 1996’, Republic of South Africa, http://www.info.gov.za.
(3) Ibid.
(4) Ibid.
(5) Ibid.
(6) Ibid.
(7) ‘Customary Marriage Act – 1’, Ghost Digest, 24 July 2008, http://www.ghostdigest.co.za.
(8) Boddy-Evans, A., ‘Women’s anti-pass law campaigns in South Africa’, About.com,  http://africanhistory.about.com.
(9) ‘Bantusans’, South Africa Overcoming Apartheid Building Democracy, http://overcomingapartheid.msu.edu.
(10) Khunou, S.F., 2009. Traditional leadership and independent Bantustans of South Africa: Some milestones of transformative constitutionalism beyond apartheid. Potchefstroom Electronic Law Journal, 12(4), pp. 81-122.
(11) Ibid.
(12) Ntsebeza, L., 2004. Democracy, decentralization and traditional authority: Dilemmas of land administration in rural South Africa. Special Issue of the European Journal of Development Research, 16(1), pp. 67-83.
(13) ‘Promotion of Equality and Prevention of Unfair Discrimination Act’, 2000, Republic of South Africa, http://www.justice.gov.za.
(14) ‘The Constitution of the Republic of South Africa no. 108 of 1996’, Republic of South Africa, http://www.info.gov.za.
(15) ‘South Africa’s National Policy Framework for Women’s Empowerment, 2000, Republic of South Africa: The Office of the Status of Women.
(16) Ibid.
(17) Ibid.
(18) ‘The Constitution of the Republic of South Africa no. 108 of 1996’, Republic of South Africa, http://www.info.gov.za.
(19) Ibid.
(20) ‘The Traditional Leadership & Governance Framework Bill’, 2003, Republic of South Africa: Minister of local and provincial government, http://info.worldbank.org.
(21) ‘The Constitution of the Republic of South Africa no. 108 of 1996’, Republic of South Africa, http://www.info.gov.za.
(22) ‘The Traditional Leadership & Governance Framework Bill’, 2003, Republic of South Africa: Minister of local and provincial government, http://info.worldbank.org.
(23) Ibid.
(24) ‘The Communal Land Rights Act no. 11 of 2004’, Republic of South Africa: The Presidency, http://www.info.gov.za.
(25) Ibid.
(26) ‘Traditional Courts Bill’, 2012, Republic of South Africa: Select Committee on Security and Constitutional Development, http://www.justice.gov.za.
(27) ‘Stop the Traditional Courts Bill: The Traditional Courts Bill Violates our Human Rights,’ Human Rights Commission Brochure.
(28) Ibid.
(29) Ibid
(30) De Vos, P., ‘Time for rethink on traditional leaders’, Constitutionally Speaking, 28 June 2010, http://constitutionallyspeaking.co.za..
(31) ‘The Traditional Leadership & Governance Framework Bill’, 2003, Republic of South Africa: Minister of local and provincial government, http://info.worldbank.org.
(32) Ibid.
(33) Hlongwane, S., ‘Customary Law: If it can change, why can’t Contralesa?’, Daily Maverick, 10 May 2012, http://www.dailymaverick.co.za.
(34) ‘The Traditional Leadership & Governance Framework Bill’, 2003, Republic of South Africa: Minister of local and provincial government, http://info.worldbank.org.
(35) ‘The Constitution of the Republic of South Africa no. 108 of 1996’, Republic of South Africa, http://www.info.gov.za.
(36) Ibid.
(37) Ibid.
(38) Ibid.
(39) Ibid.
(40) ‘Ubuntu’ African philosophy translates to, ‘I am because we are’.