2.1 It is trite to state that the legal system has largely failed to benefit the majority of South African women. In particular, black, working class and poor women living in rural areas has been marginalised, both by the so-called Westernized system of justice and the customary structures.

2.2 The socio-economic and legal position of women in South Africa has been shaped by Apartheid policy, customary law and more recently by political reform. On the one hand, women have been marginalised and denied access to justice, while on the other hand, accessing justice is viewed as a fundamental human right. For black women living in rural areas however, accessing mainstream justice is particularly difficult because of their socio-economic circumstances, low levels of literacy, discriminatory cultural practices, poor infrastructure and so on. Within this context, the Government has committed itself to:

1. Creating and maintaining of a system of dispute resolution mechanisms in which structures, processes, language and practices all respond meaningfully to the needs of women and men regardless of difference or disadvantage.
2. Implementing special measure to accommodate the needs of poor and traditional rural communities.

While these initiatives may attempt to create better access for women, they still face many barriers, including patriarchal laws, social and cultural practices.

2.3. Given the above, the Commission on Gender Equality applauds the attempts by the government to give greater meaning and clarity to the role and responsibilities of traditional leaders in our society within the broader context of transformation and commitment to a constitution founded on non-racialism, non-sexism and the need to rid our country of all other forms of unfair discrimination.

2.4 The institution of traditional leadership is one that plays a very significant part in the lives of our people, particularly the most marginalized and any attempt to remove them from the equation in our attempts to re-build our nation is doomed to failure. On the contrary ways have to be found to make them an intrinsic part of the national conversation on nation-building and transformation; Quite simply, they have to co-own the conversation and process if we have any chance of taking transformation beyond the English speaking urban middle class.

2.5 Our country’s Bill of Rights – which we as a nation have adopted - our obligations to international conventions, and above all, our commitment to the most marginalized in our country, the rural women, demands that this recognition of traditional roles and demarcating their roles take place within the inflexible parameters of democracy, constitutionalism and non-discrimination against women.

2.6 Article 2.7 of the Convention of the Elimination of all Forms of Discrimination Against Women (CEDAW) which South Africa has ratified without reservations states that:

State parties [governments are] to take all appropriate measures including legislation to modify and abolish existing laws, regulations, customs and practices which discriminates against women.

[Furthermore] State parties shall take all appropriate measures to modify social and cultural conduct of men and women with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of inferiority or superiority of either sexes or stereotyped roles for men and women.

2.6 At some point we need to look at the entire notion of leadership through biological accidents (traditional leaderships) and its possible inherent incompatibility with democratic constitutionalism and non-sexism. This issue should be distinct from how we proceed to work with traditional leaderships and their institutions. Failure to do this will result in ongoing journeys – often futile - to the Appeal Court with cases such as the recent one of Mthembu. In the CGE submission on the Discussion Paper on Traditional Courts which was based on extensive research among rural women in a number of different provinces, we pointed out that

Custom and tradition are often used and understood differently, depending on the context. Our informants understood these terms to mean that if practices are customary or traditional, they cannot be changed nor can the chief or council be forced to change them. These concepts can be used as a form of identity, but also a resource for personal or group benefit. With regard to traditional courts, people presently serving in those structures, i.e. chiefs, councilors and headmen do not necessarily live their every day lives in an authentic African traditional manner. However, they use tradition and custom as a resource for their own personal benefit to hold onto power and authority. This is demonstrated by the data collected by us. Those individuals who exist outside the structure might be viewed as a threat to the status and authority that is held by councilors, chiefs and headmen. Those already in positions of power within the traditional court structure might also hide behind tradition to resist change within the institution.

1. On the whole it is a well-crafted document and provides a useful starting point for unraveling the numerous complex issues connected to traditional leadership in the midst of a constitutional democracy. The document however lacks an overall gendered perspective and, on the whole, buys into and works from the premise of patriarchy as an unchallengeable give. (That it is a given is not in dispute, what we are disputing is that it unchallengeable.). Section 12, for example deals with remuneration and throughout employs the male form of the personal pronoun (‘he’) throughout with the assumption is that traditional leaders will always be male. (This, despite the fact that the document acknowledges the Modjajis where succession is hereditary in the female line, and the presence of a woman chief in Port Edward) With the exception of one or two sections, gender does not feature anywhere in the list of challenges or strategic questions provided at the end of each section.

3.2 The document really does not say anything explicitly and merely raises a number of questions which, given the early stage of the debate and the complexity of the issues, is not surprising. It is, however, very eloquent in its relative silence on gender issues.

3.3 While Section B (7) is obviously the most significant clause for the Commission on Gender Equality, we should not lose sight of the rest of the document in terms of its underlying assumptions and equally seriously, questions that it fails to ask. Focussing entirely on the said section will deprive us from a more gendered approach and the inability of document to mainstream gender throughout the discussion.

3.4. At the risk of integrating women into an inherently sexist system and which leads to the further subordination of women we still need to say the following: First, paragraph 1.4 above should be viewed in the context of black women living in rural areas who seldom have any means of accessing mainstream justice because of their socio-economic circumstances, low levels of literacy, discriminatory cultural practices, poor infrastructure and the fact that often traditional leaderships do provide a modicum of justice. Second, there is also the additional concern that these women are often deeply attached to this institutions and also regard them as unchallengeable.

4.1 Succession :Section 7.1 which deals with the disqualification of traditional leaders is of course the most blatant in its unconstitutionalism and detailed comment must be made on this. Our concern here is the a) access to, b) representation of and c) actual participation by women in these structures at all levels.

The document notes the diversity of the nature of, procedures for succession and rankings of traditional leaders throughout the country. In this context it also acknowledges the albeit limited role of women in the case of the Modjajis and as regents or acting leaders when the leader is still a minor. In this diversity itself and, more significantly, in the social acceptance of women as Acting Chiefs, there are indications that our people are not inherently averse to being guided and led by women. The CGE would thus argue that as new forms are sought to formalize the role of traditional leaders in our country that new modes of thinking also be incorporated simultaneously so that women can take up their rightful roles at all levels of society. The inclusion of women in as legitimate successors to the office or traditional leaders is non-negotiable.

The CEDAW Committee Meeting of 1994 recommended that the Report of the States that ratified the Convention should include a comment on both the legal and the customary provisions relating to inheritance laws. The CGE would want our country to report that rural women have been including in the highest forms of inheritance – that of attaining to the post of traditional leaderships

We do understand that this would open up the State to accusations of social engineering. Transforming our society from its brutalized parts and the discriminations of the past is, in fact, tantamount to social engineering and we should not make any apologies for this. This is a democratic state, after all. We welcomed the TRC as a way of dealing with personal hurt and holding feelings of vengeance back. In a way that was also a means of social engineering; opening all our schools to children of every race ran contrary to certain communities’ long established cultural patterns is another example, yet we did it. Some people lamented that their cultures were being destroyed, but they bit the bullet. There is no reason why it should not be done now. We do not seek to destroy culture, but seek to look at it afresh and use the best in it for the collective good of all our people, particularly the most marginalized.

In the introductory section the document deals at some length with the way the apartheid state co-opted the traditional leaderships, even invented some where there were none or where the legitimate ones were not compliant enough to implement the regime’s policies. In their willingness to go along with this one sees how amenable tradition is to change. The question arises why the present legitimate state cannot use that same pliability to draw traditional leaders into the new democratic and non-sexist dispensation, and even enabling communities to create new ones from among themselves where there are none.

4.2. Automatic representation for traditional leadership on any government structure will automatically contribute to the already skewed disproportionately limited role of women in government. Given that traditional leaders are indispensable at the present juncture in our country’s history, and - assuming that they are given and advisory role – an option form which there may not be any escape at the moment, we must begin to think of Women’s Councils with equal representation / powers as the traditional chiefs in these advisory capacities?

An important concern in this submission is whether representation alone would ensure that women’s needs and interests are sufficiently accommodated. In Mount Frere, the magistrate indicated that while representation of women alone would not ensure gender sensitivity, it was a necessary point of departure. However evidence exists to indicate that women in positions of authority often have to operate within very clearly defined parameters which are often patriarchal in nature. A field worker in KwaZulu-Natal commented that male chiefs dictate the "qualities and practices of a good chief". It is not in the best interest of women chiefs to challenge these guidelines, and they often accept these to gain respect and social status in the community.

A fieldworker in the Eastern Cape commented:

"Women need to be encouraged to participate and influence decision-making. Even if women are present as councilors, they are on a man’s mandate. If women are appointed as councilors, the rules of the game need to be changed to accommodate this and make it better for women".

Integrating women therefore into a system that is fundamentally sexist may not necessarily have a positive outcome for women. It might lead to the further subordination of women. We thus need to ensure that along with the question of succession, the entire system is re-examined through gender sensitive lenses.

4.3 The document is silent about a host of issues which affect women and which fall directly under the sphere of traditional leaderships. These issues include, marriage, violence against women, land ownership and tenure, inheritance, succession. The CGE’s own experience and research indicates that women are constantly marginalized in these spheres and that traditional leaders often have no concept as to the notion of discrimination. Yet the headmen and chiefs were somewhat aware of the language of gender equality – or some parts of it and even gave the impression that they shared in these ideals. In one area we were assured by the Chief that the women played a full and vital role in his traditional court. Yet when we arrived there we found that women are seated on a bench against the wall at the back behind everybody. They were called only to court as witnesses and not to participate in the processes. For the Chief in question, this was evidently a ‘full and vital role’ for women. In another region, the headman assured us that women were allowed to participate to "their full potential" in the proceedings of the traditional courts – which may even have been the case – except that they were barred from participating in the caucus (Kgoro tshitumbe) where all the major decisions for the overall running of the village are taken. The "full potential" of women, evidently did not go far enough to actually extend into this forum.

Article 14 (1) of CEDAW states that

State parties shall take into account the particular problems faced by rural women and the significant role which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy [… and] shall take all appropriate measures to ensure the application of the provisions of the Convention to women in rural areas.

4.4 The relationship between traditional authorities and women is one that is fraught with ambivalence and tension particularly in KwaZulu-Natal. The research conducted in this province indicated that some chiefs may demand sexual favours from women in exchange for assistance. The unequal power relationship between chiefs and women ensures that women are placed in a precarious position. Ensuring that traditional authorities do not abuse their positions in the community therefore needs consideration.

While we are clear about our commitment to ensure the freedom of all women from all discriminatory practices, cultural or otherwise, as stated in the introduction, we acknowledge that this cannot take place without the partnership of traditional leaders and urge that concrete measure be put in place to ensure that this happens.

How can we expect traditional leaders to commitment themselves to a Bill of Rights when many of them are unable to read it? Many fear the consequences of a non-patriarchal future because we have brushed them aside and do not bother to invest in their education and in engaging them in the critical issues facing our nation. We need to invest in them as valuable resources and not mere vehicles to access rural communities at the time of elections. The CGE proposes the creation of an state funded academy for the training of traditional leaders where they can develop a deeper understanding of the dynamic and ever changing nature of tradition itself and seek ways of integrating this with the non-racial and non-sexist discourse of the new South Africa. Here the complex issues of succession, ranking, gender roles, diversity of in various regions, the tensions between the borders of the modern nation-state and that of the boundaries of the tribes can be examined in addition to custom made courses for specific groups of traditional leaders dealing with issues ranging from simple bookkeeping and computer literacy to procedure in local government.

We are convinced that much of the resistance to change come from an inability of people to see what’s in it for them, and our own unwillingness to take them seriously. In the long run though, ignoring a vital constituency as the traditional leaders or storming at them like a battering ram will be a medicine that will just aggravate the disease.