Posts filed under ‘South Africa’

President Zuma of South Africa calls for more access to justice and diversity in the legal profession

South African President, Jacob Zuma, called for measures which can ensure the poor access to justice in the country which is torn by social conflicts. At the general meeting of the Johannesburg Attorney Association he declared:

“We are all seized with the matter of how to make our courts more accessible to the poor. Simply put, how do we make it easy for people who live far from the cities or who cannot afford to pay for justice, to obtain justice.”

Furthermore, Zuma cited some worrying proportions. Of the 2384 members of the Bar 1733 (73%) are white. Only 24% are female. Out of the 21,007 practising attorneys 13,643 (65%) are white.

Read more about Jacob Zuma and access to justice here

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September 20, 2012 at 10:27 pm Leave a comment

Traditional Courts Bill sparks controversies in South Africa

The Traditional Courts Bill was first introduced in 2008. Recently it was reintroduced and according to its sponsors the Bill should become effective as of the end of 2012. The Bill repeals the Black Administration Act of 1927 – no doubt, a long overdue task.

In a nutshell, the Bill regulates the institution of a traditional court. The minister responsible for the administration of justice designates a senior traditional leader, king or queen! to preside over the traditional court. Traditional courts will have jurisdiction to hear certain civil matters (exceptions are constitutional matters, divorce, alimony, custody or guardianship of minor children etc.) as well as some criminal offences such as theft, malicious damage to property, damages not exceeding certain limits and assault which did not result into bodily injury.

When deciding upon disagreements traditional courts should apply customary law and customs. Through bringing justice to the communities the Bill aims to:

  • Affirm the values of traditional justice which is based on restorative justice and reconciliation. In the language of the Bill, restorative justice and reconciliation are true African justice values;
  • Affirm the role of the institution of traditional leadership;
  • Enhance the effectiveness, efficiency and integrity of the traditional justice system;
  • Enhancement of the quality of life of the traditional communities through mediation;
  • Promote access to justice for all persons in South Africa.

As foreseen in the Bill, traditional courts should prevent conflict, maintain harmony and resolve disputes where they have occurred. For instance, the sanctions imposed by the Traditional courts cannot be inhumane, banish one of the parties from the community or be humiliating (corporal punishment is explicitly outlawed).

If the Bill were passed as it is, the Traditional courts will have a colourful array of resolutions from which they can select in order to solve the outstanding disputes. For instance, they can impose fines which might be expressed in money but also in livestock. Traditional courts will also be able to order an unconditional apology or service in the benefit of the community.

The Bill includes certain procedural rights which should ensure the fairness and justness of the trial. The full rights of women are specifically acknowledged. Here, it should be noted that the Bill envisages only procedural rights. Substantive rights are all in the domain of customary law. Ultimately, all resolutions of the Traditional courts can be appealed to the magistrates’ courts.

Supporters of the Traditional Courts Bill emphasise its potential to bring justice closer to the communities. Zolani Mkiva, head of the presidency of the Congress of Traditional Leaders of South Africa alleges that traditional leaders will be unbiased in their role of neutrals solving disputes in Traditional Courts. “With any form of unfairness, people are free to take it to another level”.

Many observers, however, disagree with the intentions and approach of the Bill. Their arguments come from different directions. Some challenge the wisdom of centralization of local powers in the hands of non-elected and unaccountable traditional leaders. Moreover, the structure of the traditional courts centralizes significant powers to a single individual. It is not difficult to see traditional leaders disposing justice despite of conflicts of interests.

Others challenge the patriarchical fundaments of the institute of traditional leadership in South Africa and warn that such institutions can further harm the interests of women and other vulnerable groups such as foreigners who make sizeable proportion of the population of many rural areas. An example of the attitude that some traditional leaders might have towards women is a story from Prudhoe village, where an eight-month pregnant woman tried to claim damages from the man who made her pregnant and then abandoned her. The tribal court decided that she was just speculating with the good name of the man. Also the court said that the man’s father is rich and important and it is not desirable for the community to “pull their family name in the mud”. At the end, instead of being given relief, the pregnant woman was sentenced to corporal punishment.

Third argument against the Traditional Courts Bill as it is now is that it will basically force rural communities into an experiment with Traditional courts. Indeed, there is the appeal path but one immediately might ask how many of the poor, uninformed and disempowerered people will ever think of appealing the resolution of a Traditional Court.

 

 

March 26, 2012 at 11:27 pm 1 comment

Perspectives on equality and access to justice

UJSC, a blog dedicated to the UK Supreme Court published an inspiring account of the meeting of three supreme judges from South Africa, UK and Ethiopia.  I find particularly refreshing the point of Justice Edwin Cameron of the Constitutional Court of South Africa that the challenge of equality often lie in “inbuilt social prejudices.” Justice Cameron claimed that while the law can be used to sustain social equality, there are other powerful social, political and economic forces that make people or groups equal or unequal.

Following on this insight comes the question – does law contribute to equality or it simply explicates it into legally recognized equality. Or as the South African judge suggests the legal mechanisms are rather following the social development. This debate reminds of another famous one – does police really has influence on crime rates or it hopes the society will move in such direction that crime will be risky, unacceptable or unlikely.

Read the complete post Access to Justice: three perspectives on equality and the law here

April 21, 2011 at 10:51 pm Leave a comment

Judge Albie Sachs goes barefoot against poverty

On December 10 2010 people from all around the world will go touch the ground barefoot to demonstrate against poverty. Famous South African human rights champion and former Constitutional Court judge Albie Sachs spearheads the movement.

November 28, 2010 at 11:27 pm Leave a comment

South Africa: civil society organizations call for Social Justice Charter

Civil Society Conference held on 27-28 October 2010 convened 56 mass-based civil society organisations. The delegates agreed that South Africa has comprehensive and well drafted Constitution and statutory laws but at the level of implementation there is a huge inequality.

“Access to justice is unaffordable, so that those who can’t afford to access the institutions of justice are excluded from exercising their rights and achieving social justice.  The current system favours those who can afford to access judicial institutions and therefore creates barrier to access justice rather than promoting access.”

The conference delegates agreed that a Social Justice Charter can “be used as a campaigning tool to mobilise society, particularly workers and communities, around issues of social justice”.

“The Charter must trigger the implementation of existing policies and laws and assist poor communities to be aware of them.  Any new Charter must speak to strategy and reflect civil society values. It can’t simply repeat principles already in the Constitution but must expand on principles such as public participation to enforce social justice

It must reflect the duty of civil society to hold government accountable – to achieve social justice delivery, and acknowledge the fragmentation and weakness of our organisations, which has led to deepening of poverty in South Africa, while expressing the need for solidarity and unity of civil society.

The conference agreed that the Charter must be used to get municipalities to truly engage communities in public participation, ensuring that public broadcasting reflects the voice of the people and addressing related issues of economic and gender justice.

Refugees and immigrants must receive exactly the same standards of justice, not the appalling service many receive today. Civil society must engage in public education on the Constitution to empower poor communities to fight for their rights and change the current balance of power.”

Read more here

October 28, 2010 at 11:10 pm Leave a comment


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