Address by Deputy Minister Ntombazana Botha at the Women’s Conference of the Law Society of the Northern Provinces: Pretoria

Printer-friendly versionSend by emailPDF version
01 Aug 2006

Theme: The Improvement of the Quality of Life and the Status of Women (in the context of Justice and Constitutional Development).

Programme Director
Members of the Law Society of the Northern Provinces
Honourable members of the Judiciary
Esteemed members of the legal profession
Judicial officers
My learned friends
Distinguished guests
Ladies and gentlemen

Good morning

It is, indeed, an honour and a privilege for me to address you this morning. Thank you for inviting me and for affording me an opportunity to share some thoughts on what I consider to be a very challenging issue.

And to be requested to do this in the context of Justice and Constitutional Development is even more daunting. For the past two weeks I have been asking myself whether I am the right person for this occasion. But, anyway, here I am. You spur me on, to continue to strive for the betterment of all women.

This year marks the 50th Anniversary of the women’s march to the Union Buildings on 9 August 1956. The women were protesting against the imminent introduction of the infamous unjust pass laws that were intended by the apartheid regime to further polarise and dehumanise the people of South Africa. We are told that well over 20 000 women marched on that day.

This was undoubtedly one of the largest and most effective demonstrations in this country. At the height of repression women dared to challenge the brutal apartheid regime. This show of strength and resilience of women reinforced what they had been telling their male comrades for many years that they, too, are quite capable and prepared to be involved in the national democratic revolution, alongside men, for the liberation of all the oppressed people. This assertion by the women of this country redefined strategies and tactics hitherto employed in the struggle. Women, too, were now recognised as a force which had a critical role to play in the process of transformation towards a free, democratic, non-racial and non-sexist society.
The women had already made this intention known two years prior to this march when they adopted the Women’s Charter of 1954 at the inaugural conference of the Federation of South African Women. This was before the adoption of the Freedom Charter in 1955.

In later years this very powerful document was to be used as a basis for subsequent women’s charters and even our Constitution which is founded on the values of freedom, human dignity, equality, non-racialism and non-sexism.

The Women’s Charter of 1954 incorporated a clause entitled “Test of Civilisation”. It reads: “The level of civilisation which any society has reached can be measured by the degree of freedom that its members enjoy. The status of women is a test of civilisation. Measured by that standard, South Africa must be considered low in the scale of civilised nations”. (end quote)

 

Can we honestly say that South Africa has passed that test? Can women in the legal profession claim that these goal set by women 52 years ago, has been achieved?

For those women, too, in those days, it was a terrain of struggle which required all of them, “African, Indian, European and Coloured” (as they were called then) to stand together to fight for the human rights of women.

It is my belief that to register any kind of progress in improving the quality of life and status of women, a sound legal framework is one of but not exclusively the critical elements. I am, therefore, delighted that you will be engaging in a somewhat deeper discussion on a matter which I think we have not all paid serious attention to.

What then would be the role of women in the legal profession? Perhaps, the starting point is to remind ourselves that “umuntu ngumuntu ngabantu” – I am who I am because of other people. In other words, you are who you are today because of the role that other people played in your life. That should be our starting point!

I know that I am in the company of learned persons who would understand better than I, the challenges which are manifest in the legal sphere, for example, the challenges posed by a judiciary that is yet to be transformed is one of the topical issues.

Twelve (12) years into our young democracy we are still grappling with issues concerning the judiciary who, I would have expected, to play the leading role in the transformation of our society. The judiciary, to my mind, is a critical institution of our government which should and must promote and protect the founding values of our democracy and the rights entrenched in our Constitution.

The judiciary has a fundamental task to serve all the people of this country with impartiality, without fear, favour or prejudice. We are all aware of and have a keen interest in the current debates in relation to the transformation of the judiciary, as this will have far-reaching implications. One of those, we hope, is how judicial transformation will effectively advance the improvement of the quality of life and status of women in our society broadly and particularly in the legal system and within the judiciary and legal profession.

I’m trying to make the point at two levels – the one takes into account the importance of internal transformation of the judiciary and the entire legal profession; while the other takes into account the impact of such transformation on the daily lives of people, particularly women who, we all know, have been disadvantaged over many years in the legal system.

I trust that I am not the only person who recollects a time when women held the status of minors and legal standing depended on either husbands or male family members.

 

The quality of life and status of women in our society ought first to be reflected within the judiciary, in particular, on the bench. The representation of women, at this, one of the highest levels in the judiciary, leaves much to be desired. According to a report by Idasa, ‘Necessary Judicial Transformation,’ representivity of women judges is poor, in a legal system that is beset with violence and abuse against women who are among the most vulnerable members of our society.

With reference to the Bar, an important source for new entrants to the Bench, the late Chief Justice Ismael Mohamed stated, “It is crucial for this country that the Bar should succeed in {greater transformation], it will bring not only fulfilment and meaning to new generations of young men and women attracted by the eternal fascination of the law; it will accelerate also the process of healing the deep wounds inflicted by the pain and the shame of our racist past. It will discipline and accelerate the crucial process of transformation – domestically within the Bar itself to reverse the grossly unacceptable racial and gender distortions within its own membership at all levels; and externally to restore for the law its legitimacy, relevance and living creativity in a constitutionally protected democracy…”

Premier of KZN, Dr Sbu Ndebele, in his address last year at a workshop on the challenges in a transforming South Africa, posed the following points for consideration (please bear with me as I really feel it is important to repeat them today). He states:
• “The majority of judges in the High Courts are still white and male – 99 white males and 27 black males as against 26 females across the “colour” spectrum;
• There is no clear indication that all judges appointed during the apartheid era have embraced transformation;
• There is a general complaint that black practitioners during the apartheid era were not given work that would facilitate their appointment to the High Court bench;
• Even today, black practitioners consider themselves as still disadvantaged because there is no trained pool from which black judges can be appointed;
• Gender equity (especially in relation to black women practitioners in KZN) leaves much to be desired. Capable black women practitioners are leaving practice;
• Racist attitudes overwhelm the minds of some judges and the meting out of justice is still unequal. Considering the judgments in some civil and criminal matters, it is possible to conclude that many offenders are judged on their colour and not on the merits of the case;
• There are insufficient mechanisms to “guard the guardians”. Short of the constitutional test of gross misconduct or negligence, how can a judge be disciplined?
• To what extent should judges review government policies aimed at gradual realisation of socio-economic rights?
• How accessible are courts to the ordinary person?
• How accessible are courts if the languages used in court are mostly English or Afrikaans?
• Many within our judiciary do not see themselves as being part of the masses, accountable to them and inspired by their hopes, dreams and value systems.”

He further goes on to question the role of the judiciary in the development of our society which, he perceives as “the changing role of the judiciary from a passive bystander with a narrow legalistic philosophy out of touch with the values enshrined in our Constitution”.

All of what the Honourable Premier Sbu Ndebele raised invariably impacts on the quality of life and status of women in the larger society but also within the legal system and the judiciary and legal profession.

Some of the issues that impede the success of Government programmes that address themselves to the protection of women’s rights are pertinent to mention. These include: the ramifications of emasculation during colonialism; the legacy of an oppressive system, apartheid; changes in social structures accompanied by inability to accept change and, in effect, resistance to change; and the legitimisation of violence against women that is supported in various subtle ways.

 

Allow me to point out that when we examine the current context in which we are living, we must do so with an awareness of our history. It is not merely rhetorical to refer to the colonial structures of this country; after all, the very legal system within which we operate was founded on Judaeo-Christian laws, Roman-Dutch law, customary law, etc. These formidable laws that were imposed on people had untold consequences that have led us to where we are now. Some of these laws have not yet been repealed or amended in line with our constitution.
Our challenge is to transform the inequitable basis and application of those laws, so that in a contemporary South Africa they respond eloquently to our Constitution, which now protects the entire citizenry of South Africa. The impact of the additional subjugation of women that resulted during apartheid led to tremendous setbacks in the socio-economic development of women, such that ascendancy and transcendence of circumstances was almost impossible.

The consequences of our history are such that our social structures have changed. Similarly, our beautiful and diverse culture is not static. It continues to undergo change after change after change. These many changes, while enriching, also provide a platform for the articulation of where we want go, as a nation. Part of the charting of these new directions must include the systematic elevation of the status of women in order to address the decades of systematic devaluation, at an individual as well as at a legal level. We cannot now, as a conscious nation, support factors that in effect promote the further oppression and the devaluation of women.

Arguably, the freedoms which we now all enjoy should be accompanied with commensurate responsibility. As esteemed members of the legal profession, you are uniquely placed to assure the stripping away of any and all systems of legal oppressions that existed in the past and ensure that the formulation of future legal frameworks are fully cognisant of the rights and equality of women and children in our society.

Our goals for the socio-economic ascendancy of women are indisputably reflected in various Government programmes. Allow me to mention a few. In the Department of Arts and Culture, for example, the social, cultural and economic empowerment of women and other marginalised groups in our society is in the forefront of our programmes. A flagship programme of the DAC is the Mosadi wa Konokono Campaign, a campaign that is supporting women who use the cultural industries to uplift their communities. An instrumental partner of this initiative is the Investing in Culture Directorate that helps persons in the so-called second economy to acquire greater marketing and production skills thus enabling them to move quickly into the mainstream economy or what is usually referred to as the “first economy”.

I’m certain that you are all aware that because of the persistent incidents of violence and abuse against women and children, we have, alongside the 16 Days of Activism Campaign, embarked on a 365 Days Campaign seeking to end the Violence perpetrated on Women and Children all year round.

All of the programmes have the same goal – to improve the quality of life and the status of women.

Conclusion:
What then is the role of women in the judiciary and in the entire legal profession – magistrates, advocates, attorneys, prosecutors, and all lawyers and judicial officers included – in the process of transforming our society to become the truly free, democratic, non-racial and non-sexist society, united in our diversity?

How do we, for example, address the issue of gender power relations which has become the greatest challenge of our times in our country? How do we deal to the “backlash” which is presumably a reaction by some men to the affirmative action of government in relation to women? How do we respond to utterances in the public discourse to the effect that this country “is not ready for a woman president? Why are we not fighting together for the upliftment of all women in this country? Are we too afraid to shake the pillars of patriarchy? Or are we perplexed by the dichotomy between the values or principles which some people publicly purport to espouse, for the advancement of the cause towards the total emancipation of women, on the one hand, and those practices in the privacy of homes and workplaces which are in direct contradiction?

We need more women judges on the bench. We need more women lawyers who will specialise in various fields. We need more women prosecutors who will have an understanding of issues pertaining to women, gender, gender power relations, socio-economic and socio-political challenges. You have the knowledge and intellectual capacity to lead us through this Age of Hope to substantive equality and real freedom.

Could it be that the Progressive Women’s Movement of South Africa which is soon to be launched in Bloemfontein next week is the answer to our woes? I wish to also add my voice to those women who are calling for all South African women to unite and work together towards the attainment of universal human rights. Like the women of 1956, let us march on to advance our own emancipation.

While we continue to be a beacon to the rest of the world let us strive to emerge as our own very best exemplars, so that models for change are within easy reach and present opportunities every day for a better society, a better South Africa and a better world. So far, I must congratulate you and all the women of South Africa. You’ve done extremely well under very trying circumstances.

Once again, thank you for inviting me and thank you for your attention.