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Gender equality and the courts: Real change comes from the heart

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Picture: jessica45/Pixabay – In SA, there is no shortage of laws protecting and promoting women’s rights, there is a battery of such legislation. The problem lies in the attitudes of people that are resistant to change, says the writer.

By Dr Wallace Mgoqi

Over time, concerns have been expressed about how women are treated by officers in the judiciary, from the very top of the echelons, to the lowest, from judges and magistrates to legal practitioners, lawyers and prosecutors and court interpreters.

At the heart of these has been the fact that there is some differential treatment, when it comes to women – as persons and their rights are somewhat treated differently.

During the course of my tenure as a Gender Commissioner between 2012 until 2019, as well as doubling up, on a part-time basis, as Acting Judge on the Land Claims Court, from 2014 until 2019, it came to my mind that something had to be done about this problem.

I obtained a mandate from the Gender Commission to do whatever I thought would help to promote gender equality and gender equity in matters, especially relating to women and land rights affecting women in the courts.

I then embarked on drafting a Practice Rule to be endorsed by the Land Claims Court. In its final form, the Practice Rule looked like this and provided as follows:

Promotion of Gender Equality

The following Practice Direction is introduced to emphasise that factors which promote gender equality can be incorporated under Section 33 of the Restitution of Land Rights Act No 22 of 1994, as amended.

In considering and applying the factors to be taken into account by the Court under Section 33 of the Restitution of Land Rights Act, the Court may in the interest of promoting Gender Equality:

1. Direct any person, official, institution, entity or organ of state including a constitutional institution to make relevant gender equality-specific submissions to the court. This may be done in the interests of promoting gender equality.

2. Require any person, official or entity to provide the court with regular progress reports regarding the implementation of the court’s orders, especially in instances where land has been allocated to women in general, and rural women, in particular.

3. Direct that specific steps be taken by the Department of Rural Development and Land Reform, as well as the Commission of Restitution of Land Rights, to ensure that women before the court who are beneficiaries of any land in terms of an order will receive delivery of such property, and be assisted to use the land productively, profitably and sustainably.

4. Specify that both men and women must enjoy the right of ownership, the productivity of the land, patrimonial benefits and identity deriving from ownership of the land.

5. Require that a 50 /50 % gender representation will be required in respect of governance structures post-settlement of any claim.

6. Require that resources are allocated at post-settlement development must be shared equally and equitably between men and women.

This became Practice Rule No 19, in the Land Claims Court, duly signed, endorsed and adopted by the Acting Judge President of the Land Claims Court, Judge Yasmin Shenaz Meer, on August 16, 2016.

The idea was always that this matter should be taken up at the highest level of the judiciary, and accordingly a meeting was arranged with the Constitutional Court judge responsible for the administration of the courts.

A meeting was arranged with Judge Raymond Zondo, Deputy Chief Justice as he then was, which I attended with two of our legal officers at Judge Zondo’s offices at Constitution Hill, where the matter was introduced to him.

Sadly, or as fate would have it, immediately thereafter, it was announced by the Presidency that Judge Raymond Zondo was appointed by the president to chair what has now become known as the State Capture Commission or the Zondo Commission.

However, now that he has returned as chief justice of the highest court in the land, the Constitutional Court, it behoves him to take this matter forward by introducing an appropriately-worded Rule of Practice/ Practice Directive for all the courts from the highest to the lowest, to promote gender equality in the courts first, and it will then permeate throughout all of society.

In South Africa, there is no shortage of laws protecting and promoting women’s rights, there is a battery of such legislation. The problem lies in the attitudes of people that are resistant to change, to treat women with the dignity, honour, esteem and sensitivity they deserve.

An effort like this is aimed at doing exactly that by making sure that those who interact with women, especially in the context of the courts, do so with respect, honour, dignity and sensitivity to women and their affairs.

Those who serve in the public service are obligated to act in an exemplary way, because of their enlightenment.

For this privilege of enlightenment, there is correspondingly a huge responsibility upon them to act in an exemplary way, at all times, both in private and in public.

Let me be vulnerable and confess that I was not always enlightened about matters of gender equality, being a young Xhosa man, steeped in matters of a patriarchal, misogynistic and gender-biased cultural background.

Even when an attorney at the Legal Resources Centre, I still looked through a gender-biased lens, until when as the Chief Land Claims Commissioner, there was a gender unit led by a woman, originally from Namibia, who made a project of mine.

We had many battles, as I regarded her as forcing me to change my attitudes and behaviours, there was no love lost between us. With the benefit of hindsight, I now realise that she was responsible for my “Damascus Moment” as it were.

By the time I came to be a city manager at the City of Cape Town, I was a zealot for gender equality, and during my tenure made sure that women directors were appointed and one woman (Lokiwe Mtwazi) executive director served on the top management team.

By the time I went to serve on the Gender Commission, I was an apostle for gender equality, and the first thing I did was to initiate the campaign “One Woman, One Hectare of Land, which I single-handedly took to Parliament. The campaign was also endorsed and adopted by the Rural Women’s Assembly, represented in all 10 southern African states in the SADC.

Sadly, the Department of Rural Development and Land Reform changed the appellation to One Woman, One Household, a retrogressive step that saw it going nowhere.

Men are reticent to admit their blind spot when it comes to matters of gender equality, regardless of their level of refinement. Just as racism is learnt, no one is born a racist, and so is the case in misogyny, it is learnt, and it must be unlearned. There must be a shift in thought processes first, then in the mind, then in the soul and then in the heart, for it is the latter that determines our conduct.

There is enough legislation and protocols even at the level of the African continent, through the African Charter on Human and People’s Rights, and other human rights instruments, but it is the change in attitudes of men, in particular, in the judiciary, to start with and then in the broader society, in the country and on the African continent.

* Mgoqi is Chairman: Ayo Technology Solutions Ltd.

* * He writes in his personal capacity.

This article is original to the The African. To republish, see terms and conditions.