Inclusive, Enabling Communities

Inclusive, Enabling Communities
Learning Brief

Centre for Community Justice and Development

Interaction between community-based paralegals and traditional leaders

Category: Inclusive, Enabling Communities | Women and children affected by abuse/violence | 8 October, 2014 - 12:43


Project context

The Centre for Community Justice and Development (CCJD) appoints trained paralegals from the community to run advice offices in rural areas of KwaZulu-Natal. These female paralegals regularly interact with the male traditional leaders concerning domestic violence cases and the relationship requires sensitive navigation. This learning brief discusses the relationship between paralegals and traditional leaders and its influence on traditional ruling outcomes.

Interaction between paralegals and traditional leaders

The female paralegals regularly attend traditional tribunals. This underpins the authority of the traditional leaders. However, until fairly recently the proceedings of traditional tribunals were a male preserve. Nevertheless, the paralegals have a good relationship with the traditional courts because they are familiar with local communities. They straddle the divide between formal, informal and customary law and their approach to justice encourages community participation in the formal and traditional justice systems. Paralegals’ broad set of dispute resolution skills often creates more culturally appropriate, flexible, and durable solutions for their clients.

The paralegals conduct workshops with traditional leaders to inform the traditional courts about five key acts effecting women and children’s rights. So far the paralegals have succeeded in educating these courts about how to tackle violence against women and children, and how The Domestic Violence Act, Maintenance Act, Child Justice Act, Sexual Offences Amendment Act and Customary Marriages Act operate. The courts and traditional leaders have been receptive to the new information. These workshops are discussed below.

Conducting successful workshops with paralegals and traditional leaders

CCJD paralegals organised workshops with traditional leaders in fifteen communities. The workshops aimed to advance the rights of women and children. The CCJD head office provided the paralegals with updated training in the five acts, and then launched thirty-two workshops with the traditional leaders. In traditional courts, only half of the councils are elected, and about a third of the leaders are women. During the workshops we found that the women tended to keep quiet and it was the men’s opinions that dominated.

Lessons learned: workshops on the Domestic Violence Act

So far we learned that many traditional leaders think that domestic violence is only physical or sexual. They do not realise that it can be emotional and economic. The workshops confirmed our understanding that many traditional leaders follow the practice of paying compensation, either in money or livestock, in cases of domestic violence. They prefer to keep abuse quiet as a family matter and not to involve the police. They did not understand how a protection order works or how to apply for it, and viewed it as creating excessive division in relationships.

Through the workshop, most traditional leaders began to understand the importance of referring domestic violence cases to the police and the courts, of using protection orders, of laying charges, and of seeking sentences for perpetrators.

Despite many gains at the workshop, numerous challenges remain. Some traditional leaders stick to the belief that a wife has no right to refuse sex inside a marriage, and that it is acceptable to beat wives if they refuse intercourse. Next, the traditional leaders do not carry out mediations and solve disputes autocratically. Finally, leaders in the traditional courts feel excluded from the drafting of the country’s laws. They would like more input in the law-making process.

Lesson learned: workshops on the Maintenance Act

During the workshops we found that many traditional leaders did not understand the difference between child maintenance and government child support.

The workshop highlighted a number of ‘unknowns’ in the community. For example, the prevailing belief is that if a child receives government child support the father does not also have to pay maintenance.  The participants learned this is not the case, and that it is possible to attach a person’s UIF or provident fund if they are unemployed. They learned that they can use a maintenance investigator, that all they need to provide is the person’s name and ID number, and that the investigator can visit people’s homes to see if they are self-employed.

The workshop participants also learned that grandparents are obliged to pay maintenance if parents cannot, and siblings may be liable if other relatives cannot pay – a common practice in Zulu custom. In addition they learned that a person is obliged to support the children of his or her partner from another relationship. Many did not agree with this. Participants learned that in the case of divorce – even if a parent is denied access to a child – he/she still has to pay maintenance. Many disagreed that a parent must continue to pay maintenance until a child is self-supporting.

The workshops also highlighted important, available resources that can help the traditional courts. For instance, paralegals explained that a DNA test is the most reliable test of paternity and is legally binding. Traditional courts use a custom for paternity testing whereby the child in question is taken to the grandparents, who looks at the child’s features and decides. Furthermore, the participants were not aware of the foster care grant and how to qualify for one, and had several questions about it.

Conclusion: implications for us and for others

As a result of the workshops, more domestic violence and maintenance cases are now being referred to the police, courts and the CCJD advice offices. Our message is that the traditional courts do not have jurisdiction in cases involving rape, domestic violence and crimes against children, and should refer these cases to the formal legal structures. There is a need for further training of traditional leaders and the courts are receptive and appreciative.

Looking ahead, we plan to give a total of 225 workshops in total on five acts. After these are completed, we will interview the chiefs and headmen and further assess the effect of the project on the decisions being made by the courts.

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In Short

The Centre for Community Justice and Development’s community-based paralegals regularly interact with the traditional leaders concerning domestic violence cases. This learning brief discusses the relationship and its influence on traditional ruling outcomes, outlines the type of interactions, and points out specific lessons learned during the consultative and information sharing workshops.

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