Fair trial and access to justice in South Africa how traditional tribunals cater to the needs of rural female litigants

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dc.contributor.advisorBennett, Thomas Wen_ZA
dc.contributor.authorAiyedun, Yetunde Adenikeen_ZA
dc.date.accessioned2014-07-30T18:17:51Z
dc.date.available2014-07-30T18:17:51Z
dc.date.issued2013en_ZA
dc.descriptionIncludes abstract.
dc.descriptionIncludes bibliographical references.
dc.description.abstractEuropean and North American jurisprudence imbued the concepts of fair trial and access to justice in Western culture. The United Nations later proclaimed these foreign principles 'universal human rights', seemingly oblivious of the marginal role played by African states during conceptualisation. African governments, mindful of their minimal contribution to the content of individual rights, however, introduced communal rights and duties in the African Charter on Human and Peoples' Rights. This was the situation internationally, and in the region of Africa. On the domestic scene, South Africa ratified both international and African human rights conventions; hence, its Constitution incorporated the rights of access to justice, fair trial, equality and culture. These rights, however, create conflict during dispute resolution. This is evident with the country's multiple legal systems, allowing urban and rural litigants to engage in forum shopping, by approaching formal courts or traditional tribunals in civil and criminal contexts. In the formal courts, rural litigants (especially women, as lower income earners) encounter exorbitantly high costs of litigation, long travel distances to court, alien laws and procedures and, all too often, a foreign language in court, making these forums inaccessible. Conversely, traditional trubunals guarantee easier access to justice because they provide affordable and comprehensible procedures, and are usually located in close proximity to parties. African tribunals, however, hinder equal standards between men and women during conflict resolution, by violating the right to gender equality — a right implicit in fair trial. Usually, traditional judicial officers accept women as complainants, witnesses or accused persons, but rarely encourage or recognise the female demographic as participants in a judicial capacity (in some cases they do not even permit them to attend judicial proceedings). In spite of these shortcomings, traditional methods advance flexible, communal and harmonious procedures, in accordance with the African culture. While these characteristics of traditional tribunals gurantee the protection of cultural equality, human rights activists are fixated with the argument that these African structures discriminate against women, and often ignore their benefits. More importantly, the proponents of human rights fail to investigate the inequalities that plague the formal justice system. Well aware of the limited research in both regards, this thesis conducts a broad critique of the South African justice system, comparing the formal with the traditional. Based on its findings, the study argues in favour of traditional tribunals, which guarantee cultural rights as well as access to justice for poorer litigants.en_ZA
dc.identifier.apacitationAiyedun, Y. A. (2013). <i>Fair trial and access to justice in South Africa how traditional tribunals cater to the needs of rural female litigants</i>. (Thesis). University of Cape Town ,Faculty of Law ,Department of Public Law. Retrieved from http://hdl.handle.net/11427/4677en_ZA
dc.identifier.chicagocitationAiyedun, Yetunde Adenike. <i>"Fair trial and access to justice in South Africa how traditional tribunals cater to the needs of rural female litigants."</i> Thesis., University of Cape Town ,Faculty of Law ,Department of Public Law, 2013. http://hdl.handle.net/11427/4677en_ZA
dc.identifier.citationAiyedun, Y. 2013. Fair trial and access to justice in South Africa how traditional tribunals cater to the needs of rural female litigants. University of Cape Town.en_ZA
dc.identifier.ris TY - Thesis / Dissertation AU - Aiyedun, Yetunde Adenike AB - European and North American jurisprudence imbued the concepts of fair trial and access to justice in Western culture. The United Nations later proclaimed these foreign principles 'universal human rights', seemingly oblivious of the marginal role played by African states during conceptualisation. African governments, mindful of their minimal contribution to the content of individual rights, however, introduced communal rights and duties in the African Charter on Human and Peoples' Rights. This was the situation internationally, and in the region of Africa. On the domestic scene, South Africa ratified both international and African human rights conventions; hence, its Constitution incorporated the rights of access to justice, fair trial, equality and culture. These rights, however, create conflict during dispute resolution. This is evident with the country's multiple legal systems, allowing urban and rural litigants to engage in forum shopping, by approaching formal courts or traditional tribunals in civil and criminal contexts. In the formal courts, rural litigants (especially women, as lower income earners) encounter exorbitantly high costs of litigation, long travel distances to court, alien laws and procedures and, all too often, a foreign language in court, making these forums inaccessible. Conversely, traditional trubunals guarantee easier access to justice because they provide affordable and comprehensible procedures, and are usually located in close proximity to parties. African tribunals, however, hinder equal standards between men and women during conflict resolution, by violating the right to gender equality — a right implicit in fair trial. Usually, traditional judicial officers accept women as complainants, witnesses or accused persons, but rarely encourage or recognise the female demographic as participants in a judicial capacity (in some cases they do not even permit them to attend judicial proceedings). In spite of these shortcomings, traditional methods advance flexible, communal and harmonious procedures, in accordance with the African culture. While these characteristics of traditional tribunals gurantee the protection of cultural equality, human rights activists are fixated with the argument that these African structures discriminate against women, and often ignore their benefits. More importantly, the proponents of human rights fail to investigate the inequalities that plague the formal justice system. Well aware of the limited research in both regards, this thesis conducts a broad critique of the South African justice system, comparing the formal with the traditional. Based on its findings, the study argues in favour of traditional tribunals, which guarantee cultural rights as well as access to justice for poorer litigants. DA - 2013 DB - OpenUCT DP - University of Cape Town LK - https://open.uct.ac.za PB - University of Cape Town PY - 2013 T1 - Fair trial and access to justice in South Africa how traditional tribunals cater to the needs of rural female litigants TI - Fair trial and access to justice in South Africa how traditional tribunals cater to the needs of rural female litigants UR - http://hdl.handle.net/11427/4677 ER - en_ZA
dc.identifier.urihttp://hdl.handle.net/11427/4677
dc.identifier.vancouvercitationAiyedun YA. Fair trial and access to justice in South Africa how traditional tribunals cater to the needs of rural female litigants. [Thesis]. University of Cape Town ,Faculty of Law ,Department of Public Law, 2013 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/4677en_ZA
dc.language.isoengen_ZA
dc.publisher.departmentDepartment of Public Lawen_ZA
dc.publisher.facultyFaculty of Lawen_ZA
dc.publisher.institutionUniversity of Cape Town
dc.subject.otherPublic Lawen_ZA
dc.titleFair trial and access to justice in South Africa how traditional tribunals cater to the needs of rural female litigantsen_ZA
dc.typeDoctoral Thesis
dc.type.qualificationlevelDoctoral
dc.type.qualificationnamePhDen_ZA
uct.type.filetypeText
uct.type.filetypeImage
uct.type.publicationResearchen_ZA
uct.type.resourceThesisen_ZA
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