USING LAW AS PART OF SOCIAL TRANSFORMATION ..................................Back to News

The story of Nancy and Thuli
By N. Webster

Women carry burdens of society in a basket on their heads as they walk and live in South Africa’s democracy. Often overloaded, the basket tilts towards the direction of defeat and complacency as each day presents new and complex burdens. Last month, we celebrated Women’s month, and this month, our celebration will be Heritage Day. In our celebrations, we are reminded that the basket can tilt towards the angle of victory if we use a human rights framework to challenge and lessen our burdens. This principle informs our work as the Chief Directorate Promotion of Rights of Vulnerable Groups, and further forms the basis of our contributions to national celebrations. Importantly, our contribution aims to discussions on improving lives of vulnerable groups so as to instill national pride.

Collectively, women living in South Africa, share burdens of poverty, violence, HIV and AIDS and social inequality. For some women, burdens differ because of identity and experience – identity that includes race, class, sexual orientation, religious, or cultural identity.  Women’s experience within a patriarchal society and related institutions often reinforce the believe that “women’s burden” are a natural consequence.

Through our work as the Department of Justice and Constitutional Development and specifically the Chief Directorate, we strive to change this belief. Our focus is rooted in the theory that law can be an instrument for social change. Through our work, we expand this theory to suggest that a legal strategy to social transformation should be human rights-based.

Consider the following case scenario that highlights our approach to challenging burdens of sexual violence, human trafficking, HIV and AIDS, and consumer disputes. Our legal strategy asks what of the victim and more importantly, vulnerable groups of children, disabled persons and the elderly.

Nancy is a 24 year old single mother of five year old Luthuli. Nancy lives in Pretoria and works for a company called Garefenye Recruitment Agency. Luthuli, who likes to be called Thuli, attends a pre-school and travels everyday in a local transport service provided by Uncle Fred. Thuli comes home one day and tells Nancy about a new school friend she has who comes from another country. On this particular day, Nancy is sitting and reading a newspaper which has headlines that read – A Register for Rapists – Human Trafficking of children a crime – HIV increases among single mothers – Deputy Minister visits Small Claims court and finds no staff – Victims hold magistrate hostage.

As Nancy reads the newspaper and adjusts her immediate burdens of caring for herself and Thuli, as she thinks of how law can change all the headlines so that South Africans can be celebrator y of their nationality and heritage.

In considering Nancy’s life, her burdens that she shares with many women are reflected in the newspaper headlines. The burden of sexual violence requires Nancy to be more protective of Thuli. However, despite parent’s protection against sexual violence such as rape, sexual assault or pornography, Thuli is exposed to danger if Uncle Fred has a previous conviction for rape. Nancy also would have to deal with HIV, particularly if she or Thuli contracted it through rape.

Uncle Fred may pose another challenge for Nancy if he refused to pay for money paid for school trips that did not take, and resulting in financial loss for Nancy of R6 000 (six thousand rands).

Nancy would have another challenge if Thuli’s new friend, Fatima, is a victim of human trafficking and attending school as part of government’s support to victims. Nancy would have to explain to Thuli what human trafficking is and ensure that she does not treat Fatima in a way that may re-victimize her.

Nancy should be the case study that life in South Africa is complex, filled with numerous challenges that can seem overwhelming, casting a spell of negativity as opposed to national pride.

            Using law to bring about change

As we celebrate Heritage day, we should look to how far we have come as a nation. For many South Africans, our Constitution is the social contract we have defined for ourselves and those living in South Africa. Our social contract instills a vision that South Africa can be a country where all live in peace and harmony, mindful and respectful of diversity. Through our Constitution, we have set in place a legal framework that lessens burdens that Nancy faces. In order to ensure that Nancy and other parents like her are protect, government has created the framework. What is required from Nancy firstly is to know the law and secondly to understand how it works and thirdly to use it to address her legal problems. Working with government Nancy can become a champion for Thuli and future generations of South Africans and she will leave a legacy to be proud of.

The legal framework that Nancy can use includes laws and systems such as; the Criminal Law Amendment Act 32 of 2007 (also known as the Sexual Offences Act), the National Register for Sexual Offences which is a system introduced by the Sexual Offences Act, the Victims Charter (which is the Service Charter for Victims of Crime) and the Small Claims Act 61 of 1984.

The Sexual Offences Act aims to deal with sexual offences such as rape, child pornography and sexual abuse or exploitation. The Act also deals with human trafficking in the absence of a final law on trafficking. The Act has set up a National Register advises that all prospective employers and employees working with children and mentally disabled persons need to apply for a clearance certificate against the National Register for Sex Offenders before they can be employed to work with children. Nancy can request Thuli’s school to ensure that all teachers are cleared to work and can further request Uncle Fred to ensure he has a certificate.

Nancy can take legal action against Uncle Fred if he refuses to pay her the outstanding six thousand rand. A law, which is the known as the Small Claims Act 61 of 1984, has established a new court system of resolving disputes. Small Claims courts which are present on most parts of the country, allow Nancy to take legal action in court, without a lawyer, against Uncle Fred. Nancy does not pay any money to the court, she can give her evidence against Uncle Fred, in her own language, and most courts are open after working hours so she wont have to take time off work to go to court.  The only matters that Nancy could not bring to the Small Claims court are defamation, wrongful arrest or prosecution or imprisonment, seduction and breach of promise to marry. Uncle Fred’s amount of six thousand ran owed to Nancy is less than the maximum amount which is seven thousand rands.

The Sexual Offences Act also deals, provisionally (until a new law is finalized), with human trafficking.  Nancy will have to explain to Thuli that Fatima is a victim of trafficking. Nancy will be able to explain that human trafficking is when a person is forced from a place where they live to another place or country to do work and they will not receive any money for that work. A child, like Fatima, who is under 12 years old might not understand what trafficking is, but the  law aims to protect children who’s parents might be victims of trafficking.

Thuli’s friendship with Fatima may lead Nancy into developing an understanding of some of the complexities of trafficking. One of the consequences could be Fatima’s exposure to HIV if she worked as a sex worker. Fortunately for Fatima, South Africans are more accepting and tolerant of people infected and affected by HIV and AIDS. If however, Fatima encountered a problem at her school because of her HIV status, South Africa’s law which is the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, could be used by Nancy to challenge the school. The Act which is also referred to as PEDPUDA allows people who have believe they were discriminated against to take legal action in the Equality Courts. Anyone can take a case to the Equality court, which is free and cases usually take a two to three months to be decided.

South Africa’s track record of dealing with victims may not be exemplary against international standards, but we have a put in place laws, a charter and policy. For Nancy, the best support she can give to Thuli and Fatima is to teach them about victims rights, responsibilities and services. The Victims Charter is the foundation that she can use to teach the. Simply, the Charter has seven rights that all victims are entitled to when they enter the criminal justice system. The rights are; dignity, privacy, information, protection, assistance, compensation and restitution. As Thuli and Fatima learn to count, they can learn the seven rights and the most important principle that with rights comes responsibilities. As a citizen, it is our responsibility to make the criminal justice system work – we must understand our rights, know how the courts, police stations, hospitals and correctional facilities work. We must know the difference between prosecution and sentencing. We must take responsibility when the system does not work and hold relevant officials accountable. We must understand that government services for victims such as shelters, intermediaries for children who are witnesses in sexual violence cases, are informed by government policies such as victim empowerment. We must change the perception through our conversations in taxis, buses, aeroplanes, when we stand in line in bank queues, in our church meetings, and in our homes, that government does not care for victims and for vulnerable people. If we understand our laws that we have created, we can begin to instill our national pride in Thuli and her class mates and build a better South Africa.