Acta Juridica - Volume 2005, Issue 1, 2005
Volume 2005, Issue 1, 2005
Source: Acta Juridica 2005, pp 1 –41 (2005)More Less
There have been marked changes in the arena of women's rights in South Africa since 1994. The South African Constitution entrenches significant and progressive rights for women. It prohibits unfair discrimination on the basis of sex, gender, pregnancy, and marital status; it recognizes the disadvantage women suffer as a result of a number of intersecting grounds of discrimination, in particular race and gender, and provides for affirmative action; and it entrenches the right to bodily integrity, which includes, the right 'to make decisions concerning reproduction' and, in a clear reference to domestic violence, freedom from 'all forms of violence from either private or public sources'. The reproductive right is complemented, in the provision dealing with the right to health care, by the 'right to have access to ... reproductive health care'. Recognizing that cultural rights can conflict with gender rights, the right to practice one's culture and religion is made subject to the other rights in the Constitution. Similarly, and again with important implications for women, the recognition of marriages concluded under any tradition, or a system of religious, personal or family law' must be 'consistent with' the other provisions of the Constitution. The social and economic rights that the Constitution protects, including the right of access to adequate housing, health care, sufficient food and water, and social security, and the right to education are particularly relevant to women because of the gendered nature of poverty in South Africa. The Constitution also provides for a Commission for Gender Equality to 'promote respect for gender equality and the protection, development and attainment of gender equality'. Since 1994, South Africa has undertaken significant international obligations in respect of women, the most recent of which is the African Protocol on the Rights of Women.
Author Aninka ClaassensSource: Acta Juridica 2005, pp 42 –81 (2005)More Less
This article discusses the possible impact of the Communal Land Rights Act (CLRA or the Act) on the land rights of rural women in South Africa. It asks whether the Act is likely to enhance or undermine tenure security, not only for women, but also for rural people in general. In the context of declining rates of marriage it focuses particularly on the problems facing single women. It examines two inter-related issues: The first is the content and substance of land rights, including the question of where rights vest. The second relates to power over land, in particular control over the allocation and management of land rights.
It begins with an account of the parliamentary process and the last minute changes to the CLRA. The Communal Land Rights Bill (CLRB) was opposed by all sectors of civil society apart from traditional leaders. The most vehement opposition came from rural women and women's organisations, who argued that the Bill undermined the principle of equality in favour of an alliance with traditional leaders. Traditional leaders on the other hand welcomed the Act as a triumph of tradition and African custom.
The Constitution guarantees the right to equality and also recognises customary law and the institution of traditional leadership. During the constitutional negotiations there was a battle between women's representatives and traditional leaders about which should take precedence - equality or custom. Traditional leaders argued that the constitution would not be successful if it relied on 'foreign concepts and institutions'. Equality won: but the inherent tension between the different provisions has meant that a clash has long been anticipated. Some have seen the Act as manifesting that anticipated clash.
The advancement of African women's rights in the first decade of democracy in South Africa : the reform of the customary law of marriage and successionAuthor Chuma HimongaSource: Acta Juridica 2005, pp 82 –107 (2005)More Less
The place of customary law in the new constitutional dispensation in South Africa has been the subject of much debate in legal literature and elsewhere. Most notable for the purposes of this article have been the debates about the relationship between the previously dominant legal system, the common law, and customary law in the context of law reform; the application of the Constitution to customary law, especially the question whether the Bill of Rights applies to customary law directly or indirectly and conflicts between customary law and constitutional rights. This article contributes to these debates by critically analysing the methods adopted by the courts and the legislature to reform customary law and the problems they raise for the advancement of women's human rights.
The three-fold aim of the article is, firstly, to discuss the approaches the South African legislature and courts have taken to advance the rights of women under the customary law of marriage and succession and to bring this system of law in line with the Constitution and international law; secondly, to consider factors that may adversely affect the implementation of these new laws; and, thirdly, to suggest ways of counteracting these factors. Obviously, the discussion of the factors in question is anticipatory in nature, but one hopes that their identification will serve a useful purpose in relation to considerations of future law reform and in generating hypotheses for further research into the effectiveness of state interventions in this important area of the law.
The legislature and the courts in South Africa have made attempts to advance the rights of women under customary law in the areas of marriage and succession in accordance with the Constitution and the international conventions that South Africa has ratified. The approach both the legislature and the courts have taken to reform customary law is to replace it with South African common law with little accommodation of customary law.
In this article I will attempt to show that factors related to the approach taken to reform customary law and the inaccessibility of the new laws threaten to reduce the new laws to paper rights that are of little, if any, real benefit to the majority of women.
The focus of the article is on the Recognition of Customary Marriages Act (hereafter referred to as the Act), which reformed the customary law of marriage and the decision of the Constitutional Court in Bhe v Magistrate Khayelitsha. For the purposes of this paper the decision in Bhe and the Recognition of Customary Marriages Act will be referred to as the new law or laws.
Author Craig LindSource: Acta Juridica 2005, pp 108 –130 (2005)More Less
In a judgment handed down in February 2005, the South African Constitutional Court decided not to involve itself in the transformation of the law regulating cohabitation. It opted instead to leave the matter to the executive and to Parliament to resolve. The Court seems to have been daunted by the scale of the problems presented by this endemic social phenomenon. Its response was to opt for apathy. This reluctance to involve itself in a pressing law reform problem is regrettable.
At some point the Court will have to pass judgment on the permissible constitutional parameters of legislative reform in this area. It is a pity that it did not take this opportunity to set out those parameters. It could have aided government in its formulation of the structure of reform, and provided real solutions to those trapped in the inequities that cohabitation creates in the period leading up to the final reform that is adopted by government.
The failure of the majority judgment to provide solutions highlights the need for reflection once again on the nature of the problems that social change in family life has created, and to consider the role of the Constitution and the judiciary in resolving those problems. I will, therefore, try to do two things in this article. I will focus on the specific facts in Volks v Robinson and offer a critique of the decisions that the judges in the Constitutional Court handed down in that case. But I will also generalise the decision to the trends in family law on which the case is based. In doing so, I hope to offer some thoughts on the way in which I believe government and the courts should approach matters dealing with cohabitation in the future.
The overarching approach that I will adopt in discussing the problems that were encapsulated in this case is the need to achieve a just resolution of the problems unmarried partners face. It is important to spell out the nature of the claim to justice that is being promoted. Solutions to the problems of cohabitants must, clearly, be even handed; they must, present a solution which is fair to both partners. This obviously means that the personal circumstances of both individuals in a cohabiting relationship should feature in the resolution of their cohabitation dispute. It also means that the social context in which their relationship is lived must feature (prominently, I would argue) in the just resolution of their disputes. The public face of family life and the currents of prejudice which exist in the social world and which envelop real families must be acknowledged and dealt with if any resolution is to be just to the parties to cohabitation disputes. My plea is especially for gendered power relations in society to be taken seriously and to be addressed appropriately in providing solutions for cohabitants. Policy makers as well as judges have a responsibility to adopt a broad perspective on the nature and sources of injustice that arise when cohabitation relationships end. And judges, in particular, should not balk at offering limited solutions to problems which appear to be dwarfed by the greater injustices perpetrated on the parties by the social context in which the solution is offered. A partial solution is, it is submitted, almost always better than no solution at all.
Author Saras JagwanthSource: Acta Juridica 2005, pp 131 –148 (2005)More Less
Equality occupies a central and overarching place in the South African legal order. It is a free-standing right under s 9 of the Constitution as well as a foundational value in our constitutional dispensation. This chapter examines the use of equality as both a right and value in cases other than direct challenges to discriminatory law or conduct, and demonstrates the importance of expanding the role and reach of equality to all cases in which groups suffering disadvantage are affected, including in non-constitutional matters. The duty to promote equality, a relatively new development in equality law, is also examined in the light of its potential for social change and transformation. While the arguments presented in this chapter may be relevant for all disadvantaged groups, it focuses mainly on sex and gender equality cases and the achievement of substantive equality for women.
Equality as a justiciable right confers legitimate constitutional entitlements and corresponding obligations, and may be directly relied upon to found a cause of action in the courts against duty-bearers. Equality as a value may be used by courts even where the right is not invoked, allowing substantive equality principles to form the lens through which application of the law takes place. In Van Heerden Moseneke J noted that 'the achievement of equality is not only a guaranteed and justiciable right in our Bill of Rights but also a core and foundational value; a standard which must inform all law and against which all law must be tested for constitutional consonance.' Equality as both a right and value can play a number of different roles in the process of constitutional interpretation in the courts. Anti-discrimination litigation in the form of direct challenges to discriminatory legislation or conduct has traditionally been the most common way in which the equality right has been used in the courts. However equality principles may also be effectively used in cases where the right is not directly invoked, including in the interpretation of other rights, the interpretation of legislation and the development of the common law and customary law. An expanded role for equality makes the substantive equality principles developed by the Constitutional Court relevant beyond the content and ambit of the right itself and the next part of this chapter briefly describes aspects of the substantive equality jurisprudence in this regard.
Source: Acta Juridica 2005, pp 149 –170 (2005)More Less
Poverty is an urgent equality issue for women all over the world. Canada, since the Depression of the 1930s, has had a history of good social programmes. And those programmes have been a central egalitarian force in women's lives. Public health care, childcare, affordable public education, unemployment insurance and social assistance have all provided ways of ameliorating women's inequality, shifting some of the burden of unpaid care-giving to the state, and making available more opportunities for women to engage in paid work, education and community life. Income security programmes, like employment insurance and social assistance have also softened women's dependence on men, ensuring that women have independent income at crucial times in their lives.
But this has changed in Canada. For some time now we have been experiencing restructuring 'Canadian-style', including a race to the bottom among provincial governments to eliminate the entitlement to social assistance, narrow eligibility rules and reduced welfare benefits. In recent years, successive governments have hacked away at the social safety net. The cuts to social programmes have hurt women.
The picture of women's poverty and overall economic inequality is shocking in a country as wealthy as Canada. Women have moved into the paid labour force in ever-increasing numbers over the last two decades, but they do not enjoy equality there, not in earnings, in access to non-traditional jobs and managerial positions, or in benefits. The gap between men's and women's full-time, full-year wages is due in part to occupational segregation in the workforce, which remains entrenched, and to the lower pay that is accorded to traditionally female jobs. Although the wage gap has decreased in recent years, with women who are employed on a full-time, full-year basis now earning about 72 per cent of comparable men, part of the narrowing of this gap is due to a decline in men's earnings, and not to an increase in women's.
Author Helene CombrinckSource: Acta Juridica 2005, pp 171 –199 (2005)More Less
When considering violence against women in South Africa in 2005, one is confronted with an apparent contradiction. On the one hand, the levels of violence against South African women are alarmingly high. For example, during 2003-2004 a total of 52 733 cases of rape were reported to the South African Police Service. This constitutes a fifteen percent increase from the number of cases reported in 1994-1995. Although it is difficult to establish the national incidence of domestic violence, various localized studies indicate that it is an extensive problem. Recent South African research has furthermore found inordinately high levels of intimate femicide. These statistics represent the darker, malevolent side of the so-called 'Rainbow Nation', and lead one to question whether women are in this respect any better off than ten years ago.
On the other hand, the constitutional and legislative environment appears to be highly conducive to measures addressing violence against women, with the Bill of Rights in the South African Constitution containing an explicit guarantee of the right to be free from all forms of violence from either public or private sources. The Domestic Violence Act of 1998 is generally considered to be one of the more progressive enactments of its kind internationally. In addition, a draft Bill aimed at reforming the law relating to sexual assault has been introduced in Parliament.
This article aims to provide an overview of the development of the constitutional and legislative environment relating to violence against women, with specific emphasis on the role played by the courts in this development. It also identifies areas that may require further intervention in order to address the existing dichotomy between the relatively progressive nature of the formal legal dispensation and the practical realities experienced by women subjected to violence.
Source: Acta Juridica 2005, pp 200 –226 (2005)More Less
In 1998 South Africa's Parliament passed the Domestic Violence Act (the DVA), a comprehensive piece of legislation aimed at addressing the high levels of intimate violence in this country. The drafting of this legislation, subsequent efforts to monitor its implementation and resultant advocacy to ensure its effectiveness, have given feminist activists in South Africa an important opportunity to influence criminal justice policy towards victims of domestic violence and to inform both procedural and substantive aspects of the Act. These contributions to the law reform process in South Africa have not been limited to technical legal adjustments but have also included the procedural practices of managing domestic violence cases. Over the past decade the domestic violence law reform movement has become an important arena from which to challenge the social and legal understanding of women's experiences with domestic violence and to ensure that these experiences are embodied within law and criminal justice practice. These efforts have shown mixed results. For some this reinforces their ambivalence about the effectiveness of law and of the criminal justice system in combating violence against women. Others, including ourselves, have taken heart from the shifts that have occurred over the five years since the Act was promulgated, in respect of criminal justice practice and policies relating to domestic violence. This is an ongoing and arduous process both for those outside and inside the system, but there is little doubt in our minds that the law continues to be an important site for social transformation and the emancipation of women from violence in this country. In this chapter, we look at research findings on the implementation of the DVA and our own engagement with this process through five years of research and advocacy aimed at improving state responses to domestic violence.
Author Nikki NaylorSource: Acta Juridica 2005, pp 227 –242 (2005)More Less
Recently the horror of child sexual abuse has received extensive media coverage in South Africa. Some experts have referred to the incidence of child sexual abuse as being high enough to be seen as a war upon our children. Whilst it is impossible to describe the exact physical and emotional wounds that children who have been violated are left to deal with, it is common cause that sexual abuse causes immense physical and emotional pain at the time of the assault. It also leaves scars that linger in children's lives in a multitude of ways, threatening their physical and emotional well being and development, their sense of self and their right to health, happiness and a life free from all forms of violence. These scars often persist well into adulthood.
Sexual abuse clearly constitutes a violation of children's rights resulting in an obligation on the part of the state to ensure that effective and appropriate steps are taken to address the problem. The focus in recent years has been to get children to speak out against abuse, thereby increasing rates of reporting and criminal action against perpetrators. This article will not consider the criminal avenues open to survivors of child sexual abuse, but rather the manner in which the law governing civil actions and prescription has evolved so as to protect survivors of childhood abuse. Previously prescription laws largely 'conspired' with perpetrators by silencing survivors of childhood sexual abuse. While a survivor has the right to institute criminal proceedings in most cases of sexual abuse, the survivor may prefer to institute action civilly. In civil cases the survivor has more control over the conduct of the case and a lower burden of proof is applicable. However, in these cases prescription problems often arise because survivors tend to remain silent and may not pursue action until well beyond the age of majority. As a result the survivors may be time-barred and prevented from holding the perpetrator liable since the law requires a survivor to institute action within three years of attaining majority. A rigid application of prescription laws therefore limits the right of survivors to access to courts, as well as their rights to equality, dignity and freedom and security of the person.
In this article I focus on the current approach to childhood sexual abuse and prescription laws in South Africa in the context of a recent Supreme Court of Appeal ruling. I start by setting out the rationale for prescription and the constitutional framework within which prescription needs to be considered. I then deal with the first case in South Africa in which the Supreme Court of Appeal has had to apply prescription in the context of childhood sexual abuse and go on to analyse what this means for future cases, particularly in relation to the test to be applied by courts. In the latter regard case law in Canada, New Zealand and the USA is considered for the impact that it may have in future cases.
Author Rashida ManjooSource: Acta Juridica 2005, pp 243 –272 (2005)More Less
Any attempt to capture the processes and difficulties faced by a developing country, pre- and post-democracy, in its quest to redress inequalities and achieve the twin goals of gender equality and the emancipation of women, will necessarily be both factual and subjective. Women's activism in South Africa is closely intertwined with the complex political history of resistance. The inherited legacy of the past, particularly for black women, includes oppression and discrimination based on gender but also on factors such as race, class, religion, ethnicity and geographic location. These factors have all played a role in shaping women's struggles against oppression and discrimination. It has been argued that race and class divisions have differentially shaped the political consciousness of women. For example, white middle-class women's struggles were largely focused on issues of political equality and their legal status, while the political struggles for black women involved claims for political and economic equality within the transformation of the state. The task of redressing systemic structural discrimination in general and gender discrimination in particular, required a multi-pronged approach by South African activists. The approaches included the constitutionalisation of gender equality and non-sexism, affirmative action measures and also setting up structures and systems to address gender equality and the advancement of women.
The existing international discourse and vision was one of promotion of the concept of National Gender Machineries (NGM), as one mechanism to address women's inequalities. The vision was to develop structures, mechanisms and strategies for achieving equality for women in all spheres of life, both private and public. The United Nations Decade for Women (1975-1985) had also led to demands for the generation of data on the status of women, for policies to address women's needs in development, and also for setting up national machinery to promote women's integration into development. The 'Forward-Looking Strategies for the Advancement of Women' document, which was adopted at the World Conference to Review and Appraise the Achievements of the United Nations Decade of the Women: Equality, Development and Peace in 1985, also called on governments to establish appropriate government machinery for monitoring and improving the status of women. The Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights in 1993 urged 'governments, institutions, intergovernmental and non-governmental organizations to intensify their efforts for the protection and promotion of human rights of women and the girl-child'. The 1995 'Beijing Platform of Action', Strategic objective H, similarly calls on governments to create and strengthen national mechanisms for the advancement of women; integrate gender perspectives in legislation, public policies, programmes and projects; and to generate and disseminate gender disaggregated data and information for planning and evaluation. This vision was followed by activists in South Africa.
This article does not claim to be a full analysis of the success or failure of South Africa's NGM, but is rather a history of developments in the quest for gender equality, and also the personal experiences of women activists. Its focus is on the progress of the development of the NGM reflected in policy documents, assessments of progress and academic analyses of the situation. It draws on the first-hand experience of activists to a limited extent only. This limits the analysis to some extent as does the fact that it is written by a lawyer and not an anthropologist or sociologist. The other limitations include a recognition that it is difficult to judge whether the twin goals of gender equality and women's emancipation, through the setting up of gender structures, are a realistic outcome after approximately eight years of existence; and a realistic approach that recognizes the impact of deeply embedded structural and systemic challenges that existed pre-1994 and continue to exist in a rapidly changing climate of political and economic change. Despite such limitations, the paper attempts to make visible numerous relevant analyses which resonate and which also provide the basis for some conclusions.
Author Ruth B. CowenSource: Acta Juridica 2005, pp 273 –307 (2005)More Less
The Women's Legal Centre (WLC) has since 1999 brought cases to the courts and worked in Parliament and in administrative agencies to advance gender equality in the Republic of South Africa. From its inauguration, its commitment to women's rights and the use of constitutional litigation and public policy advocacy to protect those rights was shared with other organizations. Within that community of human rights and gender advocacy organizations, the WLC was, however, to become the pre-eminent organization working at the intersections where rule of law and women's rights converge.
The purpose here is to present WLC's record during its first five years and to assess that record. Presented for context is a description of the state of women's rights at the time WLC was established, the needs WLC sought to address, its mission and strategies.