n Stellenbosch Law Review = Stellenbosch Regstydskrif - Gendered transformation in South African jurisprudence : poor women and the Constitutional Court




Central to the transformative project of the South African Constitution, although not always recognised as such, is the need to address the distinctive forms of poverty and inequality experienced by women. This article explores the extent to which, and how, poor women have been included within the constitutional project, firstly, by describing the complexity of poor women's lives and then through a brief analysis of cases and jurisprudence on equality and socio-economic rights. Underlying these two facets of the article are two key questions: What does the experience of poor women tell us about the meaning of transformation and a transformative Constitution? How can we seek a more transformative (and gendered) understanding of equality and socio-economic rights jurisprudence? The article argues that the lived realities of poor women remind us that the kind of transformation - and transformative legal strategies - that are necessary to generate meaningful change require attention to structure and agency, to redistribution and recognition, to individual and community, to public and private (especially care-giving roles in family), to inequality and poverty. To achieve this through equality and socio-economic rights jurisprudence entails greater care in the choices made by lawyers in selecting and arguing cases, and in advancing critical arguments that push the boundaries of progressive and strongly egalitarian forms of liberalism. It also requires a more gendered jurisprudence in courts where attention to women's socio-economic context is combined with a conscious attempt to give meaningful content to the values informing constitutional rights, the gendered interests at stake and the manner in which application of legal principles, such as reasonableness and fairness, can be shaped to include women. In the end transformation requires the construction of a society in which women and men are afforded equivalent, substantive conditions for exercising the choices that matter to them, about how to live their lives, maintain their relationships, raise their children and pursue their aspirations.


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