n Malawi Law Journal - Masiya : gender equality and role of the common law : case note
|Article Title||Masiya : gender equality and role of the common law : case note|
|© Publisher:||University of Cape Town|
|Journal||Malawi Law Journal|
|Publication Date||Jan 2009|
|Pages||303 - 318|
Interpreting the common law in accordance with the principles and values of the Bill of Rights is fundamental to the achievement of gender equality in South Africa. In particular, the development of sound principles of non-discrimination is crucial for South Africa as it recovers from its history of inequalities and discrimination. This article critiques the majority opinion of the South African Constitutional Court in Masiya. It argues that by confining the common law definition of rape to women, the majority view compromised the right to gender equality and undermined the foundational values and principles of the Constitution. This article also highlights the limits of the differentiation / disadvantage paradigm, which has become the main analytical framework for the right to equality, as a strategy for the advancement of gender equality.
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