Brooms sweeping oceans? Women’s rights in South Africa’s first decade of democracy

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Date: 15 August 2019
• Author: Michelle O'Sullivan
• Citation: 2005 Acta Juridica 1
• Pages: 1-41

Brooms sweeping oceans? Women’s rights in

South Africa’s f‌irst decade of democracy

MICHELLE O’SULLIVAN AND CHRISTINA MURRAY*

Women’s Legal Centre and the University of Cape Town

I INTRODUCTION

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;

1

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’

2

and, in a

clear reference to domestic violence, freedom from ‘all forms of violence

from either private or public sources’.

3

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’.

4

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.

5

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.

6

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.

7

The Constitution also

provides for a Commission for Gender Equality to ‘promote respect for

* Michelle O’Sullivan: BA LLB (Cape Town); Director, Women’s Legal Centre, Cape

Town; Christina Murray: BA LLB (Stellenbosch) LLM (Michigan); Professor of Human

Rights and Constitutional Law, University of Cape Town. We would like to thank Sara

Hilliard, Precillar Moyo and Tendai Nhenga for excellent research assistance and Sharon

Brooks for administrative assistance. The expression ‘brooms sweeping oceans’ in the title is

drawn from an interview with a member of the Women’s Legal Centre who used it to describe

how she sometimes feels about the Centre’s work.

1

Section 9.

2

Section 12(2).

3

Section 12(1).

4

Section 27.

5

Sections 30 and 31(2).

6

Section 15(3).

7

Sections 26, 27 and 29.

1

2005 Acta Juridica 1

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gender equality and the protection, development and attainment of

gender equality’.

8

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.

9

A plethora of legislation and policy introduced between 1996 and

2001 implements many of the rights in the Constitution and South

Africa’s obligations under international law, and seeks to protect and

advance women’s rights generally. Signif‌icant legislation includes the

Commission for Gender Equality Act,

10

the Choice on Termination of

Pregnancy Act,

11

the Sterilization Act,

12

the Maintenance Act,

13

the

Recognition of Customary Marriages Act,

14

the Domestic Violence

Act,

15

the Employment Equity Act,

16

the Promotion of Equality and

Prevention of Unfair Discrimination Act,

17

the Extension of Tenure

Security Act,

18

the Prevention of Illegal Eviction from and Unlawful

Occupation of Land Act,

19

the 1997 Criminal Law Amendment Act

20

and the extension of unemployment insurance to domestic workers.

21

Policy developments include a determination of minimum wages for

domestic workers,

22

and amendments to the Code of Good Practice on

the Handling of Sexual Harassment Cases.

23

In addition, existing

8

Section 187.

9

Resolution AHG/Res 240 (XXXI) adopted on 11 July 2003 by the Organization of

African Unity to supplement the African Charter on Human and People’s Rights. The

Protocol came into force on 25 November 2005, 30 days after ratif‌ication by the 15th member

state, Togo.The other countries that have ratif‌ied the Protocol are Cape Verde, the Comoros,

Djibouti, the Gambia, Lesotho, Libya, Malawi, Mali, Namibia, Nigeria, Rwanda, Senegal and

Benin. The Protocol guarantees a broad range of economic and social welfare rights for

women. The rights of particularly vulnerable groups of women, including widows, elderly

women, disabled women and ‘women in distress’, which includes poor women, women from

marginalized populations groups and pregnant or nursing women in detention are specif‌ically

recognized. South Africa is also a signatory to the African Charter on Human and Peoples’

Rights (1981) 21 ILM 59 (acceded to on 9 July 1996) and the Convention on the Elimination

of All Forms of Discrimination against Women (1979) 1249 UNTS 13 (ratif‌ied on 15

December 1995).

10

Act 39 of 1996.

11

Act 92 of 1996.

12

Act 44 of 1998.

13

Act 99 of 1998.

14

Act 120 of 1998.

15

Act 116 of 1998.

16

Act 55 of 1998.

17

Act 4 of 2001.

18

Act 62 of 1997.

19

Act 19 of 1998.

20

Act 105 of 1997.

21

Unemployment Insurance Contributions Act 4 of 2002.

22

Sectoral Determination 7: Domestic Worker Sector, SouthAfrica in terms of the Basic

Conditions of Employment Act 75 of 1997 GN 1068 GG 23732 of 15 August 2002 (Reg

7434).

23

Notice of Code of Good Practice on the Handling of Sexual Harassment Cases GN 1367

GG 19049 of 17 July 1998.

2ADVANCING WOMEN’S RIGHTS

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legislation has been amended and new legislation formulated to comply

with the constitutional prohibition on unfair discrimination.

24

This

includes extending the ambit of some laws relating to married people to

domestic partners, same-sex partners and to partners in Muslim and

customary marriages.

Legislative and policy measures to advance the economic empower-

ment of women have also been adopted. Preferential procurement

policies seek to ensure that organs of state contract with persons or

categories of persons historically disadvantaged by unfair discrimination

on the basis of race, gender or disability.

25

The Broad-Based Black

Economic Empowerment Act

26

demonstrates the state’s commitment

that black women, who are at the intersection of race and gender, should

not be overlooked. It thus imposes specif‌ic requirements in relation to

their ownership, participation in management and employment equity in

broad-based economic empowerment. The impact of the new black

economic empowerment policy is still to be tested. It is, of course, an

ongoing concern that such policies should not result in ‘super empower-

ment’ of a few women while failing to empower women as a group.

However, since 2002 the pace of law reform has slowed leaving some

matters with substantial implications for the status of women unre-

solved.

27

Moreover, some, like Aninka Claassens in this volume,

28

argue

that recent legislation in areas of real importance to rural women, such as

the Communal Land Rights Act

29

and the Traditional Leadership and

Governance Framework Act

30

will not successfully secure or advance the

rights of women. Of equal concern is the implementation of progressive

laws and policies. While, as Lilian Artz and Dee Smythe document in this

volume in their review of the implementation of the Domestic Violence

Act, there have been some improvements, in other areas real change may

be limited.

24

Examples include s 58 of the Domestic Violence Act 116 of 1998; s 21(13) of the

Insolvency Act 24 of 1936; s 24(2)(e) of the Medical SchemesAct 131 of 1998; s 1(b)(iii) of the

Pension Funds Act 24 of 1956; s 1(b)(ii) of the Special Pensions Act 69 of 1996; s 1 of the

Government Employees Pension Law 1996; s1 of the Demobilization Act 99 of 1996;

Schedule 1 item 406.00 notes 6 and 7 of the ValueAdded Tax Act 89 of 1991; s 9(1)(f) read

with def‌initions of the Transfer Duty Act 40 of 1949; s1 and 4(q) of the Estate DutyAct 45 of

1955; s 1 of the Compensation for Occupational Diseases Act 61 of 1997; s 27(2)(c) of the Basic

Conditions of Employment Act 75 of 1997; s 6(1)(f) of the Independent Media Commission

Act 148 of 1993; and s 8(e)(iii)(aa) of the Housing Act 107 of 1997.

25

Preferential Procurement Policy Framework Act 5 of 2000.

26

Act 53 of 2003.

27

See, for example, the discussion of the Sexual Offences Bill (Criminal Law (Sexual

Offences) Amendment Bill [50 – 2003]), Muslim marriages, same-sex relationships, domestic

partnerships and sex work below.

28

‘Women, customary law and discrimination: The impact of the Communal Land Rights

Act’ 42 below.

29

Act 11 of 2004.

30

Act 41 of 2003.

3BROOMS SWEEPING OCEANS?

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