A crisis of violence against women: Has South Africa fulfilled its obligations in terms of the Convention on the Elimination of All Forms of Discrimination against Women?

• Jurisdiction: South Africa
• Citation: 2020 Acta Juridica 165
• Date: 14 September 2020
• Pages: 165-195
• Author: Barkley, S.
• Published date: 14 September 2020

165

A crisis of violence against women:

Has South Africa fullled its

obligations in terms of the Convention

on the Elimination of All Forms of

Discrimination against Women?

SAMANTHA BARKLEY*

Gender disc rimin ation in South Af rica is both a h istorical phenome non

and a curr ent experience. Women continue to be un fairly trea ted, they

are regarded as inferior to men, and they are subjected to violence.

This contr ibution seeks to examine South A frica’s fullment of its

obligations under the Convention on the Elimination of All Forms

of Discri mination against Women (CEDAW). In terms of this

Convention, South Africa is obliged to take appropr iate measures

to eliminate all d iscrimination against women. In light of these

obligations, domestic law has been enacted to address the inequality

and discr imination experienced by women, particularly as a re sult of

violence. This a rticle shows th at, despite the count ry’s international

obligat ions, and the subsequent enact ment of domestic legislat ion, the

problems of gender inequality and discr iminat ion persist. Gaps in the

enforcement of leg islation remain. A s a result, women in South Af rica

are fur ther disempowered. However, women’s movements have

contributed to securing women’s rig hts and they play a key role i n

ensuri ng the implementation of these rights. By relying on CEDAW,

women’s movements and activists are able to hold govern ment and its

institutions accountable for t heir obligat ions under CEDAW, which,

most import antly, are gender equality and non-discr imination.

South Afr ica may also be commended for tak ing steps to enact

domestic legislation aimed at articulating gender equalit y and non-

discriminat ion. Such legislat ion provides the mecha nisms and means

to prohibit har mful and discri minator y practices relating to violence

again st women. However, the inclusion of such rights and to a great

extent their enforcement may be att ributed to women’s movements

and gender activists.

* BA L LB LLM (Wit s); Associat e Lectur er at the Univer sity of the Wit watersr and.

2020 Acta Juridica 165

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166 VIOLENCE AGAI NST WOMEN

I INTRODUCTION

One legacy of the apartheid system that continues to perpetuate

inequality and discr imination is the marginalisation of women

in South Africa.1 In addition, a patr iarchal system that endorses

gender discriminat ion has ensured that women continue to be

largely excluded from meaningful participation in the South

African economy.2 Studies show that women are more prone to

the eects of inequality and discrim ination, such as poverty, HIV/

AIDS and gender-based violence.3

Since the dawn of the democratic era, the South African

government, by enact ing legislation and adopting policies aimed

at protecting and promoting women’s rights, has sought to counter

and reverse the eects of inequality and discrimination. The

pursuit, in the Constitution of the Republic of South Africa, 1996

(the Constitution), of substantive equality meant that the rights

of women, who were marginalised, would be prioritised.4 This

inclusion was considerably inuenced by the Women’s National

Coalition (the WNC), established in April 1992. The WNC

negotiated to sec ure the rights of women in the Const itution. It also

called for customary law to be made subject to the constitutional

right of gender equality.5 The next step for activists and women’s

movements was to ensure the implementation of these rights and to

ensure appropriate interpretat ion.6 One way in which this has been

executed is by lobbying the government and institutions to do thei r

part to address cases of violence against women (VAW). Further-

more, they pushed for government i nstitutions to alig n their actions

with both the constitutional and leg islative agenda on women’s

rights and the obligations in terms of inter national instruments

addressing women’s rights.7 This ar ticle will briey exam ine the

role of leading women’s movements in realising women’s rights in

1 M H ames ‘Rig hts and real ities: Lim its to women’s right s and citize nship

after 10 year s of democracy in Sou th Africa’ (200 6)Third World Quarterly1313–27.

2 K B entley ‘Women’s human ri ghts and the fem inisat ion of poverty i n

South Africa’ (2010) Journal Re view of African Politica l Economy 247 –61.

3 I bid.

4 I bid.

5 E B onthuys & W Domingo ‘Con stitutional and i nternational law c ontext’

in E Bonthuys & C A lbertyn (eds) Gen der, Law and Justic e (20 07) 75– 7.

6 I bid 77–8.

7 I bid 75– 9.

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