Equal choices for women and other disadvantaged groups

• Jurisdiction: South Africa
• Pages: 39-51
• Citation: 2001 Acta Juridica 39
• Author: Elsje Bonthuys
• Published date: 23 May 2019
• Date: 23 May 2019

Equal choices for women and other

disadvantaged groups

ELSJE BONTHUYS*

University of Witwatersrand

I INTRODUCTION

‘Too much attention has focused on whether there are disparities between

men’s and women’s social experience and too little on whether a legal

classification reflecting such disparities exacerbates or mitigates them. As

much contemporary feminist theory suggests, a more satisfactory approach

will require closer attention to context than conventional legal analysis has

encouraged.’

1

The aim of this chapter is to present a modest theoretical perspective

on an issue which has long plagued feminists and other people con-

cerned with equality. I want to highlight some consequences of legal

rules which treat women and other disadvantaged groups ‘differently’

from others by giving them special choices and opportunities.

My interest in these issues was stimulated by the recent judgment of

the Namibian Supreme Court in Mu

¨ller v President of the Republic of

Namibia and Another.

2

The case deals with Namibian legislation which

allows women, upon marriage, to assume the surnames of their hus-

bands without having to comply with any formalities. No such provi-

sion is made for men informally to adopt the surnames of their wives.

3

A German man who had married a Namibian citizen wanted to adopt

her surname. His reasons were that he was working in a jewellery

business established by his wife and wanted his surname to reflect

this connection. A child born from the marriage was also registered

under her mother’s surname and the husband wanted to have the same

surname as his child.

His main challenge to the legislation was that it discriminated

against him on the basis of sex, prohibited by art 10 of the Namibian

Constitution. Although admitting that

‘[t]he purpose of article 10 is clearly not only to prevent discrimination and

inequality but also, in our context and history, to eliminate them’

4

* BA LLB LLM (Stellenbosch) PhD (Cantab); Senior lecturer, Faculty of Law, University of

Witwatersrand.

1

D L Rhode Justice and Gender: Sex Discrimination and the Law (1989) 111-112.

2

2000 (6) BCLR 655 (Nm).

3

The Namibian legislation is very similar to that of South Africa in this respect.

4

See (n 2) 663F.

39

2001 Acta Juridica 39

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