Litigating equality – the example of child care

• Jurisdiction: South Africa
• Author: Beth Goldblatt
• Date: 23 May 2019
• Published date: 23 May 2019
• Pages: 8-38
• Citation: 2001 Acta Juridica 8

Litigating equality – the example

of child care

BETH GOLDBLATT*

University of the Witwatersrand

I INTRODUCTION

The right to equality and the Constitutional Court’s interpretation

of the right as entailing substantive equality can be used to place a

positive obligation on public and private bodies. In this chapter it

will be argued that in the case of child care, this means that the Court

could require the provision of facilities for disadvantaged parents of

children requiring care. The claim for child care is properly located

within the equality right since child care is not obviously covered by

any of the socio-economic rights. The chapter will examine how a

claim to child care would best be framed in the light of the Constitu-

tional Court’s statements on the right to equality. The example of

child care highlights the potential value of litigating via the equality

right (and rights more generally) for the advancement of gender

equality.

II THE NEED FOR CHILD CARE IN SOUTH AFRICA

South African women have to take the primary responsibility for

child rearing, household reproduction, child care arrangements and

often, financial support for the household, without significant assis-

tance from the state, the workplace or men. As a result, their ability

to participate fully in the economy and the society as a whole is se-

verely restricted. This situation is the result of the sexual division of

labour (unequal gender roles and responsibilities) in our society that

places the responsibility for children on women. This division is sup-

ported ideologically through the notion of the public/private dichot-

omy. Women’s unpaid work in the household is seen as part of the

private realm which provides the state with its justification for failing

to intervene to improve their position. The situation is made worse by

the disproportionate burden of poverty carried by most South African

women.

There is very little formal child care available in South Africa. The

number of children with access to some form of non-family child care

in South Africa is somewhere between six per cent and 21 per cent

1

* BA (Hons) LLB LLM (Witwatersrand); Senior Research Officer, Centre for Applied Legal

Studies, University of the Witwatersrand.

1

R Padayachie, E Atmore, L Biersteker, R King, J Matube, S Muthayan, J Naidoo, D Plaatjies

and J Evans (1994) ‘Report of the South African Study on Early Childhood Development:

8

2001 Acta Juridica 8

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with rural Africans having the least access to such facilities. The ana-

logy of access to water is apposite here. Every South African has access

to water - if they did not they would die. But what type of access do

they have, what is the quality of the water they have access to, and

what is the cost to themselves in accessing water? Similarly with child

care, particularly for infants and toddlers, someone is looking after

these children because without some care they would not survive.

But what type of care are they receiving and at what cost to their

carers whose opportunities for economic survival are in all likelihood

being severely constrained?

A large number of South African households are women-headed (as

much as 41 per cent of African households).

2

Women-headed house-

holds are generally poorer than male-headed ones.

3

Large numbers of

women live without the fathers of their children and bear primary

responsibility for child care and support of children. Often, because

of high rates of teenage pregnancy, the actual carers of these children

are grandmothers or other female relatives of the children. Often,

older sisters care for younger children, which has an adverse effect

on their educational and other life chances. It is assumed that HIV/

AIDS will also have a significant negative impact on families with the

increasing deaths of income producers and the number of orphans.

Older children and the elderly will assume greater responsibility for

child care adding to their burden and that of their communities.

Most women in South Africa do not earn any income (only 46 per

cent of South African women over the age of 15 are economically

active, as opposed to 63 per cent of men). Women in rural areas are

even more unlikely to earn anything (only 38 per cent of these women

are economically active).

4

Of the economically active women, a high

proportion have no formal employment (38 per cent overall, and 47

per cent of all economically active African women). Most self-em-

ployed African women are engaged in ‘elementary’ occupations such

as street vending, domestic work and ‘scavenging’.

5

The vast majority

of employed women tend to be engaged in low earning, insecure

forms of employment without benefits. While some of these jobs

(such as street vending) allow women to take their children with

them to work, many jobs (such as domestic work) require women

to leave their children elsewhere.

Recommendations for Action in Support of Young Children’ Washington DC: The World

Bank 1-2; J Kruger and S Motala ‘Welfare’ in S Robinson and L Biersteker First Call: The South

African Children’s Budget (1997) 100.

2

D Budlender (ed) The Women’s Budget (1996) 45.

3

Government of the Republic of South Africa ‘Convention for the Elimination of all Forms

of Discrimination Against Women: First South African Report’ (1998) at 13 (hereinafter referred

to as the ‘CEDAW Report’).

4

Government of the Republic of South Africa ‘CEDAW Report’ (n 3) 96.

5

D Budlender (ed) The Second Women’s Budget (1997) 26.

9

LITIGATING EQUALITY – THE EXAMPLE OF CHILD CARE

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