South Africa’s new equality legislation A tool for advancing women’s socio-economic equality?

• Jurisdiction: South Africa
• Published date: 23 May 2019
• Author: Sandra Liebenberg
• Citation: 2001 Acta Juridica 70
• Date: 23 May 2019
• Pages: 70-103

South Africa’s new equality legislation

A tool for advancing women’s socio-

economic equality?

SANDRA LIEBENBERG* AND MICHELLE O’SULLIVAN**

University of the Western Cape Women’s Legal Centre

I INTRODUCTION

The Promotion of Equality and Prevention of Unfair Discrimina-

tion Act 4 of 2000 (hereafter ‘the Equality Act’) was passed in February

2000. This legislation was introduced to give effect to the constitu-

tional injunction requiring that national legislation ‘must be enacted to

prevent or prohibit unfair discrimination’.

1

The Equality Act is widely

regarded as a key piece of legislation for advancing the transformation

of all spheres of South African society, and redressing the apartheid

legacy.

This chapter explores the potential of the Equality Act as a tool for

advancing women’s economic equality in South Africa. Part II exam-

ines the context of women’s socio-economic equality in South Africa,

as well as the constitutional jurisprudence on the right to equality. In

Part III, we analyse the provisions of the Equality Act and assess their

potential to advance women’s economic equality. Finally, we high-

light some of the challenges relating to the implementation of the

Equality Act.

II THE EQUALITY ACT IN CONTEXT

(1) Women’s socio-economic inequality in South Africa

Although in per capita terms, South Africa is an upper-middle-in-

come country, most households experience deep levels of poverty or

continuing vulnerability to being poor. In addition, the distribution of

income and wealth in South Africa is among the most unequal in the

world, and many people lack access to adequate housing, education,

* BA LLB (Cape Town) LLM (Essex); Associate Professor and Acting Director of the

Community Law Centre (University of the Western Cape), and Co-ordinator of the Centre’s

Socio-Economic Rights Project.

** BA LLB (Cape Town); Director of the Women’s Legal Centre.

1

Section 9(4) of the Constitution of the Republic of South Africa Act 108 of 1996 (hereafter

‘the Constitution’).

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2001 Acta Juridica 70

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health care services, social security, and sufficient food and water.

2

This is the legacy of colonialism and apartheid which continues to

haunt South Africa. Redressing poverty and inequality is not only a

major developmental challenge for South Africa, but ‘lies at the heart

of our new constitutional order’ which is based on the values of hu-

man dignity, freedom and equality.

3

As the President of the Constitu-

tional Court, Chaskalson P has observed, these values ‘will have a

hollow ring’ while these conditions continue to exist.

4

South Africa’s apartheid history has ensured that there is a close

overlap between poverty and race. Nearly 95 per cent of South Afri-

ca’s poor are African, five per cent are Coloured, and less than one per

cent are Indian or White. The unemployment rate among Africans

(42,5 per cent) is ten times the unemployment rate of Whites (4,6 per

cent).

5

But poverty and inequality in South Africa also have strong gender

dimensions with black women being particularly disadvantaged. For

example, in 1998 the unemployment rate for the country as a whole

was estimated to be 37 per cent. Women had an unemployment rate

of 45 per cent, compared to 31 per cent for men. The unemployment

rate for African women was particularly high at 55 per cent.

6

The

nature of the work and jobs performed by women is also more likely

to be vulnerable and ‘a-typical’, for example, domestic, casual, seaso-

nal, part-time or home-based work, work in the informal sector of the

economy, and subsistence agriculture.

7

These types of work are gen-

erally insecure and yield a low income, minimal benefits and little

social power or status. Gender-based discrimination also makes it

more difficult for women to gain access to credit for small businesses,

housing finance, and productive resources such as land.

While all the poor in South Africa are disadvantaged by a lack of

access to social services such as water, energy, health care services,

housing and child care facilities, women are disproportionately

affected because they bear a vastly disproportionate burden for

2

Ministry in the Office of the President: Reconstruction and Development Programme Key

Indicators of Poverty in South Africa analysis prepared by the World Bank based on the South Africa

Living Standards and Development Survey (October 1995) co-ordinated by the Southern

Africa Labour and Development Research Unit (SALDRU) at the University of Cape Town;

J May (ed) Poverty and Inequality in South Africa (1998) report prepared for the Office of the

Executive Deputy President and the Inter-Ministerial Committee for Poverty and Inequality

(hereafter ‘Key Indicators of Poverty’); United Nations Development Programme South Africa:

Transformation for Human Development (2000).

3

Preamble, s 1, and s 7(1) of the Constitution.

4

Soobramoney v Minister of Health, Kwazulu-Natal 1997 (12) BCLR 1696 (CC) at para 8.

5

The People of South Africa Population Census, 1996: Census in Brief Statistics South Africa

(1998) 47.

6

Statistics South Africa, October Household Survey (1998). See also N Makgetla ‘So how bad is

unemployment really?’ (2001) 25 (2) South African Labour Bulletin 16.

7

Beijing Conference Report (1995) at 38; D Budlender Women and Men in South Africa (1998)

figure 16.

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SOUTH AFRICA’S NEW EQUALITY LEGISLATION

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household maintenance, child care, and care for elderly or sick rela-

tives.

8

The disproportionate burden of reproductive work performed

by women also makes it more difficult for them to participate equally

in governance structures (for example, community decision-making

bodies, local government, and consultative fora on policy issues),

and to take equal advantage of educational, employment and devel-

opmental opportunities.

In the context of the deep poverty in South Africa, social assistance

represents one of the most significant mechanisms of poverty allevia-

tion and income redistribution. Grants for the aged and disabled and

remittances are the main sources of income for over 40 per cent of the

poor (the ‘poor’ being defined in this study as the poorest 40 per cent

of the population).

9

These social transfers reach communities who

have otherwise been poorly provided with social services, and who lack

access to productive resources such as land.

10

Millions of poor women

living in rural areas benefit from the grant for the aged (currently a

maximum of R540 per month). Research has shown that this grant

serves as a major source of pooled household income, and performs

well in gender terms.

11

However, this social security lifeline for many

poor women is increasingly under threat due to a range of adminis-

trative problems in accessing the grant. Secondly, the child support

grant of R100 per month payable to the primary care-givers of chil-

dren under seven years of age has not fulfilled its potential as a

mechanism for alleviating the burden of child care on poor women

(who are the vast majority of primary care-givers). This is due to a

variety of factors such as the low level of the grant, the restrictive age

cohort, the complex regulations governing access to the grant and lack

of widespread knowledge of the grant.

Many African women are disadvantaged by discriminatory rules of

customary law which were codified by the colonial and apartheid

rulers, and has not evolved to keep pace with a changing social context

of migrant labour, urbanisation and the new values introduced by the

democratic constitutional order.

12

Thus, customary law regulating

the status of women and their marital and inheritance rights has

8

The Constitutional Court has taken judicial notice of the disproportionate burden of

reproductive work performed by women. See President of the Republic of South Africa v Hugo 1997

(6) BCLR 708 (CC) at para 37.

9

Key Indicators of Poverty (n 2) 15 para 7.

10

E Ardington and F Lund How the Social Security System can Complement Programmes of

Reconstruction and Development Development Bank of South Africa (1995); Case and Deaton Large

Cash Transfers to the Elderly in South Africa Discussion Paper No. 176 Princeton: Research

Program in Development Studies (1996).

11

Ardington and Lund ibid; Report of the Lund Committee on Child and Family Support

(August 1996) 6-8; Financial and Fiscal Commission Public Expenditure on Basic Social Services in

South Africa An FFC Report for UNICEF and UNDP (1998) 91-92.

12

T Nhlapo ‘Indigenous law and gender in South Africa: taking human rights and cultural

diversity seriously’ (1994-5) Third World Legal Studies International Third World Legal Studies

Association and the Valparaiso University School of Law 49-71.

72 EQUALITY LAW

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