The Women’s Legal Centre during its first five years

• Jurisdiction: South Africa
• Citation: 2005 Acta Juridica 273
• Date: 30 August 2019
• Pages: 273-307
• Published date: 30 August 2019

The Women’s Legal Centre during its f‌irst

f‌ive years

RUTH B COWAN*

School of Public Affairs, American University

I INTRODUCTION

The Women’s Legal Centre (WLC) has since 1999 brought cases to the

courts and worked in Parliament and in administrative agencies to

advance gender equality in the Republic of South Africa. From its

inauguration, its commitment to women’s rights and the use of

constitutional litigation and public policy advocacy to protect those

rights was shared with other organizations. Within that community of

human rights and gender advocacy organizations, the WLC was,

however, to become the pre-eminent organization working at the

intersections where rule of law and women’s rights converge.

The purpose here is to present WLC’s record during its f‌irst f‌ive years

and to assess that record. Presented for context is a description of the state

of women’s rights at the time WLC was established, the needs WLC

sought to address, its mission and strategies.

1

II FROM IDEA TO REALITY

During South Africa’s political tectonic-plate-shifting years, WLC’s

founders expressed their desire to establish an organization that would use

constitutional litigation, legislative monitoring and policy advocacy to

advance gender equality. Michelle O’Sullivan, WLC’s f‌irst and current

director, recalled the energy, optimism for change and activity directed at

advancing women’s rights:

‘Nineteen ninety-two was a time when . . . there was scope for a lot of

powerful changes to be effected through law. My friends and I were all

members of the National Association of Democratic Lawyers. It was a very

exciting time. We all saw that we had opportunities to be involved in a

transformation process in ways that lawyers in other countries never or only at

* BS (Labor-Management Relations) (Cornell) MA (Illinois) PhD (NewYork University);

Founding President of Pro Mujer (Latin American f‌inancial services organisation) and

Scholar-in-Residence at the Women & Politics Institute School of Public Affairs American

University, Washington D.C. I want to express my appreciation to all those interviewed for

their generosity in sharing their time, knowledge and perspectives.

1

Sources of information include reports, newsletters, memoranda and other WLC

documents; newspaper and magazine accounts; and interviews with the director, attorneys and

other WLC staff members; clients; WLC Trustees;representatives of organizations with which

WLC has collaborated; outside advocates with whom WLC has worked; women’s rights

scholars and funders.

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2005 Acta Juridica 273

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the end of their careers have. In 1992, 1993 and 1994 there was a

multidisciplinary group of academics and some practitioners who looked at

women’s issues in relation to ongoing [constitutional] negotiations....We

did quite a few submissions to CODESA [Convention for a Democratic

South Africa].’

2

The idea to establish a women’s legal rights organization emerged for

O’Sullivan during a course on Women and Law being taught by Kate

O’Regan, later to become a Constitutional Court justice, and Christina

Murray:

‘That was what inspired me. I’d always been involved in gender issues while

at the University. But, it had been in relation to matters like reproductive

rights and social welfare....Thecourse was the f‌irst time we were exposed

to legal feminist theories – there was a good group of students involved. It was

an engaging course – it was fantastic. It was the highlight of my university

career.’

The extensive literature then available on ‘cause lawyering’ and the

prominence of organizations in South Africa that tried to advance the

cause of human rights through the courts during apartheid were, perhaps

in a more subtle way, inf‌luences as well.

O’Sullivan and a number of like-minded women lawyers formed the

South African Legal Working Group at a time when the Interim

Constitution was being negotiated. Their expressed purpose was ‘to

provide South African women with the means to claim and assert their

fundamental rights through the legal process’.

3

They sought funding to

do so. After almost f‌ive years of persistence and four funding proposals

later, WLC, a direct though third generation descendent of the South

African Legal Working Group, received an aff‌irmative response.

They then proceeded to obtain the legal authority to operate. They

created the Women’s Legal Centre Trust, a private trust that could

establish the Women’s Legal Centre formally. Six months and nineteen

days later, the process concluded when the Cape of Good Hope Law

Society accredited WLC as a Law Centre. WLC now had authorization

to litigate.

In January 1999, still before the Cape Law Society acted, O’Sullivan

located, moved into and equipped an off‌ice and recruited staff. She and

the seven members of the Trust, all of whom contributed as many hours

as they could while keeping their paid professional commitments,

worked at a high level of energy to prepare for the opening of the new

law centre.

2

Quotations taken from interviews are not cited in footnotes. Alist of interviews is on f‌ile

with the Department of Public Law, University of Cape Town.

3

Cape Town Legal WorkingGroup Funding Proposal (Sept 1995) 1.

274 ADVANCING WOMEN’S RIGHTS

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After more than f‌ive years, those involved in the transition from idea

to reality still convey the excitement at what had been accomplished: ‘It

was groundbreaking – to create a path for gender issues.’ It was the f‌irst

organization in South Africa to focus solely on women’s rights constitu-

tional litigation.

The year WLC was established, the legal environment for taking on

the challenge of constitutional litigation and policy advocacy on behalf of

women’s rights was favourable. The constitutional provisions were

ample.

4

There were important legal and policy gains as a result of

legislative, administrative and judicial action.

5

There were signif‌icant

international instruments and decisions in the courts of other countries.

The Constitution, policies and jurisprudence that had acknowledged and

addressed issues of sex-based discrimination and gender equality brought

women’s rights and gender equality to a new level – but women were not

yet where the promise of gender equality would still have to take them.

III NEED

To give substance to the constitutional design required massive changes

in the assumptions, structures, policies and procedures of all social

institutions. To give substance to gender equality, which was part of that

design, similarly required massive changes. ‘The legal landscape,’ in

Andrews’ description, ‘was littered with gross gender inequalities’.

6

To

realize the Constitution’s promise was an enormous undertaking and, in

reason, could not have been achieved in f‌ive years under the best of

conditions.

The conditions were not the best, for there were signif‌icant

obstructions to progress. Important among these were the realities that

gender equality was subordinate to racial equality and that customary and

religious law as practiced were often incompatible with women’s rights.

During the negotiations for the Interim Constitution and the 1996

Constitution, interest in reversing apartheid’s oppressive racial legacy

4

Sections 1(a) &(b), 7(2), 9(3) & (4), 10, 12(1)(c) & (2)(a) &(b), 16(2)(c), 26(1), 27(1), 31(1)

& (2), 39(1)(b) &(c), 174(2), 195(1)(i), 181(1), 184(1)(a) &(b) and 187(1).

5

Legislation includes Prevention of Family Violence Act 133 of 1993; Labour Relations

Act 66 of 1995; Employment Equity Act 55 of 1998; Choice onTermination of Pregnancy Act

92 of 1996; Recognition of Customary Marriages Act 120 of 1998; Films and PublicationsAct

65 of 1996; and Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19

of 1998. Important court decisions include President of the Republic of South Africa v Hugo 1997

(4) SA1 (CC), 1997 (6) BCLR 708 (CC); S v Baloyi 2000 (2) SA 425 (CC), 2000 (1) BCLR 86

(CC) and Christian Lawyers Association v Minister of Health and others 1998 (4) SA 1113(T), 1998

(11) BCLR 1434 (T). International instruments of direct relevance include the Convention on

the Elimination of All Forms of DiscriminationAgainst Women (1979) 180 UNGAR XXXIV

(1980) 19 ILM 33 and the Declaration on the Elimination of Violence Against Women GA

Resolution 104 UN GAOR 48th Session Agenda Item 111UN Doc A/RES/48/104 (1993).

6

P Andrews ‘The Stepchild of National Liberation: Women’s Rights in the New South

Africa’ in PAndrews and S Ellman (eds) The Post-apartheid Constitutions (2001) 326 at 327.

275THE WOMEN’S LEGAL CENTRE

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