Women's rights
| Published date | 01 January 1997 |
| Author | M. Paleker,W. Amien |
| Pages | 321-391 |
| Date | 01 January 1997 |
| DOI | 10.10520/EJC34818 |
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Women’s rights
Waheeda Amien *
Mohamed Paleker **
Introduction
Although women comprise about 52% of the South African population1, it has
been acknowledged that they constitute one of the most marginalised and
vulnerable groups in this country. Our constitutional dispensation has
provided the vehicle for legislative and judicial intervention for the
progressive empowerment of women. It has also enabled women’s groups to
lobby around issues for the advancement of their rights. The years 1997 and
1998 have seen various legal developments to improve the position of women.
Sadly, not all of these have had positive implications for them. In this chapter,
we focus on some of the more distinctive developments which have affected
women’s rights directly or indirectly.
* BA LLB (UCT) LLM (UWC). Researcher: Law, Race and Gender Research Unit,
University of Cape Town. Attorney of the High Court of South Africa.
** BA LLB LLM (UCT). Faculty of Law, University of Cape Town. Attorney of the
High Court of South Africa.
This chapter was made possible due to the research opportunity provided by the
Law, Race and Gender Research Unit, University of Cape Town (UCT).
We also wish to express a special thanks to the following people: Prof. Christina
Murray (Director - Law, Race and Gender Research Unit, UCT. Professor in the
Department of Public Law, UCT); Saras Jagwanth (Acting Director – Law, Race
and Gender Research Unit, UCT. Senior Lecturer, Department of Public Law,
UCT); Veronica de Beer (Law, Race and Gender Research Unit, UCT); Adv.
Esther Steyn (Senior Lecturer, Department of Criminal and Procedural Law,
UCT); Dr. Chuma Himonga (Senior Lecturer, Department of Private Law, UCT);
Elizabeth Baartman (Magistrate, Cape Town); Adv. Lynette Myburgh
(Directorate: Organised Crime and Public Safety); Adv. Nazreen Bawa; Latifa
Omar (Head Librarian: Brand Van Zyl Law Library, UCT).
1 ‘The People of South Africa Population Census, 1996’ Census in Brief (1998)
Statistics South Africa; Central Statistics: Women and Men in South Africa
(1998): 3.
Amien and Paleker
322
Equality
Given the history of our country, which was steeped in extreme inequity,
grave oppression and massive exploitation, the significance of the values
encapsulating equality for South Africa has been clearly expressed by our
courts, most notably the Constitutional Court. The test to determine whether
the equality clause2 has been violated has been succinctly tabulated in
Harksen v Lane NO and Others.3 One of the components of the test is
whether the differentiation arising from the law or conduct amounts to “unfair
discrimination”. The factors relevant for unfairness are:
a) ‘the position of complainants in society and whether they have suffered
from past patterns of discrimination’;
b) ‘the nature of the provision or power and the purpose sought to be
achieved by it’;
c) ‘the extent to which the discrimination has affected the rights or interests of
complainants and whether it has led to an impairment of their fundamental
dignity or constitutes an impairment of a comparably serious nature’.4
The more vulnerable the groups affected, and the more invasive the nature of
the discrimination on the relevant individuals, the greater will be the likelihood
that the discrimination will be regarded as unfair.5
Although the long term goal of our constitutional order is to achieve equal
treatment, it has been noted that “insisting upon equal treatment in
circumstances of established inequality may well result in the entrenchment of
that inequality”.6 Therefore, the notion of substantive equality has been
interpreted to prevent further disadvantage, and to remedy the consequences
of unfair discrimination endured by already vulnerable and historically
disadvantaged groups.7 This includes the majority of black women in our
country who have suffered triple oppression in the form of race, class/poverty
and gender.
2 Section 8 of the Constitution of the Republic of South Africa Act 200 of 1993;
Section 9 of the Constitution of the Republic of South Africa Act 108 of 1996.
3 Note 36 at 1511E-1512A.
4 Note 36 at 1510F-1511B.
5 Note 8 at 755E.
6 Note 8 at 755D-E.
7 Sandy Liebenberg ‘Social and economic rights: A critical challenge’ The
Constitution of South Africa from a Gender Perspective (1995) Community Law
Centre, University of the Western Cape 82. See also Brink v Kitshoff 1996 (4) SA
197 (CC) at 217E-F; Prinsloo v Van der Linde and Another 1997 (6) BCLR 759
(CC) at 773B; Harksen v Lane NO and Others 1997 (11) BCLR 1489 (CC) at
1523H-I.
Women’s Rights
323
In President of the Republic of South Africa and Another v Hugo 8, the
Constitutional Court reversed the decision of the court a quo.9 The
Constitutional Court held that the Presidential Act,10 which granted special
remission of sentences to certain categories of prisoners, including women in
prison on 10 May 1994 who had children under the age of 12 years, was not
unconstitutional.11
The respondent, a male prisoner, had a son under the age of 12 years at
the relevant date and would have qualified for remission but for the fact that
he was the father, and not the mother of the child.12 The court a quo found
that the Act discriminated against the respondent and his son on the ground
of gender, in terms of Section 8(2) of the Interim Constitution13, and further
held that the presumption of unfairness, which had been raised in terms of
Section 8(4), had not been rebutted by the appellants.14
However, the Constitutional Court felt that the President had in fact
discharged the burden of proving that the discrimination was not unfair, and
that the impact of the remission was not discriminatory.15 In arriving at this
decision, the Court recognised that mothers are primarily responsible for the
care of young children in South African society.16 As such, the release of
mothers would in many cases be of real benefit to young children, which was
the primary purpose of the special remission, and that the impact of the
remission would give an advantage to those mothers as members of a
vulnerable group.17 Justice Goldstone further acknowledged that:
“For many South African women, the difficulties of being responsible for
the social and economic burdens of child rearing, in circumstances where
they have few skills and scant financial resources are immense. The failure
by fathers to shoulder their share of the financial and social burden of
child rearing is a primary cause of this hardship. The result of being
8 President of the Republic of South Africa and Another v Hugo 1997 (6) BCLR
708 (CC).
briefly discussed in Christina Murray et al (1998) ‘Women’s Rights’ South
African Human Rights Yearbook 1996 Centre for Socio-Legal Studies, University
of Natal: 294, et seq.
10 Act 17 of 1994.
11 At 712B, 734C.
12 At 711J, 712A-C.
13 Act 200 of 1993.
14 At 712D-E.
15 At 732E-I.
16 At 727F.
17 At 732A.
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