Constitutional claims for gender equality in South Africa: a judicial response.

• Author: Mokgoro, Yvonne
• Position: Globalization and Comparative Family Law: A Discussion of Pluralism, Universality and Markets

1. BACKGROUND

   In South Africa, the history of colonialism and apartheid rule has resulted in a significant overlap of race and poverty. Because poverty and inequality are so strongly gendered, the most disadvantaged and marginalized in our society are black women. (1) A substantial number of black women are further disadvantaged by their exposure to cultural and religious regimes that make the struggle for gender equality even more complex. Specifically, African customary law--which is essentially patriarchal in both character and form and has been interpreted in a way that allocates crucial benefits according to male primogeniture has had a particularly detrimental effect on the socio-economic power and well-being of rural women. (2)

   The effect of the HIV/AIDS pandemic on women is a reflection of the complexity created by the interface between poverty and inequality as it impacts women's daily lives. (3) Achieving effective gender equality is, therefore, the key to the eradication of disadvantages faced specifically by women.

   As soon as the political negotiation process for a new dispensation was on the table and the drafting of a new South African Constitution had begun, a strong and formidable women's movement ensured that gender equality was firmly placed on the agenda. (4) The resultant Constitution, itself a transformative document which is supreme and supercedes all law, outlaws discrimination based on a number of specific factors, including gender. (5) With this new document in place, the Constitutional Court of South Africa has been able to move South Africa closer to its goal of gender equality by ferreting out legislation that either directly or indirectly discriminates based on gender.

2. RELEVANT PROVISIONS IN THE CONSTITUTION

   Enacted in 1996, the Constitution of the Republic of South Africa contains a Bill of Rights that is proclaimed a "cornerstone" of the new democracy. (6) The Bill of Rights is based on the three basic values of equality, freedom, and human dignity, (7) which run like a golden thread throughout. It guarantees protection of civil and political rights--the so-called first-generation rights--as well as economic rights--the so-called second-generation rights--and finally cultural rights--the so-called third-generation rights. The Bill of Rights not only protects individual rights, such as the right to human dignity, but also protects group rights, such as the right to practice one's culture together with members of one's cultural group. (8)

   The Constitution contains a separate external limitations clause, which applies to all the rights contained in the Bill of Rights. (9) In addition, an interpretation clause enjoins courts to infuse the "spirit, purport and objects of the Bill of Rights" with the values it espouses when interpreting legislation) (10) In interpreting the Bill of Rights itself, courts are further enjoined to proceed to international law and the jurisprudence of democratic societies, which are based on freedom, equality, and human dignity. (11)

   1. The Right to Equality

      The right to equality protected in Section 9 of the Constitution is a rather elaborate clause. It initially provides that "[e]veryone is equal before the law and has the right to equal protection and benefit of the law." (12) The section goes further, however, outlawing unfair discrimination--whether direct or indirect--based on a specific list of factors that include race, gender, sex, pregnancy, marital status, ethnic or social origin, sexual orientation, culture, belief, language, disability, and birth. (13)

   2. Other Constitutional Provisions

      In several ways the Constitution reflects a concern for the rights of women that goes beyond the equality clause itself. The Bill of Rights protects the right to freedom from all forms of violence--"from either public or private sources" (14)--clearly responding to the manner in which domestic violence manifests itself. It protects the right "to make decisions concerning reproduction," and "to security in and control over [one's] body." (15) It also secures the right of access to health care, which specifically includes reproductive health care. (16) In its protection of the right to freedom of expression, the Bill of Rights expressly excludes advocacy of hatred based on certain grounds--including gender--that incites to cause harm. (17)

      The Constitution also deals with the apparent tension between the recognition of systems of cultural law--which may have a discriminatory impact on women--and certain provisions in the Bill of Rights. It expressly recognizes marriages under any traditional, religious, personal, or family law system. (18) However, reflecting the concerns that this provision might insulate these marriages from constitutional scrutiny, this section requires that these marriages be consistent with the provisions in the Constitution--including the Bill of Rights. (19)...