Two decades of jurisprudence on substantive gender equality: What the Constitutional Court got right and wrong

abstract

Philosophically it is accepted that a constitution represents a state’s solemn commitment towards achieving the objectives set out within that sacred document. Given South Africa’s past, the Constitution of the Republic of South Africa, 1996, holds the promise of a free, democratic and egalitarian society. Underpinning the Constitution is the African concept of Ubuntu which itself is premised on notions of dignity, compassion, humanity, forgiveness and reconciliation: substantive concepts which are intended to heal the divisions of the past and fundamentally alter the South African legal, socio-political and economic landscape. Engaging with pertinent case law emanating from the Constitutional Court, an analysis is undertaken as to whether the provisions on gender equality contained in the Constitution have lived up to the expectation and obligation placed on them to transform South African society. It is argued that the Constitutional Court has made bold and courageous decisions which have stayed true to the rule of law by developing laws to bring them into consonance with the Constitution, thereby engineering society to give meaningful effect to gender equality. However, much progress still remains to be made, particularly in light of the Court’s apparent ignorance of the lack of agency, and autonomy and empowerment suffered by many women.

keywords:

• transformation
• rule of law
• substantive equality
• Ubuntu
• gender equality

Notes

1. Available at: http://www.theguardian.com/money/2016/mar/07/gender-pay-gap-uk-women-earn-300000-less-men-lifetime, site accessed on March 31 2016.

Additional information

Notes on contributors

Lee Stone

LEE STONE is a Senior Lecturer in the Department of Public, Constitutional and International Law at the University of South Africa where she lectures in constitutional law at both undergraduate and postgraduate level. She is also an extraordinary lecturer at St Augustine University, Mwanza (Tanzania). Lee is an Attorney of the High Court of South Africa, and a member of the Board of Directors of Agenda. Previously, Lee held a research position for the Refugee Rights Project at Lawyers for Human Rights, South Africa, worked for the African Commission on Human and Peoples’ Rights in The Gambia, and was a Legal Officer at the Institute for Human Rights and Development in Africa (a Pan-African NGO based in The Gambia) and also worked at the Legal Resources Centre in Durban. Prior to joining the University of South Africa she was a Senior Lecturer in the School of Law at the University of KwaZulu-Natal’s Howard College campus in Durban. She has published widely in the areas of international criminal law, the African regional human rights system, refugee law, gender and the law and constitutional and human rights law.