Defending and securing rights through law: Feminism, law and the courts in South Africa

Abstract

This article explores the extent to which the courts and legal processes have been engaged to address the gendered social and economic inequalities in South Africa. It thus explores the role of the courts in extending or limiting the rights of women, especially through the right to equality. It is argued that courts were not the main site for rights claims, especially in the early years of democracy, as feminist policy advocates preferred to advocate for rights through political processes. However, as the opportunities for change through political means slowed down, there was increasing reliance on the courts. Drawing on feminist theory of the law, the article examines the boundaries of inclusion and exclusion created by the two superior courts, the Constitutional Court and the Supreme Court of Appeal, as well as their mechanisms of responsiveness and resistance to women's rights claims. It concludes by suggesting that both these courts have made significant rhetorical advances within rights discourse, with some potentially transformative judgements. The courts have begun to redraw some of the social boundaries of inclusion to extend rights protection to the private sphere and to a wider set of relationships. This has begun to dislodge some traditional understandings of gender relations. However, the Constitutional Court, for a range of reasons, has also set clear limitations to this, which ultimately reinforce traditional gender relations. Despite this, there remains significant space for using litigation as a strategy for change, especially if it is embedded in wider political processes.

Notes

1. The South African Constitution is unusual in seeking to regulate horizontal relationships between citizens. In most legal systems, the Constitutions have generally sought to regulate vertical relationships between the state and its citizens.

2. In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC), a case that examined the constitutionality of a benefit that was conferred by s 25 of the Aliens Control Act on spouses of heterosexual relationships, but not on same-sex partners.

3. These cases were: President of the Republic of South Africa and Another v Hugo 1997 (6) BCLR 708 (CC); Prinsloo v Van der Linde 1997 (6) BCLR 759 (CC); Harksen v Lane NO and Others 1997 (11) BCLR 1489 (CC).

4. These amici were SWEAT, the Gender Research Programme and Aids Law Project at CALS, and the Reproductive Health Research Unit.

5. The majority suggested that any ‘stigma’ relating to sex work was ‘a social attitude and not the result of the law’ (para 16).

6. Hence the minority judgement found that ‘the law is … partly constitutive of the invidious social standards which are in conflict with our Constitution’ (paras 66 and 67), thus disagreeing with the opposite finding by the majority judgement (para 16).

7. In Amod v Multilateral Motor Vehicle Accidents Fund (CGE intervening) 1999(4) SA 1319 (SCA) the Supreme Court of Appeal extended the common law to recognize a duty of support in Muslim marriages. The case of Daniels v Campbell 2004 (7) BCLR 735 (CC) saw a woman in a (legally unrecognized) Muslim marriage ask for the extension of statutory benefits (of intestate succession and maintenance) enjoyed by women in civil marriages to extend to her.

8. Unfortunately, the limitations of this remedy meant that the claimant was unable to benefit directly from the judgment, even had this been the judgment of the majority.

9. This would require the Court to remove the discriminatory aspects of the law (the rule of primogeniture as meaning the first son), but retain customary aspects relating to family obligations. See the judgement of Ngobo, J, paras 215–41.

10. Indeed, this is not limited to cases on gender; more generally, the cases on equality and socio-economic rights have demonstrated a progressive court that has sought to be ‘inclusive’ of a range of vulnerable groups, including the poor and marginalized (see, for example Wesson, 2004).

Additional information

Notes on contributors

Catherine Albertyn

Catherine Albertyn is Professor of Law and Director of the Centre for Applied Legal Studies at the University of the Witwatersrand. Catherine's research interests relate to the field of gender, human rights and the law, with a special interest in equality issues.