Law, Gender and Inequality in South Africa

Abstract

Post-apartheid South Africa has seen the extensive use of law to address the inequalities of the past. This article looks at the role of law in addressing gender-based inequalities, considering how it has addressed “recognition” in terms of women's status and social subordination, as well as questions of redistribution and economic inequality. South Africa has been particularly successful at extending legal rights and benefits of recognition, and at entrenching in law powerful normative frameworks that challenge traditional gender roles. Redistribution, on the other hand, has been primarily race-based, with limited policies and substantive rights that address gendered economic inequalities. The law and courts have played a lesser role here. The ability of law to redress inequality through transformative social and economic change is limited. However, it can be an important site of struggle in the engagement of cultural norms and social attitudes, as well as economic policy. The article concludes that, apart from concrete rights and benefits, the normative frameworks of law offer significant strategic opportunities for pushing at the boundaries of inequality and exclusion in the public and private spheres.

Notes

¹ Although I do not investigate this in detail in this article, it seems correct that law's normative or ideological role blurs the boundaries between recognition and redistribution. Many instances of gendered maldistribution will arise out of, or be closely connected to, the gendered ideology that underpins law and that equates with the skewed value patterns of misrecognition. However, it is also likely that the normative role of law also relates directly to the ideology of the underlying economic order itself, and not just questions of status or misrecognition.

² The Choice on Termination of Pregnancy Act, 92 of 1996, provides for abortion on request in the first 12 weeks and in terms of broad conditions between 12 and 20 weeks.

³ The Domestic Violence Act, 116 of 1998, provides for increased protection against violence by removing several definitional and legal barriers to obtaining restraining orders against abusive partners; the Employment Equity Act, 55 of 1998, and the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000, provide legal protection against sexual harassment in the workplace and other institutions; the Criminal Law Amendment Act, 105 of 1997, provides for minimum sentences for certain kinds of rape; and the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007, is a comprehensive reform of the procedural and substantive law relating to rape and sexual assault.

⁴ The Recognition of Customary Marriages Act, 120 of 1998, recognizes customary marriages and provides for equality in status, decision-making, rights to marital property and children.

⁵ The Maintenance Act, 99 of 1998, improved the system of securing private maintenance. This was especially important for women claiming maintenance for their children from fathers.

⁶ The Children's Act, 38 of 2005, extended the parental rights of “unmarried” fathers.

⁷ The South African Law Reform Commission approved a Report containing recommendations and a draft Bill on the recognition of Islamic marriages and submitted it to the Minister for Justice and Constitutional Development on 22 July 2003 for consideration and promotion in Parliament. The Bill has yet to be tabled in Parliament. The review of Hindu marriages is a current project of the SALRC Project 100 “Family Law and Law of Persons”.

⁸ The Basic Conditions of Employment Act, 75 of 1997, extended maternity and parental protections and the Employment Equity Act, 55 of 1998, provides protections against discrimination on the basis of sex, gender, pregnancy and marital status. It also provides that women are a “designated group” for the purposes of affirmative action.

⁹ The Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000, provides for protection against unfair discrimination on the grounds of, inter alia, sex, gender, pregnancy and marital status.

¹⁰ For a useful and detailed summary of all these laws, see O'Sullivan & Murray (2005).

¹¹ As a result of a constitutional equality challenge, government has begun to equalize access to the old-age pension, to enable men to qualify at age 60.

¹² But see the successful challenge to this in Gumede v President of the RSA (2000) 3 SA 152.

¹³ Established under the Traditional Leadership and Governance Framework Act, 41 of 2003.

¹⁴ See Hassim (2005c, pp. 353–355) and Claassens (2005, pp. 45–48).

¹⁵ The manner in which gender claims are marginalized in litigation is the subject of another project (but see Albertyn & Meer, 2008). The substantive gender claims referred to the manner in which the Bill undermined security of tenure by interfering with the evolving system of customary law (that, inter alia, granted women “nested rights”) and over-emphasizing the power of Traditional Councils (Tongoane v Minister for Land and Agriculture Affairs, 2010, para. 33).

¹⁶ This case concerned a challenge by a male claimant to the appointment of a female chief in the Valoyi traditional community in Limpopo, South Africa. The Court concluded that the appointment of a woman chief by the community was a constitutionally compliant development of customary law, bringing “an important aspect of their customs and traditions into line with the values and rights of the Constitution”, including equality (para. 68).