Women’s Rights and representation
It was not until the introduction of the Bill of Rights that all women in this country received formal recognition as equal citizens. South African women -under the social and even legal control of their fathers or husbands - were second-class citizens for many years.
Black women were obviously doubly disadvantaged as a result of their race and their gender.
The law, in various forms, has had a significant role in this prejudice.
Customary law, for instance, gives black women the status of minors and excludes them from rights regarding children and property. South Africa's common law deprived white women of guardianship and various economic rights.
Nowadays women, and black women in particular, are still economically disadvantaged: they make up a disproportionate section of the unemployed and tend to occupy more of the lower-paid jobs, as domestic and farm labourers. And they often earn less than men for the same tasks.
South African women also have to contend with extremely high rates of rape and domestic violence.
Section 9 -Equality
Women are obviously protected by the full range of rights guaranteed in the new Constitution - the rights to life, dignity, privacy and others. But they receive specific protection in section 9, entitled "Equality". It says:
"(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth." The prohibition of discrimination on the grounds of gender, sex, pregnancy and marital status is clearly intended to protect women. The grounds "sex", which is a biological feature, and "gender", a social artefact, are both included - perhaps unnecessarily. But the result is that this section leaves no doubt that no unfair discrimination based on any feature of being a woman will be tolerated.
Key constitutional Court judgments
The Constitutional Court has handed down a number of judgments that have affirmed women's rights.
Section 44 of the Insurance Act of 1943 deprived married women, but not married men, of all or some of the benefits of life insurance policies made in their favour by their husbands.
The Constitutional Court held that section 44 discriminated against married women on the basis of sex and marital status, and was thus a violation of the equality clause. Married men did not lose the benefits of insurance policies ceded to them or made out in their favour by their wives.
The Court held that, since the common-law rule prohibiting donations between spouses had been abolished, the argument that the section provided married women with a benefit was no longer applicable. The Court also rejected the argument that the section was necessary to prevent collusion between spouses: such collusion could as easily occur where husbands rather than wives were beneficiaries.
The Court ruled that sections 44(1) and 44(2) were invalid as from 27 April 1994, but exempted payments already made on the strength of those provisions.
This case concerned the constitutional obligation on the courts to develop the common law to promote the Bill of Rights. The specific issue was whether the High Court and the Supreme Court of Appeal ought to have broadened the concept of wrongfulness in the law of delict in the light of the state's constitutional duty to safeguard the rights of women.
The applicant sued two ministers for damages resulting from a brutal attack on her by a man who was awaiting trial on charges of having attempted to rape another woman. Despite the man's history of sexual violence, the police and the prosecutor had recommended his release without bail.
The applicant alleged that this had been a wrongful omission. She also relied on the duties imposed by the rights to life, equality, dignity, freedom and security of the person, and privacy. But the High Court said she had not established that the police or the prosecutor had wrongfully failed to fulfill a legal duty owed specifically to her. On appeal the Supreme Court of Appeal held that the police and prosecution had no legal duty of care towards her and could not be held liable. The Constitutional Court, however, granted the application for leave to appeal and upheld the appeal.
Regarding the police, the Court held that the state was obliged to prevent gender-based discrimination and to protect the dignity, freedom and security of women.
Similarly, the Court held that prosecutors, under a general duty to place before a court any information relevant to the refusal or granting of bail, might reasonably be held liable for negligently failing to fulfill that duty.
The appeal was upheld and the matter referred back to the High Court for the trial to be concluded, after which the Court held the High Court should consider whether it was necessary to develop the common law.
In this case the Constitutional Court decided that persons married according to Muslim rites were spouses for the purposes of inheriting or claiming from estates where the deceased died without leaving a will.
The applicant, Mrs Daniels, was married to her husband according to Muslim rites in 1977. The marriage was not solemnised under the civil law. When her husband died intestate in 1994, the house in which they lived was transferred to the deceased estate.
The applicant was told that she could not inherit from the estate because she did not qualify as a "surviving spouse".
She approached the High Court, which held that "spouse" could only be applied to people married according to South African law and did not include people married according to Muslim rites. The High Court found that this interpretation violated the applicant's rights to practise her religious and cultural beliefs, and ordered that words be read in to the Intestate Succession Act and the Maintenance of Surviving Spouses Act to give her the relief she sought.
But on appeal, Justice Sachs of the Constitutional Court held that the word "spouse" included parties to a Muslim marriage: it was not necessary to read in words into the Acts.
Also, the objective of the Acts was to protect widows - and there was no reason why the equitable principles underlying the statutes should not apply to Muslim widows as well.
In a concurring judgment, Justice Ngcobo considered whether previous Constitutional Court decisions that dealt with the interpretation of the word "spouse" prevented it from upholding the appeal. He held that previous decisions did not prevent the adoption of a construction of the word "spouse" to include parties to a Muslim marriage.
All except Justice Moseneke and Justice Madala concurred.
Moseneke held, with Madala concurring, that the word "spouse" had a specific and settled meaning in our law: it precluded parties who had not complied with the formalities of the Marriage Act from being regarded as spouses in the context of other legislation.
But he held that the exclusion of people married under Muslim rites was clearly a remnant of the apartheid era, and unjustifiably discriminatory. He found this to be unconstitutional and suggested a remedy of reading appropriate words into the Acts.
New legislation - The Choice on Termination of Pregnancy Act of 1996
The Choice on Termination of Pregnancy Act was passed to recognise women's reproductive health rights and prevent the sometimes fatal consequences of illegal backstreet abortions. The Act says a woman who wishes to may terminate a pregnancy in the first 12 weeks. From week 13 to week 20, abortion is available if a doctor advises, and after that only if there is risk to the woman or the fetus.
No case concerning abortion has yet come before the Constitutional Court.
The Domestic Violence Act was passed to extend the protection provided by its predecessor, the Prevention of Family Violence Act. The Act recognises that domestic violence is not a private matter but is a serious crime against society. The legislation broadens the definition of domestic violence to include not only married women and children, but unmarried women who are involved in relationships or living with their partners, people in same-sex relationships, mothers and their sons, and other people who share a living space.
The Acts sets out what police must do when they arrive at a domestic violence scene. It recognises that abuse may take many different forms: domestic violence, sexual abuse, economic abuse and emotional and psychological abuse.
Victims can lay a criminal charge, get a protection order, get a court order to have the abuser's gun removed and lodge a claim for pain and suffering as well as medical costs. Other remedies may also be available, depending on the exact nature of the abuse.
The new Act, a response to problems with the old maintenance laws, makes some major changes. Maintenance may be automatically deducted from a person's salary. If maintenance is not paid, a magistrate can seize property belonging to the person who is supposed to pay. The state has to trace people who fail to pay maintenance. Typically it is men and fathers who are obliged to pay maintenance to women and children, but this is not necessarily the case. For an interesting Constitutional Court case on maintenance see Bannatyne v Bannatyne and Another (2002).
This Act provides for the recognition of customary marriages, specifies the requirements for a valid customary marriage and regulates the registration of customary marriages. It sets out some of the consequences of such a marriage and gives spouses in a customary marriage equal status and capacity. The Act also regulates the dissolution of customary marriages. This legislation repealed the infamous section 11(3)(b) of the Black Administration Act of 1927, the mechanism that gave married black women the legal status of children.
The Promotion of Equality and Prevention of Unfair Discrimination Act seeks to advance equality in public and private life. It provides a framework to tackle unfair discrimination, harassment and hate speech, and works towards the transformation of South African society in line with the ideals expressed in the Constitution. It prohibits unfair discrimination on any grounds, including the 16 explicitly listed in the Bill of Rights. The Act provides for the establishment of Equality Courts.