International Association of Women Judges th8 Biennial Conference 3-7 May 2006 Sydney, Australia
GENDER, CULTURE AND THE LAW:
THE CHALLENGES OF A DIVERSE SOCIETY:
A SOUTH AFRICAN PERSPECTIVE
Judge Lucy Mailula
High Court, South Africa
A useful starting point on the subject of gender and culture in a society as diverse as that of South Africa is Section 9 of the Bill of Rights in the Constitution of the Republic of South Africa Act, 108 of 1996 (“the Constitution”). Sections 9(3) and 9(4) provide:
“(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.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.”
The Bill of Rights is probably one of the most fundamentally far-reaching pieces of legislation introduced to redress continuing inequalities amongst South Africans. The Bill of Rights binds “the legislature, the executive, the judiciary and all organs of state.” See
section 8(1) of the Constitution.
Historical context: 300 years of discrimination
In the historical context of South Africa, the most obvious inequality was the systematic discrimination and subordination of black people in all aspects of political, social and economic life. For more than 300 years, under both colonialism and apartheid, the primary basis for discrimination was that of race. People who were categorized on the ground of skin colour were denied, inter alia, the right to vote, the right to own property, the right to freedom of movement and the right to marry persons of another colour.
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Historically, differences in race, gender and culture were used by those in political power to justify unfair discrimination of people amongst them who were classified as different. Some examples will illustrate this.
Until a few decades ago, black Americans were subjugated into slavery and treated as the property of others. Some 70 years ago, Adolf Hitler dehumanized, amongst others, the Jewish nation, and committed the most heinous form of genocide against them.
Less than 100 years ago, women were denied the right to vote in most countries in the developed world, in the result depriving them of the most effective means by which to empower their gender.
Van Leeuwen, an authority on Roman Dutch law, the law upon which the legal system in South Africa is based, pronounced on the reason why women should not be permitted to practice as attorneys:
“inasmuch as nearly the whole of womankind by reason of an inborn weakness is less suited for matters requiring knowledge and judgment than men, women are excluded from holding any office or dignity relating to the government of a people, and its affairs”.
Just under a century ago, in the case of Incorporated Law Society v Wookey 1912 AD
623, the appellate division, the highest Court in South Africa, had to interpret the meaning of the word “persons” in section 20 of the Charter of Justice which allowed Courts to admit and enrol “persons” as attorneys or advocates. In what would be considered as an absurd premise today, the Court held that, in view of the then common law prohibition against the admission of women as attorneys, “persons” did not include females.
Legislation reversing the effects of discrimination
The following statement in the case of Fourie and another v Minister of Home Affairs
and others 2005(3) BCLR 241 SCA describes the involvement of the law in the
perpetuation of this unjust discrimination:
“What was unique about apartheid was not that it involved racial humiliation and disadvantage - for recent European history has afforded more obliterating realisations of racism - but the fact that its iniquities were enshrined in law. More than anywhere else, apartheid enacted racism through minute elaboration in systematized legal regulation. As a consequence, the dogma of race infected not only our national life but the practice of law and our courts’ jurisprudence at every level.”
The Bill of Rights in the Constitution has gone a long way to redress the imbalances in the country. In addition, in conformity with its obligation under section 9(4) of the Constitution, the legislature has taken steps to introduce legislation which promotes the
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interests of what are termed “previously disadvantaged individuals”. In essence, a previously disadvantaged individual is someone who was the victim of discrimination in the past.
Two statutes have gone some way in addressing imbalances. These are: the Employment Equity Act 55 of 1998 (“the EEA”) and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“the PEPUDA”).
The PEPUDA seeks to regulate unfair discrimination in both public and private sectors. It does not regulate relationships in the workplace to the extent that the EEA applies. It seeks to regulate several types of conduct associated with the equality right.
Such conduct includes unfair discrimination, hate speech, harassment, and the dissemination of information which discriminates unfairly. It accommodates various types of remedy. These include punitive relief such as damages and costs, with the possibility of criminal sanction. Interdictory relief is also competent. The enquiry concerning discrimination is divided into the conventional 2-stage approach: a determination about discrimination, followed by an enquiry into fairness. Particular emphasis is laid on race, gender and disability. The examples in sections 7, 8 and 9 of the PEPUDA provide instances of prima facie discrimination in these areas.
In addition to the Constitution and the above statutes, a vast network of legislation has been enacted which levels the playing fields amongst genders. The following examples merit mention. The marital power which vested in a husband married in community of property, to the exclusion of his wife, has been abolished by amendment to the Matrimonial Property Act 69 of 1984. A wife now has the power to enter into certain transactions without the assistance of her husband. Another significant enactment enables biological fathers of illegitimate children to apply to Court for custody, guardianship and rights of access to their children in terms of the Natural Fathers of Children Born out of Wedlock Act.
Gender, Culture and the Law in the South African context
What follows below is an overview of gender and cultural issues impacting on our law. Culture, in general terms, embraces the attitudes, practices and values of a particular group of people, and is therefore capable of being drawn along, inter alia, religious, racial and language lines. In dealing with culture, we have included issues of religion, race and language. As will be seen from the cases cited below, there are numerous overlaps amongst the various issues.
We will deal firstly with matters which primarily impact on gender, and thereafter, with those affecting culture. Lastly, we will traverse language issues as a discreet category because of the large number in this country.
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The Constitution brought about a complete volte face to legally entrenched apartheid.
What was formerly an autocratic government based on division and exclusion became an all-inclusive democracy respecting the dignity and equality of all its citizens.
South African society is fundamentally patriarchal. Women have been subordinated in public and private arenas. In the result, many women remain disempowered, and reliant on men for their support, owing to their restricted access to economic opportunities.
The position of women is aptly described by Professor Cathi Albertyn (“Albertyn”) in South African Constitutional Law: the Bill of Rights, Lexis Nexis Butterworths, 2nd Ed 2005, at p4-3:
“Many women live at the confluence of poverty, exhaustion and violence, with little independent access to basic amenities and resources. Most of these women are black and rural or working class, confirming the linkages between gender, race and class in constituting the social and economic position of women in South Africa.
Race and gender inequalities are deeply systemic, entrenched in the structures and institutions of society. They also correlate strongly with poverty and material deprivation, as South Africa remains one of the most unequal societies in the world.”
In support of the above statement, Albertyn cites a report based on the UN World
Development Report, 1994 which found that 53% of South Africans accounted for less
than 10% of goods consumed, while 5, 8% of the population accounted for over 40% of consumption.
In President of the Republic of South Africa and Another v Hugo 1997(6) BCLR 708 (CC), the social and economic disadvantages to black people and women in South Africa were highlighted. The Court addressed the position of women in society, with emphasis on their roles as mothers and primary care-givers. It noted how this role had been one of the root causes of women’s inequality in employment and in society. The fact that fathers were not similarly disadvantaged weighed with the Court in arriving at its decision. It held that a presidential order that mothers, but not fathers, of young children, should receive a special remission of sentence, was not unfairly discriminatory against gender.
The equality principle was applied in the case of Cary v Cary 1999(8) BCLR 877 (C).
In a civil case, the applicant, a wife in the throes of a divorce from her husband, had applied for a contribution from him towards her legal costs in the divorce action. The Court found that its discretion was subject to the right of equality before the law amongst genders, which in turn required equality of arms, or finances, in the divorce action.
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An interesting case involving a dispute about whether there was discrimination on gender lines is that of Jordan and Others v The State and Others 2002(11) BCLR 1117 (CC).
It was alleged that section 20(1)(aA) of the Sexual Offences Act 23 of 1957, which criminalized the acts of sex workers, but not their clients, constituted indirect discrimination on the basis of gender.
A minority judgment argued that it could be inferred from the section that the primary cause of the problem was the woman and not the man.
The majority judgment found, however, that the section was indeed designed to “strike at the merchant”, and that there was merely a differentiation between customer and merchant, with no gender implications.
Gender discrimination can also affect men unfairly. In Fraser v Children’s Court,
Pretoria North and Others 1997(2) BCLR 153 (CC), the Court found that a statute
which required, for adoption of an illegitimate child, the consent of the mother but not the father, was unconstitutional on the ground of gender discrimination. This issue also overlapped with the issue of discrimination on the basis of marital status, the party standing to suffer the most being the illegitimate child where the mother wanted to give him up for adoption but the father did not.
Discrimination on the ground of religion, but impacting upon the female gender in effect, came to the fore in Amod (born Peer) and Another v Multilateral Motor
Vehicle Accidents Fund (1999) 4 All SA 421 (A). In this case, the beneficiaries of loss
of support claims flowing from motor vehicle accidents were held to include spouses married according to Muslim rites. In Daniels v Campbell NO and Others 2004(7)
BCLR 735 (CC), the exclusion of spouses married according to Muslim rites from maintenance claims under the Maintenance of Surviving Spouses Act 27 of 1990 was found to unfairly discriminate on the basis of religion. In the latter case, the Court also took account of the importance of tolerance and respect for diversity. In affording a wide interpretation to the meaning of the word “spouse”, any unfair discrimination on the ground of religion, culture and belief was obviated.
The result of the findings in Amod and Daniels was that those most affected by this
legislation, namely, women who were normally not the breadwinners in the family, would benefit from its failure to pass constitutional muster.
Domestic violence against women in South Africa took centre stage with the introduction in 1993 of the Prevention of Family Violence Act, 133 of 1993, succeeded by the Domestic Violence Act 116 of 1998, which came into operation on 15 December 1999 (“the DVA”). In the preamble to the DVA, cognizance is taken of the high incidence of domestic violence in South Africa, that victims of such violence are among the most vulnerable members of society, that domestic violence takes on many forms and that it may be committed in a wide range of relationships. The legislature goes on to state that, in wishing to honour the obligation of the State towards ending violence against women
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and children, it has had regard to the Constitution and the United Nations Conventions on the Elimination of all forms of Discrimination against Women and the rights of the Child.
Thus, in terms of the DVA, people who have simply lived with one another in a common law relationship are entitled to secure protection orders against each other of an interdictory nature to prevent the continuation of conduct amounting to domestic violence.
The definition of “domestic violence” is far-reaching. It includes physical, sexual,
emotional, verbal, psychological and economic abuse, intimidation, harassment, stalking, damage to property, entry into the complainant’s residence without consent, and any
other form of controlling behaviour.
In the case of S v Kgafela 2003(5) SA 339 SCA, a black woman had hired an assassin to
murder her husband, a senior magistrate. Her husband had taken to drinking in excess over weekends and to subjecting her to abuse when inebriated. He had hit her with a sjambok on one occasion and had pointed a firearm at her on another. The accused was 37 years of age and a first offender. The Supreme Court of Appeal was unable to find substantial and compelling circumstances which would have justified a reduction in the life sentence imposed upon the accused by the Court of first instance.
In the case of S v Ferreira 2004(2) SACR 454 SCA, a white woman had hired black
assassins to murder her husband. She had been subjected to spousal abuse. The Court held at para 40 of the judgment:
“her decision to kill and to hire others for that purpose is explained by the expert witnesses as fully in keeping with what experience and research has shown that abused women do. It is something which has to be judicially evaluated not from a male perspective or an objective perspective but by the Court’s placing itself as far as it can in the position of the woman concerned, with a fully detailed account of the abusive relationship and the assistance of expert evidence such as that given here. Only by judging the case on that basis can the offender’s equality right…be given proper effect. It means treating an abused woman accused with due regard for gender difference in order to achieve equality of judicial treatment.”
The accused was convicted of murder and sentenced to life imprisonment by the trial Court. On appeal, her sentence was reduced to a term of imprisonment but it was directed that the portion of her sentence which had not been served should be suspended. The term of life imprisonment given to her assassins, however, remained.
In the case of S v Engelbrecht 2005(2) SACR 41 WLD at p130 para 333, the Court
was enjoined to enquire into the reasonableness of the accused’s actions to establish
whether her defence of justification was sustainable. The Court stated:
“Necessarily such an approach will have at its core the circumstances and perceptions of the accused. Section 9 of the Constitution requires that criminal courts have regard to the
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particular circumstances of the accused. In the context of an abused woman who killed her abuser, it requires that the court have regard to her experience of abuse as well as the impact of abuse on her.”
On a conspectus of the facts in the Engelbrecht case, the Court found the accused wife
guilty of the murder of her husband. In sentencing, however, the Court took account of a long line of cases which had established certain principles applicable to crime committed in circumstances of family violence. The accused was sentenced to detention until the rising of the Court.
Discrimination on the ground of marital status has historically left an unmarried woman who lives with a man in a common law relationship without legal rights equivalent to those of a married woman, on the dissolution of the union.
On the death of the man or on the separation of the parties, the woman was unable to exercise any proprietary claims or to claim personal maintenance from him, this despite the fact that he may have been supporting her for many years and/or she may have been saving him expenses or helping him to earn income which might otherwise have not been the case. In the case of Volks NO v Robinson and Others 2005(5) BCLR 446 (CC), the
Constitutional Court had to decide whether the definition of the word “spouse” extended to a common law spouse, for purposes of a maintenance claim under the Maintenance of Surviving Spouses Act 27 of 1990. The majority of the Court found that, to extend the provisions of this Act to the estate of a deceased person who was not obliged during his lifetime to maintain his partner would amount to imposing a duty after death where none existed during his lifetime.
The Domestic Partnership Bill, which was drawn up in 2005, will effectively address the hardship which flowed from the relationship in the Volks case. Once promulgated, it will
have the effect that both parties to a domestic partnership will have rights as if they were married. Legal consequences will flow from their relationship. As matrimonial attorney Alick Costa puts it in an article in Business Day 11 April 2006:
“Gender discrimination and social attitudes are changing (albeit too slowly) enabling women to develop their skills, free from domestic enshacklement …… disempowerment
and financial bondage. Thus, we are likely in the future to talk about the myth of the common law husband.”
What of the situation where a prospective employee is a pregnant woman? This situation arose in Woolworths (Pty) Ltd v Whitehead (2000) 6 BLLR 640 (LAC). Ms W, a
pregnant woman, was offered a position in the Human Resources department of Woolworths for a fixed term which would have expired on the date of her confinement. When she rejected this, the position was given to Dr Y. Ms W alleged, inter alia, that she had been unfairly discriminated against on the basis of her sex. The Court found against her, stating that Woolworths had not been influenced by Ms W’s pregnancy per se, but by her unavailability and her inability to work continuously for at least 12 months. The
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Court took account of economic considerations as well, in holding that, in the case of highly paid executive employees, the consequences of compelling employers to appoint pregnant women could have a negative impact on the economy.
In America, women are increasingly playing significant roles in both public and private sectors. An article headed “Myth and Reality” in Newsweek Magazine 27 February
2006 states that, according to a paper published by the International Labor Organisation in June 2005, in America, women account for 45% of high level decision-makers, which include legislators, senior officials and managers across all types of businesses. The world average for women in high level positions is 27%.
The question arises as to whether women are adequately represented within the judiciary. Section 174 of the Constitution provides for the need to consider the racial and gender composition of South Africa when judicial officers are appointed. As statistics stand at present, about 13% of the judiciary in South Africa is represented by women. About 30 % of the magistrates, who preside over the lower Courts in this country, are women.
The prevailing gender imbalance in the judiciary in the United Kingdom demonstrates that the English community still has a long way to go. Of the 100 judges in the High Court in 2003, only 8 were women. Of the 35 judges in the Court of Appeal in 2003, only 3 were women. There is only one woman Law Lord, Lady Brenda Hale. Baroness Helena Kennedy QC in her book Just Law, Chatto and Windus, 2004 at p141 attributes the
problem to the temptation for the white, male-dominated appointers to appoint “in their
own image and likeness”.
Canada is a heartening example. For the past 20 years, women judges have sat in the superior Courts. Canada’s Chief Justice is a woman.
If there is going to be any dramatic improvement in the statistics, there will have to be a change in the mindset of those who are tasked with the appointment of women judicial officers. It would appear that the abilities of women lawyers are vastly underestimated by prevailing perceptions. Steps need to be taken to afford them the opportunity of proving their metal.
Section 31 of the Constitution was enacted to entrench respect for diverse cultures, religions and languages in South African society. It provides as follows:
“31 Cultural, religious and linguistic communities
(1) Persons belonging to a cultural, religious or linguistic community may not be
denied the right, with other members of that community;
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(a) to enjoy their culture, practice their religion and use their language;
(b) to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner inconsistent with
any provision of the Bill of Rights.”
It was held in S v Lavhengwa 1996(2) SACR 453 (W) at 478 B , a case dealing with the
imbalances still prevalent in the country, and more specifically, amongst members of the black population, that inequalities between opposing litigants in a criminal trial are contrary to the principle of a fair trial.
Thus, in terms of section 35(3)(g) of the Constitution, every accused person is entitled to have a legal practitioner assigned to him by the state at state expense if substantial injustice would otherwise result, and to be informed of this right promptly. Owing to the correlation between poverty and race, which still prevails, the persons who benefit most from this provision are previously disadvantaged individuals.
In Mthembu v Letsela and Another 2000(3) SA 867 SCA, the issue of gender
discrimination within a particular black culture was ventilated. Because there had been no customary union between the mother and father of one T, she was illegitimate. In terms of customary law, the house of her deceased father devolved on the father of the deceased. However, in terms of the same law, in the absence of legitimate sons, illegitimate sons could succeed to the intestate estate of their father whilst illegitimate daughters could not.
The Supreme Court of Appeal recognized this rule, holding that, to strike it down would be to “dismiss an African institution without examining its essential purpose and content.”
Bhe and Others v Magistrate, Khayalitsha and Others 2004 (2) SA 544 (C) may be
contrasted with the finding in Mthembu. The Cape High Court found the principle of
primogeniture as set out in the Black Administration Act 38 of 1927 (“the BAA”) to
discriminate against black women on the basis of race and gender.
This was confirmed by the Constitutional Court in Bhe and Others v Magistrate,
Khayalitsha and Others 2005(1) BCLR 1 (CC). In this latter judgment, Langa DCJ, as
he then was, stated:
“The primogeniture rule as applied to the customary law of succession cannot be reconciled with the current notions of equality and human dignity as contained in the Bill of Rights. As the centerpiece of the customary law system of succession, the rule violates the equality rights of women and is an affront to their dignity. In denying extramarital children the right to inherit from their deceased fathers, it also unfairly discriminates against them and infringes their right to dignity as well. The result is that the limitation it imposes on the rights of those subject to it is not reasonable and
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justifiable in an open and democratic society founded on the values of equality, human dignity and freedom.”
Matters become complex when one has regard to the heterogeneous nature of South African society. The question of relative disadvantage was dealt with in the case of Motala and another v University of Natal 1995(3) BCLR 374 (D).
An Indian student, with 5 distinctions in Matric, challenged the decision of the medical school to admit her. The medical school had decided to limit the admission of Indian students so as to afford more African students the opportunity of entering medical school. It had taken cognizance of the fact that, under apartheid, the poor quality of African education meant that Africans could not compete equally on a merit-based system. The Court held that, although Indian students were disadvantaged under apartheid, African students had experienced greater disadvantage. As a result, the measure which preferred one black group over another was lawful.
This line of reasoning was endorsed in an as yet unreported case heard in April 2006. An arbitration tribunal ruled that state power utility Eskom had acted correctly in appointing a black engineer to a position instead of an allegedly more qualified coloured engineer. This was because black Africans had been more disadvantaged than coloured people by past discriminatory laws.
The diversity of our society from another, entirely different perspective, came to the forefront in Prince v President of the Law Society, Cape of Good Hope and Others 1998(8) BCLR 976 (C). Section 15(1) of the Constitution provides that “Everyone has
the right to freedom of conscience, religion, freedom, thought and opinion.” Prince had
applied for his admission as an attorney while disclosing that he was a Rastafarian who, in the practice of his religion, smoked cannabis. His application was dismissed because the Court found that, even though his use of cannabis was protected under section 15, the legislative prohibition was justified in terms of section 36 of the Constitution. In his minority judgment, Ncgobo J remarked that “the protection of diversity is the hallmark of
a free and open society.” Hence, a law which prevented a Rastafarian from practising his religion degraded the followers of that religion. What appears to have swayed the majority view was the fact that the religion in question was not popular and had a relatively small following.
South Africa encounters diversity not only between black and white but, within these races, different ethnic groups with different religions and customs. Here is an interesting example of the consequences of a difference amongst cultures. As a general rule, a European judge will consider it to be a sign of honesty and integrity if a witness looks at him in the eye when testifying. Amongst certain black cultures, it is considered a sign of disrespect to look in another’s eyes when talking to a person who is considered his
superior in age or status. There is no guarantee that the European judge will have knowledge of this difference, with the potential consequence of an adverse finding against the witness’ credibility.