It is also an opportune time to reflect on progress made in advancing women’s rights in society. This week – 9 to 20 March – marks the 59th session of the United Nations Commission on the Status of Women (CSW59), and 2015 is also the 20th anniversary of the Beijing Declaration and Platform for Action, in which governments – including South Africa – undertook to ensure legally binding gender equality obligations.

To this end, South Africa’s courts have been at the forefront in the quest to provide meaning to the right to equality. Pertinent judgments issued over the last two decades across the spectrum, ranging from succession, to safety and security, as well as socio-economic rights, play a key role in enhancing equality for South African women. The courts continue to interpret the Constitution and bring meaning to its provisions; the following is a limited discussion on the role of the Constitution in both recognising and affirming certain rights and entitlements particular to women.

Bhe and Others v The Magistrate, Khayelitsha and others and Shibi v Sithole and Others

In these cases, the Constitutional Court was faced with the question of the rule of primogeniture and related intestate succession provisions of the Black Administration Act, which excluded women and children born out of wedlock from succession in terms of customary law. In Bhe, the case before the Court was that the customary rule of male primogeniture unfairly discriminated on the grounds of gender. The custom allowed only the oldest male relative to inherit the estate of a black person. A similar argument was advanced In Shibi, which was concerned with the inheritance of her late brother’s estate. The Court held that the African customary rule of male primogeniture as it would have been applied, discriminated unfairly against women and children born out of wedlock and as such declared it unconstitutional and invalid. The Court also declared section 23(7) of the Black Administration Act as unconstitutional and invalid as it unfairly discriminated against women in the administration and distribution of black estates. The Court held that the provisions were discriminatory and in breach of the right to equality in section 9 and dignity in section 10 of the Constitution.

This decision is important for women married under customary law as they now enjoy equal succession rights.

Carmichele v Minister of Safety and Security and Another

In this case the Court found that the Minister of Justice and the Minister of Safety and Security were liable for the vicious attack suffered by a woman. The perpetrator was a man awaiting trial for other offences. The man had been released without bail on the strength of recommendations from the investigating officer and prosecutor, despite his history of violence towards women. The Court underscored the fact that the Constitution obliges the state to prevent violence against women, which is a form of gender discrimination. The state is also obliged to protect the dignity, freedom and security of women. Additionally, the courts have a duty to develop the law in order to hold the state accountable. Violence against women in South Africa is well documented, with reports stating that gender-based violence costs the South African economy a staggering R28.4-billion to R42.2-billion a year – assuming that one in five women experience an incident of gender-based violence each year. As such, this case is important in the fight to end violence against women and the National Prosecuting Authority and the South African Police Services have to exercise due diligence in releasing individuals with violent histories into the public. It underscores the notion that the state is obliged to protect individuals by refusing to grant bail to accused persons who have the potential to harm women. It provides meaning to section 12 of the Constitution, which guarantees everyone the right to freedom and security.

Grobler v Naspers BPK en ‘n Ander

In this case the court held an employer vicariously liable for damages caused by sexual harassment of a woman who had worked as a secretary for a manger who had subjected her to sexual harassment over a sustained period. Due to the persistent unwanted attention – which at one point involved attempted rape at gunpoint – she developed post-traumatic stress disorder, which made her unable to function normally at work and at home, as well as other situations. This had resulted in her suffering an emotional breakdown due to the hostile work environment. The Court considered the manager’s abuse of authority, the ambit of authority given to the manager, as well as the vulnerability of the woman to the harasser’s abuse of his authority. For these reasons, the Court found the employer vicariously liable for the woman’s suffering. The importance of this decision is that it underpins an employer’s duty to take reasonable action to prevent and eliminate harassment from the workplace. The decision also reiterates that employers are vicariously liable for sexual harassment by employees (unless they have taken reasonable action to prevent such harassment). Importantly, victims of harassment may sue both the employer and the harasser for damages as a result of the sexual harassment. The decision affirms not just the right to fair labour practices, but the rights to dignity and equality within the workplace.

Minister of Health and Others v Treatment Action Campaign and Others

The applicants, the Treatment Action Campaign group, together with other civic society organisations, sought to compel the then Minister of Health to provide and implement a comprehensive policy on the prevention of HIV/AIDS in order to lessen the impact of HIV/AIDS. They argued that the existing policies in place – aimed at reducing the risk of mother-to-child transmission – did not meet constitutional requirements. The Court considered that the Constitution creates an imperative for the government, within its available resources, to develop programmes to progressively realise the rights of pregnant women and newborn babies to have access to health services to combat mother-to-child HIV transmissions. The Court ordered the government to immediately make the drug Nevirapine available and further to provide counselling and testing facilities nationwide in the public health sector. This decision makes it clear that the pregnant women should progressively receive Nevirapine, related counseling, as well as testing, in order to reduce mother-to-child HIV transmission. This decision gives meaning to socio-economic rights through the requirement that the state take positive action in order to ensure that the right to access health care, including reproductive health care, is realised.

Despite the above-mentioned laudable decisions, which produced tangible results across South African communities, there is still cause for concern regarding recent attempts to adopt legislation that would have failed to protect and promote women’s rights. It is worrying that laws such as the Communal Land Rights Act (which was struck down in its entirety for technical reasons by the Constitutional Court) can be passed by Parliament, despite the Constitution guaranteeing equality for all citizens. The Communal Land Rights Act would have enhanced the powers of traditional leaders over land – reinforcing patriarchal power relations – to the detriment of women’s access to land and security of tenure. Another problematic aspect of the Communal Land Rights Act was that it entrenched past discrimination against women through formalising rights previously held by men. The Traditional Courts Bill (which later lapsed) was introduced in 2013 and would have created a parallel legal system in which women would not have been permitted legal representation, in direct contradiction to the Constitution. The onus thus remains on the state to continue protecting and promoting women’s rights as enshrined in the Constitution.

Phephelaphi Dube: Legal Officer, Centre for Constitutional Rights

[Photo credit: UN Women]