IMPEDIMENTS IN THE PROMOTION OF THE RIGHT TO GENDER EQUALITY IN POST- APARTHEID SOUTH AFRICA by NOMTHANDAZO PATIENCE NTLAMA submitted in accordance with the requirements for the degree of: DOCTOR OF LAWS at the UNIVERSITY OF SOUTH AFRICA SUPERVISOR: PROF. A E A M THOMASHAUSEN JUNE 2010 Student number: 43205321 I declare that ‘IMPEDIMENTS IN THE PROMOTION OF THE RIGHT TO GENDER EQUALITY IN POST-APARTHEID SOUTH AFRICA’ is my own work and that all sources that I have used or quoted have been indicated and acknowledged by means of complete references. SIGNATURE: MS NP NTLAMA Date: June 2010 i ABSTRACT The adoption of the 1996 Constitution in recognition of the historic imbalances that South Africa inherited from its past, affirms the commitment to the promotion of human rights including the right to equality. The emphasis on the right to equality in the Constitution and other related laws discussed in the study represents a guarantee for both men and women the right to equal treatment and benefit of the law. The point of departure is based on the premise that views the law as an instrument that has the potential to effect social change. The primary purpose is to determine various factors that are an impediment to the significance of the law for the promotion of the right to gender equality. The objective is to establish with sufficient certainty the substantive conception of the right to gender equality in post-apartheid South Africa. This dissertation examines and provides a brief overview of the development and the intersection of the principles of non-discrimination at the international and regional spheres and their influence in broadening the scope for enforcement of gender equality in South Africa. It provides a literature review and an analysis of the equality jurisprudence of South Africa’s Constitutional Court and its influence to the lowest structures of the judiciary in promoting the right to gender equality. This undertaking is reinforced by the primary purpose in this study of examining various factors that are an impediment to the promotion of the right to gender equality. It discovers that the establishment of a “just society” is difficult where the significance of the law is affected by the lack of legal knowledge and other related factors identified in the study. It establishes that the promotion of the right to gender equality is a gradual process that should not be undertaken overnight but on a continuous basis. It can be drawn from the findings in this study that the law “alone” is limited in its application in addressing socio-legal problems. Despite the limitation, the use of law is not a goal that should be discarded as it lays the framework for the determination of the significance of legal measures for social change. [355] ii Key terms: Constitution, international law, human rights, equality, gender equality, women, judiciary, courts, legislature, social change, non-discrimination, domestic violence. iii ACKNOWLEDGEMENTS Firstly, I would like to thank the Lord for the strength that He has given me throughout the period of writing this thesis, without which, I could not have succeeded, as the long walk was very lonely. I would also like to thank my supervisor, Professor Andre’ Thomashausen for incisive and insightful comments on the drafts and final production of this work and thanks are due for his patience as well. Many thanks are also due for the King Williams’ Town magistrates’ court, the Zwelitsha magistrates’ court, King William’s Town Child Welfare, Khanyisa Education and Wellness Centre, Masimanyane Women’s Support Centre, Members of the Ngxwalane Community and all the individual participants at the courts, who all contributed immensely to the production of this work. I hereby acknowledge the assistance of many teachers, colleagues, students and family members who have influenced me and resulted in the production of this work. To all my many friends and colleagues, especially Dayana Ndima and Freddy Mnyongani, who have been very supportive and being there for me when I needed help. Finally, I owe my career to my parents: Turuse and Nosanele Ntlama, my grandmother, Nohombile Dyakala and my elder sister, Tumeka Dyakala, all of whom have since passed away. They inspired and encouraged me to study law. Because of their efforts, I dedicate this work to my sister Babalwa Ntlama, my brother, Bongani Ntlama, my son Mzikabawo Ntlama and my aunts, uncles and cousins, all of whom have also contributed to the production of this work indirectly. To the people of my two villages: Qaga and Masele in King William’s Town: Eastern Cape, this production is for you too. iv ACRONYMS ACHPR African Charter on Human and People’s Rights AU African Union CEDAW Convention on the Elimination of Discrimination Against Women CERD Convention on the Elimination of All Forms of Racial Discrimination CGE Commission for Gender Equality DVA Domestic Violence Act ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights OAU Organisation of African Union SAHRC South African Human Rights Commission SAJHR South African Journal on Human Rights SALJ South African Law Journal SLR Stellenbosch Law Review UDHR Universal Declaration of Human Rights v TABLE OF CONTENTS Declaration (i) Abstract (ii) Acknowledgements (iii) List of acronyms (iv) Table of Contents (vi-xi) CHAPTER ONE: BACKGROUND 1.1 Introduction 1 1.2 The purpose of the research 6 1.3 The statement of the problem 14 1.3.1 Achieving gender equality: beset with problems 14 1.4 Factors inhibiting the promotion of the right to gender equality 18 1.4.1 Socio-cultural factors inhibiting the quest for equality 18 1.4.2 Lack of legal information 21 1.4.3 Lack of access to justice 23 1.4.4 Lack of resources to implement gender related laws 26 1.4.5 Gaps in law reform 29 1.5 Assumption underlying the study 32 1.6 The research design or methodology and the limitation of the study 34 vi 1.7 The sequence of chapters 40 CHAPTER TWO: THE EVOLUTION OF THE PRINCIPLE OF EQUALITY AND NON- DISCRIMINATION IN INTERNATIONAL AND SOUTH AFRICAN HUMAN RIGHTS LAW 2.1 Introduction 42 2.2 The international human rights law and the evolution of the principles of non- discrimination 43 2.3 Sources of non-discrimination laws within the international framework 47 2.3.1 The international bill of rights and the basic principles of equality 53 2.4 The development of the agenda for the right to equality in Africa 62 2.5 The application of international norms of equality in the domestic sphere 69 2.6 The legislative evolution of the right to equality in South Africa 76 2.6.1 The essence of the right to equality in the South African Constitution 76 2.6.1.1 The Domestic Violence Act and the freeing of everyone from all forms of violence and discrimination 81 2.6.1.2 The Recognition of Customary Marriages Act and the balancing of customs or customary law within the framework of human rights for gender equality 84 2.6.1.3 The Maintenance Act and the advancement of the right to social security for gender equality 91 vii 2.6.1.4 The Promotion of Equality and the Prevention of Unfair Discrimination Act and the express prohibition of unfair discrimination and inequalities 95 2.7 Legal reform and gender equality? 102 2.8 Summary 105 CHAPTER THREE: THE JUDICIARY: EQUALITY AND THE SUBSTANTIVE APPROACH FOR THE REALISATION OF GENDER EQUALITY 3.1 Introduction 106 3.2 The importance of international human rights in the development of the domestic principles of non-discrimination 113 3.2.1 Theoretical framework for the application of international human rights norms and standards in the domestic sphere 113 3.2.2 The strategic approaches for the use of international law in the development of the jurisprudence of the principles of non-discrimination at the domestic sphere 120 3.3 The jurisprudence of substantive equality for the promotion of the right to gender equality in South Africa 130 3.3.1 The development of the value-based approach to the interpretation of the right to gender equality 130 3.4 The “differentiation approach” for the promotion of the right to gender equality 144 3.5 Equality and the interpretation of legislation and other rights in the Constitution for the realisation of gender equality 156 viii 3.5.1 Equality and the right to freedom of security 156 3.5.2 Equality and the enforcement of maintenance claims 160 3.5.3 Equality and the promotion of socio-economic rights 164 3.5.4 Equality and human dignity for gender equality 169 3.6 The development of common law for the realisation of the right o gender equality 175 3.7 The intersection of customary law and the right to equality for the promotion of the right to gender equality 189 3.8 Equality and the implementation of court orders for the promotion of the right to gender equality 202 3.9 The “differentiation approach”: strategy for gender or women’s equality? 211 3.10 Summary 222 CHAPTER FOUR: GENDER EQUALITY: A DISTANT DREAM FOR SOCIAL CHANGE 4.1 Introduction 224 4.2 Public views and confidence on the role of the courts in the promotion of the right to gender equality 226 4.2.1 Public confidence and the courts? 226 4.2.2 The exercise of public power in the development of public confidence for gender equality 227 ix 4.2.3 Exerting the authority of the courts for public confidence: a question for gender equality? 232 4.3 The development of indigenous languages at the magistrates’ courts for the promotion of the right to gender equality 237 4.3.1 Protecting indigenous languages in the Constitution