Gender equality and judiciary pluralism in post-apartheid South Africaitfr

Translated by Amy Asheroff and Jacopo Magnani

12 July 2010, by Monica Morandi
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The end of apartheid and the beginning of a constitutional democracy in 1994 in South Africa paved the way for the spread of a “human rights culture,” based on the promotion and respect of a set of fundamental rights and liberties to which every citizen (and every human being) is entitled. These rights and liberties apply to anyone, without distinction of race, class and gender. From the formal point of view, African women appear to be the category that benefited most from this cultural and juridical shift. Women’s struggle against apartheid, and post-apartheid mobilizations to promote gender equality are widely acknowledged. In the 1990s, South Africa approved one of the most female-friendly constitutions the world had ever seen, including a number of articles that protected gender equality in the political, legal and social realms.

Despite this new attitude, a real affirmation of women’s rights that would lead to substantial equality still seems out of reach in South Africa. This is true not only because rates of gender-based violence and sexual violence are still extremely high, or because women still live in appalling socio-economic conditions (especially in rural areas, with high levels of poverty, illiteracy and malnutrition). Besides these concerns, on the legal level South Africa is facing a so-called “juridical pluralism”: on the one hand there is national legislation, consistent with international human rights law and with international treaties on women’s rights (as in CEDAW, 1995); on the other, several “consuetudinary norms” are still in place. The latter are directly tied to the “traditional authority” of so-called “traditional leaders,” who resist social change. These actors are particularly powerful in rural areas and usually promote traditional or religious laws that are based on a very conservative idea of female identity and female roles in society. Very often community values prescribe that the enjoyment of certain rights is based on the fulfillment of certain duties.

The South African Constitution accepts customary law in a subordinate position to the Bill of Rights; in the last few years, however, the existence of two different juridical systems has resulted in a series of legal disputes and litigations that considerably delay the process of empowering women. One of the main cases before the Constitutional Court was Bhe vs. Magistrate of Khayelitsha in 2004. The dispute dealt with traditional succession law, which is valid for African populations in accordance with the Black Administration Act (1927). Traditional law prevents women from inheriting the estate in the case of a family member’s death (the so-called “male primogeniture rule”) and therefore from having control over family properties – usually land, cattle and property. Inheritance laws consider women de facto minors, and therefore had had very serious consequences on women’s chances of attaining economic independence and gaining negotiating power within the family.

In the case quoted above the applicant was Mrs. Bhe, a widowed mother of two underage girls; Mrs. Bhe applied against the magistrate’s decision to assign all of the family property to her husband’s father. The latter, according to customary law, was the only legitimate heir of the property. The High Court and the Supreme Court of Appeals ruled that article 23 of the Black Administration Act was unconstitutional. The article read that customary law was competent in inheritance law disputes between black Africans.

Even if the decision recognized Mrs. Bhe’s rights, it did not affect the male primogeniture rule, which was still in place where applicable. The Constitutional Court examined the case and declared the male primogeniture rule inconsistent with the Constitution. In so doing, the Court paved the way for a radical modification of customary heritage system. The motivations given by the Court are particularly relevant.

Considering the recent developments in social and family conditions, and stating that law has to adapt to people’s ways of life, the Court deemed the male primogeniture rule as outdated and not reflective of new social conditions in post-apartheid South Africa. Very often nuclear families took the place of large traditional families. In this new context there have been clear changes in gender roles within the society, due to new economic activities for women and changes in family structure. Consequently, the male primogeniture rule is no longer a means to preserve family properties, and the heir no longer has a duty to sustain family members. Rather, it has become an apparent discrimination toward women because it preserved a patriarchal feature without offering women those benefits which were once associated with the values of solidarity and responsibility implied by the rule itself. The Court took also into consideration the fact that the Black Administration Act belonged to the apartheid legal framework, whose underlying philosophy was evidently in contrast with South African Constitution and with human rights principles.

It was a great victory for women. With a revolutionary sentence in the South African legal system, the Court managed to change the customary law on inheritance so as to make it consistent with the international standards on women’s rights. [Thus the Court has promoted gender equality, closely adhering to the transformative intentions of the new democratic order.] This ruling was not only crucial for its legal ramifications, as it established a hierarchy between gender equality and customary law. It also had important practical implications: as a result of the decision, the Parliament discussed a bill on inheritance law in 2008 and passed it the next year. The Reform of Customary Law of Succession and Regulation of Related Matters Act of 2009 abolishes the male primogeniture rule and guarantees the same rights to married women, regardless of whether they were married by a civil wedding or a cultural ceremony.

Still, recent evidence has cast doubts on the effectiveness of the Bhe sentence, arguing that the progress made in the legal arena has not been matched by relevant advancements in many women’s lives, especially in the rural areas. Two factors have contributed to this failure:

  • Class differences among South African women, and especially the gap between women in urban areas and those living in rural settings. Law can be more useful in urban areas, where women are more educated and cognizant of legal innovations and their own rights. In contrast, women in rural areas are generally illiterate, have little access to information about the law, and therefore are unaware of the legal avenues available to them.
  • The organization of the South African judicial system. The South African judicial system is made of a archipelago of local courts, ruled by traditional authorities with the power to rule most of the cases. On the other hand the Constitutional Court deals with cases related to human rights and constitutional issues and usually passes only a limited number of judgments. The low professional qualification of local judges and their will to defend the status quo are two major obstacles to the effectiveness of state law among local communities. For instance, a 2006 study by South African lawyers showed that the Bhe decision had not had any real impact two years after the judgment. In fact, local judges still continued to sanction customary laws on inheritance, and widows could access the patrimony of their dead husbands only through the male heir - depending on the willingness of the latter.

In conclusion, the laws on gender equality that have been recently passed in South Africa are necessary but far from sufficient conditions for the real emancipation of women. These laws were not able to remove the structural inequalities (social, economic and cultural) that are at the root of women’s discrimination. Here it would be helpful to discuss the meaning of citizenship in South Africa and how to achieve it. This is a complex issue. Still a clear conclusion can be drawn from the evidence: that citizenship cannot be understood merely as a set of rights guaranteed by the Constitution. Rather it should be articulated in terms of the ability to access resources by the marginalized sectors of society, such as the women of rural communities.

Monica Morandi

Monica Morandi

Monica Morandi studied Economics in Modena and Political Sciences in Bologna, specialisation in Culture and Human rights. After a field research in Kingali (Rwanda) in 2007, she has been working primarily on the African continent and African issues.

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