Women in law and society

September 30th, 2015

By Nomfundo Manyathi-Jele

The North-West University (NWU) held a one-day colloquium titled ‘Women in Law and Society’ in celebration of its 50 year anniversary and Women’s Day. The colloquium was held in Johannesburg on 6 August.

Speakers at the colloquium included Dean of the faculty of law, Professor Nicola Smit; special adviser to Minister Susan Shabangu, advocate Joyce Maluleke; and Pretoria Bar advocate, Doctor Jannet Gildenhuys.

A critical discussion was held on where women find themselves today in law and society (as opposed to 50 years ago) and which challenges they still face.

Topics addressed included –

  • women in the labour market;
  • women in legal practice;
  • the changed role of women in family law;
  • domestic violence;
  • gender equality and indigenous law; and
  • corrective rape.
Senior Lecturer at the North-West University’s faculty of law, Rolien Roos, giving the welcome address at the university’s one-day colloquium titled ‘Women in Law and Society’ in Johannesburg in August.

Senior Lecturer at the North-West University’s faculty of law, Rolien Roos, giving the welcome address at the university’s one-day colloquium titled ‘Women in Law and Society’ in Johannesburg in August.

While giving an introduction to the first session, Senior Lecturer at NWU’s faculty of law, Rolien Roos, said that every year more than 50% of law graduates are female. She added that what is of great significance is that between 90 and 100% of those who obtain their degrees with distinction are female. ‘It is a wonderful story to demonstrate how far we have come over 50 years. But we should ask ourselves what happens to those 55% of law graduates that enter their professions, why do we not see 55% female managing partners in the larger law firms? Why do we not see 55% practicing advocates, senior advocates or judges?’ She questioned, adding that ‘only a very naïve person would argue that we in South Africa have real substantive gender equality in 2015. Despite our wonderful Constitution, despite a whole month being named women’s month, we are still faced with a number of problems regarding gender equality in South Africa’.

Women in the formal and informal economy

Professor Smit spoke on women in the formal and informal economy and looked at the progress made and challenges remaining. She said the gender gap had improved in the past decade in South Africa adding that equal opportunities and employment cannot, however, be said to exist as yet.

According to professor Smit, women can only take up their rightful space in workplaces if labour and social policies are mindful of prevalent stereotyping in society in general; women’s double burden of paid and unpaid work and discrimination in employment opportunities, benefits and career progression.

Professor Smit further said: ‘Although every decision maker and person of influence should be sensitive to women’s rights it is, in particular, incumbent upon women in positions of authority and influence to be mindful of achieving the equal treatment of men and women in the world of work.’

Speaking on equal treatment entrenched in the Employment Equity Act 55 of 1998, professor Smit said that s 6(1) contains a list of 19 grounds on which unfair discrimination is prohibited. She added that the list corresponds to the one in the Constitution but adds three more grounds, namely, family responsibility, HIV status and political opinion.

Professor Smit added that the 19 grounds referred to are broadly constitutive of human identity. She added that in 2014, s 6(1) was amended to include the words ‘or on any other arbitrary ground’.

‘The limits on what might be considered to constitute an “arbitrary ground” are likely to prove controversial, especially given the close link drawn by the courts between discrimination and the concept of dignity. For example, relevance to workplace needs, commercial rationale or operational requirements, and lack of tertiary qualifications may not constitute “arbitrary” grounds – to the extent that they would ordinarily not affect a person’s dignity – but may well be irrational or capricious and therefore arbitrary,’ she said, adding that this amendment was very significant for women.

Professor Smit referred to the Woolworths (Pty) Ltd v Whitehead (Women’s Legal Centre Trust intervening) 2000 (3) SA 529 (LAC), which she said illustrates the importance of the amendment very clearly. She said Ms Whitehead was a pregnant lady who applied for a senior position at Woolworths. She was told orally that she got the job. In the evening someone from Woolworths called her and she disclosed the fact that she was pregnant, the next day when she went to Woolworths she was told that there had been a mistake, she did not have the job as there was another candidate who still had to be interviewed. The job offer eventually went to a male candidate. Ms Whitehead argued that she was not appointed because of her pregnancy.

This case reached the Labour Appeal court (LAC). Professor Smit said at the LAC one of the judges stated that it was an absolutely rational thing to consider when someone applies for a senior position whether that person is pregnant or not. ‘Now what the judge did not realise is that it is not a person who is pregnant, it is only a woman who is, and also that you are only pregnant for nine months, not for the rest of your life,’ said professor Smit. ‘If a judge at the LAC can find pregnancy as a rational ground to consider, then we are in trouble,’ she added.

Professor Smit said the 2014 Amendment Act has specifically extended s 6 to include the concept of equal pay for the same or similar work and of work of equal value.

Professor Smit also said there are many women who do not return to work after maternity leave. ‘The question is why, why is it difficult for women to take time off from work. It does not help to have labour protection, which is centred on the concept of a traditional employee if the majority of your population does not qualify as a formal sector employee,’ she said.

Professor Smit concluded by saying that South Africa has a very progressive and wonderful legal framework regulating equality in the workplace. She said
s 6 grants equal rights and opportunities to women and men regardless of a number of attributes. ‘In South Africa we are at a very good place, we have all the legal provisions that are necessary for women to have equal opportunities. We do have political will but we also have significant challenges. Much more should be done about the mindset of people,’ she said.

Corrective rape and transformative constitutionalism

Jurisprudence and ethics lecturer at NWU, Alison Geduld, spoke on corrective rape and transformative constitutionalism.

She described ‘corrective rape’ as the rape of a person in order to cure him or her of their sexuality. According to Ms Geduld, lesbian women are in most of the reported cases the victims. She said the rapes are brutal in nature and have been fatal in some instances.

Ms Geduld said there were no national statistics on corrective rape cases, but ActionAid, a non-governmental organisation, has indicated that they deal with approximately ten new cases a week. Ms Geduld added that it was unfortunate that family collusion was involved in some of the cases where mothers get people to correctively rape their own children. Ms Geduld added that corrective rape was more prevalent in the townships where black lesbians are targeted because being a lesbian is seen as ‘unAfrican’ and ‘unChristian’.

Ms Geduld said the law should be used as a vehicle to progressively transform the mindsets and social norms of society. She then went on to define what ‘transformative constitutionalism’ means. She said the late former Chief Justice, Pius Langa, said there is no uniform definition of transformative constitutionalism but that it is in keeping with the spirit of transformation that there should not be no single understanding of it. Ms Geduld added that the former Chief Justice said transformation is not only the responsibility of the court, but other arms of government should also play their role. She said there is no one common definition but that it envisions a change, from a divided South Africa to a more equal one.

Customary law, the constitutional protection and human rights

Special adviser to Minister Susan Shabangu, advocate Joyce Maluleke, speaking on customary law at the North-West University’s colloquium on ‘Women in Law and Society’ in Johannesburg in August.

Special adviser to Minister Susan Shabangu, advocate Joyce Maluleke, speaking on customary law at the North-West University’s colloquium on ‘Women in Law and Society’ in Johannesburg in August.

Special adviser to Minister Shabangu, advocate Maluleke, spoke on customary law.

She said that virginity testing violates privacy adding that there is no proof that virginity testing protects children. She did, however, add that not all children are forced to undergo virginity testing as some of them do so with the pride they have for their culture.

Ms Maluleke said that if parents force their children to undergo virginity testing, the children can go to the equality court or they could open a criminal case with police. She also said South Africa has many laws, which are not implemented simply because people do not know about them.

According to Ms Maluleke, many traditional practices have changed such as the rule that circumcision can now only be done during the winter holidays as healing is faster and is more hygienic, it can no longer be done in summer. She added that circumcision had now been commercialised.

Another example that she gave about how tradition had changed was the practice of ukuthwala. Ms Maluleke said ukuthwala had become a crime adding that in the olden days it was very different. ‘The men would never sleep with the young girls before first having discussions with the young girl’s family. Even if we abolish ukuthwala in legislation, it and virginity testing would continue because it is seen as tradition,’ she said.

Access to justice remains an aspiration for rape survivors

Executive director of Tshwaranang Legal Advocacy Centre to end Violence Against Women,  Nondumiso Nsibande, explained why access to justice remains an aspiration for rape survivors in South Africa. She said there was a culture of impunity in the country with low conviction rates, adding that low legal literacy levels on rights also played a part in low conviction rates.

Other challenges highlighted by Ms Nsibande included obstacles in accessing justice, poor investigating processes, negative attitudes and lost dockets.

Ms Nsibande said gender based violence (GBV) was one of the most pervasive human rights violations. She said, according to studies, it was evident that GBV had reached epidemic proportions in the country. The study found that –

  • 77% of women in Limpopo;
  • 51% of women in Gauteng;
  • 45% of women in the Western Cape; and
  • 36% of women in Kwa-Zulu Natal report experiencing some form of violence.

She added that over 78% of men in Gauteng have admitted to committing some form of GBV.

Ms Nsibande said data from the South African Police Service (SAPS) for 2013/2014 show that there were 62 649 sexual offences cases and a conviction rate of under 8%.

Similarly in the previous year, 66 387 sexual offences cases were recorded (SAPS Crime Statistics) and only 4 669 sexual offences cases resulted in conviction (National Prosecuting Authority, 2014) equalling an 8% conviction rate.

Speaking on policy and legislative framework, Ms Nsibande spoke on –

  • Domestic Violence Act 116 of 1998, which provides for remedial measures for victims of domestic violence through the issuing of protection orders from magistrate’s courts. This Act also allows for a non-traditionalist approach to accessing justice and broadens the definition of domestic violence. She added that this Act also places specific legal obligations on the police regarding assistance for domestic violence including assisting in finding shelter and medical assistance.
  • Sexual Offences Act 32 of 2007 provides for the creation of sexual offences and repeals the common law definition of rape. She said it offers special protection for children and persons with disabilities but added that implementation of this Act remains a huge challenge.

The judiciary and the changing role of women in family law

Family law lecturer at the Stellenbosch University, Doctor Debra Horsten, spoke on the changing role of women in family law and the response of the judiciary to this role. She said that women’s role in society has been traditionally seen as running the home and caring for the family, and the man is seen as the breadwinner. ‘These roles did start to change with the gender revolution and industrial revolution with women taking on paid employment. The first half of the gender revolution saw the weakening of the family structure with women taking on economic responsibilities with little relief from their family responsibility,’ she said.

Doctor Horsten said South Africa has a patriotic, diverse and unequal society, which does not allow the gender revolution to be embraced. She added that in many households the gender revolution has either not started, with women dedicating all their time to child rearing and household chores, or it is in its first half phase.

Doctor Horsten asked what the judiciary can do to try help this situation change. She said the preamble of the Constitution contains a transformative mandate for all spheres of government including the judiciary. ‘Generally if parties are married, and the marriage ends either by death or divorce, the married woman generally finds herself in a better off position than she would have been had she merely been co-habiting. This is because the law attaches automatic consequences to marriage, one of which is spousal maintenance. In an unmarried co-habiting couple there are currently no automatic attachments in South African law and there is no claim should that relationship end. What is the judiciary doing about this? In the case of married couples the courts give protection to the other spouse. In the case of domestic partnership, it appears the courts are not offering protection to the partner, because the parties had the choice to marry but chose not to,’ she said.

Women in legal practice

A panel discussion was held under the theme ‘women in legal practice – 1965 to 2015 and beyond’. The panel consisted of Dr Gildenhuys; attorney and Director at C van Rooyen Attorneys, Celesté van Rooyen; Vice President of legal at Sasol, Castalia Moloi; and professor of international law at the University of Johannesburg, Mia Swart. All the women spoke about their positions, as well as some of the challenges they faced.

Ms van Rooyen said that when she first became an attorney people would always think that she was a secretary. She said that she loves what she does, and has a lot of passion for it adding that it took her a while to overcome the moral objections that she had in herself. ‘I have not looked back once and thought no, what am I doing with my life?’

Pretoria Bar advocate, Dr Gildenhys, spoke on women in the advocate’s profession. She said the Bar was not for everyone. ‘Not every woman is interested in a career at the Bar, the hours are severe, your programme is unpredictable, the stress is high, there are no benefits, you do not step into an established practice, you build one, one brief at a time,’ she said.

Dr Gildenhuys said when she joined the Bar in 1999, 10% were women and that the number stayed at 10% for a number of years. ‘According to the statistics from 2003 to 2013 there was a very constant growth of about 1% per year over 11 years. In 2003, there was 14% women at the Bar, in 2014, it was at 25%. One in every four advocates today is a woman. The constitution of the Pretoria Bar has a provision that at Bar council level, at least four members of the Bar council have to be women, the council consists of 18 members,’ she said.

Dr Gildenhuys said the Pretoria Bar also exempts expecting mothers from paying Bar fees, for about four months if you apply, adding that this makes it a little bit easier to retain your chambers and to return to your practice after having taken maternity leave.

Dr Gildenhuys concluded by saying that although progress is being made in the advocate’s profession, there were levels that are lagging behind, such as the appointing of senior status. ‘According to the statistics I have, as of the end of last year, only 5% of all silks in the country are women. I think it is also low because of the low number of women on the Bench. The minute women got awarded silk, they are usually called to the Bench,’ she said.

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

This article was first published in De Rebus in 2015 (Oct) DR 12.