Women have a right to Equality!

 

Constitution of the Republic of South Africa: Chapter 2: Bill of Rights (1996). https://www.gov.za/documents/constitution/chapter-2-bill-rights#7

The equality of Women Rights is highlighted in Section 9 of the Bill of Rights within the South African Constitution…

 

“The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Such discrimination is punishable by law.

 

In applying the ideals set out in Section 9 of the Bill of Rights, we need remember that equality against a history of inequality does not mean treating women and men identically. Equality means treating women and men differently to redress the human rights violations against women of the past. (Maluleke & Madonsela, 2004).

 

In application, here are 10 South African laws empowering women to become equal with men in 2020 and beyond…
  1. The Criminal Procedures Act 51 of 1977

Criminal Procedure Act 1 (1977). https://www.justice.gov.za/legislation/acts/1977-051.pdf

Whilst you may be in violation of the law to deny a physical search of your person, there are specific rights you need to demand are honoured to avoid physical harassment:

  • You may request official identification of the law enforcement officer before agreeing to any questioning or body search.
  • You are also entitled to knowing the grounds for the search- suspicion is not enough for a body search.
  • Only a female officer may conduct a bodily search on another female.
    • If a female officer is not present, the accused may request the male officer to call a female officer to the scene then the action may proceed.
  • Any authorized body search should be conducted in the most sensitive and least invasive manner. The officer is not allowed to question you during a body search. They may not touch your breasts or genital areas and a full strip search is the last resort.
  • If you feel your safety is compromised, a female citizen is allowed to remain with you until a female officer arrives at the scene.
  • A female is always afforded the right to call for help when she feels her safety is threatened

 

  1. Sexual Health, Reproduction and Family Planning Rights

National Contraception and Family Planning Policy.  (2012). Department of Health. http://www.partners-popdev.org/wp-content/uploads/2015/08/National-contraception-family-planning-policy.pdf

The Children’s Act 38 (2005). https://www.gov.za/sites/default/files/gcis_document/201409/a38-053.pdf

Women’s Reproductive Rights in South Africa: A Shadow Report. (2003). Centre of Reproductive Rights. http://www.reproductiverights.org/sites/default/files/documents/SRSouthAfrica98en.pdf

https://www.gov.za/sites/default/files/gcis_document/201409/a38-053.pdf

Sexual Health, Reproduction and Family Planning Rights for women form part of our constitution- The Highest Law of the Land. This allows for women to advocate for their rights irrespective of patriarchy, customary law or cultural norms ‘stealing’ women’s sexual and reproductive rights from them. These laws include but are not limited to:

The Choice of Termination of Pregnancy Act 92 of 1996

Within the first 12 weeks of a pregnancy a woman may request a termination of pregnancy without reason. Rape and incest are grounds for termination of pregnancy without questioning. Social and economic circumstances negatively affecting the mother’s ability to care for the child are considered in terminating a pregnancy after the first 12 weeks of pregnancy. Other options like adoption are also discussed with the mother within a required counselling process before termination is authorized. Termination of pregnancy remains the right of the mother- permission is not required from the father or any other interested party.

HIV Testing & Counselling

Women have the right to free HIV/AIDS testing at governmental health facilities. Part of this free service includes free pre and post-test counselling, which is to be treated with confidentiality. One’s HIV Status is a confidential matter which cannot prejudice them.

Access to Contraceptives

The Children’s Act 134 of 2005 states that access to sexual health information, contraceptives and termination of pregnancy services are available without parental consent from the age of 12 years. Sexual Health information should be provided with prevention of unwanted pregnancy, sexually transmitted diseases and violation of sexual rights in mind. Contraceptives should be granted in accordance with a medical examination and consultation to determine the best suited method. Counselling should be offered too. All sexual health services administered to the client are confidential.

Sterilization Act 44 of 1998

The choice to permanently incapacitate oneself from reproducing children by means of sterilization remains the decision of the individual in question alone- no other person may authorize this procedure. Sufficient education and counselling is required for the decision to be made.

 

 

  1. The Domestic Violence Act 116 of 1995

Fredericks J., & Sanger C. (2014). http://www.probono.org.za/Manuals/Family-Law/Domestic-Violence/domesticviolenceguide-WLC.pdf

Whilst the act is not limited to protecting women alone, the act was birthed out of a need to protect women from the abuse of men. The Domestic Violence Act allows for reports from married, unmarried, separate or co-living parties. Any of the following acts are reportable and will result in a protection order granted from your local police station or court of law:

  • Physical violence and threats of physical violence.
  • Emotional abuse.
  • Economic abuse – this can include situations where a partner refuses to provide money for food and shelter, and where he tries to destroy or remove property that is jointly owned.
  • Sexual abuse or threats of sexual abuse.
  • Harassment, which can include: – Watching your place of work or home or anywhere that you go to. – Making a lot of telephone calls to your place of work. – Sending letters, parcels or anything else to your home or your place of work.
  • Stalking – this is when you are often being followed.
  • Entry to your place of residence without your permission – this can only be domestic violence if you no longer live with the person.
  • Damage to your property.

 

  1. The Labour Relations Act 66 of 1995

Labour Relation Act 66 (1995). http://www.labour.gov.za/DOL/legislation/acts/labour-relations/labour-relations-act

The Labour Relations Act specifies but does not limit the following acts as sexual harassment in the workplace:

  • Touching
  • Unwelcome sexual jokes
  • Unwanted questions about your sex life
  • Whistling
  • Rude gestures
  • Requests for sex
  • Staring at your body in an offensive way

Under the Act, women have the right to report the compliant to your superior, or alternatively to the Commission for Conciliation, Mediation and Arbitration (CCMA) The CCMA is legally required to investigate and advocate for the rights of the sexually harassed victim. The Act specifies that employers are required to implement measures to prevent workplace harassment and discipline workplace harassment too. Victims of workplace harassment may sue the individual and the employer too especially if internal processes to prevent and discipline the harassment were not evident.

 

  1. The Matrimonial Property Act 88 of 1984

Maluleke, M. J., & Madonsela, T. (2004). Women and the law in South Africa: gender equality jurisprudence in landmark court decisions. Department of Justice and Constitutional Development.

Prior to November 01st 1984, married women’s economic, social, legal or property rights were determined by her husband. A husband therefore owned his wife and all marital assets were shared or withheld from her as he saw fit. The Matrimonial Property Act 88 of November 1, 1984 over-ruled that women had no economical, social, legal and property rights of their own. Matrimonial contracts now view women as equal in the marriage allowing them to make decisions on behalf of their husbands and to maintain their own economic, social, legal and property assets.

  1. The Prevention of Family Violence Act 133 of 1993

Maluleke, M. J., & Madonsela, T. (2004). Women and the law in South Africa: gender equality jurisprudence in landmark court decisions. Department of Justice and Constitutional Development.

Kaganas, Felicity (1986). “Rape in Marriage: Developments in South African Law”. International and Comparative Law Quarterly. 35 (2): 456–461. doi:10.1093/iclqaj/35.2.456ISSN 0020-5893.

The Prevention of Family Violence Act 133 of 1993 was an extension and formalization of the 1989 law recognizing that non-consensual sexual acts between married persons was still sexual harassment and rape. Further extensions to the act in 1998 saw the cautionary rule abolished. This means that evidence from the victim is all that is required to prove rape. The absence of other witnesses and even the denial of the perpetrator no longer excuses the case from the court.

  1. The Recognition of Customary Marriages Act 120 of 1998

Maluleke, M. J., & Madonsela, T. (2004). Women and the law in South Africa: gender equality jurisprudence in landmark court decisions. Department of Justice and Constitutional Development.

Customary marriages do not need to be registered as civil marriages in order to be recognized as a legal and binding marital contract by the Court of Law. As a recognized legal contract, women married by customary law may not be denied property, social, legal and economic rights upon the loss of her husband or dissolve of the marriage. Women married by customary law have all of the laws of civil marriage available to them to use in court should they deem their customary marriage discriminatory or harmful to women in anyway.

 

  1. Women’s Right to Vote

Kadalie, Rhoda (1995). “Constitutional Equality: The Implications for Women in South Africa”. Social Politics. 2 (2): 208–224. doi:10.1093/sp/2.2.208. ISSN 1072-4745.

Blee, Kathleen M., and France Winddance Twine, eds. Feminism and antiracism: International struggles for justice. NYU Press, 2001.

Civil rights for South African women suffered under gender and racial inequality. Whilst white women were granted the right to vote in 1933, coloured, black and other racially classified women gained the right to vote in 1983.

 

  1. The Maintenance Act 99 of 1998

Maluleke, M. J., & Madonsela, T. (2004). Women and the law in South Africa: gender equality jurisprudence in landmark court decisions. Department of Justice and Constitutional Development.

Biological fathers are required by law to financially contribute to the upbringing of their child irrespective of whether they are married or living with the child and his/her mother. The amount payable, termed maintenance, is determined by the court of law and should as much as possible, reflect an equal contribution to that of the biological mother’s maintenance. A mother may apply to the Magistrates Court or High Court for the payment of maintenance by the biological father. In the event of the biological father not being able to pay maintenance, the court may order the paternal grandparents to pay maintenance on his behalf. Failure to pay maintenance is a criminal act punishable by the court of law. This Act prevents women from carrying the financial burden of child rearing on their own.

 

  1. Basic Conditions of Employment Act 11 of 2002

Claassen, A. (2019). https://www.labourguide.co.za/conditions-of-employment/452-maternity-leave

Women whom are pregnant during their permanent employment or at the time of their employment are entitled to 4 months consecutive maternity leave. Notification must be given to management in writing at least 4 weeks before the mother intends on taking maternity leave. The division of this time either prior to the baby’s arrival or after the baby’s arrival is up to the mother and her medical team in question. Women are not authorized to return to work within the first 6 weeks of their child’s birth. A maternity benefit of 6 weeks extends to those whom have miscarried or birthed a stillborn baby too. Employers are not legally obliged to compensate women whilst on maternity leave. The Unemployment Insurance Fund of South Africa is available as a means of providing a portion if not one’s entire salary for the duration of maternity leave provided they are registered with the Fund through their employer.

 

REFERENCE LIST:

Blee, Kathleen M., and France Winddance Twine, eds. Feminism and antiracism: International struggles for justice. NYU Press, 2001.

Claassen, A. (2019). https://www.labourguide.co.za/conditions-of-employment/452-maternity-leave

Fredericks J., & Sanger C. (2014). http://www.probono.org.za/Manuals/Family-Law/Domestic-Violence/domesticviolenceguide-WLC.pdf 

Kadalie, Rhoda (1995). “Constitutional Equality: The Implications for Women in South Africa”. Social Politics. 2 (2): 208–224. doi:10.1093/sp/2.2.208. ISSN 1072-4745.

Kaganas, Felicity (1986). “Rape in Marriage: Developments in South African Law”. International and Comparative Law Quarterly. 35 (2): 456–461. doi:10.1093/iclqaj/35.2.456ISSN 0020-5893.

Constitution of the Republic of South Africa: Chapter 2: Bill of Rights (1996). https://www.gov.za/documents/constitution/chapter-2-bill-rights#7

Criminal Procedure Act 1 (1977). https://www.justice.gov.za/legislation/acts/1977-051.pdf

Labour Relation Act 66 (1995). http://www.labour.gov.za/DOL/legislation/acts/labour-relations/labour-relations-act

National Contraception and Family Planning Policy.  (2012). Department of Health. http://www.partners-popdev.org/wp-content/uploads/2015/08/National-contraception-family-planning-policy.pdf

The Children’s Act 38 (2005). https://www.gov.za/sites/default/files/gcis_document/201409/a38-053.pdf

Women’s Reproductive Rights in South Africa: A Shadow Report. (2003). Centre of Reproductive Rights. http://www.reproductiverights.org/sites/default/files/documents/SRSouthAfrica98en.pdf

https://www.gov.za/sites/default/files/gcis_document/201409/a38-053.pdf

Maluleke, M. J., & Madonsela, T. (2004). Women and the law in South Africa: gender equality jurisprudence in landmark court decisions. Department of Justice and Constitutional Development.

 

 

 

 

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