Programme Director
Honourable Minister of Justice and Constitutional Development, Mr. Jeff Radebe (MP)
Hon. Chief Justice, Judge Mogoeng Mogoeng
Hon. Premier of the Eastern Cape, Ms Kieviet
Hon. North West High Court Judge President, Judge Monica Leeuw
Hon. Eastern Cape High Court Judge President, Judge Sangoni
Hon. Northern Cape High Court Judge President, Judge Kgomo
Hon. Justice E Munuo – President of the IAWJ
Hon. Judge Connie Mocumie – President of the SAC IAWJ
Hon. SAC IAWJ members
Hon. Mayor of the Nelson Mandela Metropolitan
Members of the legal profession
Distinguished guests
Ladies and gentlemen
I am humbled and honoured to address this special occasion.
This conference is of special interest to me and the department that I have the honour to lead. The nation has entrusted us with the responsibility to ensure that women, children and people with disabilities are empowered to access their rights as well as the opportunities that have been brought by our democracy and freedom. Together, we shoulder a responsibility to ensure that equality, freedom and all rights guaranteed in our Constitution become a practical reality for all the women of our land.
The 1994 democratic breakthrough gave South Africa the possibility to address the scourges of poverty, unemployment and inequality and to restore the dignity of all its citizens. In 1995, at the World Summit for Social Development in Copenhagen and at the Fourth World Conference on Women in Beijing, governments committed themselves to implementing concrete actions in order to eradicate poverty.
In Beijing, the international community recognised expressly that women and men experienced poverty differently and unequally and became impoverished through different processes. If these differences are not taken into account, the causes of poverty cannot be understood or effectively addressed. Women are in a more disadvantaged position because they have the dual need of making a living and providing care for family members, tasks that are not equally shared by many men.
The UN Millennium Declaration and Development Goals (MDGs) adopted in September 2000, at the Millennium Summit, which sought to discuss strategies to reduce and ultimately eradicate world poverty, commit the nations to a new global partnership to reduce extreme poverty and set out a series of time-bound targets, with a deadline of 2015.
Programme Director, in line with the democratic dispensation and in pursuit of constitutional imperatives guaranteeing a ‘rights-based’ environment and the rule of law, and in compliance with our international obligations, government has put in place laws and policies to improve the quality of life of everyone, including women. This resulted in the production of an unprecedented body of laws that lay the foundation for the transformation of our society, including the transformation of the judiciary.
Transformation of the judiciary and the judicial system to equalise opportunities between women and men, and between races is part of the broader transformation programme of our country. The pursuit of race and gender representivity is not an idle numbers game, but a constitutional imperative. Section 174(2) requires that when appointing judicial officers, the need for the judiciary to reflect broadly the racial and gender composition of South Africa should be considered.
We would like to see 50-50 gender parity in the judiciary. In fact, given the fact that women constitute 52% of the population of our country, and in compliance with section 174(2) of our Constitution, it is reasonable to demand that the judiciary should progressively realise the 52% women representation on the bench.
As you may well be aware, the process of developing the Women Empowerment and Gender Equality Bill is at an advanced stage. The Draft Bill will be tabled before Cabinet during the 2012/13 financial year. This will help enforce compliance in both government and the private sector. The effective implementation of this Act will also help to fast-track the accomplishment of the Millenium Development Goals. South Africa has made commitments through the Constitution, various pieces of legislation and international conventions to respect, promote, protect and advance the rights of women. We have a duty and obligation to honour these commitments.
Quite often, when we talk about women representation on the bench, we are told that there are no women to appoint. This is an insult to all women in the legal profession. I believe that women are as competent as their male counterparts. The real reasons behind such assertions are the stereotypes that influence the perception of the world around us.
That is why when Judge Presidents who really want to promote equality in their courts find women lawyers who are competent to act as judges, however, those who believe that women cannot be judges cannot find women lawyers who are competent to act as judges. Chief among these is the matter of entrenched negative attitudes towards gender equality, lack of understanding and accountability to address this coherently.
The requirement for proportional representation is about access to justice. The diverse experiences of women and men shape the paradigm of their understanding and application of law. Equal representation of women on the bench will provide an opportunity for women to bring the history of their complex lives and experiences, and thus introduce an array of contemporary critical perspectives in the understanding and application of the law to benefit all South Africans, especially women.
I know that some members of the judiciary argue that their life experiences do not influence their decision making. I beg to differ, because that would mean that you are not human beings. It is natural that life experiences should influence how you perceive things, and therefore, as a member of the judiciary, it does influence your decision-making on the bench.
Lest I be misunderstood, let me state unequivocally that I acknowledge that there has been a lot of improvement in the judiciary. That is why I feel so extremely honoured to participate in this conference with highly esteemed members of the judiciary. For me to see so many women judges and magistrates is testament to the fact that we have come a long way. This is worth celebrating. When I received the invitation to participate in this conference, I was extremely thrilled by the realisation that women in the judiciary are organising themselves to make a difference in their lives and those of other women in South Africa. These women did not think that they have arrived and therefore need to hold their peace.
While South Africa records great strides made in the attainment of women’s empowerment and gender equality, there is nevertheless the persistence of inequality between women and men, compounded by the continuing practices of patriarchy and sexism. We are also concerned about attempts to reverse some of the gains we have made in this direction.
As a department, we are encouraged by the almost universal opposition to the Traditional Courts’ Bill. As a result of the relentless and unequivocal position adopted by the women, this Bill will not see the light of day. We have consistently stated that this Bill, in its current form, will not stand the Constitutional test, and that as a nation, we must guard against all attempts to reverse the progress we have registered in the area of women empowerment and gender equality. I call on women judicial officers to become vocal on matters such as these, so that together, we can ensure that the agenda of women empowerment and gender equality is consolidated and advanced.
On an occasion such as this, we must pause and pose difficult and uncomfortable questions to ourselves. For example: Has the judicial system, as an institution, really transformed? Have black people and women been brought in to merely change the colour of the bench while the bench still operates in the old way? These are the fundamental questions that must be confronted and debated honestly and openly.
As a result, I support organisations such as the International Association of Women Judges (IAWJ) as their purpose is to facilitate dialogues within the judiciary on real transformation without being bound by the protocols that impede dialogue in the judiciary. Together, we must resist attempts to shut down debate on the transformation of the judiciary and its effectiveness in dispensing justice. We are concerned that open and frank debates about the judiciary are dismissed as “an attack on the judiciary”. In a Constitutional democracy such as ours, there should be no holy cows!
I also comprehend the challenges faced by the IAWJ in that it does not have a dedicated budget and therefore has to go begging for financial assistance in order to run its programmes. I am told that in some instances the members have to dig deep from their own pockets in order to ensure that the organisation is represented internationally. My dear ‘sisters’ that is the sacrifice that established the posterity of women like Charlotte Maxeke and other stalwarts in the field of promoting women’s rights.
Programme Director, according to the United Nations Secretary General (A/59/2005),” the protection and promotion of the universal values of the rule of law, human rights and democracy are ends in themselves. However, they are also essential for a world justice, opportunities and stability, this includes the attainment of the Millennium Development Goals (MDGs). The MDGs represent human needs and basic rights that every individual around the world should be able to enjoy - freedom from extreme poverty and hunger, quality education, productive and decent employment, good health and shelter, the right of women to give birth without risking their lives, and a world where environmental sustainability is a priority, and women and men live in equality. State leaders also pledged to forge a wide-ranging global partnership for development to achieve these universal objectives.
Each goal contributes to the realisation of the other and the attainment of these goals is the responsibility of everyone in all sectors of the state, including the private sector and civil society. The judiciary has a central role in the protection and promotion of human rights, including women’s human rights. Falling short would multiply the dangers of our world – from instability to epidemic diseases to environmental degradation. But achieving the goals will put us on a fast track to a world that is more stable, more just, and more secure.
Indeed, the living conditions of the majority of ordinary women have undergone significant qualitative change as a result of our policies and programmes that started in 1994. Women now have access to housing, water, electricity, education, social services, healthcare and other services. We are making progress in addressing the primary health care needs of women and girls as reflected in the decline of child and maternal mortality as well as mother-to-child transmission of HIV rates. We are encouraged by these developments, but believe that more still needs to be done.
Despite the progress we have made, more intractable problems of transformation are apparent. Socio-economic indicators of inequality suggested that the lives of the majority of women, children and people with disabilities have not improved substantially since the inception of democracy. Even with evidence of material gains for some, overall the picture is of deepening gendered and class-based poverty and inequality.
Violence against women is regarded as a missing MDG target, undermining efforts to reach all the goals. Ending violence against women and girls, which too many women and girls face daily, is stunting their opportunities, curtailing their mobility and denying their rights and is one of the major factors inhibiting the achievement of the MDGs.
Notwithstanding laws aimed at curbing violence against women, women continue to be subjected to violence. The levels of gender-based violence in South Africa, especially sexual violence, are unacceptably high. As members of the judiciary, you know better since you deal with these issues every day. It remains a matter of grave concern to government. The role of my department is to ask questions such as: “What is the source of these high levels of violence against women, and what is the impact of implementation of the existing laws and programmes?”
Gender-based inequality is the major source of violence against women and children. Sexual violence is more likely to occur in societies with rigid and traditional gender roles, where the ideology of male superiority is strong, emphasising dominance, physical strength and male honour. On the other hand poverty increases people’s vulnerability to sexual exploitation. Individuals who lack sufficient economic resources to meet their basic needs, specifically women, may have to resort to bartering for essential goods with sex.
As government, we are taking the war against gender-based violence to a higher level. Cabinet approved the establishment of the National Council Against Gender-based Violence, which is a high-level multi-sectoral national response to the scourge. Led by the Deputy President, we are confident that the work of the Council will lead to a significant reduction in the incidents of violence against women and children. The National Council Against Gender-Based Violence will be launched on the 25th of August 2012. The Council will, among other things, review and monitor the implementation of the existing 365 Days National Action Plan on No Violence Against Women and Children which was adopted on 8 May 2007. An Interim Council has already been established and its Secretariat is located in the department.
Programme Director, we must applaud the role played by the superior courts in developing the law progressively when antiquated statutory, common or customary law result in the continued discrimination of women and inequality between women and men. There are many court decisions that I can refer to, but there are also many court decisions and practices that have actually reversed the gains that women have made.
Programme Director, I do not understand why payment of maintenance has been such a contentious issue in South Africa. The failure by fathers to pay maintenance condemns many women and their children to absolute poverty, eking out a hand-to-mouth existence with little if any respite from the stress of constantly addressing issues of survival. The Maintenance Act 99 of 1998 is a progressive piece of legislation, particularly in its provision for automatic garnishee orders, attachment of emoluments and orders by default.
However, despite these constituted improvements, there is little effective improvement in the situation of women and children concerned in that a range of challenges still confront them in their attempt to access maintenance and justice. Presiding Officers, maintenance is about the eradication of poverty and improvement of healthy lives of children.
Women’s poverty is a central manifestation, and a direct result of women’s lesser social, economic and political power. In turn, women’s poverty reinforces their subordination and constrains their enjoyment of every right. Poverty exacerbates and deepens the inequality of members of already disadvantaged groups, especially women and children. Poverty perpetuates women’s under-representation in all spheres of life and impacts on their ability to claim and enforce their rights.
Ladies and gentlemen, the responsibility for human development is for the judiciary as much as it is for government. Therefore gender mainstreaming and the promotion of gender equality within and without is the responsibility of all. We should all be involved in the reconstruction and development of our society.
As you are all aware, government established the Department of Women, Children and People with Disabilities in 2009. During Women’s Month in 2010, President Zuma articulated our mandate as follows: “The department was instituted to ensure the mainstreaming of gender, children’s rights and disability considerations into all programmes of government and other sectors. This will help government to respond to issues of these targeted groups in an integrated and coherent manner”.
Thus the responsibility to translate into practical reality the historic pledge we made to restore the dignity of all our people and to make ours a caring society, was placed firmly on the shoulders of this department. However, it has to be understood that ours is not an implementing department. In discharging our mandate, we work with other government departments, provinces, municipalities, civil society and the private sector to ensure that our mainstreaming agenda makes a meaningful difference to the lives of women, children and people with disabilities.
In support of this mandate, the department has to monitor and evaluate the mainstreaming of the rights and wellbeing of Women, Children and Persons with Disabilities into government’s policies, programmes and governance processes. One of our roles is to assist government to assess budgets through a gender lens, to facilitate the inclusion of equity in budget performance indicators and to examine the impact of budget policies on gender equality outcomes, especially towards the achievement of the MDGs.
“A budget is the most comprehensive statement of a government’s social and economic plans and priorities. In tracking where the money comes from and where it goes, we can see who benefits from public resources and how. Although budgets are usually perceived as gender-neutral, as a set of numbers that impartially affect women and men, closer inspection reveals that this is often not the case. Generally, budgets are gender-blind rather than gender neutral.” (Gender Responsive Budgeting and Women’s Reproductive Rights: A Resource Pack, UNIFEM).
One of the biggest battles in our constitution-making process had been over whether socio-economic rights, such as the right to health, housing, food and education, should be included as fundamental rights in our Bill of Rights - “The so-called ‘bread rights’ to be included on a par with ‘freedom rights’, as Justice Albie Sachs puts it.”The role of my department is to ensure that gender is mainstreamed throughout.
Although women’s participation in paid work has increased, this has not necessarily improved their economic status. The challenge is also the dual systems where while women employed by government enjoy benefits such as paid maternity leave, equal pay for work of equal worth, women employed in the private sector have inadequate or no maternity leave at all and do not enjoy equal pay for equal worth of work. Poverty is a result of choices as to how we organise our society and economy, but poverty alleviation measures might not change the gender balance in society unless gender is expressly factored in. This is equally true for socio-economic rights.
Before you start confronting me and demanding your Constitutional right to enjoy your dinner, let me wish you well. I hope you will have productive deliberations during the conference proceedings.
Working together we do more to transform the judiciary and ensure women empowerment and gender equality.
I thank you.
