Programme Director,
The IAWJ President, Judge Connie Mocumie,
Members of the judiciary in all your stripes,
IAWJ members and patrons,
Chairpersons and Commissioners of the Chapter 9 Institutions,
Civil Society members,
Ladies and gentlemen,
A good morning to you all.
In view of the 20 years of freedom celebrations that the country is engaged in this year the South African Chapter of the International Association of Women Judges (IAWJ) could not have chosen such an appropriate topic for me to reflect on: “Reflecting on 20 years of democracy and the social context of the South African Justice System.”
One way to sum up the achievement of the last twenty years is to say that, with democracy, the South African society has become safe for the law again—indeed, not even “again”, but actually for the first time. Because neither apartheid nor colonial South Africa was ever a safe place for the rule of law, properly understood.
The appropriate question for judges prior to the landmark covenant that Nelson Mandela marked in his inauguration speech of 1994 was: what injustice has been done in the name and behind the skirt of the law? Or as the poet Audre Lorde put it in the Marvelous Arithmetics of Distance: “Who did you bury to become enforcer of the law?”
It is worth emphasising that in the absence of a just society and legitimate laws, judges become part of the problem. That is why the then Minister of Justice and Constitutional Development, and my colleague in the presidency, Jeff Radebe, on the occasion of releasing a discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African State in February 2012 said, “The judiciary has an important role in safeguarding and protecting the Constitution and its values and in ensuring the consolidation of democracy and the realisation of a better life for all. It does this through its constitutionally entrenched judicial authority.
Over the years, many in the Judiciary have shown a profound understanding of the constitutional imperatives and set out to defend the basic law of the land. This includes many judgments, particularly by the Constitutional Court, that have reflected a progressive interpretation of the Constitution and social rights in particular.”
The Judges of that same Constitutional Court would be the first to acknowledge and indeed insist that there is a long road still to go before we sleep.
Coming to the subject matter at hand, my understanding of the social context of the justice system is that it is a tool of analysis for examining the social impact on the diverse justice seekers and their needs.
The understanding of the social context within the justice system is central to substantive justice. This is what the freedom fighter and retired (former) Constitutional Court Justice Albie Sachs meant when he said that law is “congealed politics.” It is not politics in the everyday and partisan sense but in a far more profound and underlying way in that the law links our political and social processes back firmly to our highest ideals.
Thus the decisions of the Judiciary contribute to substantive equality and community development or the resolution of the triple challenges of poverty, inequality and unemployment.
The significance of the 20 years of our democracy can only be appreciated when one understands the history of our struggle. Both men and women played a pivotal role but given the nature of this occasion, I am compelled to be biased and to focus in particular on the contribution of women because this is a conference with a bias towards women taking place during the Women’s Month.
Women gave in the bloodiest manner. In 1982 Ruth First was assassinated by an apartheid bomb sent to her at an academic institution in Mozambique where she was in exile. Your fellow woman lawyer, Victoria Mxenge, also laid her life for all of you to be here today. The heroic exploits of these women need to be told and celebrated because they provide the context of understanding the basis for our constitutional approach and why it should be promoted.
The path that they and other women traversed to give birth to our democracy was curved over a hundred years ago by their endless sacrifices and a courageous spirit displayed by these heroic stalwarts who are an embodiment of 101 years of a relentless forward march to total emancipation, land rights, equality, justice and others. Unarmed and defenseless, they challenged the might and brutality of successive oppressive regimes in order to ensure that future generations live in a non-sexist, non-racial, country that truly belongs to all.
This year, as we celebrate 20 years of democracy, we are also celebrating 60 years of the Women’s Charter of 1954. The fight that the women marchers of 1956 embarked on is in many ways still relevant today, which is why we have organisations such as the IAWJ. Those women were not only fighting for political emancipation but economic empowerment, equal representation, access to justice, land rights and others, as articulated in the “Women’s Charter” and reiterated in the 1994 Women’s Charter for Effective Equality.
The 1954 Women`s Charter called for the enfranchisement of men and women of all races, the right to vote and be elected to all state bodies; the right to full opportunities for employment with equal pay and possibilities of promotion in all spheres of work; equal pay for equal work; equal rights in relation to property, land rights, marriage and children; and the removal of all laws and customs that denied women such equality among others.
It further demanded paid maternity leave for women, childcare for working mothers, and free and compulsory education for all South African children. The demands in the Women’s Charter were ultimately incorporated into the “Freedom Charter” and used by the Women’s Coalition to lobby for their inclusion in the Interim Constitution of 1993.
No South African woman had the right to vote until the 1930 Women's Enfranchisement Act, which granted white women aged 21 years and older the right to vote and to run for office. White women voted for the first time during the elections of 17 May 1933 where a white female MP was elected, while black Africans of both genders remained wholly excluded.
This reminds us not to overlook the important theme that academics describe as the “intersectionality” of race and class. The fact of gender oppression, white and black, served to complicate both gender and anti-racist activism under apartheid.
You will agree with me that one of South Africa’s greatest achievement within the 20 years of democracy is our Constitution (1996). It provided the basis for the transformation of the state and society, along numerous lines including those of race, gender. It sets out, as its vision, the establishment of a non-racial, non-sexist, equal and prosperous democratic society, founded on human rights.
One of the founding principles of the Constitution is the ‘universal adult suffrage, a national common voters’ roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.’ This, coupled with sections 3 and 20, guarantee citizenship for all South Africans irrespective of gender or race and the right to vote.
The uniquely transformative features of our Constitution seek to redress the legacy of inequality and deprivation entrenched in over 3 centuries of colonialism and apartheid.
Accordingly, for the law and its institutions to play a meaningful role in the fulfilment of the Constitutional vision, there needs to be certain fundamental shifts. In my view, the key fundamental changes that need to happen within law relate to:
- Systematising equality in all aspects of the law
- Closing the gap between law and justice.
A closer look at the two reveals their interconnectedness and symbiotic relationship. If we accept equality as real as opposed to theoretical enjoyment of all rights and freedoms, then justice is an element of equality. Furthermore, true or substantive justice is unimaginable without according equal consideration to all. The prerequisite for true or substantive justice is substantive equality.
Different meanings are often ascribed to gender equality; some de-emphasise differences between women and men as a justification for the call for similar treatment, which we refer to as formal equality; some demand equal worth and dignity for women in equality with men despite the difference, which we refer to as substantive equality.
Substantive equality takes into consideration biological differences such as pregnancy and breastfeeding that only women can experience by virtue of their biological construction. It also takes into account accumulated social disadvantage that women suffered due to years of political, social and economic exclusion and insubordination. Hence section 174 (2) of the Constitution requires the judiciary to reflect broadly the racial and gender composition of South Africa.
Today women judges constitute about 30% of all the judges. There is even a woman Judge President and a woman Deputy Judge President. Two of the Constitutional Court judges, the highest Court in the land, are women. In the magistracy women constitute about 41% of the total magistracy. Women are also represented in the Judicial Service Commission and the Magistrates Commission. While progress is noted more still need to be done to ensure the transformation of the Judiciary.
Twenty (20) years into democracy, women continue to face the evil triplets of poverty, unemployment and inequality. This is a reality that cannot be ignored by the judiciary when adjudicating. The social patterns of exclusions and disadvantages that women experienced in the past remain a systemic feature of the South African social and economic landscape.
Structural barriers in the economic, political, social and environmental levels reinforced racial and gender inequalities. Women were marginalised and discriminated against in terms of economic opportunities, the labour market as well as access to land, credit, and finance.
Cultures, social systems and religions have, also in the past, promoted patriarchy and the oppression of women. Discrimination against women took a variety of forms, from disenfranchisement to various forms of abuse.
The legislative review process undertaken over the past twenty years to address the legacy of discrimination against women has resulted in the production of an unprecedented body of laws on employment, property rights, family law, the eradication of violence against women and others. However, our achievements are not without further challenges. I will discuss some of the challenges experienced in the implementation of this impressive legislation.
Notwithstanding laws aimed at curbing domestic violence, women continue to be subjected to violence, for example, many of the problems that the Domestic Violence Act (DVA) sought to address persist. This includes recidivism. In many instances victims continue to endure abuse despite having secured protection orders. In some of these cases the abuse progresses to murder or “intimate femicide”.
In an attempt to address the incidences and prevalence of rape and sexual offences in South Africa, rape laws were reviewed and amended to ensure that all legal aspects of rape and sexual offences are dealt with in a single statute, the Criminal Law (Sexual Offences and Related Matters) Amendment Act, to improve their prosecution and conviction. However, the time it takes for rape and sexual offences cases to go to trial defeats the purpose. It is worse for raped minors who end up forgetting their evidence.
The Maintenance Act provides for garnishee orders, attachment of emoluments and orders by default; however these provisions are under utilised, why? I hope you are no longer influenced by statements such as: “You cannot kill the goose that lays the golden egg,” whereas the goose has become barren and no longer lays the golden egg.
The Recognition of Customary Marriages Act (RCMA) was promulgated to recognise and regulate customary marriages. However, the implementation of the RCMA has been confronted by a number of hurdles that emanate from interpretation difficulties and lack of knowledge of the Act by public officials and the general public, among others.
Despite the absence of explicit sanctions for non-registration in the RCMA, there are many indirect sanctions for those who have not registered their customary marriages, especially women who have to prove the existence of the marriage for many reasons including getting their inheritance or share of the estate.
Although these customary marriages are not statutorily invalidated by non-registration, many civil and private institutions regard registration as the yardstick for validity. Companies, pension funds and government departments require people to produce a marriage certificate whenever their marital status is questioned by other women claiming to be wives also or the in-laws.
Unequal access to land remains one of the main key forms of economic inequality, which has dire consequences for women, both as social and political actors in society. While the official land reform programme aims to redress past inequalities resulting from systematic racial discrimination, the implementation of a gender equality approach requires a change in the social structures, beliefs and divisions of labour.
Major issues here concern the advancement of women’s rights in communal, family and household land, as well as the recognition of women’s right to participate on equal terms with men as individuals in land reform projects.
As a result my department has made inputs into the Department of Rural Development and Land Reform Final Policy Proposal on Strengthening the Relative Rights for People Working the Land in order to ensure that it the policy mainstreams gender.
Legislation and policy alone cannot guarantee equitable access to land for women because of the patriarchal nature of the South African society. Failure to systematically identify, address and remove the underlying causes of discrimination will result in continued imbalances and inequalities in accessing land between men and women, and between races within the country.
In conclusion, programme director, injustices against women generally and especially those women at the intersection of race and gender, has virtually disappeared. This includes all laws and formal policies that precluded women from entering any occupation or profession of their choice, owning property or engaging in any business venture.
However, the whole world remains patriarchal, with men dominating all aspects of life – from the family to politics, business and the workplace, including the judiciary and the legal profession – that is why always before the Judicial Service Commission (JSC) interviews, you will hear debates about women’s lack of experience to be appointed as judges. Who decides?
The judiciary must continue to live up to its important role of safeguarding and protecting the Constitution and its values and thus ensure the consolidation of democracy and the realisation of a better life for all. This can only be achieved if decisions by the judiciary takes into consideration the social context of the justice seekers.
I thank you.
