CHAPTER THREE THE JUDICIARY: EQUALITY AND THE SUBSTANTIVE APPROACH FOR THE REALISATION OF THE RIGHT TO GENDER EQUALITY
The affirmation of the right to equality in the South African Constitution, regional and international instruments in the quest for the elimination of all forms of discrimination and inequalities has been emphasised in chapter two. It has been further emphasised that the affirmation of the right to equality attaches great importance to the protection of human rights including women’s rights for the promotion of the right to gender equality.The importance and centrality of the right to equality is not only reflected in the Constitution and in the adopted legislation discussed in chapter two, but also from the jurisprudence that emanates from the Constitutional Court1 in South Africa. The court was crafted in the shadow of a discredited legal order and judiciary. It was designed to reflect and promote a post-apartheid vision of South Africa founded on the values of dignity, equality, non-racialism, non-sexism, supremacy of the Constitution and the rule of law.2 Gutto3 acknowledges the role and the strides taken by the court in upholding the values and principles envisaged in the South African Constitution when he contends that: “the historic and revolutionary role that played in South Africa’s political and legal history necessitated the establishment of the Court. The dawn of democracy presented an opportunity for the Court to restore some legitimacy and confidence through its functioning within the judiciary. This has further enhanced the development of sound foundations for constitutional and human rights jurisprudence since the first democratic Constitution in 1994”.4 The court has itself acknowledged its role in the development of the jurisprudence on equality around the concept of unfair discrimination in National Coalition for Gay and Lesbian Equality v Minister of Justice5 as it held that:
• it engages in a structured discourse centred on respect for human rights and non-discrimination.
• it reduces the danger of over-intrusive judicial intervention in matters of broad social policy, while emphasising the court’s special responsibility for protecting fundamental rights in an affirmative manner.
• it also diminishes the possibility of the court being inundated by unmeritorious claims, and best enables the court to focus on its special vocation, to use the techniques for which it has a special aptitude, and to defend the interests for which it has a particular responsibility, and finally.
• it places the court’s jurisprudence in the context of evolving human rights concepts throughout the world, and of our country’s own special history.6The jurisprudence of the court transformed the formalistic interpretation of the right to equality in favour of a more substantive approach for the promotion of the right to gender equality. It has signalled the intention of the court to move beyond the narrow confines of the right to equality to its broader meaning for the substantive development of the principles of non-discrimination. The development of the jurisprudence on equality requires the courts to examine the socio-political and cultural conditions of groups or individuals in deciding the cases of discrimination placed before them.7 The emphasis put on the role of the courts has ushered a new process which has endorsed the recognition that the right to equality should not be limited to the formal entrenchment of the right to equality in these instruments.
Baines et al observe that the idea of substantive equality does not seek to classify women differently from men. It is rather a strategy that seeks to identify patterns of subordination and suppression of women on the understanding that gender discrimination originates from a long history of women’s inequality. They argue that the difficulty with “formal equality” is not that it is based on erroneous notions of similarity between men and women, but that it does not go far enough to eliminate the inequalities8 which still manifest themselves despite the legislative and judicial progress made in South Africa. The substantive conception to the realisation of the right to equality is based on a premise that “formal equality” alone will not bring about concrete results in the elimination of discrimination and prejudice against women.9 The rigidity of the formal conception of the right to equality is further characterised by Partington et al as a “thickskinned approach” that ignores the reality of deep-rooted structural inequality.10 They contend that equality as a value and as a right lies at the heart of the South African Constitution and substantiate their argument by holding that:“substantive equality is concerned with equality of outcome and as such it necessitates a proactive approach. It requires an investigation into the social conditions of groups and individuals in order to ensure equality is achieved, and not merely ultered down corridors of convenience”.
List of acronyms
Table of Contents
CHAPTER ONE: BACKGROUND
1.2 The purpose of the research
1.3 The statement of the problem
1.3.1 Achieving gender equality: beset with problems
1.4 Factors inhibiting the promotion of the right to gender equality
1.4.1 Socio-cultural factors inhibiting the quest for equality
1.4.2 Lack of legal information
1.4.3 Lack of access to justice
1.4.4 Lack of resources to implement gender related laws
1.4.5 Gaps in law reform
1.5 Assumption underlying the study
1.6 The research design or methodology and the limitation of the study
1.7 The sequence of chapters
CHAPTER TWO: THE EVOLUTION OF THE PRINCIPLE OF EQUALITY AND NONDISCRIMINATION IN INTERNATIONAL AND SOUTH AFRICAN HUMAN RIGHTS LAW
2.2 The international human rights law and the evolution of the principles of nondiscrimination
2.3 Sources of non-discrimination laws within the international framework
2.3.1 The international bill of rights and the basic principles of equality
2.4 The development of the agenda for the right to equality in Africa
2.5 The application of international norms of equality in the domestic sphere
2.6 The legislative evolution of the right to equality in South Africa
2.6.1 The essence of the right to equality in the South African Constitution
22.214.171.124 The Domestic Violence Act and the freeing of everyone from all forms of violence and discrimination
126.96.36.199 The Recognition of Customary Marriages Act and the balancing of customs or customary law within the framework of human rights for gender equality
188.8.131.52 The Maintenance Act and the advancement of the right to social security for gender equality
184.108.40.206 The Promotion of Equality and the Prevention of Unfair
Discrimination Act and the express prohibition of unfair
discrimination and inequalities
2.7 Legal reform and gender equality?
CHAPTER THREE: THE JUDICIARY: EQUALITY AND THE SUBSTANTIVE APPROACH FOR THE REALISATION OF GENDER EQUALITY
3.2 The importance of international human rights in the development of the domestic principles of non-discrimination
3.2.1 Theoretical framework for the application of international human rights norms and standards in the domestic sphere
3.2.2 The strategic approaches for the use of international law in the development of the jurisprudence of the principles of non-discrimination at the domestic sphere
3.3 The jurisprudence of substantive equality for the promotion of the right to gender equality in South Africa
3.3.1 The development of the value-based approach to the interpretation of the right to gender equality
3.4 The “differentiation approach” for the promotion of the right to gender equality
3.5 Equality and the interpretation of legislation and other rights in the Constitution for the realisation of gender equality
3.5.1 Equality and the right to freedom of security
3.5.2 Equality and the enforcement of maintenance claims
3.5.3 Equality and the promotion of socio-economic rights
3.5.4 Equality and human dignity for gender equality
3.6 The development of common law for the realisation of the right o gender equality
3.7 The intersection of customary law and the right to equality for the promotion of the right to gender equality
3.8 Equality and the implementation of court orders for the promotion of the right to gender equality
3.9 The “differentiation approach”: strategy for gender or women’s equality?
CHAPTER FOUR: GENDER EQUALITY: A DISTANT DREAM FOR SOCIAL CHANGE
4.2 Public views and confidence on the role of the courts in the promotion of the right to gender equality
4.2.1 Public confidence and the courts?
4.2.2 The exercise of public power in the development of public confidence for gender equality
4.2.3 Exerting the authority of the courts for public confidence: a question for gender equality?
4.3 The development of indigenous languages at the magistrates’ courts for the promotion of the right to gender equality
4.3.1 Protecting indigenous languages in the Constitution
4.3.2 Understanding the language of the courtroom
4.4 The jurisprudence of language rights
4.4.1 The general approach to language rights at the courts
4.4.2 The review of court processes on the use of indigenous languages for gender equality
4.5 The general and institutional barriers to the promotion of indigenous languages for gender equality
4.6 The constitutional and institutional independence of the magistrates’ courts
4.6.1 The general purpose and significance of magistrates’ courts
4.6.2 Specialist courts within the magistracy
4.7 Specialist courts and the enforcement of gender equality?
4.8 Specialist courts: social control or social change?
4.9 Specialist courts: denouncing the arguments against the use of law for social change?
CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS
5.2 Summary: legal reform and various factors inhibiting the promotion of the right to gender equality
5.3 Possibilities for legal and institutional development