Sources of non-discrimination laws within the international framework 

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CHAPTER TWO THE EVOLUTION OF THE PRINCIPLES OF EQUALITY AND NON-DISCRIMINATION IN INTERNATIONAL AND SOUTH AFRICAN HUMAN-RIGHTS LAW

Introduction

The affirmation of the dignity and worth of a human person in equal rights for both men and women in the Universal Declaration of Human Rights1 has led to the entrenchment of the right to equality in a number of international instruments which have also inspired several regional and domestic instruments. The international instruments provide a framework against which the struggles for the realisation of the right to equality may be tested, as the UDHR provides for a common standard of achievement of equality for all nations and people in their respective jurisdictions.2
These instruments put an emphasis on the centrality of the principles of equality and non-discrimination at the core of the development of the international human-rights law agenda. The basis for this development has firmly rooted the explicit recognition of equal rights and fundamental freedoms for both men and women.3 The recognition of equal rights has resulted in the development of the international agenda for gender equality, which has developed alongside the other international human rights norms and standards. Eriksson affirms that the development of the international agenda for equality has formed a conceptual basis of international law by incorporating into legal analysis,among other things, gender perspectives.4 In addition, women’s rights advocates have strongly influenced the international discourse on human rights to make it more sensitive to women’s concerns.5 This development will never bear fruit without the domestic incorporation or ratification of the international human rights laws in ensuring the freeing of the potential of each person.6 The purpose of this chapter is to provide a brief overview of the most important legal instruments on the right to equality in the international human rights law’s theoretical framework in the development of the principles of non-discrimination. The regional influence of this development will be limited to African regional developments and their reception by the South African constitutional framework and mechanisms for the promotion and protection of the right to equality.The focus of this chapter is not on examining the translation of the right to equality into reality, but rather to highlight that the legislative framework for equality is an important tool and essential measure for social change. This is borne out by the fact that the value of the principles of equality is recognised worldwide, even though all the international human rights instruments are subject to ratification by state parties to the adopted conventions and agreements. The international norms and standards provide an independent frame of reference for ensuring the fundamental rights and freedoms of all persons. At the same time, the international human rights instruments oblige the states to provide for the protection of human rights under their own jurisdictions through constitutional and other measures, as South Africa has done. The point of departure in this chapter is an assumption regarding the potential of the international human rights law’s influence in the development of domestic laws for the promotion of the right to gender equality. The domestic development of substantive equality should not only reflect on the broad principles of equality, but one which ensures the actual substantive translation of the right to equality through national mechanisms and other strategies.

The international human rights law and the evolution of the principles of non-discrimination

The principle of non-discrimination developed within the international community over a number of decades. It encompasses the protection and promotion of the right to gender equality. Almost all international conventions enshrine the principle of non-discrimination based on the grounds of race, gender, status and other grounds enumerated in the various instruments. The Women’s Rights Division of the Human Rights Watch7 unequivocally affirms that discrimination and prejudice against women is contrary to the principles of equality. Discrimination against women is nevertheless exacerbated by the fact that many millions of women, throughout the world, live in conditions of deprivation of, and attacks against, their fundamental human rights for no other reason than that they are women.8 The international community has progressively developed and found well-suited conventions and the best ways of ensuring the eradication of all forms of discrimination against women. The development of legislation does not per se translate into actual
enjoyment of the right to equality in practice. It is an essential tool that lays the foundation for the promotion of equal rights for both men and women. As Sachs J put it in Fourie:
“it needs to be remembered that not only the courts are responsible for vindicating the rights enshrined in the Bill of Rights. The legislature is in the front line in this respect. One of its principal functions is to ensure that the values of the Constitution as set out in the preamble and section 1 permeate every area of the law.”9

Declaration 
Abstract 
Acknowledgements 
List of acronyms 
Table of Contents
CHAPTER ONE: BACKGROUND
1.1 Introduction 
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
2.1 Introduction 
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
2.6.1.1 The Domestic Violence Act and the freeing of everyone from all forms of violence and discrimination
2.6.1.2 The Recognition of Customary Marriages Act and the balancing of customs or customary law within the framework of human rights for gender equality
2.6.1.3 The Maintenance Act and the advancement of the right to social security for gender equality
2.6.1.4 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? 
2.8 Summary
CHAPTER THREE: THE JUDICIARY: EQUALITY AND THE SUBSTANTIVE APPROACH FOR THE REALISATION OF GENDER EQUALITY
3.1 Introduction 
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? 
3.10 Summary 
CHAPTER FOUR: GENDER EQUALITY: A DISTANT DREAM FOR SOCIAL CHANGE
4.1 Introduction 
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? 
4.9 Summary 
CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS
5.1 Introduction 
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 
5.4 Summary
ANNEXURES
Annexure A: Letter for interviews 
Annexure B: Questionnaires for the courts, rights-based organisations and general members of the public 

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IMPEDIMENTS IN THE PROMOTION OF THE RIGHT TO GENDER EQUALITY IN POSTAPARTHEID SOUTH AFRICA

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