Constitutional and legal rights

South Africa, March 2014

South Africa, March 2014

Various communities in South Africa practise the custom of lobolo (payment in kind or cash by a prospective husband or the head of his family to the head of the prospective wife’s family in consideration of a customary marriage). These communities may be divided into two groups, those practicing theleka (the withholding of a wife by her father or guardian from her husband to coerce him to pay the outstanding lobolo) and those that do not. In the communities practising theleka the amount of lobolo is not fixed and the father or guardian of the wife may from time to time theleka the wife and demand one to three head of cattle from his son-in-law. The wife and her children, if there are any, may be held by their maternal grandfather until the payment of lobolo has been met. The main issue this article examines is whether the custom of theleka impacts on the custody of children or not. It also examines the concept of the best interests of the child and finds that theleka custom in its current form does impact on the custody of the child and conflicts with the child’s best interests. The article suggests that theleka custom needs to be developed to conform to the Constitution. It also examines whether or not the custom of theleka constitutes abduction and family violence. The writer submits that it does not constitute abduction and family violence and advocates that theleka custom be allowed to continue

Given the continuing imbalances and current crisis with regard to gender-based violence in South Africa, the education of learners with regard to gender-based issues has been identified as critical. The South African school curriculum includes the compulsory subject, Life Orientation, which explicitly includes human rights issues such as gender equality. While official education policy documents promote gender equality in accordance with South AfricaÀŸs Constitution and Bill of Rights, the teaching-learning thereof is not adequately articulated in classroom practice. This study seeks to explore this discrepancy. The study is located within a feminist paradigm, the common aim of which is to challenge gender inequalities in society and contribute to the transformation of the lives of women. Literature was reviewed and provides clarification of the concept of gender equality, and in particular, in the context of education and schooling, and subsequent classroom practices. Sociological theories underpinning the construction of identity, together with a psychological approach, namely the Dialogical Self Theory, complemented by the concept of Àžidentity capitalÀŸ, construct the theoretical framework and the lens through which to analyse the data. In keeping with the feminist research paradigm, narrative inquiry is the preferred research methodology. Methods for data collection include self-administered questionnaires, written narratives and semi-structured, individual, face-to-face interviews. Nine female teachers of Life Orientation, teaching in six different schools, in four provinces in South Africa, voluntarily participated in this study. Employing narrative analysis, the crystallised data are presented in nine individual portraits. Each of these is analysed and discussed according to the concepts of the theoretical sociological and psychological framework. The data analysis gives insight into the selected teachersÀŸ understanding of gender equality, the position in general of women in their religious and cultural discourses, and their own positioning in their personal, social and professional domains. The findings of this study show that the strength of a teacherÀŸs Àžidentity capitalÀŸ informs her gender identity transformation. Increased extent and strength of Àžidentity capitalÀŸ, enabling the articulation of gender identity transformation in every domain of their lives, has the potential of developing teachersÀŸ classroom practice into classroom praxis. Effective teaching-learning about gender equality has the potential of informing the development of their female and male learners and to be transformative for South African society. This study contributes to research on teacher identity, the development of their normative professionalism, and teaching-learning in classroom practice. The findings also inform a broader international SANPAD1 research project, (2010 À“ 2012). Recommendations for further research include issues relating to professional teacher education programmes, focusing on extending and strengthening teachersÀŸ Àžidentity capitalÀŸ as the core stimulus for the development of teachersÀŸ normative professionalism.

This study, conducted in 2007À“2011, endeavoured to understand how resources influenced nine Muslim divorced women’s experiences of a relatively under-researched divorce-related ritual called Iddah. Prior to Islam’s inception, marriage and divorce were areas where women experienced oppression. Islam sought to change this by awarding women resources such as status and maintenance. Iddah was a form of social legislation that required men to treat their wives with dignity while maintaining them financially. However, what is said in the primary sources of Islam is not always practised. The context has thus changed from the time Islam originated. As a result there are various factors that have evolved to influence the religion, sometimes to the detriment of women within marriage and divorce, resulting in some of them finding it difficult to access resources. Using Marxist Feminism as a theoretical yardstick, it was noticed that certain contextual factors related to patriarchy and capitalism have come to influence the religion. The various themes developed, using qualitative research methods, created a platform to enquire which factors played a role in shaping women’s experiences of Iddah. While married, some respondents were physically abused and they had to endure the pain of their husbands being involved in illicit relationships. Hence they got divorced and performed Iddah. During this time some women were denied maintenance from their husbands due to spite. Certain participants alluded to receiving economic and emotional support from different types of support networks such as family members, friends and religious organisations. Some indicated that they were not happy with the support they received, citing stigmatisation and the fact that relevant support networks adopted an individualistic attitude towards some of them. It was concluded that some Muslims in the Gauteng region (the research site) have become influenced by patriarchal and capitalist practices which shape the number of resources available to women during Iddah. While Iddah was the central point of research, other factors that contradict Islamic law came to light. Hence a point for future research. Worthy support networks that assisted these women within a challenging society, should be acknowledged by government.

This thesis critically evaluates the position of pregnant women (and women who have recently given birth) in the context of South African Labour Law and social security law, from both a comparative and a South African perspective. The fact that women fall pregnant and give birth to children, while men do not, raises issues of theoretical and practical importance in regard to equality issues. Pregnancy has historically been both the cause of and the occasion for the exclusion of many women from the workplace because of the practical difficulties many women face in reconciling the demands of paid work with family responsibilities À“ although there is no logical reason why women’s giving birth to children necessarily means that they should have primary responsibility for childcare. The underlying premise which underpins the subject matter of this thesis is that pregnant women are unfairly discriminated against in the workplace. While it cannot be denied that men and women are different and that the biological fact of pregnancy is a state unique to women, this “differenceÀ has resulted in gender discrimination, and, more germane to this thesis, in pregnancy discrimination in the jurisdictions to be considered, namely, the United Kingdom, the European Union, SADC and South Africa. This thesis concentrates on various issues pertaining to pregnancy and maternity protection and emphasises the seemingly irreconcilable dichotomy between the desire to recognise and accommodate women’s unique role as child-bearers and the desire to achieve parity between the sexes in regard to conditions of employment, remuneration and general benefits. The central dilemma is whether women can be treated as equal to men in regard to opportunities, entry to the workplace and remuneration, on the one hand, and yet be treated in a special way when it concerns childbearing and childrearing, on the other. In this thesis it is argued that men and women are different and that social justice cannot therefore be achieved by equal treatment. In facing this challenge, legislatures and courts have become ensnared in the dichotomy of equality and distinction, and the question considered here is whether South Africa is fulfilling its constitutional and international obligations regarding the equal treatment, and the granting to them of equal opportunities and reasonable accommodation. This thesis develops an appropriate and relevant paradigm for pregnant women in the workplace. It identifies and highlights the existing deficiencies and lacunae in the South African legal system inherent in both labour law and social security law, and develops proposals for the possible amendment of the existing legislative framework by drawing largely on international, supranational, foreign and regional jurisdictions and by critically evaluating the current South African maternity terrain, particularly in the light of South Africa’s developing constitutional jurisprudence.

This paper presents an argument for the decriminalisation of sex work in Namibia. There is a chapter on Namibia’s international obligations and the history of prostitution in Namibia is examined. The current law in Namibia is compared with legal approaches to sex work in other countries and recommendations are presented.

South Africa struggles with high rates of both sexual offences and HIV/AIDS. In order to address rape
survivors’ vulnerability to HIV infection as a result of having been raped, the legislature introduced HIVrelated
services when they reformed South Africa’s law on sexual offences. Under the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007, commonly referred to as the Sexual
Offences Act, rape survivors have the right to receive post-exposure prophylaxis (PEP) for HIV, free of
charge at public health care facilities. PEP is an antiretroviral medication which may protect individuals
from HIV transmission if started within 72 hours of exposure to HIV and taken for 28 consecutive days.
The introduction of the right to PEP was a welcome step in strengthening rape survivors’ rights by
addressing their risk of HIV infection as a result of rape. Given that many rape survivors may not know
about PEP or how and where to access it, the implementation of this right depends very much on the
assistance of front-line service providers. The Sexual Offences Act acknowledges this fact by creating
legal duties for both health care workers and police officers to assist rape survivors in accessing the
time sensitive treatment. The policy framework under the Sexual Offences Act concretises the abstract
legal duties of police officers and health care workers by describing the scope and meaning of these
duties in more detail.
In light of these legal developments, the Gender, Health & Justice Research Unit (GHJRU) undertook a
two-year project to examine whether rape survivors are able to access PEP and other post-rape health
care services. In particular, the study aimed to find out what structural barriers, if any, exist when rape
survivors try to make use of these services. The GHJRU therefore undertook a multi-method study with
fieldwork in five provinces À“ Western Cape; Eastern Cape; Limpopo; Free State; Gauteng À“ to assess
the implementation of the law on PEP from the perspective of both providers (health care workers
and police officers) and rape survivors. Telephone surveys to different type of health care facilities
tested the accessibility and quality of telephonic information on PEP. Face-to-face interviews with police
officers and health care professionals explored providers’ knowledge of their legal duties and what
practical challenges they face in facilitating access to or administering PEP as well as other post-rape
health services, such as the forensic examination and medical treatment. In order to balance the data
from police officers and health care workers, the study also collected information on rape survivors’
experiences when trying to access post-rape health care services. For this purpose, the GHJRU
partnered with four non-governmental organisations (NGOs) that provide counselling services to rape
survivors: Rape Crisis Trust Cape Town (RCTCT); Thohoyandou Victim Empowerment Project (TVEP);
People Opposing Women Abuse (POWA) and Masimanyane Women’s Support Centre (MWSC).1
Counsellors from these NGOs collected data on their clients’ experiences when reporting the offence
to the police and/or a health care facility.
This report describes the conceptualisation and findings of the research.

In 2007 the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007); widely referred to as the Sexual Offences Act, replaced the Sexual Offences Act, 1957 (Act No. 23 of 1957, originally the Immorality Act, 1957). This act codifies the law relating to sex offences. It has been pivotal in creating a more nuanced and critical understanding of sexual violence, and creating the opportunities for victims of such violence to access justice and support. Specifically it broadened the range of acts that constitutes sexual offences (beyond vaginal penetration), standardised the age of consent for heterosexual and homosexual sex, and provides for a range of services to victims of sexual violence. However, in 2010, it became evident that Sections 15 and 16 of this Act, pertaining to adolescents, whilst intending the greatest possible protection for children, was actually unnecessarily punitive.
Sections 15, pertains to consensual sexual penetration with a child between 12 and16, and Section 16 of this Act, pertain consensual sexual violation with a child between 12 and 16. Because the definition of ‘sexual violation’ is so wide these sections criminalise romantic or sexual contact between adolescents including kissing, hugging consensual sexual intercourse between adolescents.

This submission has been compiled by members of the Shukumisa Campaign, a coalition of 28 organisations
working to prevent and address sexual offences. The organisations in the Campaign provide counselling, court
support, training to service providers, legal services, research and advocacy in the area of sexual offences. We
therefore have a strong interest in the development and implementation of the law, policies and services in
relation to sexual offences.