GENDER POLICY AND LEGISLATION DURING THE FIRST 20 YEARS OF DEMOCRACY

Abstract

1. Introduction South Africa's progressive legal framework, which provides for both the protection and promotion of the rights of and attempts to address their historically disadvantaged and subordinate position, has been hailed by both politicians and scholars as one of the country's success stories. Central to this is the South African Constitution (Act 108 of 1996), which gives unprecedented rights, particularly in its Bill of Rights (chapter 2). In addition, the Constitution makes provision for a Commission on Gender Equality (chapter 9) to promote the attainment of and respect for gender equality. (1) Numerous laws have also been promulgated to ensure that proactive measures are taken to protect women's constitutional rights. (2) Labour laws are specifically 'women-sensitive'. The Labour Relations Act of 1995 (section 203(2)) makes provision for Codes of Good Practice. Such a Code on the Handling of Sexual Harassment Cases was issued in 1998 by the National Economic Development and Labour Council. The Basic Conditions of Employment Act of 1997 (amended in 2002 to include the domestic worker sector) guarantees, among other things, maternity leave, job security during pregnancy, minimum wages, housing and health care for previously excluded groups, such as domestic workers, while the Employment Equity Act of 1998 includes as a 'designated group' to which affirmative action measures apply. In addition, the Broad-Based Black Economic Empowerment Act of 2003 (2) demonstrates its commitment to black in its aim to increase the ownership and management of existing and new enterprises and increasing their access to activities, infrastructure and skill straining. In the socio-personal realm, important legislation includes the Choice on Termination of Pregnancy Act of 1996 (which recognises women's right to abortion without the consent of another person), the Maintenance Act of 1998, the Recognition of Customary Marriages Act of 1998, and the Domestic Violence Act of 1998 (which defines violence as encompassing various forms of abuses and gives broad power to courts to shape the conditions of a protection order). The introduction of gender machinery (structures in the state mandated with monitoring legislation and policy for gender equality in line with the Beijing Platform for Action, article 201), championed by the National Women's Coalition (NWC) in the early 1990s, has also been noted as a significant milestone in the quest for women's rights in South Africa's early years of democracy. Hailed as one of the most advanced and integrated structures in the world (Gouws 2006: 143), it consisted of a set of which the Office of the Status of Women (established in 1997 and located in the President's Office) formed the apex with Gender Focal Points (GFPs) in National and Provincial Departments at the operational level. The Commission for Gender Equality and the Parliamentary Joint Monitoring Committee on the Improvement of the Quality of Life and Status of Women (JMC) formed the other components of the 'gender machinery'. However, although placing equality on the statute book does serve a normative function, it does not inevitably lead to a change in lived experience. Thus, despite the above robust legal achievements, actual implementation of these measures has not readily occurred (Fester 2004). Notwithstanding women's empowerment on paper and the removal of de jure inequalities, economic and social injustices have to a large extent remained deeply entrenched within the broader societal framework (Hames 2006: 1317). In addition, it has been argued that despite the nuanced gender rights 'culture' on paper, still comprise the majority of the poorest and most marginalised in South Africa, and that patriarchal power underlies the marginalisation of women (Bentley 2004: 248). Several scholars have also pointed to the potential tension in the Constitution in which the Bill of Rights (chapter 2) on the one hand preserves gender equality, but simultaneously guarantees the protection of chieftainship and respect for traditional authority (chapter 12). …