Gender, culture and the law: the South African experience

• Author: Mokgadi Lucy Mailula
• Profession: Judge, High Court of South Africa
• Pages: 75-80

75

Part II: Towards Gender Equality

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6. Gender, culture and the law: the

South African experience

Mokgadi Lucy Mailula, Judge, High Court of

South Africa

A body of case law has come into being over the past 14 years which demonstrates

the extent to which the South African judiciary has shown respect for gender and

cultural rights, and its ability to deal with the tensions between them.

Section 8(1) of the Bill of Rights in the South African Constitution provides that the Bill

of Rights applies to all law and binds ‘the legislature; the executive; the judiciary and

all/organs of state’. Specific provisions in the area of gender, culture and the law are:

• Section 9 of the Bill of Rights in the Constitution of the Republic of South Africa Act,

108 of 1996 (‘the Constitution’) deals with matters of gender and culture and

prohibits unfair discrimination on the basis of various differences. The section

embraces a plethora of differences so as to cater for the diversity of people who

inhabit the country.

• Section 9 provides that neither the state nor any person may unfairly discriminate

directly or indirectly against anyone on one or more grounds, including race,

gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual

orientation, age, disability, religion, conscience, belief, culture, language and birth.

• Section 31 of the Constitution was enacted to entrench respect for diverse cultures,

religions and languages in South African society. It provides that persons belonging

to a cultural, religious or linguistic community may not be denied the right, with

other members of that community, to enjoy their culture, practice their religion and

use their language; and to form, join and maintain cultural, religious and linguistic

associations and other organs of civil society.

In briefly highlighting the following cases, I demonstrate the judiciary’s aspiration and

intent to advance women’s rights in the context of gender, culture and the law.

Women as mothers: recognition of their current socio-

economic disadvantages

• In President of the Republic of South Africa and Another v. Hugo,1 the social

and economic disadvantages to black people and women in South Africa were

1. 1997(6) BCLR (Butterworths Constitutional Law Reports) 708 (CC).