Equality, an ideal that like should be treated alike, lies at the heart of most national constitutions and all international human rights instruments. Despite its ancient origins, however, this principle is far from being achieved in practice. Hence, in the search for full substantive equality, critical legal scholars put forward a theory and accompanying analytical framework of intersectionality. Using South Africa as an example, this thesis examines the realisation of the constitutional promise of equality for those who have been traditionally marginalised by reason of their intersecting race and gender identities. The process of navigating this identity intersection is complicated by the cultural diversity that is a feature of South African society. The Constitution nevertheless, encourages such diversity, and goes even further to give equal recognition to the coexisting systems of common and customary law that are rooted in Western and post-colonial African cultures, respectively. It follows that a full understanding of the different legal and social contexts in which a rights claimant lives is critical to the achievement of substantive equality. In order to simplify the investigation of context, the thesis proposes an acronym: GRACE. This term stands for a South African girl child, who lives through the intersecting identities of Gender, Race, Age and Culture in her search for Equality. She serves not only as an embodiment of these identities, but also as an analytical tool for those required to undertake an equality analysis. This thesis therefore presents an opportunity for the reader to observe GRACE’s journey, and along the way, to note how the rights of female litigants have been developed. The milestones of the journey are marked by the High Court case of Mabena v Letsoala (1998) as well as the 1 1998 2 SA 1068 (T). CONSTRUCTING EQUALITY: DEVELOPING AN INTERSECTIONALITY ANALYSIS TO ACHIEVE EQUALITY FOR THE GIRL CHILD SUBJECT TO SOUTH AFRICAN CUSTOMARY LAW iii Constitutional Court cases of Bhe v Magistrate Khayelitsha (2005), Shilubana v Nwamitwa (2008), and Mayelane v Ngwenyama and Another (2013), all of which focus on the legal agency of women in areas that had formerly been the purview of senior males. On the basis of these decisions, a hypothetical case of seduction is then presented so as to demonstrate how both the customary and common law can be interpreted to improve equality rights and develop the relevant conflicting laws. As the argument in the thesis develops, the GRACE model of analysis emerges as a useful device for assisting the judiciary to fulfil its constitutional mandate to “develop” rather than abolish laws that infringe the Bill of Rights. Such an approach is especially appropriate when dealing with customary legal systems, because they are, by their very nature, flexible and adaptable. 2 Bhe and Others v Magistrate Khayelitsha and Others; Shibi v Sithole; South African Human Rights Commission v President Republic of South Africa 2005 (1) BCLR 1 (CC). 3 2009 (2) SA 66 (CC). 4 2013 (4) SA 415 (CC). CONSTRUCTING EQUALITY: DEVELOPING AN INTERSECTIONALITY ANALYSIS TO ACHIEVE EQUALITY FOR THE GIRL CHILD SUBJECT TO SOUTH AFRICAN CUSTOMARY LAW

Constructing equality: developing an intersectionality analysis to achieve equality rights for the girl child subject to South African customary law

This article examines the use of gender in constitutions and its significance for gender equality. New democracies, and some older ones, are increasingly including gender provisions in their constitutions. What is the impact of these provisions on women's political and economic status? Does constitutionalizing gender serve to empower women? If so, what kinds of provisions have an empowering effect and under what conditions? To address these questions, we trace the political use (legislation, policy, and judicial interpretation) of gendered constitutional provisions in Botswana and South Africa, countries that differ substantially with respect to how they have “constitutionalized” gender. The case studies demonstrate how constitutional provisions provide a legal basis and legitimacy for women's rights advocacy and how they influence the content of legislation and judicial review of laws and policies.

Constitutionalizing Difference: A Case Study Analysis of Gender Provisions in Botswana and South Africa

Like many middle-income countries (MICs), Latin American welfare states are squeezed between demands for basic social goods and neoliberal policy prescriptions backed by the pressures of a globalized economy. They are pressed to limit taxes, services, and the public sector in order to grow their economies by neoliberal lights; but they have sufficient resources to make the prospect of providing basic goods for their vulnerable populations more than a pipe dream. In MICs across the world, but perhaps especially in Latin America, social movements and reformers seeking ways to resist pressures to limit the welfare state have turned to economic and social rights (ESR) as a tool of mobilization. In alliance with courts, these advocates for ESR have sometimes been successful in tempering the harsher impulses of neoliberalism, and even in expanding and broadening the reach of public provision of goods like health care, housing, or water. It is our suggestion that the politics of the welfare state in MICs are often shaped by the nature of this alliance between courts and ESR advocates. When courts take a more active role, they can become the central axis of debate, conflict, and cooperation among legislators, members of the executive, and social movements; when courts take a back seat, the debate remains more traditional, and social movements and their allies are generally weakened. Moreover, the forms that judicial “activism” may take also make a critical difference. Courts’ interventions can be more policy oriented, or less so; they can address individual grievances or systemic problems, and this too shapes how their intervention will affect politics. In many countries, courts have come to supply crucial deficits in the state, prodding inert central ministries into action; spotlighting large and small gaps in public policy; and lending political leverage and moral authority to ESR movements and advocates. In this way courts can compensate, in some measure, for deficits in responsiveness and accountability toward the mass of poor and vulnerable citizens on the part of bureaucrats, elected officials, and party elites, even under conditions of democratization. At the same time, however, it is clear that courts are not a panacea, either for activist groups seeking to preserve or broaden social programs, for central governments seeking to monitor compliance with centrallydeveloped policies, or forMICs

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The Role of Courts and Constitutions in the New Politics of Welfare in Latin America

Sixteen years since the end of the liberation struggle South Africa's cities have become crucial spaces of self-determination and lively community democracy. Yet their form has changed very little instead highlighting the persistence of poverty (and racism) within neoliberal, post-apartheid capitalism that the transition promised to end. This article explores the enduring quality of deep economic and social marginalization, specifically in the context of Cape Town's informal settlements, which reflect both collective desires for "rights to the city" and their denial.

The "Dialectics of Toil": Reflections on the Politics of Space after Apartheid

The emergence of a uniquely African formulation of feminism is one of the most energizing developments in feminist theory and discourse in recent history. As African women confront unprecedented economic and political challenges, they also are questioning, and, in some instances, redefining, individual and societal orthodoxies of gender and family roles. This Article will examine the discourse on African feminism and will consider the practical utility of feminist theory in the context of one extraordinary group of South African women, the members of the Victoria Mxenge Housing and Development Association. The discussion will review the historical context in which the Association evolved, will reflect upon a few of the impediments that its members confronted, and will contemplate the challenges and possibilities that these women continue to encounter.

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Unbound by Theory and Naming: Survival Feminism and the Women of the South African Victoria Mxenge Housing and Development Association

I. BACKGROUND In South Africa, the history of colonialism and apartheid rule has resulted in a significant overlap of race and poverty. Because poverty and inequality are so strongly gendered, the most disadvantaged and marginalized in our society are black women. (1) A substantial number of black women are further disadvantaged by their exposure to cultural and religious regimes that make the struggle for gender equality even more complex. Specifically, African customary law--which is essentially patriarchal in both character and form and has been interpreted in a way that allocates crucial benefits according to male primogeniture has had a particularly detrimental effect on the socio-economic power and well-being of rural women. (2) The effect of the HIV/AIDS pandemic on women is a reflection of the complexity created by the interface between poverty and inequality as it impacts women's daily lives. (3) Achieving effective gender equality is, therefore, the key to the eradication of disadvantages faced specifically by women. As soon as the political negotiation process for a new dispensation was on the table and the drafting of a new South African Constitution had begun, a strong and formidable women's movement ensured that gender equality was firmly placed on the agenda. (4) The resultant Constitution, itself a transformative document which is supreme and supercedes all law, outlaws discrimination based on a number of specific factors, including gender. (5) With this new document in place, the Constitutional Court of South Africa has been able to move South Africa closer to its goal of gender equality by ferreting out legislation that either directly or indirectly discriminates based on gender. II. RELEVANT PROVISIONS IN THE CONSTITUTION Enacted in 1996, the Constitution of the Republic of South Africa contains a Bill of Rights that is proclaimed a "cornerstone" of the new democracy. (6) The Bill of Rights is based on the three basic values of equality, freedom, and human dignity, (7) which run like a golden thread throughout. It guarantees protection of civil and political rights--the so-called first-generation rights--as well as economic rights--the so-called second-generation rights--and finally cultural rights--the so-called third-generation rights. The Bill of Rights not only protects individual rights, such as the right to human dignity, but also protects group rights, such as the right to practice one's culture together with members of one's cultural group. (8) The Constitution contains a separate external limitations clause, which applies to all the rights contained in the Bill of Rights. (9) In addition, an interpretation clause enjoins courts to infuse the "spirit, purport and objects of the Bill of Rights" with the values it espouses when interpreting legislation) (10) In interpreting the Bill of Rights itself, courts are further enjoined to proceed to international law and the jurisprudence of democratic societies, which are based on freedom, equality, and human dignity. (11) A. The Right to Equality The right to equality protected in Section 9 of the Constitution is a rather elaborate clause. It initially provides that "[e]veryone is equal before the law and has the right to equal protection and benefit of the law." (12) The section goes further, however, outlawing unfair discrimination--whether direct or indirect--based on a specific list of factors that include race, gender, sex, pregnancy, marital status, ethnic or social origin, sexual orientation, culture, belief, language, disability, and birth. (13) B. Other Constitutional Provisions In several ways the Constitution reflects a concern for the rights of women that goes beyond the equality clause itself. The Bill of Rights protects the right to freedom from all forms of violence--"from either public or private sources" (14)--clearly responding to the manner in which domestic violence manifests itself. …

J.Y. Mokgoro

Papers

Constitutional Claims for Gender Equality in South Africa: A Judicial Response