Through the efforts of a dominant women’s movement in apartheid, the democratic transition in South Africa has enshrined gender equality within the constitution and has given women ‘unprecedented political and legal equality’ (Albertyn, 2003, p604). Yet despite the implementation of widespread legislation and progressive initiatives, this essay is going to argue that little has substantially changed for the position of women. To gain a greater understanding of the change in the position of women I will briefly outline the history of women in South Africa. I will evaluate the reality for women in politics, customary law, violence and poverty and seek to demonstrate that there is an extensive divergence between women’s rights in legislation and the current reality they face. In order to bridge this gap between legislation and reality I will argue that the re-emergence of a strong women’s movement is imperative. A powerful united voice can challenge the patriarchal norms in society, hold the government accountable and be an effective power base in order to transform legal rights into effective change.


The anti-apartheid struggle witnessed the rise of a politically conscious women’s movement which played a significant role during the transitional years of the early 1990s. As a consequence, the democratic transformation from a constitutional perspective, has had a profound impact on the legal rights of women; South Africa has one of the most progressive constitutions in the world regarding gender equality and ranks tenth globally for female representation in parliament (Women in Parliament, 2015). Yet this essay shall argue that despite the many legislative achievements, palpable change both in society and the effective ability of female politicians has been minimal at best. In this essay I will compare the legal position of women against the social reality; specifically I will explore the effects of politics, customary law, violence and poverty on women.  This analysis seeks to demonstrate that there is an extensive gulf between the progressive legislation and mechanisms developed to champion women’s rights and the actual impact of these successes for the position of women in South Africa. To bridge this gap between de jure legislation and de facto reality a comprehensive women’s movement must become the driving force for gender equality (Hassim, 2005, p192). The legislative mechanisms to promote and protect women are in place. They now must be utilised to generate substantial improvement for women in South Africa.

To gain a useful insight into the current position of women it is prudent to understand the historical transformation of women in South African society. Prior to colonialism, women held a degree of status and authority as producers but this position was corroded by the introduction of capitalism and colonial rule (Baden et al, 1998, p6). The establishment of the migrant labour system resulted in the disregard of women’s value in society as they lost economic significance and social status (Baden et al, 1998, p6). The era of apartheid served to intensify this oppression, specifically of black women who were targeted for their race as well as their gender to become the most disadvantaged group in society (Hassim, 2003, p506). Rural women, who primarily lived in the bantustans struggled to feed a family as only 13.5% of the available land was designated for 4 million people whilst urban women were explicitly dependent on their husbands for their legal status; those who worked could expect to earn less than 8% of the income of white males (ANC, 1980). These repressive circumstances resulted in the emergence of women as a driving force in community level politics, organising around ‘bread and butter issues’ such as extortionate rents, deficiency of social services, and corrupt local officials (Baden et al, 1998, p7). The emergence of women as important political actors facilitated the effective establishment of women’s struggles in open political debate, reflected in ANC’s explicit commitment to Gender Equality (Baden et al, 1998, p8).

The nature of the transition in South Africa provided fortuitous circumstances to pursue substantial change for gender equality, the suspension of ‘party politics as usual enabled women to express an autonomous position’ (Goetz, 1998, p248). The transition was viewed as an opportunity to reduce reliance on political will and institutionalise equality (Hassim, 2003, p508). Awareness of the necessity to create effective representation in the negotiations resulted in the formation of the Woman’s National Coalition (WNC) in 1992, which consisted of cross-party collaboration, 90 national organisations and 13 regional coalitions (Goetz, 1998, p245). The WNC drafted a Women’s Charter of Effective Equality and successfully lobbied to make the process more accessible to women. For example, one significant achievement was the requirement that there must be a woman on every delegation to the multi-party negotiation process (MPNP) in 1993 (Geisler, 2000, p614). The outcome was one of the most progressive constitutions for women in the world; the democratic state included a constitutional commitment to gender equality and numerous mechanisms to facilitate women’s access to areas of political decision making (Gouws, 2004). Undoubtedly progressive legislation and inclusion in policies is vital for advancing gender equality; Shireen Hassim (2005) argues that formal political rights are an imperative pre-requisite for advancing social change. However representation of women in legislation is not an end in itself; it is a necessary means to create a tangible redistribution of social and economic power to improve women’s lives (Hassim, 2005). The critical evaluation of the de jure successes in contrast to the de facto reality will demonstrate the effectiveness of representation so far.

The democratic transition facilitated an unprecedented movement of women into the political arena, yet the ability of female politicians to transform mere presence into substantial change depends on the effective role women can have in politics. The ANC implemented a 30% female representation quota, a progressive mechanism that opened up a significant political space for women, reflected in the 111 women politicians who entered parliament after the 1994 elections (Geisler, 2000, p606). Presently South Africa ranks tenth internationally for female political representation, which was apparent at the 2014 elections where women constituted 41% of parliamentary seats (Quotaproject, 2014). The adoption of the party list system of proportional representation has been particularly beneficial; the focus of the individual’s vote is on the party, not the candidate; this efficiently serves to undermine voter reluctance to choose women (Goetz, 1998, p250). Moreover, Anna Marie Goetz (1998, p251) highlights that this structure legitimises the presence of women who have won their seat on their own merit, as opposed to a reserved seat structure; this is especially relevant if she campaigned on woman’s gender interests. Yet the party list system detrimentally restricts the ability of women to act contrary to the party line. As Goetz (1998, p251) succinctly expresses ‘the price of access to power is subordination to the party hierarchy.’ Politicians advocating gender interests are at the mercy of the party, exacerbated by the fact that there is no feasible political alternative to the ANC (Goetz, 1998, p251). Consequently, a powerful women’s movement is pivotal as a constituency, providing leverage for women in government and enabling politicians to transform representation into effective change (Goetz, 1998, p251).

Amanda Gouws (2004) notably highlights that policy outcomes are dependent on interests that are expressed within the state; hence it is imperative for gender interests to be articulated in the political arena in order to have an impact on policy. This concept has been embraced in South Africa and has manifested in a National Gender Machinery with a remarkable number of structures that stretch strategically throughout all arms of the government to promote gender equality (Geisler et al, 2009, p14). Prominent within this machinery is the Commission on Gender Equality (CGE), an independent statutory body established to monitor government, the private sector and civil society as well as the Office on Status of Women (OSW) which seeks to facilitate gender mainstreaming in government departments (Geisler et al, 2009, p14). Yet despite the presence of these structures their ability is severely undermined by lack of resources and political will. For example, in 2005, the CGE only received a budget of ZAR 22 Million, which was ZAR 61 million less than what the CGE predicted was required to implement effective policies (Geisler et al, 2009, p14). Additionally the impact of OSW has been severely undermined by its lack of authority; with no direct access to the cabinet or interministerial committees, OSW’s monitoring has been ad hoc and insufficient (Hassim, 2003, p511). Poignantly, Pregs Govender, an ANC MP, resigned her seat as a consequence of these structural constraints which were undermining her vision for transformation (Hassim, 2005, p190). Perhaps the greatest downfall of these structures is the failure to sufficiently engage civil society. Research by Gisela Geisler et al (2009, p16) reported that civil society did not feel adequately included in the debates and were hindered by the lack of opportunities to initiate meetings with the OSW. The existence of these structures is essential for pursuing gender interests yet their neglect hinders substantial change for women in society.

In spite of the difficulties faced by women in politics and the national gender machinery, the democratic transition has seen the establishment of extensive legislation aiming to address gender inequality (Hassim, 2003, p513). A prominent site of gender inequality is within customary law. Apartheid strengthened the patriarchal nature of the chieftaincy; it boosted the chief’s powers through the Bantustan system and locked African women into a position of official subordination (Baden et al, 1998, p6). Customary law is subject to the constitution, and thus the gender equality clause, the CGE provides a platform for women to counter the traditional leaders, and notable de jure successes have been achieved in legislation (Albertyn, 2003, p608). In particular ‘The recognition of Customary Marriages Act 120 (1998)’ abolishes the minority status of women married under customary law, legally removing the matrimonial power of husbands as guardians (Geisler, 2009, p11).

Yet the stark reality is that little has changed since apartheid; women cannot set foot in a court house, cannot apply to acquire land without the assistance of a man, and have no say on the appointment of the traditional leader (Turley, 2012). The practice of the payment of lobola (bridewealth) is often seen as offering men a ‘licence’ to own women’s bodies; women are treated as mere property (Albertyn, 2003, p600). Cheryl Walker (1995, p347) identifies an ‘official rural patriarchy’ instilled in rural institutions, legitimised by misogynistic interpretations of ‘custom’ taken as given. This tension between custom and gender equality is epitomised by Chief Mwelo Nonkonyayna (as citied in Walker, 1995, p348) declaring the concept of gender equality as ‘foreign to us.’ However this tension isn’t inevitable, gender equality values can work within cultural discussion (Albertyn, 2003, p608). Our perceptions of cultural ‘norms’ are continuously adapting and evolving they are not fixed concepts but dynamic, consequently they can and must adapt to the contemporary aim of a fully equitable society (Walker, 1995, p349).  The drive for this change in cultural norms must be originated within the communities themselves, a belief promoted by Sizani Ngubane (cited in Turley, 2012), head of the Rural Women’s Movement. Ngubane stated ‘RWM is about changing the patriarchal society”¦ because the struggle is not over.’

The emotive issue of gender based violence has been advocated in parliament since the advent of democracy. It was epitomised by the initiation of a parliament/NGO task force on the violence against women by the ANC women’s caucus in 1996 (Goetz, 1998, p252). As a consequence the Department of Justice and Safety and Security declared violence against women a priority crime in 1997 (Goetz, 1998, p252). An extensive number of initiatives and laws have come into force, most notably the establishment of the Domestic Violence Act of 1998, enabling the serving of protection orders on abusers, and the 16 day initiative which aims to promote awareness of the impact of violence (Geisler et al, 2009, p11). This is reinforced by government funded services;  86 shelters for victims, 62 designated sexual offence courts and 10 Thuthuzela (‘comfort’) care centres which specialise in rape management had been established by 2005 (Geisler et al, 2009, p12). Yet in 2012 Interpol labelled South Africa the ‘rape capital’ of the world (Smith, 2014). Despite the government’s focus the statistics for gendered violence are dire. Someone gets raped every 4 minutes, a women is killed by domestic violence every 8 hours, and more than 30% of girls have been raped by 18 (Faul, 2013). Sexual violence is rife within relationships and sexual encounters provide the sites where unequal power relations between the sexes are expressed (Wood and Jewkes, 1997, p41). A research project in Cape Town reported that out of 600 teenagers 60% had been beaten by their partners (Wood and Jewkes, 1997, p43). These dismal facts reflect the psychological legacy of apartheid. Vital values of tolerance, respect and self-worth are nurtured by the social family unit (Makagalemele, 1999). However this unit was destroyed by the apartheid policies of migrant labour, the Group Area Act of 1950 and consistent dehumanising treatment (Albertyn, 2003, p597). Therefore, Thembisile Makagalemele (1999) argues, these conditions caused the severe corruption of moral limits and responsibility stimulating feelings of resentment and violence. Progression in gender based violence must come from education and community commitment. Bethan Cansfield (cited in Smith, 2014) from the charity Womankind maintains that community activism is fundamental to challenge social norms and behaviours. A 2013 Unesco report found South Africa’s sex education wholly inadequate, notably on issues such as gender rights and age appropriateness (Smith, 2014). Consequently, education and communication are indispensable tools to challenge the underlying cultural norms, support and adapt government initiatives and stimulate effective change.

Nelson Mandela (State of Nation Address, 1994) claimed ‘freedom cannot be achieved unless women have been emancipated from all forms of oppression.’ This sentiment is reflected in ANC’s original Reconstruction and Development programme which singled women out as a specific target of state intervention to redress poverty (Walker, 1994, p351). The constitution guarantees the delivery of socio-economic rights including access to healthcare, adequate housing, sufficient food and water and social security (Kehler, 2001). Tentative victory has been declared as poverty rates decline and in 2011 extreme poverty reached a low of 20.2% (South Africa.info, 2014).  Yet hiding behind these statistics is an explicitly gendered poverty crisis. On average women are up to 30% poorer than men, female-headed households are more than twice as likely to be poor in comparison to male-headed houses, and women suffer the highest unemployment rates (Rogan, 2014). Michael Rogan (2014) maintains that child mortality, nutrition, and lack of sanitation and clean water are the greatest contributors to female poverty. Despite the constitutional implications for improved social service delivery, the neo-liberal policies adopted by the ANC have inflicted damaging cuts in social spending; diminishing infrastructural capacity and budgetary resources (Hassim, 2003, p514). The economic initiative GEAR launched in 1996 advocated ‘fiscal restraint as its key condition for success’ and was formed with no consultation with women’s organisations (Hassim, 2003, p515). The dramatic shift in focus from provision to cuts has significantly limited the ability of departments to engage in greater resource commitments, an indispensable means to address poverty (Goetz, 1998, p256).  The alterations to the child grant in 1997 provide a poignant example; although the aim was to help all poor mothers, the changes halved the financial benefit to recipients as well as restricting the age of eligible children from 18 to 6 (Goetz, 1998, p243). The New Women’s Movement in the Western Cape challenged the poverty enhancing nature of the grant, securing a modest increase in the size of the grant to ZAR 100 but came into tension with ANC’s Women’s League and the WNC (Hassim, 2003, p520). Hassim (2003, p516) argues that policies irresponsibly focus on ‘prioritising gross inequalities rather than a concern with the long term costs of failing to address pervasive systemic inequalities.’ Consequently, a united women’s movement is crucial to hold the government to account and critically evaluate the direction of policy making.

A strong social movement has the capability of articulating and defending interests, mobilising mass support, and creating strategic alliances (Hassim, 2005, p176). For the project of gender equality a strong women’s movement is an integral component in achieving tangible change, its importance was undoubtedly demonstrated by the effective lobbying for women’s interests of the WNC in the transition period (Geisler, 2000, p614). The women’s movement acted as a powerful driving force to gain representation for women. However representation has come at a high price; the co-option of the WNC’s leadership into politics has unintentionally served to demobilise and fragment the women’s movement, hindering the ability for any de jure successes to translate into effective change (Gouws, 2004).  Hassim (2005) maintains that ‘pressure from below can strengthen advocacy work and act as a crucial lever in reshaping the priorities of the state.’ The Termination of Pregnancy Act provides an ideal example, a strong alliance between women’s advocacy groups and the ANC successfully legislated women’s reproductive rights (Hassim, 2005, p185).  Yet this example is the exception, in reality there is a wide divergence between the fragmented women’s movement and the political arena which stunts the creation of ‘effective and responsive policies’ (Hassim, 2003, p514).

Despite the constitutional support for gender equality, the above analysis has demonstrated the significant lack of redistribution of resources and the consistent oppression of women. Even when legislative successes are achieved, such as the Maintenance Act 1998, many poor women are not informed of the new benefits they are entitled to, so de jure successes have little meaning in reality (Hassim, 2005, p185). To translate legislative gains into structural change the underlying patriarchal norms of society must be challenged, a united women’s movement must ‘engage with norm setting at the broadest level’ (Hassim, 2005). Consequently, women must be mobilised at all levels of activism to generate an active powerful and united women’s movement. This will act as a driving force for confronting unjust cultural norms through education and communication, provide an effective support base for women fighting for gender interests in politics and aid the appropriateness of policy direction (Albertyn, 2003, p610).

In conclusion, the democratic transformation in the early 1990s has enshrined gender equality within the constitution, launched numerous supportive initiatives and passed extensive legislation in a bid to improve the position of women in South Africa. Yet, as Albertyn (2003, p604) notes, the ‘material conditions of women remain agonizingly unchanged.’ This essay had sought to demonstrate that in the position of women in politics, customary law, violence and poverty there is an evident divergence between the rights of women in legislation and the stark reality. The key to bridge this de jure/de facto differentiation is the re-emergence of a strong united women’s movement.  By challenging patriarchal norms, ensuring state accountability and providing a united voice to support women in politics, the women’s movement could successfully facilitate the conversion of legislation into the effective transformation of the positon of women in South Africa.

This article forms part of the SAHO and the University of York Partnership Project


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