Health profile
Health care services
There are still severe imbalances in access to health care among South Africans. Overall the ratio of doctors per 100 000 population is 48,8, that of nurses 278,1 and dentists 9,4. The provincial extremes in the ratios are 127,4 doctors, 618,4 nurses and 109,0 dentists per population in Gauteng, compared to 15,5 doctors and 1,4 dentists per 100 000 in Northern Province and 273,5 nurses in Mpumalanga.
South Africa has approximately 300 000 traditional health workers. These include traditional healers and traditional birth attendants. Although no statistics are available, it is clear that the majority of traditional health workers are women. In some area community health workers promote primary health care at community level. They also assist communities in implementing community-based care for chronic and other illnesses. NGOs play a major role in the funding, training and provision of community health workers. Some provinces also fund community health workers from their budgets.
Women’s health-specific workers include midwives, family planning nurses and, in some cases, obstetricians and gynaecologists. South Africa has approximately 75 000 midwives and 739 obstetricians and gynaecologists.
There are eight public academic health services complexes (tertiary level), 425 hospitals, 153 community health centres and 2 953 clinics spread throughout the country. The Department of Health is committed to strengthening further the level of primary health care provision. In addition there are 217 private hospitals and 74 private day clinics.
71 (33%) of the private hospitals are in Gauteng, compared to 4 (2%) in Northern Province. 44 (59%) of the private day clinics are in Gauteng and none in Northern Province.
Health Indicators
Causes of death and illness
The major causes of female deaths are high blood pressure, problems
related to pregnancy; bleeding before, during and after delivery; septic
abortion; prolonged labour; and cancer of the cervix.
Birth-related causes are responsible for 33% of infant and child deaths, diarrhoeal disease for 19%, acute respiratory infections for 8% and nutritional deficiencies for 5% of deaths. In summary, the majority of infant and child deaths are related to poor socio-economic conditions and could be prevented.
Maternal deaths related to childbirth
Maternal mortality rates measure the number of women dying for every
100 000 live births. These rates differ markedly along racial lines.
Estimates are unreliable due to poor reporting. Official figures for 1992
range from 2 per 100 000 live births for Indians to 58 per 100 000
for Africans. However, indirect demographic techniques put the estimate
at around 250 in 1991 for African women. A community-based study conducted
during 1992/3 using the Sisterhood method revealed maternal mortality rates
of approximately 400 per 100 000 live births.
Infant and child deaths
Current data on infant and child deaths are neither fully gender-disaggregated
nor complete. The latest available statistics still exclude information
from the former homelands. In addition, there is serious under-reporting
of both births and deaths. In 1994 it was estimated that fewer than 20%
of all births were registered. The percentage was estimated to be under
4% in the rural and poverty-stricken Northern Province. Reported infant
mortality rates were 54,7 deaths per 1 000 live births for African
infants, 36,2 for coloured, 9,9 for Indian and 7,3 for white. The more
rural areas had the highest infant mortality rates.
Life expectancy
Life expectancy measures the number of years that a newly born child
can expect to live. As shown in the table below, there are significant
racial differences in life expectancy. In addition, however, women of each
race group have a longer life expectancy than men of the same group.
Average life expectancy 1995 (years)
| Race |
Women |
Men |
All |
| African |
68,2 |
63,5 |
65,8 |
| Coloured |
68,5 |
62,6 |
65,5 |
| Indian |
73,0 |
67,3 |
70,1 |
| White |
76,6 |
69,9 |
73,2 |
Fertility
Estimates of the total fertility rate - the average number of live
births per women - range from 3,5 to 6,1. The fertility rate is highest
among African women and lowest among white women. Overall it is estimated
that 70% of pregnant women go to a health facility at least once during
their pregnancy for antenatal care. Detailed figures are not available,
but it is clear that urban areas have higher rates of antenatal attendance
than rural areas.
Behaviour risky to health
Research shows an ongoing increase in the proportion of adults who
smoked. In 1995 34% of South African adults smoked. Over half of all men
smoked, compared to 17% of women. The Department of Health has taken a
strong stand against smoking, including restrictions on advertisements.
Its anti-tobacco campaigns address all members of the population, but include
a special focus on pregnant and breastfeeding women.
Major health problems
Nutrition
Malnutrition has two important gender-related aspects. Firstly, approximately
16% of babies born to poorly nourished mothers will have low birth weight,
with serious consequences for their subsequent growth and development.
It is estimated that as many as 30% of South African children could be
stunted. Further, many children and pregnant and lactating women suffer
from deficiencies of micro-nutrients such as iron, iodine and vitamin A.
Approximately a quarter of all women are said to suffer from iron deficiency
anaemia.
Pregnant women attending state services for antenatal care routinely receive iron, vitamin and folate supplements. Women are also assisted nutritionally through the Community Based Nutrition Component and the Protein Energy and Malnutrition Scheme of the government’s Integrated Nutrition Programme. The former attempts, through community-based initiatives, to improve women’s position with regard to household food security. The latter operates from state health facilities and assists individuals - both women and men - diagnosed as being malnourished. The Integrated Nutrition Programme also promotes breastfeeding through advocacy, training and education programmes aimed at pregnant and lactating women.
The Department of Health plans to implement a National Nutrition Surveillance System as part of the National Health Information System. One of the foci of the System will be the nutritional status of pregnant and lactating women. The Department of Health also has programmes promoting a healthy lifestyle. These target young women and attempt to counter the influence of the media in promoting the stereotype of the thin anorexic looking woman.
Tuberculosis (TB)
TB remains a serious public health problem in South Africa. It accounted
for over 80% (74 650 cases) of all reported notifiable disease in
1995. These figures are an underestimate given poor notification and undetected
cases, particularly in the more rural areas. The overall tuberculosis incidence
rate is estimated at 239 per 100 000 women. Women of childbearing
age have a higher risk of developing active TB than men of the same age
group. Among women aged 15-44 years, the rate is 269 per 100 000.
Racially, the rates differ - at 612 per 100 000 coloured people, 159
per 100 000 Africa and 64 Indian, and 14 white.
A national TB register has been introduced under the South African Tuberculosis Programme.
Sexually transmitted diseases
STD (sexually transmitted disease) services are provided as part of
primary health care services. They include reproductive health services
such as family planning, antenatal and baby clinics. Appropriate drugs
for treating younger and older women with STDs are available on the Essential
Drugs List. The syndromic approach to the management of STDs is used. This
includes health education, counselling, the promotion of the use of barrier
method and partner/contact management. Extensive training is underway to
re-orient health care providers in the public and private sectors to adopt
this approach.
Asymptomatic STDs are those where the person has no symptoms. They are far more common in women than men. As yet there are no screening programmes for asymptomatic STDs in place. Awareness campaigns planned for 1997 will include this topic.
HIV/AIDS
In the South African HIV/AIDS epidemic it is predominantly those involved
in heterosexual relationships who are infected. More women than men are
affected. The Department of Health conducts national surveys on an annual
basis among women attending state antenatal clinics. The latest survey,
of October/November 1996, found an average of 14% of all pregnant women
attending antenatal clinics to be HIV+, with significant geographical differences.
HIV infection peaks in women in the 20-24 year age group. It is 19% among
teenage mothers, indicating high vulnerability among young women. Levels
are highest among African women. An HIV-positive person is at increased
risk of contracting TB. Simultaneous TB and HIV hastens the development
of both diseases.
Female condoms - or femidons - are one possible method of preventing HIV transmission where the male partner is uncooperative. The Department distributed a consignment of female condoms in 1996 to women attending certain clinics as part of a study to establish their acceptability, and for demonstration purposes as part of HIV/AIDS/STD training. The study showed that female condoms are acceptable to specific groups of women. Further supplies will be made available as part of a still to be defined introductory strategy. Female condoms are also available on a limited basis as part of a social marketing programme.
Health care workers, the majority of whom are women, are the major providers of HIV/AIDS related counselling, particularly in the health care setting where HIV tests are performed. In the home and community, the care-giver is again usually a woman. As yet, however, there has been no special focus on women as health care givers in the context of HIV/AIDS.
Cancer
The incidence rate for cancer in 1988 was 146 per 100 000 women
and 163 per 100 000 men. The most common cancers for women were cervix,
breast and skin. The rate of cervical cancer in 1991 was 35,4 per 100 000.
Disaggregated by race and location, it varied between 3,3 for urban whites
and 25,7 for urban Africans, with no data for Indian women and rural Africans.
The mortality (death) rate for cervical cancer between 1884 and 1986 was 23,1 for African urban women, compared to 3,8 for white urban and 3,5 for white rural. There was no figure for rural African women. The mortality rate for breast cancer was 9,6 for urban African women and 26,0 and 21,8 for urban and rural white respectively.
There is no public national breast or cervical cancer screening programme. Screening is promoted by NGOs and some stakeholders in the private sector. A Technical Committee of the National Cancer Control Programme is developing a policy for the government. The national Department has tasked Free State and KwaZulu-Natal with implementing province-wide screening programmes, and is encouraging pilot projects in other areas of the country.
Immunisation
Approximately 90% of one year old children have an immunisation card.
70% are considered fully immunised. Children in rural areas are less likely
than those in urban to be immunised. The Department of Health routinely
includes measles, rather than combined Measles, Mumps and Rubella (MMR)
in the childhood immunisation programme. Thus, while the rate is generally
high, there is no protection against rubella, a disease with particular
dangers for pregnant women and their offspring. MMR is available on the
private market, but must then be paid for by the patient or guardian. The
Department is in the process of evaluating new vaccines, including those
for rubella, for a revised immunisation approach.
Access to health care
One of the first new programmes introduced by the 1994 post-apartheid government was free health care for pregnant women and children under six at state clinics and hospitals. In mid-1996 the provision of free primary health care was extended to all South Africa residents, whether female or male. The government’s Clinic Building Programme facilitates access to health care for both rural and urban women by reducing distances to health care facilities. These programmes reduce financial, time and other barriers to access to health care.
An independent evaluation of the programme for pregnant women and young children found a definite increase in the number of women booking for antenatal care, and a consequent reduction in the proportion and numbers of unbooked deliveries.
There are no gender-disaggregated statistics on clinic attendance. The special programmes and increased services should have increased access for women. Services like Midwifery Obstetric Units and Family Planning Clinics provide services either exclusively, or primarily, to women. Male participation in family planning is, however, being encouraged through advocacy, social marketing health education and life skills programmes targeting youth in and out of school.
Obstacles to use of health care services
Women’s ability to access health facilities depends on a range of factors
beyond mere availability of services. These include the control that a
male partner or other family member exercises in decision-making over utilisation
of time, resources and freedom of movement. The nature of the professional
background and training of health workers may also present barriers to
communication and care. Restrictions on the scope of practice of nurses
may impact negatively on services where doctors and other health personnel
are scarce.
There are no legal obstacles to women’s receiving health care services. There are, however, cultural beliefs and practices that prevent women from utilising health care services. The public transport system can hinder access, in that it is poorly developed, particularly in rural areas. The government does not provide any transport exclusively for the purpose of making health services available to women. However mobile units and 4x4 vehicles make facilities more accessible by bringing them closer to where people live and work.
Many public clinics still lack basic facilities. The long-term strategy of Eskom, the main electricity supplier in the country, prioritises provision of electricity in rural clinics and schools. The agreement on the recent sale of Telkom includes similar provision for providing telephones.
Clinics are planned to cater for physically disabled people, as well as women pushing perambulators. Recently built toilets include baby nappy changing areas.
Quality of care
Emphasis is placed on quality of care and sensitivity to the needs
of individuals - and of women seeking health care in particular - in the
re-orientation of health workers. An NGO, the Women’s Health Project, has
developed a tool for monitoring health workers’ sensitivity to women’s
health needs. The Project is testing this tool for the Department in four
provinces. Already significant improvements have been reported in the quality
of care provided by health workers and the relationships between health
workers and the women they serve.
The Department of Health is developing a model for women-focused mental health care at the primary health level. Currently specific mental health services are provided mainly by NGOs and, to a lesser extent, by the private sector. Such services include counselling for survivors or rape and other forms of violence, shelter for battered women, and empowerment programmes for abused women. These services are largely restricted to metropolitan areas.
Reproductive Health
The National Department of Health has a Directorate: Maternal, Child and Women’s Health which oversees policy development and liaises with provincial health authorities regarding implementation. Each of the provinces have its own Maternal, Child and Women’s Health component.
The government’s commitment to reproductive health issues covers the areas of:
Contraception
1994 contraceptive prevalence rates were 50% of African women, 74%
coloured, 77% Indian and 80% white. Overall breakdown by method is not
available but 40% of African women who use contraception use injectable
contraceptive methods such as Depo Provera.
Barriers to contraceptive use include male dominance, cultural myths, and poor access to health services. These are being addressed through
In practice some health workers might ask for the husband’s authorisation before supplying contraception to a woman. This is not a legal requirement. The law does, however, require that any child under sixteen years of age obtain parental consent for health care - including contraception - except in the case of an emergency.
Teenage pregnancy
Teenage pregnancy is of increasing concern (see Article 10). It has
a negative impact on the development of young women, in that teenage mothers
are often unable to finish school, are less employable, and locked into
unwanted motherhood, poverty and the lack of opportunities to achieve their
full potential. The Welfare Department of the Northern Cape has held community
meetings throughout the province in preparing for a comprehensive programme
aimed at eliminating teenage pregnancy.
Abortion
Prior to 1996, a legal abortion was only available in very restricted
circumstances, and on recommendation by at least three doctors. In practice
access to abortion was severely limited and available primarily to white
women. Many black women were forced to find other, far less safe, ways
to terminate their pregnancies when they felt unable to continue. Women
with incomplete abortions were and are treated in all health facilities.
However, delays in seeking help often resulted in complications, and in
the women requiring more advanced medical care than would have been necessary
had she been seen earlier.In some cases delays and problems led to death.
In 1995 over 400 women are estimated to have died from complications of
septic abortions.
Since the introduction of the Choice on Termination of Pregnancy Act (1996) on 1 February 1997, termination of pregnancy is legal up to twelve weeks of pregnancy upon request by the pregnant women, and between the thirteenth and twentieth week under certain conditions and upon recommendation by a medical practitioner or midwife. These conditions include the socio-economic situation of the woman, rape, incest and the health risk to the woman.
South Africa has no national medical insurance system. A small proportion of the public are members of private medical aid schemes. Few of these presently cover abortion-related services. As part of the provision of free health care services to pregnant women, women seeking termination of pregnancy in public facilities are not charged any user fees.
An NGO, the National Progress Primary Health Care Network is monitoring both the implementation of the new Act and violations of health rights more generally.
Sterilisation
Sterilisation is available for both women and men who choose to have
the operation performed. Although statistics are not available, it is clear
that sterilisation is performed far more frequently on women than on men.
Spousal consent is not required in law for voluntary sterilisation. In
practice it might sometimes be required. There are no laws which require
or mandate sterilisation under specific circumstances.
Menopause
At present services for menopause are available only at hospital level.
The Department has plans to offer these services at primary health care
level in the future.
States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular:
a) The right to family benefits;
b) The right to bank loans, mortgages and other forms of financial credit;
c) The right to participate in recreational activities, sports and in all
aspects of cultural life.
Social Security covers a wide variety of public and private measures. These measures aim to provide cash or in-kind benefits when a person is temporarily or permanently unable to earn money to support themselves and their dependants. Social Security is a right entrenched in the Constitution. Social pensions and grants are probably the government’s most effective poverty alleviation programme at present.
In South Africa at present means-tested state grants are provided primarily for the aged, for the disabled, and for single parents and their children. In addition approximately 10 000 beneficiaries receive care dependency grants to help them care for severely disabled children. 40 000 foster parents receive foster child grants. In both cases the majority of recipients are women.
Child and family grants
At present, the state maintenance grant system provides support to needy families and children. Maintenance grants account for 15% of the overall social security budget and reach approximately 146 400 parents and 203 200 children, giving a total of 349 600 beneficiaries.
The current system is racially and geographically inequitable. If the grant were extended to all potential beneficiaries in its current form and at the current level, it would not be affordable. Further, the current system is ineffectively targeted at poor and rural communities. Meanwhile the disarray in the private (judicial) maintenance system for child support and the weak culture of parental responsibility mean that single parents turn to the welfare system for support even where the other parent of the child could afford to contribute.
The Lund Committee on Child and Family Support
In 1996 the Department of Welfare appointed the Lund Committee on Child
and Family Support to investigate the problem. The Committee found that
the present system is unsustainable. It was estimated that it would cost
the government between R5 billion and R20 billion annually, rather than
the current R1,2 billion, if all applicants eligible for the grant under
the present conditions applied.
Key recommendations made by the Lund Committee include:
The level of the new grant would be based on an objective measure of the costs of feeding a child. The grant would be paid for children 0-6 years.
In March 1997 Cabinet approved the recommendation to phase out the state maintenance grant and to phase in a new child support benefit. The new child support benefit programme represents an effort to deracialise the grant, to make it accessible to rural children and, in so doing, to meet the government’s commitment to correct the imbalances of the past.
The programme aims to reach the three million poorest children by the year 2005. Cabinet has added to the current R1,2 billion per year an additional allocation of R1,5 billion for each of the next five years. A further R75 million has been provided for this financial year to kickstart the phasing in of the programme.
Many of the difficulties ahead lie with the poor management and administrative systems in the delivery of the grants. The Committee for Restructuring of Social Security (CRSS) recommended that effective management systems be set in place, together with uniform procedures and guidelines. The national Department has embarked upon this process with the cooperation of the provincial departments of welfare. It will be carefully monitored as the child support benefit programme is implemented.
Intersectoral collaboration
The level of the child support grant is intended to cover the costs
of feeding a child and is supplementary to other household income. The
grant will not cover rent, transport and other household expenses. If taken
with other government programmes such as free primary health care, the
government will be spending more than R200 per child per month.
The support of other government departments will be necessary if the child support programme is to provide meaningful assistance. The Justice Department has already established a task team to redress the problems surrounding the private maintenance system. Other government departments co-operating in the initiativeinclude Home Affairs (for registration of births); Health (for the free health care programme); Trade and Industry (for small, medium and micro enterprises for poor women with children); and Public Works (employment opportunities for poor women who do not qualify for this grant). The Welfare Department’s own Social Development unit, and in particular the Community Development programmes, also provide opportunities for poverty-stricken women and children who do not qualify for social grants.
Old age pension
State old age pensions of up to R470 per month are available for poor women from age 60 and for men from age 65. In mid-1995 approximately 1,7 million elderly people were receiving these pensions, which account for 60% of the social security budget. Close on nine out of ten households receiving these pensions are African, and two-thirds are rural.
The take-up rate is the percentage of people eligible for a benefit who actually receive it. This rate is slightly lower for women than for men, despite the fact that women can claim from an earlier age and also tend to live longer. The reason for the lower take-up rate is unknown. It could include both lesser knowledge of rights, and some discrimination on the part of government officials and traditional authorities. Many rural women also still experience difficulties in terms of long distances to, and long waits at, pay-points, long delays, or incorrect payments.
Implementation of the recommendations of the CRSS, mentioned above in connection with child and family benefits, should help address many of these problems. Meanwhile, despite the problems, the old age pension plays a critical role in the alleviation of poverty in the country. It is well-targeted to those who are poorest, to rural areas, and to women because of their generally longer lives.
Sport
Women face many obstacles in attaining equality in sport. These include:
The Department of Sport and Recreation was created in July 1994. Most of its staff came from the previous Departments of Education. Much of the attention of the new Department is still focused at the school level (see Article 10), in the hope that children, at a young age, can be encouraged to reach their full potential. The Department of Sport and Recreation has also embarked on a series of programmes and projects aimed at accelerating equality in sport between women and men of all ages.
The Department held a workshop on Women and Sport to develop a national strategic plan to encourage participation by women at all levels. The workshop culminated in a regional workshop where structures were established to implement the proposed programmes. The Department’s policy of assisting civil society organisations is based on affirmative action. Its objectives include:
R10 000 was allocated in the 1997/8 budget for sport development programmes. R1 600 is for affirmative action programmes which will include initiatives focusing on women.
Arts and Culture
World-wide there has been a distinction between what is seen as "art" and what is "craft". Generally, the products of those who are poor, rural and female have been labelled "craft" and accorded lesser value than the "art" of those who are more privileged. In South Africa women making baskets, beadwork, pottery or weaving have worked long hours and with great skill, but have received little recognition of their artistry and little financial reward.
The Department of Arts, Culture, Science and Technology has appointed a deputy director for Cultural Industries. This officer will be responsible for marketing and improving the status of traditional and modern products. Successful promotion of craft and local culture will enable some of the more disadvantaged and marginalised people in South Africa to benefit from the growing tourism industry.
The Department of Arts, Culture, Science and Technology also funds a number of women’s art projects. The Department has, for example, funded a course for domestic workers in crafts production, a women’s cultural festival in Alexandra township; a rural women’s arts festival and study bursaries to women.
Huge gender disparities remain throughout the cultural sector. When the Department recently requested funding proposals for a film project, only 37 of the 300 proposals were from women. The Deputy Minister has since lent her support to a recently launched initiative which aims to support and empower women in the film industry.
Credit
It is still common practice for private financial institutions to require that women borrowers have a male mediator or spouse before they can receive credit. In institutions where women can access credit, they often do not have any assets to their name to serve as collateral.
The Departments of Agriculture and Land Affairs have begun to address the problem as it affects rural women (See Article 14).
1 States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of this Convention to women in rural areas.
2 States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right:
Introduction
Just over half the South African population lives in non-urban areas. The urban-rural split differs between the provinces. The poorest provinces are also those where a larger percentage of the population is rural.
The demographic profiles of rural and urban areas also differ. Women and children dominate the population in rural areas. While this is the case in many other countries, the pattern in South Africa has been exacerbated by influx control, pass laws, forced removals and the migratory labour system. Forced removals took many people from where they were living to dump them in poverty-stricken areas without services, infrastructure or adequate means of supporting themselves. Influx control and pass laws and regulations allowed African men to move to the "white" urban areas to work, but confined many African women to the poverty-stricken rural areas.
Land ownership patterns and restrictions imposed by laws such as the 1913 and 1936 Land Acts resulted in further hardships. The result in South Africa of the 1990s is that those living in rural areas often have neither industrial nor commercial jobs, nor land on which to support themselves.
Additional obstacles for women
A key contributing factor to women’s inability to overcome poverty
is lack of access to, and rights in, land. For women discriminatory customary
and social practices add to the racial inequities experienced by black
men. Power relations that prevent women from leading productive and fulfilling
lives operate from the domestic to the highest public level. Legal restrictions
also impede women’s access to land and the financial services to develop
it.
Many rural African women face the legal difficulty that they cannot hold title to land. In most rural areas communal land which belongs to the tribe is used. Chiefs and headmen make decisions at the local "kgotla" or council where decisions are made on the allotment of land for residential and arable purposes. Very few women are chiefs. Under each headman there are kraal heads who exercise authority over their wives and children. However, although women may not own land, they are given a right to till the land and erect a home on a piece of land allocated by the kraal head.
Land Reform
There are three components to the Government’s land reform programme:
Sub-directorate: Women’s Land Rights
The Land Reform Programme is in its early stages, and as yet no significant impact has been made on rural women.
A newly established Sub-directorate: Women’s Land Rights within Land Affairs has been given the task of developing policy guidelines to facilitate women’s participation in land reform. The first draft of this policy was to be submitted to the Departmental Policy Committee during the first quarter of 1997. The policy is in line with the Ministry’s commitments to the Beijing Platform to "take legislative and administrative measures to give women and men equal rights to economic resources including access to ownership and control over land and other properties, credit facilities, natural resources and appropriate supporting technology".
Legislation
In drafting policy for and implementing land reform, the Department
of Land Affairs is reviewing laws so as to give women security and equal
rights with men regarding ownership, control and use of land. The Department
of Agriculture, too, is planning a comprehensive legislative review in
1997 so as to strengthen the link between legislation and key developments
in gender policy. At present the Department is concentrating on legislation
which will afford all married women the right to use property registered
in the name of their spouses as security to obtain financial assistance.
The Department of Water Affairs has issued regulations under the Water
Act (1956) which specify that at least one third of all members of Water
Services Committees should be women.
The Black Administration Act, the Natal Code of Zulu Law as well as common African law and custom have been identified as discriminating against women (see Article 2 ). Issues of rights to property of married women are addressed in the Issue Paper of the SA Law Commission on the Harmonisation of the Common Law and the Indigenous Law (see Article 16).
Most redistribution projects of the Land Reform Programme involve groups holding land in common. More often than not the leadership is dominated by men who are largely responsible for important decisions. Even where women are assertive enough to participate in discussions, their views are often not reflected. To address this problem, a new law, the Communal Property Associations Act (1996), makes provision for non-discrimination between women and men in communal property ownership and use of communal land. It expressly protects the interests of women.
However, while the forms of ownership developed for communal systems and "tribes" and family-based ownership will focus on the rights and status of women, the Department of Land Affairs recognises that gender-neutral legislation on its own is not sufficient to address women’s lack of rights in land. Currently rural women are largely ignorant of the Land Reform Programme and what it has to offer, and what rights they have. Male domination in decision-making structures/positions is a contributing factor. Information does not get through to them because they are not regarded as potential heirs to land. Policy reforms will have to recognise, and redress, the power dynamics and inequalities and find ways of supporting disadvantaged groups to claim and enforce their rights.
Access to finance and credit
Within the Land Reform Programme the primary source of direct state
financial assistance is the Settlement/Land Acquisition Grant. This is
currently set at R15 000 per household. There is some concern that
the use of ‘household’ as a unit of analysis could be discriminatory given
the legal and social status of women who need to benefit from the grant.
The Department is studying this issue to see in what ways it can avoid
gender bias.
The Departments of Agriculture and Land Affairs are examining how to address the discrimination encountered by women who try to loan money from private institutions. Implementation of the recommendations made by the Strauss Commission regarding Rural Finance should also assist.
Monitoring
The Monitoring and Evaluation Directorate (M&E) and the Sub-directorate
on Women’s Land Rights within Land Affairs are formulating questions that
will provide information for policy development. They are also identifying
indicators to evaluate impact. The Directorate has identified a range of
indicators which will be gender-disaggregated. These include both claims
and projects that involve only women, as well as the involvement of and
impact on women and women-headed households in programmes and projects
targeting both women and men.
Women farmers
In 1994 the Department of Agriculture’s official definition of "farmer" was radically altered to include previously disadvantaged farmers. The new definition makes specific reference to women, as well as to resource-poor producers more generally. This shift established the basis for focusing attention on the specific conditions faced by female producers. In addition, the principles of agricultural policy were examined to ensure that they were both gender-sensitive and non-discriminatory.
The review includes ongoing development of, for example, the Food Security Policy. The Department of Agriculture has sent a representative of its reference group on women to attend a training programme on gender issues and food security. A programme for Improving the Status of Women in Agriculture is at present in the initiation stage.
Thus far the Department has funded special projects focussing on the needs of previously disadvantaged farmers. The funds should be of benefit to women farmers who fall within the new definition. R260 000 was made available for a women’s conference held in the North West Province in September 1995.
The Department of Agriculture's White Paper states that: "The additional work burden and time constraints placed on women because of their domestic responsibilities will be accommodated and ameliorated in the design and delivery of service and infrastructure to resource poor farmers". The Central Statstical Service's (CSS) time use study will provide detailed information on the paid, unpaid, "productive" and reproductive work of women and men. The CSS is also planning a national rural survey which, for the first time, will extend beyond white commercial farmers to investigate the circumstances of all those who live and work on the land.
Women farm workers
Women farm workers on (white) commercial farms are subject to multiple forms of subjugation. These include the facts that:
The Department of Labour, rather than the Department of Land Affairs, is largely responsible for farm workers. But the Department of Land has tried, in drafting new legislation around land tenure, to provide independent access to land to those who have worked as labour tenants, and to prevent employers from throwing them off the land. These moves have been strongly opposed by (mostly white) commercial farmers.
Up to the 1980s farm workers were not covered by most of the labour legislation. Over the last few years the three basic statutes - the Labour Relations Act, the Basic Conditions of Employment Act, and the Unemployment Insurance Act - have all been extended to cover farm workers. The challenge that remains is effective enforcement.
Meanwhile women farm workers have taken the first steps in organising themselves. In 1996 a network of five NGOs coordinated local and regional workshops for women farm workers in eight provinces. These culminated in a national conference for women farm workers and dwellers held in June 1997. The NGOs estimate that the initiative reached over a thousand women on farms as well as raising awareness among NGOs, community-based organisations and research institutions as to the problems faced by women farm workers.
Health Services for Women in Rural Areas
Reliable geographically disaggregated health indicators are generally not available. In 1991 estimated life expectancy at birth of Africans, female and male, ranged between 61,8 years in Gauteng and 58,2 years in North-West. Anecdotal evidence suggests strongly that maternal mortality is higher for women in rural areas from pregnancy related causes. This is a result of poor socio-economic circumstances and limited services in terms of quantity and quality. Similarly, infant mortality rates in rural areas are lowest in those areas with the highest urbanisation rates.
Family planning services are made available to all women in South Africa, including women in rural areas, as part of the Department of Health's comprehensive reproductive health care programme.
Services are, however, more readily available in urban than rural areas. Further, cultural beliefs, male dominance, low levels of female education and the perceived insensitivity of health care workers remain as obstacles which prevent women in rural areas from receiving family planning services. The clinic building programme, the free primary health care programme, health education and the re-orientation of health workers are all initiatives which should assist in addressing some of these obstacles.
Appropriate follow up to ensure safe contraception is provided at mobile and other clinics and at hospitals is necessary.
Social security programmes in Rural Areas
The Draft White Paper on Welfare recognises that there are too few social welfare personnel in rural and peri-urban areas and informal settlements. These are all areas where the need for social welfare development is great. The White Paper also recognises the need to change the current urban bias in training programmes, and to offer alternatives to the uncritical replication of urban models in rural contexts. The Department plans to recruit social welfare personnel to serve in rural areas and to introduce incentives to attract personnel to these areas.
Training and education
Education and training opportunities are generally underdeveloped in rural areas. Rural schools are in many cases overcrowded. In some cases schooling takes place under trees. Adult basic education and training is either scanty or non-existent. Most available ABET programmes focus on self-help programmes in stereotypical areas such as sewing or gardening. There are no statistics available on the level of participation of women in these programmes.
The Department of Welfare plans to encourage community development programmes to promote and strengthen capacity-building programmes, micro-enterprises, small business development, and cooperative enterprises for women so as to address widespread rural poverty. It recognises the need for access to credit and skills training if such programmes are to succeed. The Department plans to liaise with public works programmes to ensure that they are effectively targeted at women in need.
Development Programmes
The Department of Welfare has launched pilots of the Flagship Programme for Unemployed Women with Children under Five Years in three provinces. Similar pilots will be launched in each of the other provinces in the near future. The main focus of the Flagship Programme is rural women who were previously excluded from services and developmental as well as economic opportunities.
The programme aims to provide single unemployed women and their young children with the opportunity to escape from poverty and reduce their potential dependency on the state. It will do so by:
In addition, the families will have access to social services that support the Programme's aims.
The Department of Trade and Industry has been able to channel funds to rural women through Khula Enterprise Finance and Ntsika Enterprise Development Agency. It has also provided financial assistance to the Rural Women's Movement.
Current initiatives of the Department which could assist rural women include:
Equality before the law
South African law states that every person who has attained the age of majority can enter into a contract in their own name. Under the new Constitution majority is reached at 18 years of age.
Women and men are treated equally under the civil law in terms of their legal capacity to conclude contracts and administer property. The General Law Fourth Amendment Act (1993) and the Matrimonial Property Act (1984) abolished the marital power of the husband which said that a wife needed her husband's permission before entering into a contract. Before this, while the wife needed her husband's permission, the husband could enter into contracts, including contracts selling their home, without the consent of his wife. The abolition of the marital power also applies to those who married before 1984.
Under the civil law women have the right to administer property without interference by, or consent from, a male. This is true whether they acquired the property during marriage, before marriage or while they were not married.
When damages are awarded in court, these are calculated along traditional principles. These principles privilege traditional income-earners, as well as those with higher incomes. Women are thus likely to receive smaller awards than men.
Women lawyers are entitled to represent clients before civil courts and tribunals. Women lay assessors are also appointed by courts. In contrast, customary and religious courts are the domain of men. There is little or no representivity of women in these courts.
Access to legal services
The statistics of the Legal Aid Board are not gender-disaggregated either by clients assisted with funding or amounts awarded. Overall, the Board's budgetary allocation favours criminal law cases. The majority of accused in these cases are men. The Board also provides funding for family law matters, in which women are the majority of litigants. However the total amount allocated is much smaller. Lack of finance prevents many women from obtaining custody and guardianship of children, and division and distribution of property on divorce.
Freedom of movement and domicile
Previously many South Africans experienced state control over their rights of movement under legislation such as the Group Areas Act and influx control. These laws severely restricted the choice of all those who were not white as to where they lived and worked. African women were more severely restricted than African men in their movement, in that the laws and practices favoured men who went to work in urban areas in the mines and factories, while making the right of African women to be in these areas largely dependant on their relationship to men.
With the repeal of these laws, women and men of all races are accorded the same formal legal rights of freedom of movement and choice of residence. A woman's domicile is not dependent on that of her father or husband. However, apartheid settlement patterns and the problem of job shortages and housing persist. Further, traditional norms dictate that men are likely to make the major decisions in many families. This curtails women in the exercise of their rights.
South African women who live and work temporarily in other countries have the same rights as men to have their spouses and children join them.
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women;
2. The betrothal and the marriage of a child shall have no legal effect and all necessary action, including legislation, shall be taken to specify a minimum age for marriage for marriage and to make the registration of marriages in an official registry compulsory.
Marriage
Forms of marriage
Family relations are governed by a combination of civil law, religious
laws and customary laws. Some couples marry under more than one system
- for example under both religious and civil, or customary and civil law.
Civil marriages
South African common law, which is mainly based on Roman Dutch and
English Law, allows for two forms of marriage:-
In marriages in community of property, both spouses pool their assets into a joint estate. Upon dissolution of the marriage each is entitled to a half share of the joint estate. In marriages out of community of property each party is entitled to what they personally had at the time of marriage, and anything that they earned or acquired during it.
Customary marriages
In customary law a wife is a perpetual minor. She does not have a right
to own, buy or sell property. Only the husband, kraal head or senior male
relative has these rights. Women are, however, able to use property. They
are thus entitled to live in huts erected for residential purposes and
till the land. On dissolution of a customary marriage anything the wife
acquired during the marriage becomes her husband's property.
Many customary laws related to marriage are oppressive to women. The Constitution gives everyone the "right to participate in the cultural life of their choice" and also recognises customary law. Both these rights are, however, subject to the provisions of the Bill of Rights, especially the equality clause.
The tensions created by the intersection of the Constitution, customary law and CEDAW are raised in the Issue Paper of the South African Law Commission (SALC) on the Harmonisation of the Common Law and the Indigenous Law (Customary Marriage). The Paper envisages the recognition of a customary marriage. This will give women married according to customary law the same status as those who are married according to civil rites. The Paper also seeks to repeal the Natal Code of Zulu Law and customary laws elsewhere in the country which regard women as perpetual minors, whether married or unmarried.
Issues raised in the Paper include:
Religious marriages
There are two main types of religious marriages in South Africa - Islamic
and Jewish.
Some couples marry under both Islamic and common law. Some marry only under Islamic law. These latter marriages are not currently recognised by the South African legal system. The SALC is investigating the possibility of recognising Islamic marriages. It appears, however, that recognition of Islamic marriages may infringe both the Consititution and CEDAW.
Jewish marriages are recognised by the South African legal system. However, while South African law says that a marriage exists until death or divorce, Orthodox Jewish law requires a religious divorce in addition to a secular one. Further, orthodox Jewish law says that only the man can initiate divorce proceedings. This requirement is economically and otherwise disadvantageous to women because men can use this power as a bargaining tool in secular divorce proceedings. The Divorce Amendment Act (1996) address this problem by ruling that a civil court can refuse to grant a divorce when it feels the man is unfairly using his power.
Other forms of cohabitation
There are many forms of "family" which exist in South Africa.
Many men and women live together as spouses even if they are not married.
Their unions are not recognised as a "marriage" by the state.
There are also unions of partners of the same sex, which are neither recognised
nor given the status of marriage under law. This lack of recognition is
open to challenge because the Constitution outlaws discrimination on the
grounds of sexual orientation.
Rights in marriage
Choice of spouse
Under the common law women have the right to choose a spouse. In African
customary law, when a husband dies, the wife "belongs" to the
family of the deceased husband and a relative of the husband may automatically
become the new husband to the widow. This practice is known as 'ukungena'
or levirate. In other forms of customary and Islamic religious marriages
the families of the husband and wife must be consulted and they decide
who should marry the woman. All these practices are open to challenge under
the equality clause of the Bill of Rights.
Name
Women have the right to keep their own surname on marriage. The custom
across all groups is for women to adopt the surname of their partner. But
professional women are increasingly choosing to either retain their surnames
or add these to the surnames of their husbands to form double barrelled
names.
Registration
The registration of marriage and divorce is required by law for common
law and religious marriages. It is not required for customary marriages.
Polygamy
Polygamy is permitted by African customary law, although the majority
of customary marriages are not polygamous. Under common law it is a criminal
offence, known as bigamy, to be married to more than one wife. The practice
is therefore discriminatory and open to challenge under the Constitution
(see Article Five).
Lobola
In African communities it is customary to pay bride price or lobola.
The practice occurs in both urban and rural areas, although details of
the arrangement vary widely. The practice has the effect of giving the
husband power over his wife. The Black Administration Act (1927) provides
that a marriage according to customary law where lobola was paid is not
against public policy or principles of natural justice.
Marriageable age and age for lawful
sexual intercourse
The Marriage Act (1961) provides that no boy under the age of 18 years
and no girl under the age of 15 years can contract a valid marriage except
with written permission from the Minister of Home Affairs. One explanation
for the difference in ages is that girls mature earlier than boys. The
practice is, however, discriminatory and the SALC will be required to investigate
the issue.
The Sexual Offence Act (1957) provides that it is a criminal offence to have unlawful sexual intercourse with a girl under the age of 16 years and a boy under the age of 19 years. It is also an offence to have sexual intercourse with an imbecile or idiot. The minimum ages for sexual intercourse are contradictory since they do not correspond with the minimum age of marriage. The law provides that the offence can be defended where the parties are married. The SALC is proposing that this anomoly be clarified.
Although minors need the consent of their parent or guardian to marry, marriages between minors without the consent of parents are not necessarily null and void. Such a marriage can, however, be dissolved by a court on application by the parent, guardian or minor if the court decides it is against the interests of the minor.
Betrothal of children is also prohibited. However child marriage is practiced in some South African cultures. It also occurs within some religious groups, particularly where arranged marriages are common. Girls have very little choice in these types of marriages as it is the families who choose. This practice is not legally recognised.
Violence in marriage
Legally, men do not have the right to chastise their wives. A wife
who is assaulted by her husband can lay a criminal charge against her husband
or obtain an interdict in terms of the Prevention of Family Violence Act
(1995) (See Recommendations 12 and 19). The latter Act also makes marital
rape a crime.
But in reality, wife battery is considered normal behaviour by an alarmingly high proportion of the population. Violent behaviour between spouses is still perceived by many as a private matter in which police and the legal system should not interfere. Unfortunately this view is widely held even by those who should be responsible for combating domestic violence.
Divorce
Divorce is available to men and women on the same basis in terms of the Divorce Act (1979). In South Africa divorce can be obtained through a couple simply stating that there has been an irretrievable breakdown of the marriage. It is not necessary to prove a period of separation.
Section 7 of the Divorce Act provides that the court make an order on the division of any assets. The order can also provide for payment of maintenance by one party to the other for minor children and/or the former spouse. Where the couple have reached agreement, the order is usually based on this agreement. The court does, however, have the right to reject or adjust agreements where it finds them inequitable.
In practice the courts are increasingly reluctant to provide for spousal maintenance, favouring the notion of the "clean break". Where couples are less wealthy, the Supreme Court also usually tends to leave matters of child maintenance to the lower courts. This causes problems for the custodial parents - overwhelmingly women - in that the maintenance courts do not function effectively.
If the marriage was in community of property, the parties are each entitled to a half share of the joint estate. In marriages out of community of property, the court can order that assets of one party be transferred to the other party. In doing so the court can consider both direct and indirect contributions to the estate of the other party. This provides for acknowledgement of unpaid labour performed by women caring for the home and children. In practice, however, courts rarely reflect this contribution in their orders.
Those who cohabit without legal marriage are entitled to a return of their contribution should the relationship break down. Such partners do not, however, have a right to maintenance during the relationship or after its breakdown.
If there are children involved , the Mediation in Certain Divorce Matters Act (1987) provides that a Family Advocate must make recommendations to the court on issues of maintenance, custody and guardianship of children before the court makes an order on the principle of the best interest of the children.
Rights in respect of children
Number and spacing of children
Women have the legal right to decide on the number and spacing of their
children. Women do not legally require permission from their partners to
obtain contraceptives. In practice, however, there may be constraints on
women exercising these rights (See Article 12).
Upbringing of children
Women have the equal right to make decisions about the upbringing of
their children . In practice their control is regulated by the cultural
norms of their family and the family of their partner or the father(s)
of their children.
Guardianship
The Guardianship Act (1993) provides that the parents of children in
a civil marriage have joint guardianship and custody over minor children.
Where children are born outside of marriage the mother generally has sole
guardianship. However, the latter position has recently been reversed by
the Constitutional Court in the case of Fraser v Naude (1997). Under customary
law the father has guardianship and control of the children if lobola has
been paid.
Custody
Generally women are awarded custody in the event of divorce, particularly
of younger children. Where cases are contested, however, men sometimes
have a better chance of winning because of their superior financial resources.
Maintenance
The Maintenance Act provides for magistrates to order the non-custodial
parent - usually the father - to make regular payments to the custodial
parent for the maintenance of their child/ren. The private maintenance
system is in disarray; many non-custodial parents do not comply with maintenance
orders, and enforcement is poor. In practice custodial parents bear the
major costs of rearing their children.
The Report of the Lund Committee (see Article 13) included a thirteen-page appendix of suggested ways of improving the maintenance system. These suggestions arose out of a workshop involving a wide range of interest groups. The SALC is investigating the problems and has issued a discussion paper. One of the many suggestions for improving the system is the issuing of automatic garnishee orders to obtain a maintenance debt from the salary. At present garnishee orders are only allowed after the person has defaulted.
Some fathers argue that the concept of maintenance is not applicable in customary law in that divorce puts an end to the spouses' relationship and that of their families. This argument ignores the duty of parents towards their children. The Maintenance Act is, in fact, applicable to all parents, whether they are married, divorced, or have never been married.
Adoption
Adoption of children is regulated by the Child Care Act (1983). The
mother of a child born outside of marriage has a right to agree that such
a child be adopted.
Rights of natural fathers
The SALC has recently investigated the position of natural fathers
in respect of their children born outside of marriage. The Commission produced
a report and drafted a bill - the Proposed Bill on the Powers of Natural
Fathers of Illegitimate Children. The Bill provides that a court may, on
application by the natural father, grant him access rights, custody or
guardianship if the court is satisfied that this is in the best interests
of the child. Where a child is put up for adoption, the Bill provides that,
where possible, the father should be informed and given the opportunity
to apply to adopt the child himself.
Rights of grandparents
In June 1996 the SALC also finalised a report on "Access to minor
children by interested persons". Again, this report contains a draft
Bill which has not been enacted. The bill provides that grandparents can
apply for access where this has been denied "by the person who has
parental authority over the child", and that any other person can
apply where "there exists between him or her and a minor child any
particular family tie or relationship. As with other laws relating to children,
the basis of any decision is the "best interests of the child".
Surrogacy
The SALC has also completed an investigation of surrogate motherhood
and drafted legislation on this.
There are two types of surrogacy - altruistic and commercial. In the first instance the surrogate mother undertakes to carry a child for someone for love, friendship or other altruistic reasons rather than financial gain. Usually the surrogate mother is a relative or friend of the commissioning couple. Commercial surrogacy, on the other hand, is undertaken in exchange for payment. This type of surrogacy is not permitted in South Africa. The only form of payment which can be made by the commissioning parents is to cover the expenses of pregnancy incurred by the surrogate mother.
After consultations, the SALC has drafted a Bill which provides that a surrogate motherhood agreement must be in writing, signed by all parties and confirmed by a court. To qualify as a surrogate mother, a woman must have already given birth naturally to at least one child. She must also, at the time of entering into the agreement, be married, divorced or widowed . The commissioning parents must be married and the gametes of at least one of them must be used in the surrogacy procedure. The commisssioning wife must be unable to give birth to a child and this condition must be permanent and irreversible. The surrogate mother must be physically and psychologically suitable to complete the pregnancy.
The Bill has not yet become law. The proposed restrictions on the marital status of the surrogate mother could well be unconstitutional.
Inheritance
Under civil law a wife has a claim to maintenance and support against her deceased husband's estate even if his will has bequeathed all of the property to others. If married in community of property, she is entitled to half of the estate. In marriage out of community of property, the wife is entitled to what she contributed to the marriage.
Under customary law women have no rights of inheritance from their husbands. A relative of the husband - usually a brother - becomes the guardian of both the wife and the children. Widows have to undergo a purification ritual and are then eligible to be married by the husband's relative. Widows are not treated the same as widowers.
Widows and daughters of a deceased man either have no legal right to inheritance in customary law if there is no testament, or have a lesser right than that of a son. A widow or daughter can receive property under a will, but if it is immovable property a son or senior male relative has to administer the property. Generally immovable property and property of significant value, such as a herd of cattle, is left to sons or senior male relatives. Property of minimal value like small livestock and farming implements can be left to a wife and daughters.
These practices are open to challenge under the equality clause of the Bill of Rights.
The Justice Vision 2000 document recommends that they be further investigated with a view to taking the necessary corrective measures.
Family Court
There is general consensus that the family law system requires overhauling. The laws are fragmented. In practice, the courts which deal with divorce are still racially segregated. The Justice Department has embarked on a plan to establish a number of pilot "family courts" which will operate as "one stop family law shops". They will deal with all of the laws relevant to relationships and families under the one roof. It is hoped that they will provide the foundation for a more integrated and co-ordinated approach to the administration of family law which will eventually incorporate changes to the law as well as new procedures and institutions.
The Committee on the Elimination of Discrimination against Women,
Considering that Articles 2, 5, 11, 12 and 16 of the Convention require the States Parties to act to protect women against violence of any kind occurring within the family, at the workplace or in any other area of social life,
Taking into account Economic and Social Council resolution 1988/27,
Recommends to the States Parties that they should include in their periodic reports to the Committee information about:
The Convention in Article 1 defines discrimination against women. The definition of discrimination includes gender-based violence, that is, violence that is directed against a women because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm of suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.
Gender-based violence, which imparis or nullifies the enjoyment by women of human rights and fundamental freedoms under genderal international law or under human rights conventions, is discrimination within the meaning of Article 1 of the Convention. These rights and freedoms include:
Gender violence in South Africa
South Africa has a high incidence of all forms of violent crime, including gender violence, which affects women of all races, classes, and ages; in rural and urban areas. It affects both rich and poor.
The seriousness of the issue is widely recognised in government and by the general public. Nevertheless, the rates of reported rape, sexual abuse of children and domestic violence continue to rise.
While laws exist to protect women against gender violence, in practice those who are violated often face further problems in their treatment.
For example, when survivors of rape give evidence in court, the "cautionary rule" applies. This rule requires that a judge must "show awareness of the special dangers" of relying on uncorroborated evidence of a complainant. This rule lowers the conviction rate and means that women experience the court as judging them untrustworthy. The rule has been judged unconstitutional in Namibia on the basis that it discriminates against women. All laws regarding rape will be referred to the South African Law Commission (SALC) for review in the near future. The cautionary rule is one of the issues identified for scrutiny.
In 1992, in a ground-breaking decision (S v Daniels and Three Others), Supreme Court judge D M Williamson accepted expert evidence on rape trauma syndrome (RTS) when deciding on the sentence. The court acknowledged that RTS can explain why a victim may not have a clear memory about an incidence of rape, and may not find it easy to describe the rape. At present this decision is formally binding only on the Cape Provincial Division of the Supreme Court. Generally rape trauma and battered women syndrome are not well understood in South Africa and the weight given to those ideas is likely to depend on the individual presiding judicial officer.
Victims of rape are confronted by a range of stereotypes which result in most rape victims not reporting their cases at all.
Legislation
The Constitution
The Constitution is the supreme law of the land. It includes a number
of provisions which deal with respect for human dignity, freedom of security
of the person and protection from "all forms of violence from either
public or private sources" (See Article 1).
The right to freedom from violence in private situations is particularly important to women as it provides constitutional recognition of, and protection against, family violence and all forms of violence in the home.
Publicity of the right to security of
the person
The Department of Justice has engaged in several initiatives to publicise
this right:
Family Violence Interdicts
The major piece of legislation dealing with gender-based violence is
the Prevention of Family Violence Act. This Act came into effect on 1 December
1993, before the first democratic elections and the ratification of CEDAW.
It provides for magistrates to issue interdicts against perpetrators of
domestic violence on application by the person abused or another interested
party. Among other provisions, such an interdict can prevent the abuser
from entering the common home. The Act also establishes marital rape as
a crime.
Many non-governmental organisations have been critical of the limitations and operation of the Act. The SALC has recently published a Discussion Paper which incorporates the views of NGOs, magistrates, academics, attorney-generals offices and other interested parties. Among the recommendations are a broadening of the categories of possible complainants in terms of relationship to the abuser, and a broadening of the definition of domestic violence. New legislation or amendments will be formulated after consideration of public comments.
During October 1996 the United Nations Special Rapporteur on Violence Against Women visited South Africa. She made available a framework for model legislation on domestic violence. This will be included in the considerations of the SALC.
Sexual Offences Act
The law relating to violence against women including rape applies to
commercial sex workers. Prostitution is, however, a criminal offence, as
is the selling of a women's sexual services by a third party (See Article
6).
Criminal Law Amendment Act
The Criminal Law Amendment Act (1991) provides for special treatment
of young witnesses. The Act provides that when it appears that a witness
under the age of 18 years will suffer undue mental stress, the court can
allow the witness to give evidence through an intermediary. Equipment to
enable this has already been installed at 115 courts countrywide. Four
mobile units are also available. Because of the cost of sophisticated electronic
equipment, one way mirrors are now being installed in new court rooms.
Criminal Procedure Amendment Act
One of the main frustrations which women victims currently encounter,
especially in cases of rape, is the unnecessary delays in these cases.
The Criminal Procedure Amendment Act (1996) should assist women and children
as it is primarily aimed at eliminating delays in the finalisation of trials.
Further legislation is planned to increase the maximum penalties which can be imposed by the lower courts (from 1 year to a maximum of 3 years in the District Courts and from 10 to 15 years in the Regional Courts). This legislation will enable the courts to impose heavier sentences in cases of violence against women and children in appropriate circumstances.
Amendments of 1995 have already strengthened the authority of a court to refuse bail in rape cases, especially where a weapon is used or when a gang rape occurs. The amendments have also provided for more effective prevention of interference with state witnesses. The Department is now promoting legislation which will oblige presiding officers to impose compulsory minimum sentences for serious offences such as rape where a firearm or other dangerous weapons is used. The draft provisions have been approved by Cabinet and will be refined following consultation.
In a recent watershed judgement on a serial rapist, the Appeal Court has made it clear that rapists should expect no leniency from now on. Grant Chapman, convicted of three rapes conducted within the course of a week in Cape Town in 1991, was sentenced to seven years for each count, with two sentences running concurrently, giving an effective sentence of 14 years.
In response to the argument by Chapman's Counsel that the sentence was too stiff, Chief Justice Ismail Mohammed said: "What can be more serious than this ? Women enjoying themselves in a public place, have their privacy invaded by rape and threats with a knife. This is undoubtebly a severe sentence, but has the time not come for the community to show revulsion at such crimes ? "
Justice Mohammed added that "the time has come for this court to say that the women of South Africa are entitled to walk the streets of the country in peace and that louts cannot invade their peace. We are determined to protect the equality, dignity and freedom of all women and we shall show no mercy to those who seek to invade these rights" (Sunday Times 25 May, 1997)
Non-legislative initiatives
Parliamentary public hearings
The first public hearings of the parliamentary Ad Hoc Joint Committee
on Improving the Quality of Life and Status of Women in South Africa, held
in February 1977, focused on the issue of violence against women. The Justice
portfolio committee also dedicated a meeting to violence against women,
on 6 June 1997. These occasions attracted great public interest.
Campaign on Violence Against Women
The Department of Justice has conducted a major Campaign on Preventing
Violence Against Women. The Campaign was launched on 25 November 1996,
International Day of No Violence Against Women and ran for four months
until 21 March 1997, Human Rights Day. It was widely publicised in the
media - in newspapers as well as on radio.
The campaign had two facets - external and internal. The external facet involved a public education campaign with the distribution of posters and pamphlets promoting themes such as:
The internal facet involved workshops to commence a sensitisation process within the Department and engage Departmental personnel in seeking solutions. The workshops targeted magistrates, judges, prosecutors, members of the SALC and other personnel from within the Department, as well as parliamentarians, staff of the Departments of Welfare, Safety and Security, Health and the South African Police Service and relevant NGOs.
The workshops identified the following issues as requiring careful scrutiny:
The workshops also resulted in a number of recommendations. Many of these draw on earlier work of NGOs and other agencies. Some of the major recommendations are:
The task team includes representatives from the Department of Justice, the SALC, the South African Police Service, the District Surgeons' Office, Attorney-General's Office, Correctional Services, Welfare, magistrates, the Appellate Division of the Supreme Court and an NGO representative of the National Network on Violence Against Women. This latter Network is a coalition of NGOs working in the field of violence against women and the line departments of Justice, Welfare, Police, Labour, Health, Education and Correctional Services. SAPS, the district surgeons' offices, senior prosecutors, court staff, judicial officers, social workers and NGOs.
The Task Team has now drafted guidelines which are currently being circulated within the separate line departments for comment. A synthesised manual will then be produced for all interest groups.
Open Courts Day for Women
One of the most significant events during the Campaign was the Open
Courts Day for Women held on 7 March, International Women's Day. Courts
around the country held information sessions and seminars on women's legal
rights and issues such as maintenance and interdicts. The Deputy President,
Thabo Mbeki, spoke at Protea Magistrates Court in Soweto, the Minister
of Justice spoke at Mitchells Plains Court in Cape Town and the Deputy
Minister spoke at Pretoria Magistrates Court. Many courts had other local
dignitaries and staff from NGOs who provided information to the participants.
The following extract from the Deputy President's speech sums up the mood of the day:
I have not come here to bring instructions from above. Rather I am here as a witness and observer. This open courts day is an occasion of interaction between the courts and the people. The courts must learn from civil society what is required of them. People must not feel intimidated by the courts and the courts must not be threatened by the people. This day represents the beginning of a process whereby the courts develop a culture of responsiveness to the needs of ordinary people and the special needs of women.
I wish to congratulate magistrates for the spirit with which they have entered into this event. I know that for many it is the first time they have made links with organisations in their area which provide services to the community. To work effectively the justice system must perceive itself as part of the web of social and community services. It is not separate from, but operates within, civil society and this day is a practical reflection of a new approach.
Planning for this open day has been an example of transformation at a practical level. By inviting the magistrates, gender representatives and NGOs to organise events together each party has had their eyes and ears opened to opinions and knowledge of the others. Magistrates have heard about the concerns of women in accessing the court and obtaining a fair hearing. NGOs and women's groups have heard about the reality of limited resources...
Further, magistrates have involved their court staff in the event so that people throughout the justice system have a stake in the outcome of an event. Such an opportunity has never existed before and the response has been overwhelmingly enthusiastic. Direct participation in a community event aimed at rendering courts more open and accessible empowers people. It engages them in transformation voluntarily and willingly. I hope this represents the beginning of things to come."
The Open Courts Day was a significant success. Women who attended raised a range of issues relating to the laws, procedures and practices around violence against women and maintenance, as well as more general issues such as court facilities, representivity and gender-sensitivity of court officials and public education.
Robben Island celebration
On 8 March 1997, International Women's Day was celebrated on Robben Island as a way of reclaiming the Island for women following the rape of a CGE Commissioner there in January 1997. The first half of the event consisted of testimonies from women, their families, and workers in NGOs who told stories of violence against women and their subsequent treatment by the legal system.
Subsequent developments
The Department is planning an internal evaluation of the Campaign through
a workshop with magistrates and some of the other role-players. The workshop
will be used to establish the lessons learnt and exchange ideas for future
similar events.
A number of magistrates courts have already implemented changes to improve the experiences of complainants in sexual offence cases. For example, separate waiting rooms have been established in some courts so that the complainant need not wait in the presence of the accused and his family. Meanwhile prosecutors, clerks and interpreters are being conscientised by the magistrates who attended the meetings. This will enable them to play a more effective role in disseminating information on the prevention of violence against women both inside and outside their homes.
Fundamental change can only occur when the whole of society works together. Departments are thus working in partnership with each other as well as with the Parliamentary Women's Group, NGOs, women's community groups and civil society. Men are being specifically included in the White Ribbon Campaign launched by the Department of Welfare and the National Network on Violence Against Women. White ribbons have been widely distributed to be worn by men as a sign of solidarity with victims of gender-based violence.
As all of this activity is new, its long-term impact is still unknown. Many women will still find the experience of going to court very traumatic and alienating, but there has been a positive start towards new attitudes and approaches.
Victim Support
Courts in Durban and Pietermaritzburg have set up victim support programmes
where NGOs work closely with court personnel to give legal information
and counselling. The new gender desks and the work being done to sensitise
court personnel are beginning to change the way courts handle cases of
gender-based violence. Some courts now provide separate waiting rooms for
victims so that they do not have to confront the accused while waiting
for the case to be heard. Some have set aside private rooms where women
can feed and change babies.
Under the National Crime Prevention Strategy the Department of Welfare is leading an Interim Steering Committee on Victim Empowerment with the aim of promoting a victim-centred criminal justice system. Its focus areas are:
It is intended that the training courses will be accredited under the National Qualifications Act which will enhance the employment and promotion prospects of those who have completed the course.
Speaking at a briefing in Cape Town, Minister of Welfare and Population Development Geraldine Fraser-Moleketi said this year special emphasis will be given to empowering women affected by rape and battering, and to empowering abused children.
The Interim Committee proposes that a National Coalition on Victim Empowerment ultimately be established. This body would have the task of overseeing the implementation of the Victim Empowerment Programme with the NCPS.
Gender Violence in Educational Institutions
These are no statistics available on the extent of violence at schools. However, many cases of girls being raped, harassed and assaulted on and around school premises have been reported. Their attackers include teachers, fellow students, as well as those not connected to the school.
According to a report in 1994 by Africa Watch, a London-based human rights organisation, many girls in South Africa stop going to school because they fear rape1 and girls are often unable to leave their homes to study at night for fear of being raped. Headmasters of 15 farm schools in and around Johannesburg believe that more than three quarters of their pupils are victims to sexual harassment and abuse. One headmaster stated that "children walking to school - some have a 20km walk - are being offered food and money in return for sexual favours". He commented that if children had transport to and from school, the rate of sexual abuse would be drastically reduced.2
The seriousness of the situation at tertiary institutions prompted the University of Cape Town, as far back as 1989, to establish a committee of enquiry into sexual harassment. The university now has a sexual harassment prevention and support service. Many other tertiary institutions are beginning to develop policies around the issue. Most provinces have reported plans to establish some system of dealing with cases of violence. The Gauteng Education Department talks about the establishment of grievance officers in every school to assist in resolving problems of violence amongst others.
In addressing the safety of girls and women at primary, secondary and tertiary institutions, the Heads of Education Departments Committee (HEDCOM), has agreed to request curriculum committees responsible for developing early childhood development programmes, as well as pre-service and in-service teacher education programmes, to deal with the issue of violence against women and girl children. Systems are still to be put in place to deal with violence against girls and women within the education area.
Violence and Health Services
Hospital staff are not required to inform the police of cases in which they suspect there has been domestic violence. Where violence involves minors -whether girls or boys - reporting to the police is obligatory.
Rape survivors are tested for HIV/AIDS if they request this. Rapists are not routinely subjected to tests as such a practice is considered unconstitutional.
South Africa has come a long way in the short time that has elapsed since the negotiation of the interim and new constitutions, and the first democratic elections. Government is aware of both the achievements and the many inequities and challenges which remain. The next South African report to CEDAW will, hopefully, record rapid advances and the solution of many of the problems noted in this, our first CEDAW report.
Footnotes
1. The Citizen,
23 August 1995.
2. The Star, 5 December 1995.