Authored By: Rina Moyani
University of Johannesburg
Introduction
Former Chief Justice Pius Langa defines transformative constitutionalism as “providing a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice to a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of gender, colour or race”.1 This refers to the Constitution’s mandate to address historical injustices and promote substantive gender equality. Substantive equality focuses on achieving equality by accounting for individual circumstances and historical disadvantages. South Africa has made significant constitutional developments towards gender equality through the framework of transformative constitutionalism. However, structural patriarchy, socio-economic inequalities and inconsistent implementation continue to prevent women from the full enjoyment of their rights. This article critically examines the extent to which transformative constitutionalism has advanced substantive gender equality. It argues that, despite constitutional and legislative reforms, substantive equality remains only partially fulfilled due to barriers that undermine women’s rights.
1. South Africa has achieved substantive gender equality.
One could argue that South Africa has made significant efforts towards achieving substantive gender equality. Former Chief Justice Pius Langa asserts that the Constitution’s goal is to heal the wounds of the past and guide us toward a better future.2 Healing the wounds of the past extends beyond remedying the racial injustices of apartheid. It also addresses the historical oppression and gender inequalities experienced by women in the workplace. One of South Africa’s greatest achievements is the adoption of the Constitution of the Republic of South Africa, 1996, which contains a Bill of Rights.3 Section 9(1) and (3), the equality clause, provides that everyone is equal before the law and that the State may not unfairly discriminate against anyone on grounds that include sex and gender. These provisions are of great significance as they reflect the transformative commitment to eradicating patterns of discrimination and achieving equality. They highlight South Africa’s aspiration to move from an unequal and wounded past to a future based on equality and protection for everyone.
1.1 Legislative effort to achieve equality
Legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA) was enacted to address the systemic inequalities of patriarchy.4 The preamble of the PEPUDA recognises South Africa’s commitment to the eradication of the social and economic inequalities generated by patriarchy and apartheid. Furthermore, it upholds the constitutional values of human dignity, non-sexism and social justice. The Domestic Violence Act, 1998, as amended in 2021, was enacted to combat violence against women and children, taking into account South Africa’s obligations under international law instruments, including the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC).5 The effectiveness of the Domestic Violence Act in addressing violence remains a subject of ongoing debate, considering the persistently high rates of gender-based violence (GBV) and femicide in South Africa.
The Sexual Offences and Related Matters Act, 2007 was enacted to address all aspects relating to sexual offences, including rape and consent to sexual acts.6 The need for such legislation was underscored by the judgment in S v Masiya, in which an accused was convicted for ‘anally’ raping a nine-year-old girl.7 At the time of the offence, there was no legislation governing rape. The South African common law defined rape as the unlawful and intentional penetration of a female’s vagina by a male’s penis. Anal penetration did not fall within the common law definition of rape. South African law does not apply retrospectively; one cannot be prosecuted for conduct that was not a crime at the time it was committed. The court extended the common law definition of rape to include anal penetration. However, the accused could not be convicted of rape because of the prohibition on retrospective application; he was convicted of indecent assault. Nevertheless, the judgment highlighted the need for comprehensive statutory regulation of sexual offences. This reinforced the case for the statute that was eventually enacted as the Criminal Law (Sexual Offences and Related Matters) Amendment Act.
1.2 Transformation through case law
The courts have demonstrated a commitment to advancing women’s rights through various constitutional judgments. In Bhe v Magistrate, Khayelitsha, the Constitutional Court addressed the rule of male primogeniture, which discriminated against women and children in matters of inheritance.8 A man died intestate (without a will), leaving behind two daughters born outside his marriage with their mother. Section 23 of the Black Administration Act, 1927 provided for male primogeniture, which meant that the deceased’s father was to be the heir and not the daughters.9 The court declared the rule of male primogeniture unconstitutional because it discriminated against women and was inconsistent with equality and human dignity. This judgment is widely recognised as a landmark equality judgment because it strengthened constitutional protection for women and children.
Further judgments have followed from this decision. The legal principles in Bhe were subsequently applied in Shilubana and Others v Nwamitwa.10 A woman was prevented from succeeding to her deceased father’s position as a traditional leader because succession was historically restricted to men. The respondent (her cousin) argued that he was the rightful successor under customary law. The court held that customary law must be developed in line with constitutional values. It upheld the woman’s right to leadership and affirmed that customary law cannot be used to justify gender discrimination.
2. South Africa has not achieved substantive gender equality.
Despite these legislative and judicial efforts, women remain marginalised in various spheres of society. Although South Africa has a progressive legal framework, significant gaps remain in its implementation. The GBVF Annual Report 2024–2025 indicates a 33% increase in the femicide rate.11 This suggests that the legal framework has not yet translated into meaningful protection for women.
Mathews et al (2015) examine the societal and psychological issues that contribute to men’s violence towards women.12 The authors discuss men’s use of violence against women as a way of asserting masculinity and dominance. One man quoted, “I became jealous, I did not want her to be with other guys, I cut her braids and told her, ‘Now I know the guys will not worry her anymore’”. This statement demonstrates how controlling behaviour rooted in toxic masculinity can manifest as violence against women. It is argued that men become violent when they feel that their manhood is challenged.
Men’s childhood experiences are often said to be a contributing factor to their insecurities and low self-esteem. While such experiences may explain certain behaviour, they can never be a justification for the violence and suffering that women endure at the hands of men. Many individuals in African communities have experienced childhood adversities, including women. Yet it is comparatively rare for women to perpetrate lethal violence against men as a response to trauma. Childhood trauma cannot explain the prevalence of femicide. Rather, such violence is rooted in patriarchal norms and misogynistic attitudes.
While free counselling facilities are available for individuals experiencing trauma, many men are reluctant to seek help. This results from societal expectations that equate vulnerability with weakness. Unresolved trauma is not a legitimate reason for resorting to femicide; in fact, it is unfair for women to suffer because of hurting men. Kiasha Pilla (2019) argues that feminist ideology provides an important framework to address violence through the transformative power of the law.13 She contends that feminism has the potential to challenge the marginalisation of women. This was reflected in the work of organisations such as the ANC Women’s League and the Black Sash, which emerged from different feminist groupings advocating gender equality and social change.
Conclusion
It is difficult to assert whether or not South Africa has achieved substantive gender equality. This article has examined South Africa’s legislative and judicial efforts as well as the persistent challenges in implementation. It has demonstrated that, while there is a strong commitment to achieving gender equality, patriarchy and socio-economic issues continue to hinder the prospects of an equal society. The state must adopt stronger implementation of existing laws and ensure that perpetrators are held accountable. Lastly, feminism remains a powerful tool for challenging patriarchal structures and strengthening the protection and upholding of women’s rights.
Footnote(S):
1 Justice Pius Langa, ‘Transformative Constitutionalism’ (2006) 17( ) STELL LR 351
2 id
3 The Constitution of the Republic of South Africa, 1996. Section 9
4 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
5 Domestic Violence Amendment Act 14 of 2021 (as amended)
6 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
7 S v Masiya 2007 (5) SA 30 (CC)
8 Bhe v Magistrate Khayelitsha 2005 (1) SA 580 (CC)
9 Black Administration Act 38 of 1927
10 Shilubana and Others v. Nwamitwa 2009 (2) SA 66 (CC)
11 GBVF Response Fund Annual Report 2024- 25
12 Shanaaz Mathews, Rachel Jewkes and Naeemah Abraham, ‘So now I’m the man: Intimate partner femicide and its interconnections with expressions of masculinities in South Africa’ (2015) 55 (1) Brit. J. Criminology 107
13 Kiasha Pilla, ‘A discussion of Intellectual History, Jurisprudential Theories and Feminism in the Eradication of Epistemic Violence in South Africa’ (2019) 13 Pretoria Student L. Rev 88
Bibliography
Cases
- Bhe v Magistrate Khayelitsha 2005 (1) SA 580 (CC)
- Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC)
- S v Masiya 2007 (5) SA 30 (CC)
The Constitution
- The Constitution of the Republic of South Africa, 1996
Legislation
- Black Administration Act 38 of 1927
- Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
- Domestic Violence Amendment Act 14 of 2021 (as amended)
- Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
Reports
- GBVF Response Fund Annual Report 2024–2025
Journal Articles
- Justice Pius Langa, ‘Transformative Constitutionalism’ (2006) 17( ) STELL LR 351
- Kiasha Pilla, ‘A discussion of Intellectual History, Jurisprudential Theories and Feminism in the Eradication of Epistemic Violence in South Africa’ (2019) 13 Pretoria Student L. Rev 88
- Shanaaz Mathews, Rachel Jewkes and Naeemah Abraham, ‘So now I’m the man: Intimate partner femicide and its interconnections with expressions of masculinities in South Africa’ (2015) 55 (1) Brit. J. Criminology 107
