REPRODUCTIVE HEALTH RIGHTS OF WOMEN IN SOUTH AFRICA
5.2 HISTORY OF REPRODUCTIVE HEALTH RIGHTS OF WOMEN IN SOUTH AFRICA
5.2.2 Colonial and Apartheid Period
The colonial experience in South Africa commenced with the British occupation of the Cape in 1795.6 The British colonists seized the Cape from the Dutch, who had not imposed their rules or beliefs on the local population. The British colonists introduced their concepts of freedom and equality– and the colonists drove black South Africans from their farmlands and forced them to work on the mines and white-owned farms and factories.7
As will be revealed later in this chapter, South Africa‟s political history provided a unique experience for the women – compared to other parts of Africa. South Africa graduated from colonialism to apartheid. Apartheid laws violated the human rights of citizens, especially black people.8Black and white people were geographically, socially and politically segregated.9 Racial lines determined the enjoyment of human rights. The whites monopolised power and enjoyed extensive rights- while the coloured and the Indian people enjoyed fewer rights compared to the whites, and black people weredeprived of their basic, fundamental human rights.10 The major concern of the legal system during the period was how to entrench apartheid. For instance, the Population Registration Act11classified people according to their racial or ethnic origins.
Discrimination was institutionalised in every sphere of society.12This had an effect on the culture
5 S. Houston “Gender Oppression and Discrimination in South Africa” (2007) 5 ESSAI Available at http://
dc.cod.edu/essai/vol.5/issl/26, 83.
7 P.C. Rosenblatt &B.C. Nkosi “South African Zulu widows in a time of poverty and social change” (2007)31 Death Studies67.
8 S. Liebenberg “Human development and human rights” (2005) 21 SAJHR 1,5.
9 “Women of the world: Laws and policies affecting their reproductive lives”, note 6 (above) 92.
10 Liebenberg, note 8 (above).
11 30 of 1950.
12 N. Ntlama“The application of section 8(3) of the Constitution in the development of customary law values in South Africa‟s new constitutional dispensation” (2012)15(1)PER/PELJ 24.
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of black South Africans. As stated by Maluleke, “Local African culture was oppressed for many years by the white South Africans who found their cultural roots in Western countries.”13
Some customary laws that tend to accommodate discrimination were recognised by the apartheid government to enhance control of black South Africans and were used to discriminate against them.14This is while some customary laws that are not discriminatory were ignored, corrupted or enlisted in a dishonest way – to justify segregation.15The caveat for the recognition of the customary law was that they should not infringe the humanitarian principles of „civilised society‟. In this context, civilised society was interpreted as „white society‟.16 Consequently, customary laws were modified to align with the legal systems of the colonial and apartheid regimes, and codified in line with the colonisers‟ perceptions. Thus, contemporary South African culture is a mix of traditional culture and alien culture.17The colonisers also manipulated customary practices to grant additional powers to kings and chiefs – in exchange for their support for the apartheid regime.18This significantly impacted the lives and rights of South African women. The laws adopted by the colonial regime did not recognise women‟s economic and political rights.19
The apartheid racial segregation policy led to unequal socio-economic rights. For example, the colour of the people determined the quality of the health-care they received. Some categories of people thus felt superior to others. Categorisation into four groups – Europeans(whites), Africans(blacks), Asians or Indians, and Coloureds (people of mixed race)20 – invariably resulted in discrimination. Apartheid laws created the homeland system thatconfinedblack South Africans
13 M.J. Maluleke“Culture, tradition, custom, law and gender equality” (2012) 15(1) PER/PELJ 1,2.
14 Ntlama, note12 (above).
15 T. Nhlapho“Indigenous law and gender in South Africa: Taking human rights and cultural diversity seriously”
(1995) 13 Third World Legal Studies49.
16 Maluleke, note 13 (above).
17 Ibid.
18 Liebenberg, note 8 (above).
19 Land Settlement Act 12 of 1912, Group Areas Act41 of 1950,1952 Pass Law, Population Registration Act30 of 1950, Prevention of Illegal Squatting Act52 of 1951 – among others.
20 K.Inwood & O.Masakure “Poverty and physical well-being among the coloured population in South Africa”
(2013) Economic History of Developing Regions 56,60.
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to certain areas with little or no development, compared to the urban areas that were reserved for whites.21
As noted above, racial segregation extended to health-care delivery and this in variably affected women‟s reproductive health rights. While no specific legislation was adopted to address reproductive health rights, the focus was on maternal and child health-care– with special emphasis on contraceptive services.22Women belonging to different racial groups received different levels of health-care. While white women received curative and high-tech hospital- based services, the services offered to black women were primarily aimed at controlling the growth of the black population. Long-term contraceptive injections were provided to black women, while the white women were offered the contraceptive pill.23 This policy violated women‟s right to equality and dignity and thus infringed upon their reproductive health rights.24While white women with access to contraceptive pills had the autonomy to decide whether to continue or discontinue their use, the black women who received long-term contraceptive injections did not enjoy such freedom.
Apartheid laws also violated some other fundamental human rights. The law that prohibited inter-racial marriage impinged on the right to marry and found a family.25 This law was at variance with the provisions of the 1948 Universal Declaration of Human Rights (UDHR)–
which provides that when a man and woman are of full age, they have the right to marry anyone of their choice and found a family without limitation as to race, nationality, or religion.26The law that forbade sexual relations with people from other racial groups violates the citizens‟ right to
21 L. London“Health and human rights: What can ten years of democracy in South Africa tell us?”(2004) 8(1) Health and Human Rights 1.
22 D. Cooper et al. “Ten years of democracy in South Africa: Documenting transformation in reproductive health policy and status” (2004)12 Reproductive Health Matters70.
23 Ibid.
24 London, note 21 (above).
25 Prohibition of Mixed Marriages Act55 of 1949.
26 Article 16(1) of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December 1948.
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freedom of association.27It is evident from the above that during the colonial and apartheid periods, the various laws subjected African cultureto „western‟ culture.28