REPRODUCTIVE HEALTH RIGHTS OF WOMEN IN SOUTH AFRICA
5.4 LEGAL FRAMEWORK FOR THE PROTECTION OF THE REPRODUCTIVE HEALTH RIGHTS OF WOMEN IN SOUTH AFRICA
5.4.2 Relevant Legislations (a) The Children’s Act 202
The Children‟s Act was enacted to give effect to the rights of children enshrined in the Constitution. It sets out principles for the care and protection of the child and defines parents‟
200 K. Brulliard “Zulus eagerly defy ban on virginity test”. Available at: www.washingtonpost.com/wp- dyn/content/article/2008/09/25AR2008092504625.html.
201 Chapter 9, 1996 Constitution.
202 38 of 2005.
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responsibilities and rights.203To ensure that these rights are enforced, the Act established the Children‟s Court to adjudicate on matters addressed by the Act. The Children‟s Act explicitly prohibits children from being subjected to cultural practices that are harmful to their well- being.204It prohibits early/forced marriages as well as FGM and virginity testing– for children under the age of 16.205However, it allows virginity testing for girls over the age of 16 – subject to it being conducted in the manner prescribed by the Act.206Thus, the Children‟s Act protects children from cultural exploitation by their parents in fulfilling their cultural beliefs. Some of these children are subjected to these practices against their wish. FGM, virginity testing and early forced marriages which are prohibited by this Act, are part of the cultural practices embraced by some ethnic groups in South Africa. Apart from the fact that these cultural practices violate the fundamental human rights of the victims, it might also affect their reproductive autonomy when they are married.
(b) The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA)207
Section 9 of the Constitution guarantees the right to equality. The focus of this section is the violation of this right by the state – except for Section 9(4) which briefly mentions the duty of private actors to ensure that they do not discriminate unfairly. The provision empowers the state to enact any legislation that prohibits unfair discrimination.
PEPUDA was enacted in 2000 to enhance further the promotion of equality. The preamble to the Act sets out the various factors that entrenched inequality in South Africa – including colonialism, apartheid, and patriarchy. Section 5(1) states that the state and all persons are bound to ensure that equality is realised in South Africa. The various provisions of the Act are enforceable by a special court known as the Equality Court. PEPUDA forbids all forms of unfair discrimination in the private and public spheres. Section 8 prohibits unfair discrimination on the grounds of gender; it outlines various acts that could constitute discrimination by gender. Of importance to this study is Section 8(b) that prohibits FGM. Furthermore, Section 8(d) prohibits
203 Chapters 2 and 3.
204 Section 12 (1).
205 Section 12(2) (3) (4).
206 Section 12(5)(6)(7).
207 4 0f 2000.
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“any practice, including traditional, customary…which impairs the dignity of women and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child.” It goes without saying that practices such as virginity testing, forced marriages, polygamy, and levirate and sororate unions are regarded as discriminatory in terms of this Act. The Act empowers South African women to challenge any cultural practice that discriminates against them and impairs their reproductive autonomy.
(c) The Criminal Law (Sexual Offences and Related Matters) Amendment Act 208
This Act protects the girl child from sexual exploitation. Sections 15-18 prohibit sexual relationships with girls who are underage. Sex with a girl under the age of 12 is rape, while sexual relations with a girl under the age of 16 are regarded as a sexual offence. The Act also prohibits sexual exploitation of children by their parents or other people. It follows that abduction and kidnapping of young girls (ukuthwala) and subsequent rape by the abductor contravenes this Act. In the same vein – as noted earlier in this chapter – during initiation ceremonies in some ethnic groups, old men violate young initiates under the guise of establishing whether the initiation was properly done, and this amounts to sexual exploitation. These cultural practices will invariably have a negative impact on the reproductive health rights of the victim.
The primary purpose of this Act is to ensure that whoever exploits a young girl sexually is in fact prosecuted.
(d) The Recognition of Customary Marriages Act (RCMA)209
This Act contains some provisions that protect the rights of women in the face of various cultural practices. It recognizes consent to marriage as an essential ingredient of a valid customary marriage. Both the bride and the bridegroom must consent to the marriage, and they must be older than 18.210Thus, customary marriages conducted in furtherance of cultural practices such as levirate and sororate unions – as well as forced marriages – are invalid. The Act also guarantees a women‟s right to equality with her husband in a customary marriage.211 A woman has full legal
208 32 of 2007 (Sexual Offences Act).
209 120 of 1998.
210 Section 3.
211 Section 6.
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capacity and should not be treatedas a minor. She should be able to exercise her reproductive autonomy without any hindrance. In the same vein, the Act offers protection to women in customary marriages, by requiring a husband who intends to take an additional wife to apply to the court for a contract to regulate future matrimonial property.212This will enhance the economic powers of women in polygamous marriages.