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“Advancing Equality for all” ____________________________________________ August Equality Unit Publication 2006
Editorial: Moeletsi Liphapang discriminated against and the grounds are also prohibited grounds in terms of PEPUDA. PEPUDA also defines what discrimination is and from its interpretation one finds that there is fair and unfair discrimination as well direct and indirect discrimination.3 In terms of the grounds upon which a person may not be unfairly discriminated against, we are going to look at the ground of gender as it applies to heterosexual marriages. We are also going to discuss the roles of spouses in these marriages and their households. Marriage and the role of spouses in the olden days The marriage regime in South Africa is governed by the Marriage Act4 as well as the Civil Union Bill5. The latter was introduced in order to accommodate marriages by gay people and is not the subject of this discussion. Marriage is the voluntary union of two persons in terms of this Marriage Act to the exclusion of any other marriage, union or partnership.6. For the purposes of this discussion marriage shall be defined as voluntary union between

The preamble of the constitution of the Republic of South Africa puts an emphasis on equality as the cornerstone of our society. One of the founding values of our country is also equality. This stems from the fact that the constitution seeks to redress the imbalances that occurred in the past due to apartheid laws. Certain sectors of our population were systematically oppressed by oppressive laws and treated with indignity. The constitution therefore seeks to redress those imbalances such that we are in a country where everyone is treated equally and with dignity.1 National legislation was passed in 20002 in order to give effect to section 9 (4) of the constitution for the achievement of equality and the prevention of unfair discrimination. Section 9 (3) of the constitution provides a list of grounds upon which a person may not be unfairly
See section 9 and 10 of The Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter referred to as “the constitution) 2 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Also known as PEPUDA or the Equality Act)

3 4

See section 14 of PEPUDA Act 25 of 1961 5 B26-2006 6 Marriage Amendment Bill, 2006

a man and a women in terms of section 1 of the Marriage Act7 When a man and a woman enter into a marriage they incur certain legal responsibilities towards each other and the offspring that the marriage might produce. The legal responsibilities include, inter alia • • • •
The duty of support Conjugal rights Access to the marital home Provision of household necessities

young children. Girls and boys have not been socialized the same way. Girls were socialized to be feminine and to be ladies and to carry out certain feminine duties. Boys on the other hand were socialized to masculine and macho so as to carry out duties requiring manpower. Black people in the past generally did not have many opportunities in terms of education and employment. The only employment that was realistically available to them was as miners, farm laborers and domestic workers. The socialization of the different genders has a bearing on which of the limited job opportunities each gender would undertake. It was also a fact in those days that even if men and women were in the same employment, for example, as teachers, the man would earn more than the woman. This would be the case despite the fact that they had the same qualification, experience and responsibilities as employees. There was also a lot of discrimination and victimization suffered by Black men in the mines and farms at the hands of their White employers. They did not have any say on how their work conditions should be like and had to be content with whatever was made available by employers. The only place where a Black man could have authority was at his home. This authority was not always exercised properly and often led to the abuse of women and children in different ways. Women were usually victimized by their husbands and they could not leave them or report them to the police because the men provided for them and their children. These 2

The legal consequences of a marriage are reciprocal duties between the husband and the wife in terms of how much income they have. It is also the duty of each spouse to maintain the children. In the olden days men were the ones who had the opportunities to acquire work and therefore it was generally accepted that it was a husband’s responsibility to support the wife and children. Black men, in particular, used to work in the mine and farms and they were the ones who earned an income. Boy children had the duty of looking after livestock and any duties around the household that needed manpower. Women on the other hand had a responsibility to look after the children and the household. They had to do the household chores together with the girl children. Women could also maybe work as domestic workers to earn an income. The socio-economic responsibilities of a marriage are not contained in legislation. They depend solely on how people were socialized as

25 of 1961

practices never escaped the eyes and attention of the children and they in turn practiced the same when they grew older. The cycle would then continue with girl children knowing that they should be submissive to their husbands and boys having learnt to be domineering over their wives. The Modern day situation The post apartheid South Africa has brought about many changes, in particular to the socio-economic structure of society. Black people have been afforded more opportunities in terms of education, business and in politics. There are programmes in place to particularly empower Black people in all spheres so that they are now better represented and are participants in the economy of the country.8 It has been generally accepted that Black women were the ones who had the least opportunities during the apartheid era. This necessitated that there should be programmes that are designed to benefit women in politics and in business to make them more involved in the economy and decision-making.9 Through these programmes and legislative measures we see more and more women in influential and strategic positions in companies as well as in parliament Apart from the programmes and legislative measures to empower women in the economy there are other legislative measures put into

place for their protection against abuse and victimization: •
The Criminal Law Amendment Act10 is in response to the problem of violence against women and makes provision for stringent rules for the granting of bail such that it is difficult for those who have been charged with rape to be granted bail. The Domestic Violence Act11 recognizes marital rape and also affords protection to victims of domestic violence and also potential victims.


The modern day marital life is such that both the husband and the wife are employed. In the evening both of them get home and they are both tired from their respective jobs. In some instances the wife is employed and the husband is unemployed. In some instances the wife earns more money than her husband. We also have women in professions that they were previously barred from. We also find women and men with the same qualifications, experience and responsibilities earning the same amount of money. Despite the improvement in the quality of life of Black people in general and women in particular, their socialization as children often comes to the fore. Women are still expected to look after the children and also tend to household chores even if they are employed. A woman will come back from work and find her unemployed husband having done nothing in respect of household chores despite the

e.g., The Black Economic Empowerment (popularly known as BEE) and Affirmative Action (AA) 9 e.g The Broad Based Black Economis Empowerment Act 53 of 2003


10 11

105 of 1997 116 of 1998


fact that he has been doing nothing for the whole day. There is also an unfortunate stigma attached to an unemployed man who cannot be able to maintain his family. In some instances the man would even suffer the indignity at the hands of his own wife. Conclusion There is a saying that charity begins at home, which means that every good deed begins at a family that one comes from. Marriage is a cornerstone of our society. It is where many families and family values are founded. It is important that the right values, ideals and principles become the foundation of a marriage. South Africa’s democracy, constitutional era as well as its culture of Human Rights are at their infancy. The policies, programmes and legislative measures that have been put into place in South Africa for the achievement of gender equality have brought about changes. The pace is not as fast as one would have liked but the improvement is noticeable. The culture of human rights, however, is not about the Bill of Rights that contains it but rather about changing the mindsets of people to accept that we should all coexist with equality and dignity.

It is more difficult to change the attitudes of adults. It is easier to socialize children from an early age to accept and acknowledge the differences in people, celebrate their diversity but that all people should be treated equally. Children should be taught values that do not have an element that there is gender that is more superior than the other. As identified earlier children copy what they see from the adults in the family and practice it as they grow older. It is the responsibility of parents therefore that the characters they portray should be exemplary to children so that the next generation will respect the rights of others. This discussion is not about a violation of rights in the bill of rights but more about the values in our society that are incompatible with culture of human rights or the potential thereof. It is also aimed at provoking dialogue amongst people such every practice that is the remnant of pre-democracy South Africa is eradicated as it poses a threat to our constitutional democracy.


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