Month: May 2019

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STATEMENT: RESPONSE IN RELATION TO OUTCOME OF BDS SOUTH AFRICA’S INVESTIGATION INTO SEXUAL HARASSMENT COMPLAINT

 

 

 

MEDIA STATEMENT: RESPONSE IN RELATION TO OUTCOME OF BDS SOUTH AFRICA’S INVESTIGATION INTO SEXUAL HARASSMENT COMPLAINT

28 May 2018

In April, the Women’s Legal Centre undertook to representing Professor Kil, one of the complainants of sexual harassment carried out by Muhammad Desai, the National Director of Boycott, Divestment and Sanctions South Africa (BDS SA).  Yesterday, we received the report which detailed the outcome of an investigation, carried out by BDS South Africa. We note with great disappointment the outcome of our client’s complaint of sexual harassment against Mohammed Desai.

Our client, along with two other women, lodged complaints with the Board of BDS SA against Mr. Desai on 22 March 2019, following incidents of sexual harassment on the 21st March 2019 in Johannesburg, Gauteng. On 3 April 2019, the Board of BDS-SA announced that an independent investigation would be convened on 15 April and that it would be completed within a period of one month.

Throughout April, and up until 16 May, the Women’s Legal Centre wrote to the Board of BDS SA to seek clarity on the terms of reference for the investigation. The purpose for which we sought the information was to enable the complainant to understand and make informed decisions about their participation in the process of the investigation. The WLC received no response to, or acknowledgement of, any of the concerns raised.

Without advising us, our client was approached for the first time on 20 May 2019 via email by the investigator of her complaint. She was also advised that the investigation was taking place urgently, and was asked to confirm the content of her statements. No new or further questions were posed to her and she was not given the option of interview.

On 27 May 2019, she was advised via her attorneys at the Women’s Legal Centre that the investigation had been completed and that the findings were that no disciplinary steps need to be taken against Mr. Desai as his behaviour did not constitute workplace misconduct.

We are disappointed in the legal findings, but we are even more disappointed with its analysis. It shows a clear bias in favour of the perpetrator, and the investigator places the burden and onus on women to address sexual harassment and sternly resist it. He opts to require that victims of sexual harassment make it clear by verbally informing the perpetrator and others that the behaviour is unwanted and unacceptable. We refer to the following excerpts of the report, which BDS SA has indicated published on their website:

  1. 85: “It is not clear why Prof Kil, a consummate Palestinian activist, who has encountered Mackivists before in the USA and in her activism community could not sternly inform Mr Desai to refrain and desist from what she considered to be an inappropriate predatory sexual behaviour.”
  2. 88: “According to the statements of Prof X, Ms Y and Prof Z[1], Prof Kil told them that Mr Desai was “annoying her, he could not leave her alone and he was bothering her”. Why did Prof Kil not tell other complainants or any persons at the restaurant that she was being sexually harassed?”

These types of analyses, among others included in the report, are extremely harmful to victims of sexual harassment, and present a bias in favour of male perpetrators. It is a regressive approach to dealing with sexual harassment, contrary to how our courts have interpreted laws in relation to sexual harassment.  To focus on the fact that because the client did not indicate that she is verbally uncomfortable makes her statements weak, is a poor analysis of the incident.

This investigation and its report are a case in point of the importance of taking a victim centred approach to dealing with sexual harassment.  The report favoured an approach that heavily criticised as well as questioned the motives and the behaviour of the complainant against the standard of the ‘perfect victim’, implying and creating a narrative in many instances that the victims are over-reacting, or seeking attention, which has damaging effects for the victim in the already distressing aftermath of seeking justice, and failing. In doing so, the report deliberately ignores the deeply entrenched and gendered power relations that exist between men and women in the workplace, as well as work-related social spaces, but ironically utilises an approach that is wholly indicative thereof.

It also ignores the case law on how sexual harassment can take place outside of the office space and that it frequently takes place in work-related social spaces.

It is disappointing that in the age where women’s voices are meant to be heard, and in light of the many cases of sexual harassment in the public sector in the last two years, at a time where strides are meant to be made to ensure women feel safe enough to come forward in sexual harassment processes, that this report will be used as a regressive justification for letting men get away with sexual violence, and the impact it will have on women coming forward in future.

We pledge solidarity with all the victims of sexual harassment at BDS South Africa, and in the public sector, those who have come forward, and those who have not. We will continue to assist our client as she considers her options going forward.

[1] Names redacted.

Issued on behalf of the Women’s Legal Centre

For further enquiries contact Aisha Hamdulay at aisha@wlce.co.za or communications@wlce.co.za

Media statement: Update in respect of the Recognition of Muslim Marriages Case (Women’s Legal Centre v The President and Others):

MEDIA STATEMENT: Update in respect of the Recognition of Muslim Marriages Case (Women’s Legal Centre v The President and Others):

24 May 2019

On 9 May 2019, a full bench of the High Court in the Western Cape granted leave to appeal, and leave to cross-appeal their judgment in the Recognition of Muslim marriages case. The judgment and order, handed down in August 2018, held that the State has a duty to recognise marriages concluded in terms of Shari’a law, and that the State has an obligation to enact legislation which will ensure the judgement becomes a part of recognized law. The legislation, however, is only required to be formally legislated in two years, which leaves women vulnerable in the interim.

In October 2018, the President and the Minister of Justice applied for leave to appeal against the whole judgement. Leave to appeal was subsequently granted, and it was decided that the matter will be taken to the Supreme Court of Appeal.

The Women’s Legal Centre applied for leave to cross-appeal against the judgement in October 2018, which was granted on 9 May 2019.  Our reasons for cross appealing were that we were dissatisfied with the following parts of the judgment:

  1. We believe that the Court should have granted interim relief to women who are currently in a position where they require legal recognition of their marriages, so that their rights to housing, land and property are protected until legislation in enacted. The judgment did not provide women with any remedy while they awaited the two-year period for the state to develop and adopt legislation recognising their marriages.
  2. We believe that the Court erred in finding that Islamic marriages are currently “out of community of property” in South Africa when we know that people have different ways in which they deal with marital property within their marriage, and at the dissolution thereof, This is an issue best left to the legislature, and not the courts, to determine.
  3. Our cross-appeal is also driven by our belief that the Court erred in finding that there was widespread objection to legislative regulation and a lack of consensus in this respect in the Muslim community in South Africa. This was an irrelevant finding to the relief sought, and there was simply not enough evidence before Court to draw this conclusion. Even where there is possible objection, such objections cannot override the state’s constitutional duty.
  4. Further, the Court erred in not compelling the Minister of Justice and Constitutional Development to put in place policy or regulatory measures in terms of the Intestate Succession Act, to deal with the administration of estates which come from Muslim marriages at the office of the Master of the High Court. We led evidence showing that there was enough case law to justify putting in place such regulatory /policy measures.
  5. The Court further erred in failing to find that there is an obligation on the Minister of Justice to put in place measures that promote and protect Muslim women’s access to rights already given by prior judgments of the Courts, in respect of the consequences of Muslim marriages, particularly in respect of intestate succession.

We are confident that the case and the issues faced by Muslim women will be addressed by the Supreme Court of Appeal in ensuring that the principles of our Constitution are upheld. At the same time, we are mindful that women continue to face a violation of their rights, as well as discrimination on a daily basis because of the lack of recognition of their marriages. We continue to consult a number of women every day who face these and other kinds of injustices, which drives our further litigation and urgency on this matter, highlighting the need and importance of feminist litigation. Women in South Africa are entitled to equal recognition and protection of their Constitutional rights, regardless of race, gender, religion, economic status or other.

For further enquiries, contact Aisha Hamdulay at aisha@wlce.co.za or communications@wlce.co.za

Media Statement: Workers Day

MEDIA STATEMENT: WORKERS DAY
01 MAY 2019

Since its inception, a key objective of the Women’s Legal Centre has been advocating for the rights and protection of vulnerable women in the workplace. There is much to be said about the current struggles of women and work in South Africa, where we find that unequal gender and power relations lead to the marginalization and vulnerability of women, and socio-economic drivers continue to leave black women in the most vulnerable position in society. We still find gender disparities in terms of employment where women only occupy 1 in 3 managerial positions and even fewer senior positions. Furthermore, the women who do occupy managerial and senior positions are still largely white.

Black women make up a large part of the poor and working class, locked into cycles of poverty. They are bound to casual labour where they are paid the least but work the longest hours. For women, casualization of labour impacts on their rights to organize, on their family life, as well as their vulnerability to sexual violence in the workplace. We recognize the impact of intersectionality on women’s work experiences, and acknowledge the struggles faced by all vulnerable workers including farm workers, migrants and domestic workers, lesbian, bisexual and transgender women, and women from both rural and urban areas. This includes unfair discrimination; emotional, verbal and physical abuse; manipulation by employers; sexual harassment and more.  On this workers day, we acknowledge that while our Constitution addresses worker’s rights, the realization of these rights on the ground are often not sufficiently met and implemented. There is still much to be done in terms of achieving substantive equality with regards to women’s rights in the workplace.

On this note, we call for rights to be applied equally to all workers and for women to be protected in their workplaces. We call for the decriminalization of sex work, in order for sex work to be recognized legally as work. We acknowledge the struggles of sex workers, who are majority women, including the abuse faced by both clients and police, and the restrictions they face in accessing their given rights, and accessing justice because of the criminalization of their work choices.

In the workplace, women are still left at a disadvantage, unprotected and vulnerable. The high levels of sexual harassment that occurs in the workplace is symptomatic of toxic patriarchal cultures which must be addressed. It is unacceptable that women do not feel safe and protected in their workplaces. On this workers day, we recognize the victims of sexual harassment and abuse which stems from such cultures in the workplace – those sitting in both silence as well as those who have chosen to speak out.

We recognize that women have unique struggles in the workplace. We recognize the important role that African feminist litigation plays in advancing the rights of women in the workplace, and working towards eradicating those struggles. We pledge to continue using this to fight for women to have equal rights in the workplace. We call on government, the private sector and all employers to take a feminist approach in their laws, policies and processes to ensure that women are sufficiently protected in the workplace.

For further enquiries, contact Aisha Hamdulay at aisha@wlce.co.za or communications@wlce.co.za