January / February Newsletter

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Welcome to the New Year

The Women’s Legal Centre opened its doors to the New Year on 8 January 2018 after our staff had a well-deserved break. The festive season is of course a challenging time for women as we received increased numbers of women in need of Domestic Violence Protection orders. Violence Against women remains a devastating form of discrimination against women and directly contravenes women’s rights to be safe, secure and free from violence. This year much of our work will be focused on realising women’s rights to be free from violence and ensuring that both the state as well as private bodies is held accountable.

The start of the New Year has seen a return to schools and institutions of higher learning for many girls and young women. Our newsletter this month is focused on the intersection between the right to education and the right to be free from violence. We touch on our recent victory in the Supreme Court of Appeal and provide an infographic to help single mothers understand the fee exemption policy. We also feature barriers and discriminatory practices that directly impact on girls and young women’s right to access education.

We hope that you will find our newsletter to be an informative resource and thank you for your continued support of the Centre and its work.

After the State appealed a judgement handed down in September 2016, – the case between Michelle Saffer, represented by the Equal Education Law Centre, and The Head of Department, Western Cape Education Department (WCED) and Others, was heard in the Supreme Court of Appeal (SCA) on 23 November.

The WLC intervened as amicus curiae (friend of the court) in the matter, which challenges the implementation of the regulations surrounding exemption of school fees, provided for in Section 40(1) of the Schools Act.

In 2010 Michelle Saffer, unable to pay the full amount for her daughter’s school fees at Fish Hoek High School, applied for an exemption. Ms. Saffer, divorced from her daughter’s father for years, attempted to claim eligibility for fee-exemption on her own but was denied due to the fact that her application was incomplete and did not include the financial information of her former spouse. According to the school, both parents need complete the necessary documentation for fee-exemption in order for the school to get a sense of the “family unit’s” economic situation.

According to the protocol laid out in the Norms and Standards for School Funding, and in line with the Constitutional call for equal access to education, schools that are allowed to charge fees must require the Minister to make regulations regarding equitable criteria and procedures for fee-exemptions. The Act lays out the applicable criteria for fee exemptions by declaring:

"School fees must not be allowed to become an obstacle in the schooling process, or a barrier preventing access to schools, especially as far as the most marginalised are concerned. Government believes that in the schools serving the poorest communities, there should be no school fees. Moreover, where schools do charge school fees, proper parent participation in the fee-setting process is critical. Effective criteria determining which schools should not charge school fees, as well an effective exemptions policy to protect those who are less advantaged economically within fee charging schools, are of utmost importance."

In order to determine who is eligible for exemptions, a set formula is used to calculate the “school fees as a proportion of the income of a parent.” The formula uses the “combined annual gross income of parents,” which is defined to mean ‘the annual gross income of the parents, calculated together, or, if a learner has only one parent, the total annual gross income of such parent,” as the measure of parental income.

The Act attempts to ensure that eligible families are protected by stipulating that the school may only deny a request for exemption and enforce payment (subsection (1)) if:

(a) the parent does not qualify for exemption from payment of school fees in terms of this Act;
(b) deductions have been made in terms of regulations contemplated in section 39 (4), for a parent who qualifies for partial exemption; and
(c) the parent has completed and signed the form prescribed in the regulations contemplated in section 39 (4).
Yet: Despite subsection (4), a public school may act in terms of subsection (1) if-
(a) that school can provide proof of a written notification to the parent delivered by hand or registered post that the parent has failed to apply for exemption contemplated in section 39; and
(b) despite the notice contemplated in paragraph (a), the parent fails to pay the school fees after a period of three months from the date of notification."

Ms. Saffer and her representatives at the EELC held that the school’s dismissal of her application due to its “incomplete” status is not in accordance with these guidelines, and, further, that the school’s insistence that divorced families still constitute a singular family unit infringes upon Ms. Saffer’s Constitutional right to dignity. The WLC in support of Ms. Saffer (and women similarly situated) stressed in their submissions the adverse impact the current fee-exemption format has on women, particularly single mothers.

The WLC has argued that the fee-exemption procedures should consider societal context, where women, due to the various and intersecting forms of discrimination, live with social and economic disadvantages. The Court has recognised the difficulties that single mothers of divorce or breakdown of a relationship face in caring for their children, and has said: “[T]hese circumstances as a result, places an additional financial burden on them and …[d]ivorced or separated  mothers accordingly face the double disadvantage of being overburdened in terms of responsibilities and under-resourced in terms of means.”

Following this judgment, the State filed a Notice of Application for Leave to Appeal to the Supreme Court. In doing so, the State sought to appeal the Court’s findings and to award Ms. Saffer the costs of the case. Further, the EELC challenged the Court’s failure to protect the dignity of single parents and their right to apply for fee-exemption without the details of their former partners.

This past December, the Supreme Court of Appeals released its judgement, upholding the cross-appeal of Ms. Saffer, EELC, and the WLC. The Court found the school to have violated Ms. Saffer’s constitutional and statutory rights when dealing with her application, and ordered all public schools to grant conditional fee exemptions to parents like Ms. Saffer.

We welcome decision of the Court of Appeals and thank Legal Aid South Africa for their financial support, which enabled us to vindicate the rights of women. 

In order to understand what this judgment means for single mothers applying for a school fee exemption Click Here

 

OVERCOMING BARRIERS THAT FORCE OUR GIRLS OUT OF SCHOOL - The right to basic education concerns every South African child and the Bill of Rights places and obligation on government to progressively make education available and accessible through reasonable measures.

Statistics show an unaccetable number of children being forced out of the education system and the number is increasing yearly. According to the National Senior Certificate database, 2009–2014 and the last Millennium Globals Reprort over the five years, male candidates achieved slightly better rates of success than their female counterparts, ranging between 2 percentage points to 4 percentage points higher between 2009 and 2014.

In this context, girls are at particular risk of discrimination and being forced out of the education system. The right to education enables girls to break the oppressive cycle of poverty, and improve the socio-econimic realities for themselves and their families.

 

There are many factors that contribute to girls being forced out of the education system and some factors relate to sexual health and reproductive rights education, which so often leads to teenage pregnancy and coerced marriage. The 2015 annual school survey displays how the rate of pregnancies at schools has become a major challenge, infact over 15,000 of South African schoolgirls were found during that year to be pregnant.

In South Africa, teenage pregnancies poses serious management and leadership challenges. In order to reduce this phenomenon, some countries have introduced policies which facilitate the re-admission of young mothers but the situation remains serious and we have to ensure that learners know about sexual health and have access to reproductive health options. We also need to ensure that the obligation to engage in engage in safe sex is not only placed on young girls. The discriminatory burden that is placed on young girls to be solely responsible to ensure sexual and reprductive health care is an unfair burden.

While the the South African Schools Act 84 of 1996 prohibits discrimination in schools on the basis of pregnancy there is a positive obligation to enforce young girls rights. According to the Department of Education’s Policy on Measures for the Prevention and management of Learner Pregnancy, the Provincial Education Department should offer every school a copy of measures outlined and ensure their compliance. They should also provide to ensure educators and managers are adequately equipped and schools should ensure that parents are adequately informed.Parent involvement, co-operation and partnership with schools are prerequisites of effective schooling.

We need to increase gender sensitive education and programs at schools so that patriarchal views of girls and women are addressed.

ADDRESSING IMPUNITY Violence against women (VAW) on University campuses is a small but important part of the larger and more general problem of VAW in South Africa, which affects women from different backgrounds and varying circumstances.

The prevalence of VAW across the nation highlights the huge transformation that South Africa must undergo to improve gender relations, with campus culture making up an essential part of this change. Universities are places in which young adults develop into South Africa’s next leaders - as institutions both of education and residence, they have a responsibility to society and to their students to promote safety and gender equality. There are a number of University services in place to deal with these issues, yet to effectively make positive change and protect students they must be held accountable for the occurrence of VAW.

Different Universities site different procedures in dealing with rape and sexual assault on campus, and have varying levels of resources available to students. These include crisis services, campus security, sexual assault response teams, 24 hour anonymous SMS lines, 

 

discrimination and harassment offices, campus protection services, gender equity units, student counseling centers, advisors on sexual harassment, student support centers, and risk management services. Further, many schools across South Africa have released statements in which they commit to fighting against VAW and protecting the safety and security of all students. These statements should not be ignored. Rather, campus services should be utilized not only to respond to instances of violence, but to prevent it from happening in the first place.

Over the past few years, as rapes and assaults have been reported to University services across campuses in South Africa, and as students have demanded that increased attention be given to matters of VAW, numerous sexual violence campaigns have gained University support. The Women’s Legal Centre (WLC) has recently assisted with a number of campus assault cases, and has worked with these students to demand better security at their Universities. And while campus safety is still far from where it needs to be, when available services are called upon, the attention given to VAW issues rise. Further, when campus services are called upon and fail to adequately support their students, the need for necessary reform is made apparent.

Universities have the means to improve the environments they maintain on campus. And despite raised awareness on campuses over the past few years, much more progress needs to be made. Therefore, regardless of form or location, the WLC encourages students to reach out to their Universities with concerns about GBV and/or reports of assault, and to hold their schools accountable for any lack of safety or assistance they receive.

The Cultural Practice of Ukuthwala and its Impact on the Right to Education:

The Constitutional dispensation which informs ukuthwala takes into account a number of considerations, these include; the rights of children and the need to ensure that their interests are protected, the importance of respecting customary law as a system of law within our country, the need to allow for customary law to progress and adapt in accordance with those who practice it and the prevailing boni mores, as well as the acknowledgement that our Constitution is the supreme law in our country, and no legislation/practice/cultural belief can be allowed to survive if it is contrary to the rights enshrined in our Constitution.

In the case of Jezile v S[1] ukuthwala was described as one of the ‘irregular means’ through which customary law allows for men to overcome obstacles which have prevented them from commencing marriage negotiations.[2] Prof Nhlapo[3] provided the Court with an explanation of the features of ukthwala, these are: that the woman be of marriageable age (in terms of customary law this usually means child bearing age), that the consent of both parties has been obtained – it was noted that though there were instances where women would be taken unaware, their consent ultimately has to be obtained for the process to be seen as legitimate, and that the parties typically stage a mock abduction of the woman at dusk. The woman will put up a show of resistance ‘for the sake of modesty but in fact would have agreed beforehand to the arrangement’. Once the woman has been taken to the man’s homestead and left with the women of that homestead, the father of the man would be informed that the woman was present in the homestead. ‘The man’s family would then send an invitation to the woman’s homestead either on the day of the mock abduction or on the following morning to inform her family that she was with his family. This would be a signal to the woman’s family that the man’s family wished to commence negotiations for their marriage.’[4] Nhlapo emphasised that ukuthwala ‘is not a marriage in itself, but, properly understood, is the method instigated by willing lovers to initiate marriage negotiations by their respective families’.[5]

Our Constitution places the interests of minor children at the forefront of all matters which concern children. Section 28(2) states that a child’s best interests are of paramount importance in every matter concerning the child.[6] For the purposes of the section a child is defined as a person under the age of 18 years.[7] In the case of ukuthwala this should be balanced with section 39(2) of the Constitution which states that ‘When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.’ In addition, section 39(3) states that ‘The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.’

The Recognition of Customary Marriages Act 120 of 1998 (hereinafter referred to as the ‘RCMA’) was enacted to recognise customary marriages in a manner which accords with South Africa’s constitutional obligation. The Act contains mandatory requirements for a valid customary marriage. Section 3(1) lists the three requirements for a valid customary marriage, these are: (1) the prospective spouses must both be over the age of 18 years; (2) the prospective spouses must both consent to being married to one another under customary law; and (3) the marriage must be negotiated and entered into, or celebrated, in accordance with customary law. Section 3(3)(a) states that if either of the prospective spouses is a minor, both his or her parents, or if he or she does not have parents, his or her legal guardian, must consent to the marriage. The RCMA, when read with section 26 of the

Marriage Act,[8] which prohibits marriages involving minors except in special circumstances, indicates the legislature’s intention on the subject of the marriage of minors. In terms of the Marriage Act where a girl is under the age of 15, she will not be capable of contracting a marriage unless she obtains written permission from the Minister of Home Affairs or a person authorised by him.[9] Thus, by way of the requirements put in place for a valid marriage, and the requirements for contracting a marriage outside of these parameters, the legislature has signalled its objective of ensuring that marriage of minors or between minors should only take place in limited circumstances.

There is no shortage of opinions on the topic of ukuthwala and the impact that it has on the lives of girls and women. Many academics, human rights experts[10] and the South African Law Reform Commission[11] have come to the conclusion that ukuthwala (as it is being practiced) is a breach of constitutional principles. While the courts and SALRC have drawn a distinction between the traditional custom of ukuthwala and the practice which is currently being carried out (predominantly in the Eastern Cape and KwaZulu-Natal), many academics continue to debate whether even in its traditional form the custom would pass constitutional muster.[12] Many of the amici in the Jezile matter were at pains to point out that a widespread practice has formed in some communities where young girls are forced into marriages with their abductors, with their family’s blessing, as the latter are paid ‘lobola’ upfront.[13] 

These amici argued that the manner in which they were experiencing the practice of ukuthwala in the work that they do was a breach of women and children’s most basic rights to dignity, equality, life, freedom, security of person and freedom from slavery.[14] This should be seen in light of Justice Langa’s comments in Bhe and others v Magistrate, Khayelitsha and Others[15], in which he described customary law as a whole as: ‘a system dominated by a deeply embedded patriarchy which reserved for women a position of subservience and subordination and in which they were regarded as perpetual minors…’

One of the serious issues to be raised when looking at a custom such as ukuthwala (irrespective of whether it is being practiced according to the precepts of traditional customary law or not) is what becomes of the schooling careers of these minor girls who are negotiated into marriages. Section 29(1) of the Constitution states that everyone has the right to a basic education. However, according to some literature available on the subject, there is ‘compelling evidence suggesting that the majority of the victims (who are entered into marriages as a result of ukuthwala) are young girls aged 10 to 14 years…’ this results in these young girls being deprived of an ‘education and perpetuates the cycle of gender inequality’.[16] The case of Jezile v S could also prove instructive as to the manner in which young girls are forced to stop their schooling in order to be able to attend to household chores as newly married ‘women’.[17]

The practice of ukuthwala must be held to the standards set in the Children’s Act 38 of 2005 and the South African Schools Act (SASA).  Section 12(1) of the Children’s Act stipulates that every child has the right not to be subjected to social, cultural and religious practices that are detrimental to his or her well-being, while section 3(1) of the SASA states that ‘every parent must cause every learner for whom he or she is responsible to attend a school from the first school day of the year in which such learner reaches the age of seven years until the last school day of the year in which such learner reaches the age of fifteen years or the ninth grade, whichever occurs first.’ Section (3)(6)(a) of the same Act makes it an offence for any parent or any other person to, without just cause, fail to comply with section 3(1) of the Act.

There is little doubt that while the Constitution prescribes that the customs and practices of everyone who occupies this country are to be respected and upheld where possible, the rights within our Constitution (and legislation) must be given effect to, and any/all practices which are in conflict with these constitutional imperatives, and to the detriment of young girls and women, must be viewed as a threat to the freedoms and rights which all persons within this country must be able to access. The right to education is one of the basic rights contained in our Constitution, any practice which inhibits young girls and women’s ability to benefit from this right cannot be allowed to continue as is.

[1] Jezile v S and Others (A 127/2014) [2015] ZAWCHC 31; 2015 (2) SACR 452 (WCC); 2016 (2) SA 62 (WCC); [2015] 3 All SA 201 (WCC) (23 March 2015) para 78.

[2] ibid para 72.

[3] Professor Ronald Thandabantu Nhlapo, a renowned expert on customary law.

[4] Jezile supra note 1 paras 72-72.6.

[5] Jezile supra note 1 para 73.

[6] Constitution of the Republic of South Africa, 1996.

[7] Section 28(3).

[8] Act 25 of 1961

[9] Section 26.

[10] See the amici submissions in Jezile supra note 1 para 78.

[11] South African Law Reform Commission, Discussion Paper 132, Project 38, ‘The Practice of Ukuthwala’ (2014).

[12] Ibid at 47; Johan Prinsloo and Michelle Ovens ‘Ukuthwala As An Aberrant Traditional Practice: The State Versus Nvumeleni Jezile 2014 WCD’ (2015) 4 Acta Criminologica: Southern African Journal of Criminology 169

[13] Jezile supra note 1 para 77.

[14] Jezile supra note 1 para 78.

[15] 2005 (1) SA 580 CC.

[16] Monyane, C. 2013. Is Ukuthwala Another form of ‘Forced Marriage’? South African Review of Sociology, 44(3) 64-82.

[17] Jezile supra note 1 para 23.

PLANNING TOOK PLACE FROM 23 JANUARY TO 25 JANUARY 2018 and allowed us time to focus and put in place our plans for 2018.

We were pleased to host the director of Lawyers for Justice in Libya on 7 February 2018.

Ms Saudi was able to shed some light on some of the challenges that human rights lawyers and activists in Libya face, particularly in their fight for equality for women, children and migrants/refugees. Ms Saudi emphasised the need for a Pan-African collaboration between different organisations, and we look forward to working with both Ms Saudi and Lawyers for Justice in Libya in the future.

Camilla Genovese has joined the Women's Legal Centre as an intern until the end of June through the Lazio and European Program "Torno Subito 2017".

After she obtained her Master's Degree in Law from Università degli Studi di Roma Tre (based in Rome, Italy), she began her training at a Family Law Firm which specialises in the field of custody of minors. Camilla has always been fascinated in Human Rights and Fundamental Rights, and has had the opportunity to study International law in Brussels during an international exchange programme. Camilla achieved a level II Master's Degree in human rights and legal protection at La Sapienza (University of Rome), and attended a specialization course and internship on the European Court of Human Rights.

Thank You to our Donors and Supporters

We wish to extend our sincere gratitude to the Wallace Global Fund, Juta and Company (PTY) LTD, and to our generous anonymous donors for their commitment and support for the work of the Centre.