The months of May and June saw the social justice sector shaken by reports of sexual harassment, bullying, and the enforcement of patriarchal norms. The newspaper articles compelled many within our sector to issue public statements, and to confront their hidden secrets in public. Introspection and robust engagement has followed as a sector that has viewed itself on a morally higher ground was being forced to interrogate the role that it has played in enforcing patriarchy and discrimination.
Many media accounts have focused on how their reporting has broken the ‘silence’ that has surrounded the issue of sexual harassment in the social justice sector. As a feminist organisation we know that women have never been silent about the violations that their bodies suffer at the hands of abusive men in our societies, our families, and our sector. The ‘silence’ that has now been broken is a mere acknowledgment of the voices that have spoken out for many years about the abuses faced by women. We have not been silent – we are simply being provided a platform to be heard. Now, with hearing comes the obligation on all of us to act. We can no longer bury our heads in the sand.
The time calls for a much deeper discussion, analysis, and accountability throughout the sector if we are to begin to effect change. Transformation of the workplace environment for women requires the acknowledgment that we cannot continue in the way that we have. It requires robust and uncomfortable engagements, reflections, and recognition of the many ways in which discrimination manifests itself within our places of work. It requires us to identify and engage with the discriminatory power relations and patriarchal hierarchies that allow for women to continue to be underpaid and under-represented in the workplace, and that fosters an environment in which women’s unpaid care work is not taken into account.
The focus of our newsletter this month is on women’s right to work; about her right to choose her profession, and her right to safe and equal working conditions. The time requires us to ignite the conversation and to build momentum. WLC utilises various tools to advocate for, and raise awareness about the discrimination that women face in the workplace, and this newsletter provides an opportunity to highlight some of these areas, and to call us all to action.
‘Combating the Normalisation of Sexual Harassment in the Legal Profession – Reclaiming our Time, Space and Agency’
In January 2018, our director, Seehaam Samaai, was invited to address the National Association of Democratic Lawyers (NADEL) National Young Lawyers Summit on the topic of Sexual Harassment in the Legal Profession. This speech was both written and presented before the recent incidents, reports and articles concerning sexual harassment in the NGO sector arose. What follows are extracts from the speech that was given:
Law as a profession can contribute positively to society. It has the ability to transform the lives of the most vulnerable and marginalised in the most significant way, but it also has the ability to profoundly impact on the lives of those who are a part of the sector, in particular women, if it fails to take into account issues that women in the sector are faced with on a day-to-day basis when practicing. For women, issues of intersectionality - how race, gender, and class impact on the lived realities of women (or other marginalised persons) – must be acknowledged. This means that the law cannot be neutral.
What we do as lawyers and professionals of the law, in essence, is represent populations. The dream is always to have a big influence and to help as many people as possible through the system. As knowledge seekers and knowledge producers we must look at the quiet ways in which we have influence. As people with influential agency in a world where so many do not have it, anything you can bring to the table provides representation. Whether we like it or not, we represent more than ourselves and this means that your very existence becomes a form of activism – as a woman, as someone who is queer, black, trans, etc. this colours the way in which we see the world, and what perspective we are able to bring to the table. For women especially, what I want to tell you today is to find strength in your differences, and be loud about it, despite those people who will try to quiet you down so that you fit into their moulds.
As women, we know all too well how it feels to be called “too loud,” or, “too ‘out there’”. But I urge all of you to be unapologetic in the ways that you want to stand up for yourself and the people that you represent. You will be silenced, intimidated, and even interrogated. But, in this male-dominated industry, declare your truth in ways that make people understand the urgency of your misrepresentation. Your differences are your power. Exploit it. The world needs strong, dedicated activists. The world desperately needs you to express yourself. You are the custodians of law and justice in this country and you need to vigorously defend and guard it. Be loud. Speak out about your discrimination. Speak out about your wage-gap. Speak out about your sexual harassment. These are things that women battle with everywhere, not just in the workplace. When you declare your beliefs unwaveringly, this unconsciously gives others permission to do the same. When you subscribe to a cause, you strengthen that cause, and when a cause is strong others find safety and security in it. It is our responsibility, as agents of the law, to ensure a world where it is safe to be a woman, queer, black, Muslim, transgender (etc). Sitting here today, you already have those tools.
You, the youth, are at the forefront of a liberation movement and you don’t even know it, because no one wants to give it a name. Giving it a name means conceding to the fact that the powers upon which our society is built are oppressive and destructive. You, particularly young women who are disrupting, I urge you to continue to disrupt. Dismantle the status quo, undo these systems of power that aim to exploit and oppress.
The issue of sexual harassment is an uncomfortable topic to canvass, and so it should be. The fact is that sexual violence disproportionality impacts women and particularly black women. Males will normally stop women, become defensive, or question discussions relating to this topic. However, women do not need permission to have discussions about violence against women, what this means for us, and what we want to do about it. Men being uncomfortable about a topic should not impede or stop the discussion; on the contrary it is probably a very good reason for the conversation to continue.
South Africa has one of the highest incident rates of sexual violence against women, and aspects of rape culture permeate through the legal profession in the same way that it does the rest of society, and notwisthanding numerous progressive laws and policies. Sexual violence, sexual harassment and sexual grooming are more commonplace than we like to believe, and constitute a major barrier for women in the workplace. The legal profession is not immune to these discriminatory and violent behaviors. Women in the legal profession are in a unique predicament as they work within a sector where there is a general assumption that employers (law firms) will apply fair and just principles to processes, and that there will be equality of arms. On the surface there are various laws, internal human resources policies, and professional and ethical disciplinary rules that are put in place to address these challenges. However, these processes often fail to take into account the lived realities of professional women (in particularly black women), power dynamics, and skewed power structures within the legal profession that stifle what these processes envisage and can be even more harmful to women, on both a personal and professional level. The current legal processes lend themselves to indirect forms of discrimination and secondary victimisation. More times than not these prcoesses will be “self preserving”, the women are victimised and left on their own to legally fend for themselves. If not addressed, this environment will continue to perpetuate itself and create discriminatory practices, which impact greatly on the advancement of women within the legal profession.
There is an obligation on the profession to address this major barrier to gender transformation. Sadly, the organized legal profession has been very slow in finding long term sustainable activities to address racial and gender transformation. The profession has a duty to protect particularly young black women who enter the profession and are more vulnerable to being subjected to sexual harassment. We have a duty to practice what we preach, to continue to be the custodians of the law, not to use it to further silence those who have less power than us. We cannot remain complicit in the violence pertrtated against women’s bodies, and we cannot normalise violence within the structures of our profession. Women, remember that you are not alone. In all my years in this industry I have seen men supporting men and women supporting men but the tide has changed. I know we can all feel it in this room and it is our time to support each other. Give each other the strength to speak up, speak out and live freely.
Sexual harassment is one variant of harassment.
In the workplace, sexual harassment is particularly problematic and difficult to combat because it is so often perpetrated by those in positions of power and authority. Sexual harassment is one variant of harassment. In the workplace, sexual harassment is particularly problematic and difficult to combat because it is so often perpetrated by those in positions of power and authority. This places women who experience sexual harassment in the workplace in an even greater position of vulnerability than usual because the power-dynamics at play have them fearful not only for their jobs, but also for their safety. It thereby completely and entirely undermines the objective of having workplaces where employees feel safe and where their dignity is respected.
Identifying Sexual Harassment
There is no clear model for what sexual harassment is or what it looks like. As defined by the Code of Good Practice on the Handling of Sexual Harassment, sexual harassment is any unwanted conduct of a sexual nature, and can be physical, verbal, or non-verbal. For example, you have experienced sexual harassment if, among others:
- You are receiving unwanted sexual attention from someone;
- You experience unwelcome sexual behaviour, such as lewd suggestions, messages or remarks that you find offensive, intimidating or humiliating;
- You received a promise of reward for a sexual request; and/or
- You receive a threat for not complying with a sexual request.
You can show that this behaviour is not wanted by saying “no”, or through your body language by pushing them away from you, or walking away from them. Often it is very difficult to tell your harasser that these sorts of behaviours are unwanted and unacceptable. They may be in a senior position in the workplace so you might be worried about the impact that refusing them, or reporting them, will have on your employment; or they may be an aggressive individual and you may fear for your safety. If you feel like you had no choice in the matter, and had to allow the inappropriate behaviour to take place, you are still protected and can, and most importantly should, report what happened to you.
Reporting Sexual Harassment
It is important to remember that these types of behaviours are not acceptable and that mechanisms and laws have been formulated in order to combat them. The Labour Relations Act, the Employment Equity Act, and the Code of Good Practice on the Handling of Sexual Harassment Cases are the primary instruments dealing with sexual harassment in the workplace. All three instruments are intended to protect, and provide redress to individuals who have experienced sexual harassment, and to promote equal opportunity and fair treatment in employment by prohibiting the harassment of employees.
In order to achieve these objectives, employees can bring the unwanted behaviour to the attention of another employee, the employer, their trade union or workplace forum, a labour inspector, the Director-General, or the Commission. It is best to report incidences of sexual harassment, which can be done either informally or formally, as soon as possible so that the unwanted behaviour is stopped as soon as possible. Sometimes reporting sexual harassment is difficult because you are afraid of what might happen or you are not ready to talk about it. Be assured that you can still report it later in time, but we encourage doing it as soon as possible to stop the harasser from harassing you or other women.
a) The informal process
Making an informal complaint will mean that there will be no investigation by your employer of the sexual harassment, and formal action will not be taken against your harasser. It typically involves your employer bringing the issue to the attention of the harasser. It is your decision whether your identity is made known to the harasser in this process. If you choose to be identified by name, the harasser will be told that their behaviour towards you is unacceptable and constitutes sexual harassment. If you choose not to be identified by name, the harasser is told that their behaviour constitutes sexual harassment and is, in general, making employees uncomfortable.
b) The formal process
Having followed the informal process is not a pre-requisite for pursing the formal process. You can pursue a formal process even if you did not follow an informal one; or if you undertook an informal process and you are unhappy with its results, or still want to pursue a formal process, then you can do so.
The Code of Good Practice provides workplaces with policies and procedures to deal with sexual harassment in the workplace. Workplaces are encouraged to develop their own sexual harassment policies in line with the Code, but where they do not have a sexual harassment policy in place then they should implement the policy and procedure provided by the Code. It is highly likely that your workplace will have its own policy, which will set out the internal processes you must follow in order for your complaint to be investigated, and for action to be taken against the harasser. If no such policy exists, you can discuss with your employer how the complaint should be handled in line with the Code. The typical formal process involves:
- The making of a formal complaint;
- An investigation;
- A hearing; and
- A finding
In making your formal complaint, you will need to provide a description of the incident, or incidences, of sexual harassment, the name of the harasser, and what action you want the employer to take against the harasser. The matter will then be investigated by your employer. The investigation involves interviews with you, the harasser, any witnesses, and a compilation of any available evidence, such as security footage or emails. A hearing is then conducted in which the complainant and the person being investigated will have an opportunity to explain what happened. The hearing is presided over by a chairperson who will consider all the available evidence and ask questions of the parties as needed. Having considered all of the factors, the chairperson will then make a finding as to whether or not sexual harassment occurred, and recommendations as to the appropriate sanctions. Sanctions may include a written warning, an apology from the harasser, suspension, or dismissal, among others.
If you are unhappy with the steps, or lack thereof, taken by your employer throughout the process then you can refer a dispute to the CCMA. Additionally, if the sexual harassment was so serious as to constitute sexual assault then you may lay a charge of sexual assault at your closest police station.
A Victim-Centred Approach
In the past there has been, and unfortunately there continues to be, an ongoing problem of women being treated as blameworthy after they have suffered sexual harassment. This blame often comes from the perpetrator, the employer, colleagues, society at large, and the media. The blame is completely misplaced, and perpetuates and fosters a culture of victim-blaming – a culture where victims are marginalised and made to feel like they cannot come forward and have their harassers held accountable for their actions. A culture like this is so dangerous because it normalises abhorrent conduct, like sexual harassment, sexual assault, and rape. This is why ‘[w]e must do more to ensure that women are provided with spaces and environments which are safe to facilitate their voices being heard. In order for us to do this we must be willing and open to be held accountable for our role in upholding and protecting an environment where abuse takes place.’
Very simply, ‘[w]e need to ensure that when we put in place mechanisms to address sexual violence in the workplace we do not do so without taking into account the very women that such processes would seek to provide justice to.’ Some very basic ways that we can do this, and thus adopt a victim-centred approach, include:
- Recognising that victims are never responsible for the crimes committed against them, and that offenders are always responsible for their crimes;
- Prioritising the safety, privacy, and well-being of the victim;
- Understanding the impact of victim trauma and how it affects victim behaviour; and
- Limiting the number of times a victim has to talk about the assault.
A victim-centred approach that encapsulates the above basic approaches will ensure an environment in which victims of sexual harassment will feel safe enough to speak out about the unacceptable conduct perpetrated against them. Should you experience sexual harassment, and find that you are able to bring it to your employer’s attention, knowing of the above basic approaches will ensure that your rights are respected and given effect to during an arduous process. It is important for your employer to understand how to ensure you are protected throughout the process.
- The Women’s Legal Centre, ‘Media Statement – Sexual Harassment in the Social Justice Sector’ (2018) https://www.wlce.co.za/court-case-seeks-to-the-end-the-prescription-of-sexual-offences/
- GN 1367 in Government Gazette 19049 of 17 July 1998.
- Code of Good Practice on the Handling of Sexual Harassment (GN 1367 in Government Gazette 19049 of 17 July 1998) - a set of guidelines issued by the Department of Labour in terms of the Employment Equality Act.
- The Women’s Legal Centre, ‘Know Your Rights: A Simplified Guide to the Protection from Harassment Act’ (2015): 2 http://wlce.co.za/wp-content/uploads/2017/02/Protection-from-Harassment-Act- Booklet.pdf
- The Labour Relations Act 66 of 1995
- The Employment Equity Act 55 of 1998.
- Rick Sarre, ‘Who’s on trial? The slow journey down an important road to victim-centred law reform in sexual assault cases,’ Psychiatry, Psychology and Law 6, no, 2 (2009): 192. https://doi.org/10.1080/13218719909524960
- Baltimore Victim Centre, ‘Victim-Centred Approach.’ https://victimsofcrime.org/docs/dna-protocol/baltimore-victim-center-approach.pdf?sfvrsn
Sex work has existed as a form of work for centuries; however, it remains a legally non-recognised form of work, and is criminalised. In doing so, criminalisation refutes the agency of sex workers, and marginalises them. Sex workers and advocates the world over have therefore fought, and continue to fight, for the terminological usage of ‘sex work’ in place of the derogatory term ‘prostitution.’ Identifying it as ‘sex work’ makes it clear that sex work is not an abstract political or moral issue, but is instead about independent choice of trade Just like in any labour industry, you are providing a good or a service, in this instance sex, in exchange for money or goods. It is now the preferred term among those who focus on sex work as work because it connotes agency of choice.
People are motivated to choose sex work as their trade for any combination of the same reasons that people choose any other form of work, including money, flexibility of hours, and, alarmingly for those morally opposed to sex work, because they enjoy their work. We commend one person’s decision to be a doctor, but stigmatise another’s choice to be a sex worker due to society’s perception of what is ‘morally acceptable’. Accordingly, ‘policy on prostitution [sic] in any country depends on the underlying ideology about the moral (un)acceptability of paid sex’. Morality arguments against sex work are losing traction, and are now being re-framed in terms of exploitation. Certainly, just like in any industry, there is the unfortunate possibility that workers will be exploited by those in positions of power. Undeniably, there is exploitation in the sex work industry, but this exploitation is not sex work – it is sex trafficking, coercion, and sexual slavery; and it is distinguishable from sex work by a lack of agency. And, just like in any industry, the most effective means of minimising exploitation is restriction and regulation, which will only come with decriminalisation.
By criminalising sex work, individuals exploited in the sex work industry are barred from justice because they are fearful of coming forward and reporting exploitation. They are afraid of being arrested, or of the action their exploiter may take against them. By decriminalising sex work, this barrier against justice is removed, and the likelihood of help and support increases because there will be more contact between sex workers and service providers, making abuses more difficult to hide. Similarly, within the context of sex work, ongoing political and moral qualms stigmatise and discriminate against sex workers, forcing them to work in unsafe conditions where they are at risk of abuse from police, dishonest managers, dangerous clients, robbers, and even serial killers.
South African law provides comprehensive protection for formal work. But, as part of the informal sector, the approximately 150,000 sex workers in South Africa, majority of who are women, are not afforded any of these protections.
They are denied access to labour, health and safety laws. They are denied fundamental human rights, which the Constitution and a number of international law instruments, intend to protect. They are denied the protection of health and safety in their working conditions, and their Constitutional rights to equality, human dignity, and freedom and security of the person. These rights would be better protected through extensive regulatory practices that would come with decriminalisation. With legislative protection, sex workers will be less vulnerable to exploitation and abuse, and will have better access to health care, condoms, HIV treatment, and labour, health and safety laws - a position which has been professed and advocated by major human rights organisations and bodies, such as Human Rights Watch, Amnesty International, the Global Alliance Against Traffic in Women, and the South African Commission for Gender Equality.
Promisingly, the 54th Conference of the ANC was convened under the theme ‘Remember Tambo: Towards Unity, Renewal and Radical Socio-economic Transformation.’ The ANC ‘took fundamental resolutions aimed at radically transforming the lives of the people for the better.’ One such resolution was made ‘[i]n relation to Safety of Women and Children, and Eradication of Substance Abuse and Gangsterism, and Promotion of Sports, Arts and Culture, and Empowerment of vulnerable groups’. This particular resolution noted that ‘there must be decriminalisation of the sex workers.’ However, when this resolution was released in March 2018 in the report of the 54th National Conference the wording had been softened so much so that there was no clear commitment to decriminalisation, but instead a commitment that ‘[t]he calls to decriminalise sex work must be subjected to a high level discussion and engagement with relevant multiple stakeholders, and to continue to engage society on this to determine the societal norm. Sex workers must be protected.’ Encouragingly though, the resolution as originally declared, and subsequently reported, came some months after the South African Law Reform Commission’s Report on sex work - a report that disappointingly is biased towards continued criminalisation of sex work. It found that the goal of law reform should be to ‘prevent, deter or reduce prostitution [sic],’ ruling out all law reform models, including decriminalisation, which aim to improve safety and working conditions for sex workers.
The constitutionality of the provisions criminalising sex work was upheld because commercial sex ‘is associated with violence, drug abuse and child trafficking’ and the state has a legitimate interest in attempting to combat these ills. Accordingly, the resolve of the ANC to decriminalise sex work or, more softly, to subject it to high level discussion and engagement is cause for pragmatic optimism. There is an acknowledgement that their task now is to transform this resolution into a programme that will make a meaningful and lasting difference. The Legislature, majority of which is made up of the ANC, is best placed to legally recognise sex work as work by decriminalising it. Because, as they rightly appreciate, ‘[t]he people of South Africa want action. They do not want words.’
- Melissa Gira Grant, “Let’s Call Sex Work What It Is: Work,” The Nation, 5 March 2015, https://www.thenation.com/article/lets-call-sex-work-what-it-work/; Global Network of Sex Work Projects, “Research for Sex Work 14: Sex Work is Work,” NSWP, 27 August 2015, http://www.nswp.org/sites/nswp.org/files/R4SW%202015_issue14_PDFV.pdf
- Maggie O’Neill, Prostitution and Feminism: Towards a Politics of Feeling (Cambridge: Polity Press, 2001); Valerie Jennes, Making it Work: The Prostitutes’ Rights Movement in Perspective (New York: Aldine de Gruyter, 1993); Ine Vanwesenbeeck, “Another Decade of Social Scientific Work on Sex Work: A Review of Research 1990-2000,” Annual Review of Sex Research 12 (2001).
- Chrisje Brants, “The Fine Art of Regulated Tolerance: Prostitution in Amsterdam,” Journal of Law and Society 25, no. 4 (1998): 622.
- “Sex Work, Human Trafficking & The Harm of Conflating the Two,” Asijiki, 2015, https://asijiki.org.za/new/wp-content/uploads/Sex-work-and-Human-trafficing_Asijiki-Fact-Sheet_Web.pdf
- “Sex Work and Labour,” Asijiki, 2015, https://asijiki.org.za/new/wp-content/uploads/Sex-work-and-Labour_Asijiki-Fact-Sheet_Web.pdf
- Constitution of the Republic of South Africa Act 1996
- The Basic Conditions of Employment Act No. 75 of 1997
- L. Konstant, T. L. et al, “Estimating the Number of Sex Workers in South Africa: Rapid Population Size Estimation,” AIDS and Behavior 19(S1)
- International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 6(1); Convention on the Elimination of Discrimination Against Women, GA Res 34/180, A/RES/34/180 (18 December 1979, entered into force 3 September 1981) art 11(c); African Union, Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (11 July 2003) art 13(d).
- Convention on the Elimination of Discrimination Against Women, GA Res 34/180, A/RES/34/180 (18 December 1979, entered into force 3 September 1981) art 11(f).
- Women’s Legal Centre and Legal Resources Centre, “Written Submissions on Report 107 on Sex Work” (2018) 5 .
- Human Rights Watch, World Report 2014: Events of 2013 (The World Bank, 2014): 47.
- Amnesty International, Global movement votes to adopt policy to protect human rights of sex workers (11 August 2015) https://www.amnesty.org/en/latest/news/2015/08/global-movement-votes-to-adopt-policy-to-protect-human-rights-of-sex-workers/
- Global Alliance Against Traffic in Women, GAATW-IS Comment: Amnesty International calls for the decriminalisation of sex work (2016). http://www.gaatw.org/resources/e-bulletin/819-gaatw-is-comment-amnesty-international-calls-for-the-decriminalisation-of-sex-work
- Commission for Gender Equality, Decriminalising sex work in South Africa: Official Position of the Commission for Gender Equality (2013). https://www.gov.za/sites/www.gov.za/files/Commission%20for%20gender%20equality%20on%20sex%20work_a.pdf
- African National Congress, 54th National Congress: Report and Resolutions (2017) 1. http://www.anc.org.za/sites/default/files/54th_National_Conference_Report.pdf
- SABC Digital News, ANC policy discussions report back: 20 December 2017 (2017) 1:50 https://youtu.be/N22kvjduSII
- 54th National Congress: Report and Resolutions.
- South African Law Reform Commission, “Adult Prostitution (Project 107)” (2017) http://www.justice.gov.za/salrc/reports/r-pr107-SXO-AdultProstitution-2017.pdf
- Dr Dean Peters and Zia Wasserman, “‘What happened to the evidence?’ A critical analysis of the South African Law Reform Commission’s Report on ‘Adult Prostitution (Project 107)’ and law reform options for South Africa” (Asijiki, February 2018) 3.
- Sexual Offences Act 23 of 1957 ss 2, 10 and 20(1); Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 s 68.
- S v Jordan and Others  ZACC 22, 24-25 (Ngcobo J) (Constitutional Court).
In May 2018, the National Minimum Wage Bill came before the National Assembly. The Bill was passed by the National Assembly and is now with the National Council of Provinces for approval. The Bill marks our country’s first attempt at legislating a minimum wage for all workers.
Since 2002, the minimum wage for domestic workers has been set according to a Sectoral Determination – it was determined according to the number of working hours and the location of the job. This sectoral determination will be superseded by the wages set in the new Bill once it is enacted. The Bill aims to regulate the minimum wage for those workers who have historically and predominantly suffered from inadequate pay. As per Clause 2 of the Bill, the purpose of the Bill is to improve ‘the wages of the lowest paid workers’, to protect ‘workers from unreasonably low wages’, to preserve ‘the value of the national minimum wage’, to promote collective bargaining, and to support economic policy. The Bill is applicable to all workers, and employees, where the worker performs work for another person and is entitled to be remunerated in lieu of same. The Bill goes on to legislate for a national minimum wage, which is contained in Schedule 1 of the Bill, and is to be adjusted annually.
Item 1 of Schedule 1 stipulates that the national minimum wage is R20 for each hour worked, except for those workers who are mentioned in item 2 of the Schedule. In terms of item 2 farm workers are entitled to R18 per hour, and domestic workers are entitled to R15 per hour. Item 3 of the schedule defines the terms ‘farm worker’ and ‘domestic worker’, and included in the definition of a farm worker is ‘a domestic worker employed in a home on a farm or forestry environment’. The term ‘domestic worker’ is defined as:
‘a worker who performs domestic work in a private household and who receives, or is entitled to receive, a wage and includes –
- a gardener;
- a person employed by a household as a driver of a motor vehicle;
- a person who takes care of children, the aged, the sick, the frail or the disabled; and
- domestic workers employed or supplied by employment services…’
Therefore, while the Schedule sets a national minimum wage which affords all workers approximately R3 600 per month in wages (this amount has been worked out on the assumption that the worker works 8 hours per day, 40 hours per week, and 22.5 days per month), it sets a different, lower minimum wage for domestic workers, and sets different minimum wages for domestic workers working in different environments. Using the same calculations, domestic workers who work in a home on a farm or in a forestry environment will be entitled to a monthly wage that amounts to approximately R3 240 per month, whereas domestic workers who work in private households will be entitled to a monthly wage of approximately R 2 700 per month.
The reason advanced for this disparity between the national minimum wage and the minimum wages set specifically for domestic workers and farm workers is said to be an attempt to continue to secure domestic workers’ jobs - this despite the reality that the wage set could not possibly constitute a living wage. However, in spite of this attempt to secure the jobs of domestic workers, an article published in ‘The South African’ reports that 24 000 domestic workers have already lost their jobs in the first quarter of 2018. These job losses are attributed to ‘soaring petrol prices, and a noticeable decrease in disposable income’. However, correlated to this is that domestic workers suffer from the same increases in expenses – the 1% vat increase, and increases in petrol prices that result in an increase in public transport fares, which all have a real effect on domestic workers’ take-home salaries.
According to an article by Jen Thorpe, ‘[a]s of September 2017 more than 1 million women were employed in private households, with 992,000 reporting their occupation as “domestic worker.”’ This is in comparison to 52 000 men who were employed as domestic workers during the same period. This means that the category of persons who suffers the most from both low minimum wages and threatened job losses are women – women who often head households and who ‘“[b]ecause of poverty…are already often compelled into low-wage and subsistence activities in order to provide access to housing and food security to their families,”’
While the national minimum wage will be set at R15 per hour for domestic workers in the immediate future, the aim remains to bring the minimum for domestic workers (whether in private households or in homes based on farms/forestry environments) in line with the national minimum wage by the year 2020. It can only be assumed that, should the ‘financial climate’ continue to maintain its current state in which most households’ ‘expendable’ income is used to cover living expenses, the National Minimum Wage Bill may result in further job losses. The alternative however could never be to pay an employee what would not constitute either a living or dignified wage in order to be able to retain their services, and while they continue to struggle to make ends meet.
In some ways we are between a rock and a hard place. There will always be a need to decrease unemployment rates, which stood at approximately 26.7% in the first quarter of 2018; however the means of doing so cannot be to provide a portion of our working-age population (which consists predominantly of black women) with jobs that require them to work for wages that fall below a working wage, and expect them to survive in our already strained economy. What we can do, however, is begin to move away from a profession that has its existence rooted in the use of black women’s labour in exchange for meagre wages, and towards one that pays these women a fairer and more realistic salary that can assist them with supporting their own families. The Minimum Wage Bill could assist in this process. Though it is not without its problems as regards domestic workers, it is a start.
- Lameez Omarjee ‘National Assembly's approval of Minimum Wage Bill a milestone — Oliphant’ Mail and Guardian. (May 2018) https://mg.co.za/article/2018-05-29-national-assemblys-approval-of-minimum-wage-bill-a-milestone-oliphant
- Department of Labour ‘Sectoral Determination 7: Domestic Workers’ http://www.labour.gov.za/DOL/legislation/sectoral-determinations/sectoral-determination-7-domestic-workers
- Jen Thorpe ‘ Domestic Workers to Miss Out on South Africa’s New Minimum Wage’ News Deeply: Women’s Advancement Deeply (Jan 2018) https://www.newsdeeply.com/womensadvancement/articles/2018/01/29/domestic-workers-to-miss-out-on-south-africas-new-minimum-wage
- National Minimum Wage Bill, 31B – 2017
- Luke Daniel ‘South Africa’s minimum wage debate: 24, 000 domestic workers lost their jobs in 2018’ (June 2018) https://www.thesouthafrican.com/24000-domestic-workers-lose-their-jobs-2018/
- STATS SA ‘Youth Unemployment still High in Q1: 2018’ (May 2018) statssa.gov.za/?p=11129
Submissions by the Women’s Legal Centre to the Joint Constitutional Review Committee on the Review on Section 25 of the Constitution
The National Assembly and the National Provincial Council of Provinces issued a mandate for The Joint Committee to review section 25 of the Constitution, also known as the property clause, and called for public comment on amending section 25 to allow the State to expropriate land without compensation. The Women’s Legal Centre submitted comments to the Constitutional Review Committee to address the discrimination currently experienced by women within the framework of the property clause.
The Centre drives a feminist agenda that recognises the impact that discrimination has on women within different classes, race, ethnicity, sexual orientation, gender identity and disability. In our work, we often experience that violence against women intersects with discriminatory housing and tenure security policies. The women who we represent and work with may choose to become commercial farmers and would require access to land for this purpose; or they work on existing farms and require security of tenure which they are not guaranteed under the Extension of Security of Tenure Act 62 of 1997. Similarly, women who work in the inner cities require land and housing so that they can have adequate access to their places of work. Currently, the State is not doing its constitutional duty to implement land reform as provided for in terms of section 25, and with even less regard to groups of poor, indigent women who continue to experience marginalisation in their rights to property. We therefore conclude that section 25 does not require amendment, but rather proper implementation.
Section 25 sets out a clear process of determining and recognising rights in property, and acknowledges the State’s obligation to address past discriminations through the process of land reform, which includes expropriation. In terms of section 25, the process of expropriation requires that compensation must be “just and equitable”. However, land reform processes undertaken in terms of enacted legislation, and under the section 25 framework, focus on land transactions based on the willing-buyer-willing-seller principle, and the sale of land at market price as the centre of the redistribution agenda. The State has ignored its positive duty to achieve land reform, which includes the use of expropriation, and redressing the discriminatory practices of land acquisition during apartheid.
Our submission therefore is that section 25 requires that the State implement land reform, and implement expropriation as a mechanism therefor. Women on farms struggle with food and tenure security, and the paternalistic policies that bind their tenure rights to the heads of households, i.e. men. Similarly, women in urban environments are equally vulnerable to evictions and increasing property prices. Thus, practical and inclusive considerations of the rights of women must inform legislative and policy development in order to effectively and holistically address the intersecting manners in which women engage with, and use land.
For women to enjoy and benefit from formal equality to land already granted in section 25, the State must implement the Constitution’s principles to give full effect to rights enjoyment with regards to land and property. Women require access to land, housing, and property that may fall outside of commercial or market-based farming activities, and these conditions should be reflected and implemented in the State’s processes of expropriation. The following are suggestions based on the Centre’s engagement with women on the issue of land, housing, and property:
- A clear housing rights framework for women living on farms that have their tenure security dependent either on their own ability to provide labour or as a beneficiary to the “head of a household”;
- A process of transfer of ownership in respect of property that is occupied often by generations within a family of farm workers;
- A clear social labour policy that includes access to social services and health care for women working and living on farms in rural and peri-urban areas;
- A policy shift which focuses on violence experienced by women living in rural areas and farms who do not have health care and psycho-social support, and the adoption of reporting systems, possible resettlement and emergency housing provision;
- A review of The Extension of Security Tenure Act in order to provide real protection to women and elderly women in particularly, who bear the brunt of evictions on farms without any means to acquire any other form of accommodation once eviction has been ordered;
- Policy shifts that that emphasise adequate compensation, access to land for sustenance farming purposes and accommodation which over the long term is secure;
- Policy that prioritises the transfer and registration of land ownership in respect of those land claims not yet finalised in respect of those who have been engaged in rent to buy lease agreements with local governments over generations, as many of the women who own these properties face eviction;
- The transfer and registration of property into the names of people who entered into rent to buy agreements with local government where they have been paying; and
- Social housing inclusion in private developments so that private development businesses can play their relevant role in promoting the human rights of vulnerable persons such as women.
Submission on the Proposed Amendments to the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998)
The Women’s Legal Centre made submissions regarding the proposed draft Recognition of Customary Marriages Amendment Bill, 2018 in terms of Notice 188 of 2018.
The purpose of the Recognition of Customary Marriage Act 120 of 1998 (‘the Act’) was to correct gender-based inequality within customary marriages. However, despite findings made by the Court over 10 years ago in the case of Gumede v President of the RSA the Act discriminated against women in polygamous customary marriages concluded before the Act’s commencement, as provided for in section 7 of the Act. The Constitutional Court declared the section unconstitutional in the case of Ramuhovhi and Others v President of the RSA and Others 2018, and referred the matter to Parliament for amendment. Parliament then drafted the Amendment Bill. Overwhelmingly, the women who are left unprotected are older, indigent, and living according to customary law rules, making them a particularly vulnerable group. Considering the values of the Constitution, of equality and human dignity, Parliament has begun the process to amend the law so that it no longer discriminates against these women, who entered into polygamous marriages before the Act, and affords them equal protection as women in monogamous customary marriages, and polygamous post-Act marriages.
The proposed amendment will ensure that women in all customary marriages are equally protected by the law and will also put an end to inequality between spouses. Parliament has enacted the wording of the Constitutional Court’s order in the amendment, which reads:
(1) (a) The proprietary consequences of a customary marriage, whether polygamous, or not, entered into before the commencement of this Act […] are that the spouses in such a marriage have joint and equal—
(i) ownership and other rights; and
(ii) rights of management and control, over marital property.
(b) The rights contemplated in paragraph (a), must be exercised—
(i) in respect of all house property, by the husband and wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and
(ii) in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.
(c) Each spouse retains exclusive rights over his or her personal property.
(d) For purposes of this subsection the terms “marital property”, “house property”, “family property” and “personal property” have the meaning ascribed to them in customary law.
The Centre is in support of the wording of the proposed amendment, as it is in direct keeping with the Court’s judgment, and captures the relief sought in the Ramuhovhi application. WLC, however, submitted that Parliament should go further to include an amendment to section 7(2) of the Act that removes the words “entered into before the commencement of this Act”. The words were found to be unconstitutional in the Gumede judgment, yet they remained in the Act for the past 10 years. We submitted that Parliament, during this amendment process, should give effect to the Court’s findings in Gumede and remove the unconstitutional wording from the Act to reflect the law as it presently stands. The Centre also submitted that, given the circumstances of the women to whom the amendment would apply, Parliament must widely publicise the amendment once enacted (e.g. through different media sources). This will ensure that the affected women will be made aware of their rights and that their positions have consequently changed and improved, and should anything occur in contravention of these rights they will know to seek redress.
Swathi Ramprasad, Anna Chulack, Takiyah Johnson
(Left to right)
On 18 June, WLC was excited to welcome Swathi, Anna, and Takiyah, who join us from Duke University through the DukeEngage Programme. They will be with us until August.
Swathi Ramprasad is studying Public Policy and Computer Science at Duke University. She is interested in learning about strategic ways to tackle broad, societal issues. She is involved in a number of programmes at Duke that engage with human rights, women’s issues, and community outreach.
She currently works as a research assistant in the Sanford Institute of Public Policy, helping to assess the effectiveness of international initiatives at reducing the prevalence of human rights abuses. Additionally, she volunteers with Supporting Women’s Action, a programme that works to help mentor female refugees that have recently been resettled in North Carolina. She also serves on the executive board of Duke Partnerships for Service, an organization that helps connect students to volunteer opportunities in the community. Swathi is beyond thrilled to be working at the WLC this summer. She hopes to gain a deeper understanding of human and women’s rights through the mentorship of the strong women at the Centre and bring a bit of that fire back home with her.
Anna Chulack is from the United Kingdom. She is about to enter her second year studying at Duke University, where she is double majoring in Public Policy and History, and minoring in Economics. Anna has always been passionate about human rights, and has previously volunteered and interned for NGOs tackling issues ranging from early childhood education to child marriage. She enjoys combining her interests in human rights and visual media, and as a result has helped create awareness videos and managed online media campaigns in her past volunteer work. As a strong feminist, Anna is very excited to have the opportunity to work in an all-female office and to engage with the work that we do. She also hopes very much to learn new skills that will assist her in her career aspirations to advocate for and to effect positive change.
Takiyah Johnson is entering her fourth year at Duke University, studying Public Policy and History. Throughout her studies, Takiyah has been particularly interested in education and social policy, focusing on the effects of social equity gaps on minority populations. She will be taking global law and policy courses at Venice International University for a semester abroad. At school, Takiyah is involved in the Students of the Caribbean Association, Duke Democrats, and the Black Pre-Law Association. During the academic year, she works part-time as a Research Assistant for the Parenting Across Cultures global research project in order to explore education and child policy. She has also volunteered for the Hart Leadership Program and Movement of Youth to tutor and mentor middle school students in the Durham community. After graduating from Duke, Takiyah intends on seeking employment before pursuing a law degree. She looks forward to exercising her interest in social policy and law under the guidance of the Women’s Legal Centre.
We are happy to have them join our team, and wish them all the best during their time with us!
Carolin joins us as an intern in our Cape Town office.
She studied law in Germany and graduated in 2015 from the Albert Ludwig University Freiburg. She then moved to the United States and obtained her LL.M. degree from New York University in 2016. During her LL.M. studies, she focused on comparative constitutional law, law and social theory, and gender issues. For the past two years, Carolin has pursued her legal training at the District Court Freiburg, the Public Prosecutor’s Office and the Administrative Court Freiburg.
Carolin is passionate about gender issues and hopes to improve the situation for women applying her strong legal and analytical skills. She is excited to work with the inspiring women at the Women’s Legal Centre Cape Town from July to September, and we are equally as excited to have her be part of our team.
With(out) Law Conversation: Does the law support activism? 23 May 2018, Kramer LT2, University of Cape Town
Image source: Twitter (@ClsUct)
On 23 May 2018, Adv Bronwyn Pithey, who heads the violence against women programme, joined the Centre for Law and Society, UCT to discuss the question ‘Does the Law Support Activism?’
Bronwyn was joined by Mandi Mudarikwa from the Legal Resources Centre and Dalli Weyers from Social Justice Coalition. The conversation explored themes relating to the topic of how the law can support activism. An audio recording of the conversation can be accessed on the CLS YouTube page, and at the following link:
Public Transport and Gender-based Violence in South Africa: A stakeholder dialogue
26 June 2018
Advocate Bronwyn Pithey formed part of a Public Transport and Safety Symposium, organised by Sonke Gender Justice. Advocate Pithey was invited to share some insight into the legal obligations borne by our rail commuter service provider, PRASA, to ensure the safety and security of their commuters when using the railway services in South Africa.
Left to right: Elgene Roos (LRC); Nasreen Solomons (WLC); Seehaam Samaai (WLC); Chriscy Blouws (NU); Harsha Gihwala (WLC)
Sexual Harassment Strategy Workshop 27 June 2018, Johannesburg
On 27 June, five members of our team (Seehaam Samaai, Bronwyn Pithey, Charlene May, Nasreen Solomons and Harsha Gihwala) were able to take part in a meeting of over 50 feminists to unpack the challenges facing womxn within civil society in relation to sexual harassment. The meeting was set up with an aim to develop a feminist response to sexual harassment and the power imbalances currently affecting the civil society and NGO sector.
Judgment: Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others 14 June 2018
On 14 June the Constitutional Court handed down their unanimous judgment in Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others (Case CCT: 170/17) in which they confirmed the order of the High Court that declared section 18 of the Criminal Procedure Act constitutionally invalid.
Section 18 created a prescription period for sexual offences other than rape. The WLC was an amicus curiae in the High Court and a respondent in the Constitutional Court. The WLC’s submissions to the Court in respect of the impact of sexual offences on adult survivors and the reasons for delayed reporting.
Read our full statement here: View
Read the case here: View
Judgment: Moosa NO and others v Minister of Justice and Correctional Services and others (Trustees of The Women’s Legal Centre Trust as Amicus Curiae)
On 29 June 2018 the Constitutional Court handed down a unanimous judgment (Moosa NO and others v Minister of Justice and Correctional Services and others (Trustees of The Women’s Legal Centre Trust as Amicus Curiae) CCT 251/17) in which they confirmed an order by the High Court declaring section 2C(1) of the Wills Act constitutionally invalid.
The section prevented spouses in polygamous Muslim marriages, married only be Muslim rites from inheriting in terms of their deceased partner’s will upon the descendants of the will repudiating said benefits. The Women’s Legal Centre was an amicus curiae in both the High Court and the Constitutional Court. Our submissions were able to provide context regarding Muslim women in South Africa’s experiences as well as to highlight South Africa’s international obligations regarding the elimination of discrimination against women. The Court acknowledged the continued plight of Muslim women in South Africa as their marriages have no legislation which recognise them or regulate their consequences.
Read our full statement here: View
Read the case here: View
SWIFT meet-up: Sexual Violence and Sexual Harassment 30 May 2018, Woodstock
On 30 May 2018, Nasreen Solomons and Harsha Gihwala attended a meeting hosted by Sisters in Film and Television (SWIFT) on an evening on which the discussion was centred on sexual harassment in the film and television industry. Nasreen and Harsha were able to provide some insight into the criminal offences that result from sexual harassment as well as remedies available to people who experience sexual harassment in terms of the Criminal Law (Sexual Offences and Related Matter) Amendment Act, the Protection from Harassment Act, and the Promotion of Equality and Prevention of Unfair Discrimination Act.
Visit to Rape Crisis
Our interns recently visited the Rape Crisis Cape Town Trust at their Thuthuzela Care Centre in Khayelitsha where one of our legal advisors, Busiwe, provides legal advice to women each Friday. Rape Crisis is the oldest organisation in South Africa supporting the recovery of rape survivors, seeking justice and making change in communities. They are striving towards a South Africa in which women are safe in their communities, and where the criminal justice system supports and empowers rape survivors. They are working towards this goal by providing court support, criminal justice system training, peer education, helping to build safer communities, advocacy, training and development, and counselling at their Thuthuzela Care Centres.
Our interns were lucky enough to spend time with and hear from Joyce Doni, the Centre’s Counselling Coordinator. Joyce spoke with our interns and answered all their questions about how the centre works, the services they provide, and their experiences in interacting with the criminal justice system. They were especially interested to hear about the different approaches taken by the Centre when counselling women and girls who have been the victims of rape. It was also very interesting to hear about how the Centre empowers the local community. The Centre trains women from the community in counselling and administrative roles so that they can gain the skills and qualifications necessary to obtain employment opportunities.
Thank You to our Donors and Supporters
We wish to extend our sincere gratitude to Foundation for Human Rights, Legal Aid South Africa, and to our generous anonymous donors for their commitment and support for the work of the Centre.