Office on the Status of Women; South African Law Commission: briefing

Meeting Summary

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Meeting report


18 October 2002

Ms L M T Xingawana (ANC)

Documents Handed Out:
Briefing by Office on Status of Women on South Africa's National Policy Framework for Women's Empowerment and Gender Equality
please see:
Progress Report on Project 90: Customary Law of Succession
Briefing by the SALC on Sexual Offences Legislation
also see SALC website:

The Committee were briefed by the Office on the Status of Women on the Government's National Policy Framework for Women's Empowerment and Gender Equality. This Policy Framework seeks to implement the Beijing Platform. The Committee was also briefed by the Law Commission on the progress of their research and proposals on the Customary Law of Succession. The Committee stressed their deep disappointment in the perpetual delays in the introduction of a new law in an area which has caused great harm to many women and children in South Africa.


The Committee was briefed by Ms Susan Nkomo from the President's Office on the Status of Women regarding the National Policy Document for Women's Empowerment and Gender Equality. The South African Law Commission briefed the Committee on projects concerning women that SALC were dealing with. SALC was represented by Ms Maureen Moloi, Professor Maithufi and Mr Graham Hollamby.

Briefing by the Office on the Status of Women
Ms Nkomo began her presentation by saying that there must be two things borne in mind when looking at the Policy Framework. It was necessarily cross-cutting with each sector specified obliged to make their own guidelines. The purpose of the audit was to give pointers from which the Departments were to take the lead. This was to ensure that there was not two policy documents in existence for any Department, i.e. the Department of Justice will not have a Justice Policy and a Gender Policy. There was an essential difference between a Policy Framework and an Implementation Strategy. Therefore, the Policy Framework does not give a timescale for the implementation of its terms.

She then led the Committee through her presentation.

The Chair asked that the 'Executive Summary' be amended to show that the Joint Monitoring Committee was not an ad hoc, but a permanent Committee.

Ms Nkomo said that Chapter 1 established Gender Equality as central to the ethos of South Africa. It also sought to draw on the women's involvement in the struggle.

Ms Moloi (ANC) said that, in her opinion, there could be no conflict between women's empowerment and gender equality.

The Chair commented that, when defining the problem, there was no clear indication of the role played in women's subordination by patriarchy. She asked that the document be amended to take account of this. This prompted Ms Camerer (NNP) to ask what scope there was for changes as the document looked as though it was in its final form.

Ms Nkomo said that it had already undergone many amendments, so the substance was to remain relatively intact, however, suggestions as to clarification of language or editing would be welcome.

Ms Camerer (NNP) referred to the paragraph numbered 2.5.3, where it stated that apartheid was a factor in the low take up rate of contraception amongst African women. She suggested that it should also list 'tribal practice' as exacerbating the situation.

Ms Nkomo welcomed these suggestions and said that this was the type of editing they welcomed. She noted that the format of Chapter 1 was guided by the Beijing Platform. With regard to Chapter 2, a decision had been taken not to implement any 'women only' laws.

Ms Camerer queried the layout of the Chapter as 'women and human rights' was listed almost at the end of the Chapter, yet it was only due to the constitutional equality guarantee that the Policy Framework was in existence. Should the constitutional issues not be afforded higher status? Ms Nkomo said that the Chapter had followed the layout of the Beijing Platform, and this was how they listed the sections.

Another Member asked if in the 'women and the economy' section, attention was being paid to women working in the shebeens, and other hidden places.

Ms Nkomo said that the purpose of Chapter 2 was to contextualise the problems. The statistics formed the bedrock upon which the solution had to be built. The Chair interjected to ask that, as Ms Nkomo had said the statistics were incorrect, was there any way that she could correct them? It was very important that the figures were accurate as the women in Parliament would be using them to argue for increased funding, or re-prioritising of programmes. If the document was to be of any use it had to be factually correct.

Ms Nkomo said that they had expanded the chapter since it was initially drafted. Section 2.2 had been drafted by the Department of Justice, the other sections taking their lead from the Beijing Platform. When the Departments had been approached for the statistics needed, there were some problems, for example the moratorium on crime figures. Other problems had come to light only because the Office on the Status of Women had been tracking the statistics and had discovered disparity amongst their figures and those supplied by the departments.

Chapter 3 entrenched the concept of substantive equality. Ms Nkomo said that in public workshops this would be explained to people by reference to two birds, one with a long beak and one with a short beak. Substantive equality would be ensured by finding mechanisms to ensure that both of the birds were able to drink from the pond.

Chapter 4 outlined the Institutional framework within which Gender Equality would be ensured. The Chair asked that within section 4.4.3 there was reference to the parliamentary structures. In particular, Gender Committees did not exist in the Provinces and Local Government. Was there some way to fast track them in this area?

Everyone complained that Chapter 5 was impenetrable. Ms Nkomo acknowledged that there had been many complaints regarding this and that an easy read version was being drafted. The consensus was that this was a hugely important section, yet no-one could understand it.

Chapter 6 related to the monitoring and evaluation. Ms Camerer said that this was the most problematic Chapter for her as she could not understand who was to be monitored and who was to be evaluated. The process, in the short term, simply seemed to be a 'desk counting' exercise.

Another Member said that there was no clear indication as to how divergent information would be collated for monitoring purposes.

Ms Nkomo said that the short-term goals were to ensure that the Departments had the requisite capacity to carry out the duties and that this capacity was gender sensitive. Thereafter, the programmes would be put into effect.

The Chair suggested that the Gender Focal Points should each be invited as they each had their own priorities.

Briefing by South African Law Commission
The Law Commission was represented by Ms Maureen Moloi, researcher for Customary Law, Professor Maithufi, the Project Leader for Customary Law and was involved in the work being carried out on the Customary Law of Succession. Mr Gordon Hollamby who was the senior researcher on Sexual Offences.

Sexual Offences
In addition to the work on the Sexual Offences draft Bill, Mr Hollamby also wanted to comment on the work on prostitution and trafficking of women and children.

Since the last briefing to the Joint Committee all comments and suggestions relating to the first discussion paper had been received. All the information was available form the Commission website. The Project was now at the stage of formulating the final report covering the procedural and substantive law. If this was agreed by the Law Commission, it could be passed to the Department to be introduced as a Bill.

The draft Bill makes provision for a new definition of the crime of rape to allow for anal and same sex rapes. In addition, the use of objects would also be covered. The crime of 'statutory rape' would also be retained making it a crime to have sex with a minor. The Members asked who would be guilty if both parties were under-age? Mr Hollamby said that it was not the intention in the report to criminalise sexual experimentation amongst peers. The purpose was only to criminalise adults preying on under-age children.

One of the Members asked why, if the Convention on the Rights of the Child said a child was someone under eighteen years, the proposals place the age of sexual consent at sixteen? Mr Hollamby said that the age of sexual consent did not have to coincide with reaching full legal maturity. Ms Moloi (ANC) said that, speaking as a parent, she was not happy with this concept.

Mr Hollamby also said that it would allow for vulnerable witnesses to be protected who could, on occasion, given evidence via CCTV links, for example.

Ms Moloi said that she was very concerned that those suffering from mental disabilities were always being exploited. What were the proposals with regard to them?

Mr Hollamby said the proposal was, if you had sex with someone who was not, in law, able to give consent, then it would constitute rape. However, the purpose was not to deny someone with a mental disability their right to their sexuality. Therefore, the law had to allow for them forming sexual partnerships.

The Chair said that she was greatly concerned that this legislation was being passed too slowly. She outlined a horror list of existing cases. She said she wanted the Chair of the South African Law Commission to come to them to explain the cause of the delay.

One of the Members asked that the SALC be invited back very early next year in order to inform them on the outcome of the meeting on 7 December 2002.

Issue Paper for Public Comment on Adult Prostitution
Mr Hollamby said the issue of adult prostitution received considerable media attention after the Constitutional Court delivered its judgment in the Jordan matter. The Commission already released an issue paper on adult prostitution in August 2002. The closing date for submissions on this issue paper is the end of October 2002. This issue was very important given the sudden surge of child pornography. As far as child prostitution is concerned, the Commission's work on this issue is at its initial stage. The reason for that is that the Department of Home Affairs is considering amending the Films and Publications Act.

The Commission's investigation on the review of the Child Care Act is being finalised. The Chair asked when Parliament could expect to see the document. Mr Hollamby explained that the draft report and draft Children's Bill in this investigation will be considered by the Commission at its next meeting on 7 December 2002. If the Commission approves this report, it will be handed to the Minister for Social Development who may then implement the Commission's recommendations by introducing the draft Bill in Parliament.

Customary Law
Ms Moloi read from a Progress Report on Project 90: Customary Law of Succession.

The Chair said she was very disappointed with the content of the report. She read one letter of complaint she had received from Michelle O'Sullivan: Women's Legal Centre, complaining that the process had suffered from delay after delay. Now SALC were saying that they were going back for another round of consultations. She asked why more consultation was necessary.

Ms Moloi (ANC) said it was very important in these issues that Traditional Leaders were only to talk in their institutional capacity and must not be allowed to speak on behalf of the communities.

Ms Camerer asked if this was yet another example of a traditional leaders/women's stand-off. This issue had been being debated since 1993 when she was the Deputy Minister, yet there was still no resolution to the issue.

The Chair asked where all the women were who had looked back nostalgically on the customary law of succession. The reality was that the situation could not continue as women were being forced out of their homes every day, even by Supreme Court orders. Women in the Eastern Cape, when their husbands die of AIDS are accused of having 'bewitched' them and are accordingly made homeless. How many men and how many women were on the committee? She was told there were four men and six women after Judge Mokgoro had been excused.

Professor Maithufi assured the Joint Committee he would put this issue on the agenda of SALC Committee for their meeting of 7 December 2002. The Chair and the other Members said they were very disappointed with this situation.

A staff member from the Gender Unit of the Land Affairs Department pointed out that the Law Commission's delay was jeopardising land reform. The land reform issues had to lie in abatement until everyone saw what was to happen with succession. However, the law reform process only had another two years to run.

Ms Moloi said that it was not the issue of traditional leaders which was causing the delay, but rather the fact that the SALC should report back before the provisions were put into effect. These people lived in remote rural areas so it was difficult to access them. The Chair said there was no excuse for the delay and as a Draft Bill was in existence, it should have been put before the Joint Committee today.

The meeting was adjourned.


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