Maiden bursary investigative report at Uthukela District Municipality, KwaZulu-Natal

Women, Youth and Persons with Disabilities

25 October 2016
Chairperson: Ms T Memela (ANC)
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Meeting Summary

The Commission for Gender Equality (CGE) presented a report to the joint committees on its investigation into a government-funded bursary administered by the uThekela District Municipality (UDM) that was restricted to girls who were virgins, and who had to undergo virginity testing. The CGE ruled that the conditions imposed in this bursary violated the South African Constitution’s section on gender equality. The UDM had initially reacted negatively to the report, but had eventually decided to accept all of the CGE’s recommendations.

The Members’ questions and comments revealed divergent views on the cultural practice of virginity testing, the junction of constitutional law and the rights of cultural practices, and the CGE’s role in ruling on cultural practices. Several commended what the UDM had done, saying that it encouraged students to concentrate on their studies, and protected them against unwanted pregnancies and HIV/AIDs. Others

expressed concern that the CGE’s report infringed on a long-standing Zulu cultural practice, and that government agencies should not be able to overrule cultural practices, while a few held the view that the CGE was merely doing the work which it was mandated to do – to uphold the Constitution -- and that it was not ruling on the value or morality of virginity testing, just whether this specific bursary was in line with the Constitution. The CGE maintained that it had to investigate and report issues which violated the Constitution’s clause on gender equality. Because the UDM was a government entity, using public money, it was expected to uphold constitutional law.

A Member commented that the issue of culture was tied to the issue of patriarchy. Some of these cultural issues needed to be dealt with, and others would fall by the wayside as society evolved. This seemed like one of those cultural practices that would slowly disappear, and was not an issue now. Another Member argued that the cultural rights of South Africans needed to be protected, and that people should not concentrate on “colonial thinking.” It was also suggested that the committees should look at areas of legislation that were diminishing the country’s cultural values, as there was nothing wrong with what the municipality had done, and it would be difficult to end child marriages if these cultural values were not promoted.

Meeting report

Maiden bursary investigative report at uThukela District Municipality

Ms Thoko Mpumlwana, Deputy Chairperson: Commission for Gender Equality (CGE), said that the investigative report had been carried out in accordance with their mandate to help groups follow the law on gender equality, as put forward in the Constitution of South Africa. Everyone at the CGE was very relieved that there was agreement between them and the uThukela District Municipality (UDM) on this matter, and that UDM had agreed to implement all of the recommendations.

Ms Keketso Maema, Chief Executive Officer (CEO): CGE, said that the CGE’s vision for gender equality was one day to have a society that was free from gender oppression and all forms of inequality. It monitored both state and private organisations, and indigenous and customary laws and practices for gender inequality. It then investigated those matters, wrote reports and made recommendations when necessary.

The CGE had found that awarding bursaries based on a female being a virgin was inherently discriminatory, and “went against the ethos of the Constitutional provisions in relation to dignity, equality and discrimination.” Furthermore, virginity testing was considered a harmful traditional practice. The Commission had found that this excluded girls who did not want to take part in this particular cultural practice, while people of other cultures would also be excluded from this bursary. In addition, the bursary made no accommodation for issues such as if one of the candidates had been raped. The CGE found that virginity was not a necessary requirement for the task of studying.

Ms Maema said that the CGE report put forward a number of recommendations. Both the UDM council and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL) had initially viewed the CGE’s findings negatively, but had since agreed to enact all of the report’s recommendations.

Mr Siphiwe Mazibuko, Mayor of the UDM, said that the UDM had accepted all of the recommendations, and that the UDM council was cooperating on this issue. The council had realised it had made a mistake, and was committed to rectifying it.


Ms D Robinson (DA), said that she was troubled by the fact that the UDM was not aware that the constitution mandated that gender equality be respected, and what that meant. She noted that the Mayor and the council were trying to help. She asked the CGE if there was a programme that could be launched so that nobody could say they were not aware of what the constitution laid out on issues of gender equality.

Concern was expressed that the CGE had omitted a recommendation about family planning, in relation to HIV/AIDs. What the Mayor and UDM were trying to do, however poorly, was make sure that young girls were not engaging in sex, instead of their studies. The CGE was asked if it could add a recommendation to the municipality to have programmes that ensured that family planning still continued. There was agreement with Ms Robinson’s idea of a programme to educate South Africans on the Constitution and their rights.

Ms T Mampuru (ANC, Limpopo), said that young boys and girls needed to be taught about their cultural values. She disagreed with the idea that the communities were not aware of their Constitutional rights. Many South Africans grew up knowing what Zulus do in their culture, and the cultural rights of South Africans needed to be protected. She argued that people should not concentrate on “colonial thinking”, but instead should make sure that everyone was taught the values of their culture and the importance of the Constitution. What the UDM had done could happen in any sector of government. The government needed to teach the youth how to uphold themselves, and to be knowledgeable about issues of rape and HIV/AIDs.

Mr J Mthethwa (ANC, KwaZulu-Natal) said his concern was that this matter should not get dismissed or passed over once it was concluded, as it provided an opportunity for government to educate and inform South Africans on these matters. He hoped that they would slowly become settled, and that they would not bring out the sort of volatile debates that had happened in the past.

Mr M Khawula (IFP, KZN) said his concern was that the Committee was throwing the baby out with the bath water, because this report did not promote forward thinking on the issue of how to meld cultural practices and governance. He argued that the report went to the very heart of virginity testing, and noted that the government needed to strike a balance between western doctrine and African cultural values. He said that HIV/AIDs in KZN was on the rise, as was teenage pregnancy, and the CGE had to assist society by pushing back against patriarchal constructions. Teenage girls had even said that they did not feel that the bursary had infringed on their rights. He argued that the bursary was a motivator to promote good behaviour, and that in instances of rape, it should be taken case by case. He believed there needed to be an alternative to the entertainment and sexualized lifestyle of modern culture.

Mr Mthethwa said that time and again Zulus celebrated young women’s virginity testing, stating that Zulus had been doing this since the inception of the Zulu nation to encourage youths to not engage in sex at an early stage. This was the Zulu culture, and was not forced on anybody. Zulus were doing it because their forefathers had done it. The values of the culture had to be respected, and the values of the constitution also had to be respected. The work of the CGE was to try to bring together the values of Zulu culture and all cultures in South Africa, and the Constitution. He closed by arguing that the UDM was not trying to violate any constitutional right, but to value Zulu culture.

Mr D Ximbi (ANC, Western Cape) said that the Committee needed to commend the UDM for doing something. He noted that the bias was on the side of the Constitution, and that the Committee needed to factor that in when judging this report, and not throw away a good idea. He believed that the Committee could find a compromise somewhere, which brought this cultural practice and the Constitution together. He was grateful to the municipality for doing something to encourage the girls to be principled, and perhaps in the future it could also encourage the boys.

Mr S Thobejane (ANC, Limpopo) said he believed his fellow Members had hit the nail on the head when they had questioned what the unintended consequences of the CGE’s report were. The CGE had been operating under the guidance of the legislation, but he argued that this was not what the legislation had intended. South Africans should have legislation that enabled them to live within themselves. From time to time, these Committees should look at areas of legislation that were diminishing the country’s cultural values. He believed that there was nothing wrong with what the municipality had done, pointing out that it would be difficult to end child marriages if these values were not promoted. One could not say, promote women’s rights, and then say that what the UDM had done was wrong. He commented that during the wars of liberation “we said, let us not allow ourselves to be taken away by the western colonisers.” He concluded by saying that these Committees needed to help to preserve and promote some of these cultural practices.

Ms M Chueu (ANC) agreed with other Members who felt that the CGE’s job was to stay within the parameters of the law, and in carrying out this assignment, they were doing their work. She argued that the issue of culture was tied to the issue of patriarchy. Some of these cultural issues needed to be dealt with, and others would fall by the wayside as society evolved. This seemed like one of those cultural practices that would slowly disappear, and was not an issue now. There were any number of things that could happen to young women which could cause them to lose their bursary, such as being raped, or falling in love, and it would be unfair to say they could not continue with their education should one of these things transpire. However, she would not have a problem with the bursary being restricted to virgins at the time of allocation, just that they should be able to keep their bursary from that point on, regardless of what choices they made, or what happened to them. She believed that these things should be discussed more, and that the gaps in the Constitution needed to be looked at. South Africa was a diverse community in South Africa, but South African laws provided more for western principles than for African principles and cultural values. She thought the CGE had written a one-sided report, and that they needed to put the positives and negatives of each side in the report. This was an important opportunity for people of both genders to discuss this sensitive issue, which this Committee should not run away from.

Ms C Majeke (UDM) said she came from the Eastern Cape, where virginity testing had happened as well, but that with time the practice had faded. Additionally, young men had been taught that if they impregnated a woman, they had to pay for the child and the damages. This normally meant that they had to get work in the mines. She concluded that if virginity testing was taken away as a cultural practice, it should be replaced with something better.

A Member commented that the CGE was against virginity testing, but that the Cultural, Religious and Linguistic (CRL) Rights Commission was in favour of it.

Ms P Bhengu (ANC) asked the CGE and UDM to keep engaging on this issue so that the recommendations were fully implemented.

Mr T Mhlanga (ANC, Mpumalanga) welcomed the CGE’s report, and thanked the municipality for their compliance. It was clear that the South African democracy was maturing, given the level of engagement on matters such as this. He said that the CGE’s work had to be put in context, as the Commission had not been making a value judgment about virginity testing, but was rather looking at whether the municipality was in violation of the clauses on gender equality in the Constitution. The CGE was mandated to monitor and evaluate government and private sector entities, to make sure they were complying with the Constitution. In his opinion, the real issue at hand was whether the municipality had fully complied with the CGE’s recommendations. The UDM had ultimately acknowledged that their policies were wrong, and had subsequently made the recommended changes. He pointed out that the CGE had not ruled, based on the negatives and positives of virginity testing. It had merely followed the law, as laid out in the Constitution. Recognition of cultural practices was part of the Constitution, but so was gender equality, and he noted that as Members of Parliament, these Committees were expected to uphold the Constitution, regardless of their personal feelings. 

The Chairperson thanked the Members for their input, and acknowledged that there were those in the Committees who might differ on a number of issues, but added: “Remember, virginity tests were a black person’s pride.” The Committee was very proud of those young girls, who took it upon themselves to preach the gospel of looking after their bodies by remaining virgins, in spite of their circumstances and the environments they were living in. She added that their mothers were actually doing quite a good job.

However, men needed to take their role in bringing up children seriously, and if a woman became pregnant, both parents had a responsibility to rear the child. Men had to learn that women and men were equal, and in most cases women were just as self-sufficient. Women were now demanding to be treated as equals, and were demanding respect.

The Chairperson commended the CGE for their good work, but said that there was need for further discussions. She concluded by also commending the UDM for coming up with the bursary idea, but said that they needed to go back and rethink certain areas, such as exclusion because of rape and other factors.

CGE’s response

Ms Maema said that the CGE had been set up by the Constitution, and that until it was changed, they were obligated to follow their mandate. The Constitution had been informed by over 1.8 million submissions and conversations from South Africans, leading up to the 1996 drafting. She acknowledged that there were cultural practices that may not be in line with the Constitution, such as in her own culture, where it was said that one was not supposed to look a child that had both genders in the eye, because her culture did not recognise their existence. However, those children were born in South Africa, and they too deserved respect.

It would be unfortunate if CGE were asked not to abide by the Constitution. The Committee should applaud the UDM for the position they had taken, in reflecting and changing their policies.

Ms Maema said that in terms of education, the CGE was in talks with the Department of Justice and Department of Education to go into rural communities to educate people on the Constitution and their rights, while the Department of Health had a huge programme to provide for family planning.

CGE’s mandate on this particular issue, reflecting what Mr Mhlanga had said, was not about the value of virginity testing, but it was ruling on whether the UDM was acting in accordance with the law, under Chapter 9. As a state entity, using public funds, the UDM was required use those funds in accordance with the law. If the law was not abided by, then any entity could decide its cultural practices were more important than the Constitution. For example, bursaries could be given only to boys the Eastern Cape who were circumcised. The Constitution was supposed to promote rights for all, and that was all that the CGE was trying to do. It had not ruled on whether virginity testing was constitutional, but just whether this bursary was in line with the Constitution.

Mr Mazibuko thanked the Chairperson, and brought up a final issue. He said that the practice of virginity testing existed in society, and that the UDM had not started this practice, nor did they administer it. The UDM had just responded to the call made by the community to promote this practice. As a municipality, it had not seen any wrongdoing by introducing this bursary. However, once it realised that this bursary was not in line with the Constitution, and after the investigation and recommendations, it had implemented the recommended changes.

The meeting was adjourned.

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