Defending and securing rights through law: Feminism, law and the courts in South Africa

Abstract

This article explores the extent to which the courts and legal processes have been engaged to address the gendered social and economic inequalities in South Africa. It thus explores the role of the courts in extending or limiting the rights of women, especially through the right to equality. It is argued that courts were not the main site for rights claims, especially in the early years of democracy, as feminist policy advocates preferred to advocate for rights through political processes. However, as the opportunities for change through political means slowed down, there was increasing reliance on the courts. Drawing on feminist theory of the law, the article examines the boundaries of inclusion and exclusion created by the two superior courts, the Constitutional Court and the Supreme Court of Appeal, as well as their mechanisms of responsiveness and resistance to women's rights claims. It concludes by suggesting that both these courts have made significant rhetorical advances within rights discourse, with some potentially transformative judgements. The courts have begun to redraw some of the social boundaries of inclusion to extend rights protection to the private sphere and to a wider set of relationships. This has begun to dislodge some traditional understandings of gender relations. However, the Constitutional Court, for a range of reasons, has also set clear limitations to this, which ultimately reinforce traditional gender relations. Despite this, there remains significant space for using litigation as a strategy for change, especially if it is embedded in wider political processes.

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