sexual health and human rights in the african region - The ICHRP

(a) gender-based violence;
(b) female genital mutilation;
(c) the system of preventing women from inheriting family property;
(d) any practice, including traditional, customary or religious practice, which
impairs the dignity of women and undermines equality between women and
men, including the undermining of the dignity and well-being of the girl child;
(e) any policy or conduct that unfairly limits access of women to land rights,
finance, and other resources;
(f) discrimination on the ground of pregnancy;
(g) limiting women’s access to social services or benefits, such as health,
education and social security;
(h) the denial of access to opportunities, including access to services or
contractual opportunities for rendering services for consideration, or failing to
take steps to reasonably accommodate the needs of such persons;
(i) systemic inequality of access to opportunities by women as a result of the
sexual division of labour. 237
• prohibit hate speech and harassment as transgressions that
• create special courts – Equality Courts - for adjudicating equality claims at
first instance with a view to making access to courts more accessible; 238
[41] The South African Employment Equity Act seeks to protect and promote the
rights to equality and non-discrimination in employment, inter alia, on the
grounds of ‘gender’ and ‘sex’. 239 Like the Equality Act, the Employment Equity
Act must be interpreted in accordance with jurisprudence on equality and nondiscrimination
that has been developed under the Constitution and in
accordance with South Africa’s international obligations. 240 In practice, this
entails applying the equality jurisprudence that has been developed by the
Constitutional Court of South Africa. 241
[42] As alluded to earlier, unlike the position in the majority of African jurisdictions,
South African court decisions on sex or gender as a protected ground have
addressed areas beyond inheritance rights or property rights generally. 242 In this
regard, the Constitutional Court of South Africa has adjudicated on sex and
gender discrimination arising out of adoption, prison remission, sex work, and
237 Section 8 of the Equality Act.
238 Sections 16-23 of the Equality Act. Every magistrate court and every High Court is designated as an
Equality Court: section 16 of the Equality Act.
239 Section 6(1) of the Employment Equity Act.
240 Section 3 of the Employment Equity Act.
241 JL Pretorius et al Employment Equity Law (2001) Chapter 2.
242 The leading inheritance or property cases that have come before the Constitutional Court of South
Africa are: Brink v Kitshoff 1996 (4) BCLR 441 where it was held that legislation that provided that the
proceeds of life insurance policy taken out by a husband in favour of his wife would be available to
creditors if the husband died insolvent constituted unfair discrimination on the basis of marital status but
not on sex and gender; Bhe v The Magistrate Khayelitsha and Others 2005 (1) BCLR 1. This case was
discussed in Chapter 1 of this study.
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