Elsje Bonthuys

Modes of (in)tolerance: South African Muslims and same-sex relationships

In this study we interviewed members of a small, predominantly Muslim community in Johannesburg, South Africa, in order to ascertain attitudes towards people who engage in same-sex practices. We were interested in ascertaining whether community perceptions of homosexuality match the common (Western) assumption that Islam is profoundly homophobic. Our research, while preliminary, shows that although most people condemn same-sex practices on the grounds of religious principle, they also in practice did not act upon these views. Respondents held different views on whether a person is gay or lesbian as result of same-sex behaviour, on the one hand, or same-sex desire, on the other hand. This distinction accords with what was, for them, the difficulty of proving the same-sex practices had occurred given strict Muslim standards of proof. Community attitudes to homosexuality usually involve denial and secrecy in order to maintain the social fabric of daily life and relationships between community members.

Race and gender in the Civil Union Act

Abstract This article seeks to investigate some racial and gendered dimensions of the Civil Union Act. First, it looks at the social and cultural characteristics of those lesbian and gay couples who are allowed to conclude civil unions and the racial and cultural aspects of the institution itself. In aligning civil unions so completely with the institution of civil marriage, the Civil Union Act strengthens the position of marriage as the ideal for all other relationships and implies that other forms of marriage, in particular customary marriage, are inflexible and incapable of accommodating same-sex couples. This is directly contradicted by a body of social science evidence which shows how some African cultures have created spaces in which certain forms of same-sex activity are allowed, or simply ignored. Moreover, the Act is premised on a particular form of global gay identity which does not accord with the identities or practices of many African people who have same-sex relationships. The second part of the paper deals with gender. It argues that the acceptance of same-sex practices within African communities is often conditional upon the adoption of very stereotypically patriarchal roles and identities within these relationships. This is similar to the way in which the Civil Union Act reserves legal recognition for those samesex relationships which mimic marriage. Finally, a lack of co-operation between gender activists and same-sex activists around the contents of the Act has resulted in a failure to focus simultaneously on gender and sexual orientation. This, in turn, has created the possibility of disadvantage, both for women and for people who have relationships with others of the same sex.This article seeks to investigate some racial and gendered dimensions of the Civil Union Act. First, it looks at the social and cultural characteristics of those lesbian and gay couples who are allowed to conclude civil unions and the racial and cultural aspects of the institution itself. In aligning civil unions so completely with the institution of civil marriage, the Civil Union Act strengthens the position of marriage as the ideal for all other relationships and implies that other forms of marriage, in particular customary marriage, are inflexible and incapable of accommodating same-sex couples. This is directly contradicted by a body of social science evidence which shows how some African cultures have created spaces in which certain forms of same-sex activity are allowed, or simply ignored. Moreover, the Act is premised on a particular form of global gay identity which does not accord with the identities or practices of many African people who have same-sex relationships. The second part of the paper deals with gender. It argues that the acceptance of same-sex practices within African communities is often conditional upon the adoption of very stereotypically patriarchal roles and identities within these relationships. This is similar to the way in which the Civil Union Act reserves legal recognition for those same-sex relationships which mimic marriage. Finally, a lack of co-operation between gender activists and same-sex activists around the contents of the Act has resulted in a failure to focus simultaneously on gender and sexual orientation. This, in turn, has created the possibility of disadvantage, both for women and for people who have relationships with others of the same sex.

Accommodating gender, race, culture and religion: outside legal subjectivity

ABSTRACT In 1998, the Recognition of Customary Marriages Act 120 of 1998 was passed by Parliament. In 2001, the South African Law Commission published a Discussion Paper on the validity of Muslim marriages. In both customary and religious law, the State is faced with the choice of either creating a single system of marriage law for all religious and cultural groups, or maintaining separate systems to cater for different sectors of the population. In making this choice, issues of gender equality and the recognition of religious and cultural rights invariably surface. This article examines issues relating to the recognition of religious and cultural systems of family law by way of an analysis of two cases that represent the two most frequently suggested ‘solutions’, namely unification of family law and pluralism. Using elements of feminist standpoint analysis and postmodernism, the construction of the ideal legal subject established in the cases, as well as its implications for women, is interrogated. The article then makes some observations about the nature of South African family law after the adoption of the Constitution. This discussion is also relevant to the way in which a new South African society will deal with challenges by marginalised cultures and social practices to western middle class cultural hegemony.

The personal and the judicial : sex, gender and impartiality

Abstract Taking Judge Edwin Cameron’s public revelation of his HIV status and the lawsuits brought by Judges De Vos and Satchwell as a starting point, this article examines and critiques the construction of the public/private dichotomy in relation to judges and judging, focusing specifically on its gendered implications. It asks how the public/private dichotomy either enables or constrains women from becoming and being recognised as judges. It does so by using three concepts which are marginal to traditional legal scholarship but which, nevertheless, illuminate the problem of gender equality on the bench in interesting ways. They are first, visual representations of judges in films and judicial portraiture; secondly, the concept of authority; and finally, the ideal of impartiality. Despite the influence of the public/private dichotomy, there are nevertheless indications that women judges actively contribute to the transformation of gendered legal discourses. Evidence for this ability is found by comparing the voting patterns of the Constitutional Court’s women judges and Justice Sachs in the gender cases, on the one hand, to their voting patterns in all cases, on the other hand. This comparison shows that these judges are more likely to write leading judgments or separate judgments in gender cases than they would in their opinions on the whole. Furthermore, they are far more likely to agree with one another, and less likely to agree with other members of the Court in gender cases, than in all cases. The inclusion, in my analysis, of Justice Sachs illustrates that women judges do not necessarily have to shoulder the burden of gender equality by themselves. Male judges are capable of understanding, accepting and expressing a feminist point of view and should, in fact, strive to do so.

Gender and the Chief Justice: Principle or Pretext?

The post-apartheid South African Constitution requires that the judiciary be transformed ‘to reflect broadly the racial and gender composition of South Africa’. Because the legal system and the judiciary are the least ‘transformed’ organs of government and because of their social and political significance, the appointment of judges has become an important avenue for South Africans to continue to contest issues of race and power, usually using codes such as ‘merit’ or ‘transformation’ but sometimes descending into more open racial hostility. This article examines the debate around the appointment in 2011 of Chief Justice Mogoeng Mogoeng in which his views and judgments on gender and sexual orientation have been widely used to bolster the argument that he was not fit to be appointed. While gender and sexual orientation was raised almost universally, certain of these criticisms used gender in ways which echoed and amplified historical stereotypes of black men in general, and African male sexuality in particular. In these debates gender became a proxy for race because of the way in which discourses around gender echoed racial themes and stereotypes which have predominated in popular debates around the judiciary. In addition, ‘gender arguments’ were used to strengthen claims that professional seniority should be the main criterion in judicial appointments – a factor which would clearly favour white men in a profession in which black people and women remain a minority This placed feminists in an invidious position by using feminist arguments to justify racial privilege while subverting or ignoring more systemic gender and racial inequalities within the largely untransformed legal profession.

Legal capacity and family status in child-headed households: Challenges to legal paradigms and concepts

In its 2005 Household Survey, Statistics South Africa counted 143,167 children living in child-headed households. The increased numbers of such households is usually ascribed to the death of parents from AIDS, and researchers expect them to increase further in the future. Similar household formations are also found in other Southern African countries such as Zimbabwe, Botswana, Uganda, Lesotho and Tanzania. Although the research indicates that children living in child-headed households usually experience emotional trauma, poverty and problems with accessing education, health care and social welfare grants, the consensus amongst children’s advocates and academics is that placing all such children in institutions, foster homes or adoption is not currently a viable or an optimal solution. The existence of child-headed households and the urgent need to assist children living in them exposes the inadequacy of several common law legal concepts and paradigms. This paper explores some practical and conceptual arguments for assigning family status to child-headed households and for awarding legal capacity to the minors who head these households.

Domestic violence and gendered socio-economic rights : an agenda for research and activism?

Abstract In South Africa, as elsewhere, intimate partner violence is legally addressed through a specific statute, the Domestic Violence Act. Although this legislation is progressive in recognising the socio-economic antecedents to and consequences of gendered violence, the implementation of the Act has been particularly ineffective in this area. Moreover, courts tend to assume that intimate partner violence would have been adequately dealt with in terms of the Act and thus to ignore its impact on other legal issues. This restricts the development of legal remedies for violence in other areas of the law, even as the remedies available under the Domestic Violence Act fail to be implemented. The South African Constitution is progressive in its commitment to gender equality, and also includes a wide range of socio-economic rights. Drawing on international literature, this article will focus on some of the socio-economic rights of the survivors of violence, such as rights to housing and employment, social security and health in order to shift the current paradigms of intimate partner violence, focused primarily on gender. It argues that such a shift can lead to a range of new remedies for survivors of gendered violence, whilst simultaneously strengthening the argument for improved implementation of the socio-economic elements already contained in the Act.

Clean breaks: custody, access and parents' rights to relocate

ABSTRACT This article deals with two aspects of relocation of custodian parents and their children. The first part addresses the formulation and interpretation of the best interests test by South African courts in relocation cases. It examines the factors which courts take into account, their interpretation and the weight afforded to them, focusing particularly upon the consequences for custodian parents. The aim of this analysis is to determine whether there is any consistent principle or policy which animates and directs jurisprudence in this area. The second part of the article isolates the various constitutional rights and interests which should be taken into account in relocation cases, focusing particularly on ways to reconcile the interests of parents with the best interests of children. It is suggested that a policy should be adopted and legislation amended to reflect the connections between the interests of children and those of their parents. The policy should favour relocation, unless it is clear that this would be contrary to the interests of children.

RH v DE : a feminist minority judgment on adultery : current developments / case notes

The common law action against a third party who had committed adultery with a spouse has long been regarded as a legal peculiarity. Its presence in our law was awkward, and out of step with the legal positions in other countries. The Supreme Court of Appeal (SCA) judgment in RH v DE abolishing the actions for contumelia and loss of consortium on the basis of adultery therefore elicited great public and legal interest.