In South Africa, a victory for Jane Bwanya, the Constitution, and equality for all!

January 25, 2022 by 1 Comment

Jane Bwanya

South Africa’s Bill of Rights, Chapter 2 of its Constitution, begins its enumeration of rights with Equality: “Everyone is equal before the law and has the right to equal protection and benefit of the law.” Equality is followed immediately by Human Dignity: “Everyone has inherent dignity and the right to have their dignity respected and protected.” These are the first articulations of “everyone” in the Constitution of the Republic of South Africa. Last year, Jane Bwana, a domestic worker, a lifelong partner, a widow, challenged the meaning and substance of “everyone” … and on December 31, the Constitutional Court of South Africa ruled in her favor, and in favor of equality and Constitutional rights. This is the story of Jane Bwanya.

Jane Bwanya migrated from Zimbabwe to South Africa. In 2014, she was at a taxi rank in the posh Camps Bay neighborhood of Cape Town. She was on her way to send goods to her family in Zimbabwe. She was laden with various boxes and packages, when Anthony Ruch, a wealthy businessman, stopped and offered her a lift. She accepted the offer, and they never separated. Months later, at Ruch’s insistence, Jane Bwanya moved into his Camps Bay residence, although she continued to work as a domestic worker. Jane Bwanya and Anthony Ruch celebrated their relationship publicly, attending social functions together, identifying each in public as life partners. By October 2015, they said they were planning to get married. They were also planning to open a cleaning business together. In November 2015, Anthony Ruch proposed marriage to Jane Bwanya. Anthony Ruch sold property so as to pay for lobola and arranged for a trip to Zimbabwe, to meet the family and finalize arrangements. They planned to marry after the trip to Zimbabwe. That trip was planned for June 2016. On April 23, 2016, Anthony Ruch died. His will named his mother as his sole heir. His mother died in 2013.

Jane Bwanya filed two claims, one for maintenance the other for inheritance, as a permanent life partner. The executor of the estate rejected both claims, basically stating that the Maintenance of Surviving Spouses Act and the Intestate Succession Act did not allow for opposite-sex life partners, and so, with the help of the Women’s Legal Centre, Jane Bwanya sued, arguing that the exclusions were unconstitutional. And so, Jane Bwanya sued for, and in the name of, equality and dignity. Everyone.

Writing for the majority, Justice Mbuyiseli Russel Madlanga noted, the rights, equality and dignity of same-sex survivors had already been established. According to the court, according to the 2016 census, “3.2 million South African were cohabiting outside of marriage and that number was … increasing.” Throughout his opinion, Justice Madlanga insisted [a] that the Court had to look at the world as it is and [b] not accept arguments that “typify what is to be expected in a society that is dominated by men in virtually all areas of human endeavour.”  And with that, the Court ruled in favor of Jane Bwanya, declaring that the exclusion is “unfair discrimination” and ordering the Parliament to fix the language of the two acts within 18 months. That decision was delivered December 31, 2021. Happy new year!

In March 2021, the Constitutional Court rendered a landmark decision in favor of five women who had been excluded from inheritance on the basis of gender. In December 2021, the Constitutional Court rendered a landmark decision in favor of survivors, the majority of whom are women, excluded from inheritance on the basis of formal rituals. Everyone is equal before the law and has the right to equal protection and benefit of the law. Everyone has inherent dignity and the right to have their dignity respected and protected.

(By Dan Moshenberg)

(Photo Credit: Times Live)

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Landmark case: In South Africa, five sisters said NO! to the exclusion of women … and won!

March 1, 2021 by 1 Comment

Constitutional Court

This is the story of Trudene Forword, Annelie Jordaan, Elna Slabber, Kalene Roux and Surina Serfontein, five women who refused to be denied their birthright, and In so doing affirmed, once again, that justice means justice for everyone. The story begins in 1902, in Oudtshoorn, in the Klein Karoo, in the Western Cape. Oudtshoorn is known for ostrich farms. Maybe now it will also be known as yet another cradle of democracy and justice for all. On November 28, 1902, Karel Johannes Cornelius de Jager and his wife, Catherine Dorothea de Jager formally signed their will, leaving some of their farms to their children, with one stipulation. The farms would pass from their children only to male generations until the third generation. But what if, at some point, the only direct descendants are women? Last month, South Africa’s Constitutional Court ruled on that question. 

In 1957, brothers Kalvyn, Cornelius and John de Jager inherited the property. John de Jager never had sons, and so when he died, his property was split between his two remaining brothers, Kalvyn and Cornelius. When Cornelius died, his sons – Albertus, Frederick, and Arnoldus – inherited his half share in the farms. In 2015, Kalvyn de Jager died. He had no sons, and he had five daughters: Trudene Forword, Annelie Jordaan, Elna Slabber, Kalene Roux and Surina Serfontein. Their male cousins claimed the property, noting that while the situation may smack of “unfair discrimination”, the law was the law, and a will was a will. The sisters didn’t buy that argument and went to court. Both the High Court and the Supreme Court of Appeals decided in favor of the male cousins. The sisters persisted and went to the Constitutional Court, the court of last resort, in this instance. Last month, the Constitutional Court decided in the sisters’ favor.

Acting Justice Margaret Victor explained, “The provisions of the preamble to the Equality Act make its nature and intended purpose clear. The consolidation of democracy requires the eradication of inequalities, especially those that are systemic in nature and which were generated in South Africa’s history by colonialism, apartheid and patriarchy. Inheritance laws sustain and legitimise the unequal distribution of wealth in societies thus enabling a handful of powerful families to remain economically privileged while the rest remain systematically deprived. In my view, this system entrenches inherited wealth along the male line. In applying this critique to the facts in this case our common law principle of freedom of testation is continuing to entrench a skewed gender bias in favour of men.”

The consolidation of democracy requires the eradication of inequalities, especially those that are systemic in nature and which were generated in history by colonialism, apartheid and patriarchy. What else is there to say?

By Dan Moshenberg

(Photo Credit: GroundUp / Ashraf Hendricks)

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Women are Tunisia’s revolutionary guards: “Equality is a right, not a favor!”

March 12, 2018 by 13 Comments

Last week, women filled the streets to demand equal rights, women’s rights, civil rights, employment rights, social rights, human rights, and power. Indigenous women in Ecuador linked arms across the Atlantic with women in Turkey who, in turn, linked arms with women in South Sudan who linked arms with women in the Philippines who linked arms with women in Australia, and all points between and beyond. In Pakistan, women organized the Aurat March, or Women’s March, “a revolutionary feat for Pakistan”. Initially planned as a single march, by March 8, women across Pakistan were on the streets, marching, resisting misogyny and patriarchy. Women in Spain called for a 24-hour feminist strike, una huelga feminista, and the State shut down. More than five million joined the feminist strike. In Spain alone, women marched and refused to work and stopped work in over 120 cities. The Spanish feminist strike was a historic first for Spain … and beyond. On Saturday, March 11, in Tunisia, women marched in another historic first, a march for women’s equality in inheritance rights, a first-ever demand not only for Tunisia but for the Arab world. In Tunisia, equality is a right, not a favor.

On Saturday, in Tunis, women chanted, “Moitié, moitié ; c’est la pleine citoyenneté!”; “Pour garantir nos droits, il faut changer la loi!”; “L’égalité est un droit, pas une faveur!”. “50-50 equals full citizenship!” “ To guarantee our rights, we have to change the law!” “Equality is a right, not a favor!” As with the feminist strike in Spain, in Tunisia, women explicitly framed their action as a feminist intervention into patriarchy. As with the marches and actions everywhere, in Tunisia, the women understood their march to be local, national, regional and global. The immediate issue was inequality in inheritance, where men inherit twice as much as women. The women insisted that their action occur in a historical context, a historical context that encompasses the future as much as the past.

In January 2018, Tunisian women mobilized, protested and ignited the anti-austerity protests, under the banner, “What are we waiting for?” “Qu’attendons-nous?” “فاش نستناو ؟” In March, women are again filling the streets; rocking the nation; demanding autonomy, equality, power; seizing the moment. Today, as ever, women are Tunisia’s revolutionary guards.

 

(Photo Credit 1: Hassene Dridi / AP / SIPA / Jeune Afrique) (Photo Credit 2: Reuters / Zoubeir Suissi)

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