591

GENDERED TRANSFORMATION IN SOUTH 
AFRICAN JURISPRUDENCE: POOR WOMEN 
AND THE CONSTITUTIONAL COURT

Catherine Albertyn
BA LLB MPhil PhD
Professor, University of the Witwatersrand

1  Introduction

Most people in South Africa are poor, and most of the poor are women.1 
It is no surprise that the achievement of equality, human dignity and freedom 
under South Africa’s Constitution2 is closely tied to the eradication of 
poverty and inequality.3 These goals are an essential part of South Africa’s 
transformative constitutional project, part of the wider constitutional 
commitment to “improve the quality of life and free the potential of all 
persons”.4

Central to this transformative project, although often not recognised as 
such, is the need to address the distinctive forms of poverty and inequality 
experienced by women. This article explores the extent to which, and how, 
poor women have been included within the constitutional project, firstly, 
by an acknowledgment of the complexity of poor women’s lives and then 
through a brief analysis of cases and jurisprudence on equality and socio-
economic rights. Underlying these two facets of the article are two key 
questions: What does the experience of poor women tell us about the meaning 
of transformation and a transformative Constitution? And how can we seek 
a more transformative (and gendered) understanding of equality and socio-
economic rights jurisprudence? In respect of the latter, the article explores 
whether we can move beyond a progressive liberal egalitarianism in achieving 
transformative outcomes that address gendered poverty and inequality.

1 In the most recent official unemployment statistics the formal unemployment rate for men was 22.2% and 
for women 28.2%. Statistics South Africa “Quarterly Labour Force Survey, Quarter 1, 2011” (2011) Stats 
Online <http://www.statssa.gov.za/PublicationsHTML/P02111stQuarter2011/html/P02111stQuarter2011.
html> (accessed 05-08-2011). In addition, women are more likely than men to live in poor households and 
have lower earnings, and female-headed households are much more vulnerable to poverty than male-
headed households. D Posel & M Rogan “Women, Income and Poverty: Gendered Access to Resources in 
Post-Apartheid South Africa” (2009) 23 Agenda 25.

2 Preamble and s 1 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”).
3 See the much cited Soobramoney v Minister of Health (Kwazulu-Natal) 1998 1 SA 765 (CC) para 8:

“We live in a society in which there are great disparities in wealth. Millions of people are living 
in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate 
social security, and many do not have access to clean water or to adequate health services. These 
conditions already existed when the Constitution was adopted and a commitment to address them, and 
to transform our society into one in which there will be human dignity, freedom and equality, lies at the 
heart of our new constitutional order. For as long as these conditions continue to exist that aspiration 
will have a hollow ring.”

4 Preamble of the Constitution. See also P Langa “Transformative Constitutionalism” (2006) 3 Stell LR 
351.

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2  Poor women, gender inequality and transformation

2 1  Poverty and gendered inequalities

Transformative jurisprudence must be grounded in a court’s understanding 
of the actual conditions in which people are living.5 These often give rise 
to a complexity that law struggles to tame. Although it is well known that 
the burdens of poverty fall disproportionately on women, the multiple, 
intersectional inequalities that shape women’s vulnerability to, and experience 
of, poverty produce a complex and diverse picture. This part provides an 
overview of some of the main issues that shape poor women’s lives.

If poverty is measured solely in terms of income and formal employment, 
then black women fare the worst. Where women cannot earn a living, they 
make a living in any way that is possible.6 This includes social grants (if they 
have children up to age seventeen, are disabled, or are over sixty years of age) 
that help lift households out of extreme poverty,7 as well as a variety of kinds 
of informal and subsistence work, and, sometimes, prostitution.8

Women’s economic inequality is significantly influenced by their 
reproductive roles and primary care-giving responsibilities, which mean that 
they bear additional (and often sole) responsibilities for children and other 
dependants.9 This care-giving role is significantly under-recognised and 
means that women devote a disproportionate amount of time and resources in 
unpaid, domestic labour.10 As Justice O’Regan has noted:

“It is unlikely that we will achieve a more egalitarian society until responsibilities for child-rearing 
are more equally shared.”11

The practical and normative consequences of this “sexual division of 
labour” affect women’s ability to find work and their place in the labour 

5 D Moseneke “Transformative Adjudication” (2002) 18 SAJHR 309 318-319.
6 Karl von Holdt and Eddie Webster distinguish between earning a living (in regular paid employment) and 

making a living (in any form of income generating or subsistence income): K von Holt & E Webster “Work 
Restructuring and the Crisis of Reproduction: A Southern Perspective” in K von Holdt & E Webster (eds) 
Beyond the Apartheid Workplace: Studies in Transition (2005) 3 4.

7 M Leibbrandt, I Woolard, A Finn & J Argent Trends in South African Income Distribution and Poverty 
since the Fall of Apartheid OECD Social, Employment and Migration Working Papers No 101 (2010) 66.

8 See, for example, S Benjamin “The Feminization of Poverty in Post-Apartheid South Africa: A Story 
Told by the Women of Bayview, Chatsworth” (undated) Centre for Civil Society, UKZN <http://ccs.ukzn.
ac.za/files/The%20Feminization%20of%20Poverty%20in%20Post-Apartheid%20South%20Africa%20.
pdf> (accessed 30-08-2011).

9 B Clark & B Goldblatt “Gender and Family Law” in E Bonthuys & C Albertyn (eds) Gender, Law and 
Justice (2007) 195 201.

10 Statistics South Africa A Survey of Time Use: How South African Women and Men Spend Their Time 
(2010). 

11 The full quote recognises the social and economic disadvantage experienced by women because of the 
sexual division of labour:

“For many South African women, the difficulties of being responsible for the social and economic 
burdens of child-rearing, in circumstances where they have few skills and scant financial resources, 
are immense. The failure by fathers to shoulder their share of the financial and social burden of child-
rearing is a primary cause of this hardship. The result of being responsible for children makes it more 
difficult for women to compete in the labour market and is one of the causes of the deep inequalities 
experienced by women in employment. [This] … is one of the root causes of women’s inequality in 
our society … It is unlikely that we will achieve a more egalitarian society until responsibilities for 
child-rearing are more equally shared.” (O’Regan J minority concurring judgment Hugo v President 
RSA 1997 4 SA 1 (CC) para 38).

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market that is already marked by high levels of unemployment. As a result, 
women are most likely to be found in low-paid formal work, domestic work, 
casual and informal work. Women in these sectors are particularly vulnerable 
to exploitation, violence and coercion.12

Hunter argues that rising unemployment and increased female mobility 
(largely in pursuit of work) have contributed to a significant decline in 
marriage amongst poor women. While some women live in informal, long-
term relationships,13 many seek to survive within a network of relationships 
that also serve an economic function of providing for women’s basic needs, 
including care of children.14 Many poor women live in women-headed 
households that are statistically poorer than male-headed households, 
poignantly illustrated by the fact that members of women-headed households 
are more likely to be hungry.15

Not surprisingly, poor African women are more likely to live in informal 
housing, in poorer rural areas and are least likely to enjoy access to formal 
housing and basic services.16 In addition, women living in rural areas are 
most likely to be subject to traditional forms of power, which may contribute 
further to their poverty and vulnerability.17

Poverty and inequality affect women’s ability to exercise autonomy over 
their bodies and lives. Poor women are more vulnerable to HIV infection, as 
a complex mix of poverty and gendered inequalities drive the epidemic.18 
Poor women are also more vulnerable to all forms of sexual violence and 
coercion.19

12 These include the exchange of sex for protection as women working in least protected informal spheres 
might exchange sex to secure protection for their goods and belongings. B Karumbidza Criminalising the 
Livelihoods of the Poor: The Impact of Formalising Informal Trading on Female and Migrant Traders 
in Durban SERI Research Report (February 2011) <http://www.seri-sa.org/index.php?option=com_cont
ent&view=article&id=17&Itemid=29> (accessed 15-08-2011). Women who earn an income through sex 
work often have to protect themselves from arrest and abuse by having sex with police officers, security 
guards and other “gatekeepers”. 

13 About 7% of South Africans report living together (more than three million people), a number that is 
gradually increasing. D Budlender “Marriage Patterns in South Africa: Methodological and Substantive 
Issues” (2004) 9 Southern African Journal of Demography 1 1. 

14 M Hunter “The Changing Political Economy of Sex in South Africa: The Significance of Unemployment 
and Inequalities to the Scale of the HIV/AIDS Pandemic” (2007) 64 SocSci Med 689 692-693; A Harrison 
A Context of ‘Non-Marriage’: Non-Marital Unions in the Transition to Adulthood in South Africa (2007) 
a paper prepared for the symposium Rethinking Relationships hosted by the Population Studies and 
Training Center, Brown University, 19-04-2007 <http://www.pstc.brown.edu/nmu/Harrison%20-%20
Non%20Marital%20Unions%204-12-2007.pdf> (accessed 25-08-2011). As Hunter points out, these 
relationships fulfil a range of social, personal, emotional and economic needs. 

15 According to the 2007 Household Survey, persons living in a female-headed household were 67% more 
likely to go hungry than those in a male-headed household. Statistics South Africa General Household 
Survey 2007 (2008) 46. Female-headed households are much more vulnerable to poverty than male-
headed households. See also generally Posel & Rogan (2009) Agenda on greater poverty of women-headed 
households .

16 J Kehler “Women and Poverty: The South African Experience” (2001) 3 Journal of International Women’s 
Studies <http://www.bridgew.edu/soas/jiws/fall01/kehler.pdf> (accessed 22-11-2011).

17 See, generally, S Mnisi Weeks & A Claassens “Tensions Between Vernacular Values that Prioritise Basic 
Needs and State Versions of Customary Law that Contradict Them: ‘We Love These Fields that Feed Us, 
But Not at the Expense of a Person’” (2011) 22 Stell LR 823.

18 See M Hunter Love in the Time of AIDS: Inequality, Gender and Rights in South Africa (2010) 24-28.
19 See, generally, Michigan Domestic Violence Prevention and Treatment Board The Intersection of Poverty 

and Sexual Violence (February 2008).

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Poor women bear the burden of blame in our society, as they become the 
scapegoat for a range of socials ills from HIV/AIDS to teenage pregnancies 
to abortion.20 Underlying this attribution of blame is a range of gendered 
stereotypes of women held by women and men, which deepen and reinforce 
women’s unequal position in our society.21

It is impossible, in this short space, to capture the diversity and complexity 
of poor women’s lives. However, it is clear that their lived experiences 
are found in the intersection of race, gender, class, sexuality, space and 
place, et cetera, in which a range of social and economic inequalities are 
inextricably bound up with each other. yet women are not passive in the face 
of enormous obstacles to leading a decent and secure life. Rather, poor women 
are constantly negotiating “multiple, complex and simultaneous subject 
positions, identities, inequalities, marginalities and resistances to differing 
and similar oppressions” in order to secure their lives and livelihoods.22 Thus, 
while poverty and inequality undoubtedly deepen women’s experience of 
powerlessness and subordination, this does not mean that women are rendered 
eternally powerless and dependent. Despite their circumstances, women are 
resourceful, exercising agency and rational choices within particular contexts 
of vulnerability and inequality.23

2 2  Transformative constitutionalism and transformative strategies

How do we think about transformation and transformative constitutionalism 
in this context? Clearly the lives of poor women suggest a complexity that 
cannot be simply reduced to either “poverty” or gendered inequality and 
subordination.

2 2 1  Substantive, gendered and contested transformation

The lived realities of poor women suggest a vision of the Constitution, and 
an interpretation of its values of equality, dignity, freedom and democracy, 
that speak of a society in which individuals are afforded equivalent, 
substantive conditions for exercising the choices that matter to them, about 
how to live their lives, maintain their relationships, raise their children and 
pursue their aspirations. This requires a substantial equality of resources 
(including remedial measures and redistribution) to satisfy basic needs and 

20 See, for example, S Leclerc-Madlala “Virginity Testing: Managing Sexuality in a Maturing HIV/AIDS 
Epidemic” (2001) 15 Medical Anthropology Quarterly 533; S Panday, M Makiwane, C Ranchod C & T 
Letsoala Teenage Pregnancy in South Africa: With a Specific Focus on School-going Learners (2009) 
26-28 <http://www.hsrc.ac.za/Research_Publication-21277.phtml> (accessed 25-08-2011).

21 D Everatt “The Undeserving Poor: Poverty and the Politics of Service Delivery in the Poorest Nodes of 
South Africa” (2008) 35 Politikon 293 315-316. 

22 M O’Neill & R Campbell “Desistence from Sex Work: Feminist Cultural Criminology and Intersectionality: 
The Complexities of Moving In and Out of Sex Work” in y Taylor, S Hines & S Casey (eds) Theorizing 
Intersectionality and Sexuality (2010) 163 165.

23 There are many examples of this in research. See Claassen’s work on women’s resourcefulness in 
negotiating access to land: A Claassens & S Ngubane “Women, Land and Power: The Impact of the 
Communal Land Rights Act” in A Claassens & B Cousins (eds) Land, Power and Custom: Controversies 
Generated by South Africa’s Communal Land Rights Act (2008) 154. See also Hunter on poor women’s 
agency in negotiating condom use: M Hunter Love in a Time of AIDS (2010) ch 9. 

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enable equivalent levels of well-being, meaningful recognition of diversity 
and community, unfettered participation in local and national politics and a 
state that is responsive and accountable.24

There is no doubt that addressing economic inequalities, joblessness 
and redistribution is critical to alleviating the plight of the poor, including 
and especially poor women. Poor women focus particular attention on how 
these economic inequalities are gendered. The lives of poor women also 
demonstrate the interaction of social and economic inequalities, and thus the 
need also to shift those gendered norms, values and social rules that place 
women in an unequal position in society, affect patterns of (re)distribution, 
impede their agency, and render them vulnerable to exploitation and violence. 
In addition, the effective participation of poor women in their community, 
and in local and national politics requires a particularly inclusive and 
interactive form of participatory democracy that extends to the public and 
private spheres. Therefore the lived realities of poor women remind us that 
the kind of transformation – and transformative strategies – that are necessary 
to generate meaningful change require attention to structure and agency, to 
redistribution and recognition, to individual and community, to public and 
private (especially care-giving roles in family), to inequality and poverty.

There is a significant degree of consensus over the general meaning of 
constitutional transformation amongst progressive lawyers in South Africa.25 
However, it is a “transformation consensus” that operates at a fairly high 
level of abstraction, and the differences that exist at the more detailed level 
of theory, concepts and strategies are not always apparent. Nor is there much 
engagement with whether and how the experiences of poor women, and of 
gendered poverty and inequality, might shape this idea of transformation.

Roux has pointed to the commonalities that progressive and egalitarian 
liberals may share with a more critical and radical mode of thinking, at least 
at a general level of constitutional interpretation.26 However, it is in the detail 
of the ideas that Klare identified as typifying a “post-liberal” view (such as 
egalitarianism and equality, multi-culturalism and diversity, gender identity, 
participatory democracy and the public/private divide)27 that the dividing line 
between progressive, liberal egalitarian (on the one hand) and more critical and 
radical interpretations and outcomes (on the other) exists. While liberalism 
may not have “clear conceptual boundaries”,28 and its reach has certainly 
extended beyond its more classic liberal forms; it nevertheless has conceptual 

24 This is developed in the South African context of poverty and inequality from ideas expressed by authors 
such as Martha Nussbaum, Anne Phillips, Iris Marion young and Nancy Fraser. This is developed in 
more detail in relation to constitutional values in a South African context in C Albertyn Equality Law 
(forthcoming).

25 See S Sibanda “Not Purpose-made! Transformative Constitutionalism, Post-Independence 
Constitutionalism and the Struggle to Eradicate Poverty” (2011) 22 Stell LR 482, who discusses a variety 
of authors.

26 T Roux “Transformative Constitutionalism and the Best Interpretation of the South African Constitution: 
Distinction without a Difference” (2009) 20 Stell LR 258 261-262. However, Roux does not address 
the very real differences that exist in the actual interpretation and content of these “shared” ideas and 
concepts, and the degree of contestation within and between them.

27 See, generally, K Klare “Legal Culture and Transformative Constitutionalism” (1998) 14 SAJHR 146.
28 Roux (2009) Stell LR 262.

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limits. It is clear that the interaction between liberal and radical or critical 
intellectuals produces an overlapping middle ground in some instances,29 
but there are also significant differences as will be discussed in relation to 
equality below. Although beyond the scope of this article, identifying these 
commonalities and differences is an important component of developing a 
more radical, indigenous jurisprudence that meets the needs of South Africa: 
one that is characterised by “local” ideas of, inter alia, redistribution, stronger 
positive duties and remedial action by a more interventionist state; recognition 
of a strong and positive cultural diversity; robust ideas of choice; and an 
understanding of separation of powers that appreciates the judiciary’s positive 
role in a “pro-poor” constitutional democracy.30

A key question for critical scholars is whether the Constitution’s liberal 
focus and interpretation, and the necessary engagement with legal liberalism 
that this entails, limits the interpretation and application of the Constitution to 
a struggle between the reach permitted by the tenets of classic liberalism,31 
and to a more egalitarian and progressive, but nevertheless, liberal approach 
(thus excluding critical approaches). What space is there for a more critical 
understanding? Does a more critical or radical approach offer something 
different from progressive and strongly egalitarian forms of liberalism?

2 2 2  Transformative strategies in law

Although there is a fairly vigorous scholarship on transformation, and a strong 
critique in areas of law where courts are seen to fall short of transformative 
outcomes,32 there is less concrete legal debate on what transformation might 
mean in any particular context, for a particular group, as well as how we might 
get there, and the role of law within this.

Most of us agree that opportunities for transformation in and through law 
are limited, contingent upon a range of legal and other factors that include 
the state of jurisprudence and legal doctrine, the culture of judicial decision-
making and values, the facts of a particular case, the values and choices of 
lawyers, and the wider political, social and economic context. However, social 
change literature alerts us to the importance, also, of understanding the direct 

29 Here the work of Michael Walzer on multi-culturalism in Politics and Passion: Towards a More 
Egalitarian Liberalism (2004) or Martha Nussbaum Women and Human Development: The Capabilities 
Approach (2000) on capabilities, choice and family are excellent examples of “liberals” articulating more 
critical views, and thus of the impact of the radical critique on liberalism.

30 See Klare (1998) SAJHR 151-156; J Baker, K Lynch, S Cantillon & J Walsh Equality: From Theory to 
Action 2 ed (2009) 33-41; Albertyn Equality Law (forthcoming).

31 See, for example, M Pieterse “What Do We Mean When We Talk About Transformative Constitutionalism?” 
(2005) 20 SAPL 155.

32 Especially in relation to equality, socio-economic rights and private law. See, generally, C Albertyn 
“Substantive Equality and Transformation in South Africa” (2007) 23 SAJHR 253; P de Vos “Same-sex 
Sexual Desire and the Re-imagining of the South African Family” (2004) 20 SAJHR 187; D Bilchitz 
Poverty and Fundamental Rights (2007); S Liebenberg Socio-Economic Rights: Adjudication under 
a Transformative Constitution (2010); D Davis & K Klare “Transformative Constitutionalism and the 
Common and Customary Law” (2010) 26 SAJHR 403.

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and indirect benefits of litigation, and of conceiving of court action as part of 
wider political struggles for change.33

The opportunities for transformative legal action present in many different 
ways and have multiple possible outcomes. These might be purely, practical 
legal rights and remedies that positively affect the lives of the poor and 
marginalised. They might be more normative advances, restating the values 
and norms that shape social and economic inequalities. Or they might be steps 
in wider political struggles with a range of outcomes. Transformative legal 
action might be particularly powerful, with a potential “multiplier effect” if 
it also affects the norms, values and background rules that underlie different 
areas of the law.34 For example, Wilson argues that Government of the 
Republic of South Africa v Grootboom35 generated developments in property 
law (over a series of cases) that dislodged the normality assumption that an 
owner is entitled to exclusive possession of his property, at least insofar as 
evictions that might lead to homelessness were concerned.36 Some of this did 
not occur by accident, but was the result of conscious litigation strategies. 
Wilson argues that this is an incomplete and uncertain trajectory where the 
principles have “yet to be stated as a coherent whole”.37 This argument is 
based on the suggestion that building a transformative jurisprudence takes 
place over time, requiring strategic lawyers to take advantage of destabilising 
moments to bring about small actual or potential, intended or unintended, 
shifts in the background rules. These moments need to be exploited to push 
the law in a progressive direction, build jurisprudence and achieve conceptual 
and practical results.

Positive outcomes to cases are often difficult enough. Transformative 
outcomes, which not only address poverty and/or inequality, but also do 
so in a way that opens up the possibility of substantial shifts in social and 
economic relations and alters the underlying norms and rules, are rare and 
difficult. But opportunities for such transformative outcomes might present 
more often than we think. The challenge is to recognise and understand these 
opportunities for change. Even though the construction of critical alternatives 
is inevitably circumscribed by the need to work with existing jurisprudence, 
there are spaces and opportunities presented by law that are potentially 
transformative.38

33 M McCann Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (1994). See also 
new work in South Africa, especially issue 2 of (2011) 27 SAJHR (a special issue on public interest 
litigation). 

34 See Davis & Klare (2010) SAJHR 435-449 on the manner in which background rules shape social and 
economic relations, and can also potentially “undo” them.

35 2001 1 SA 46 (CC).
36 See, generally, S Wilson “Breaking the Tie: Evictions from Private Land, Homelessness and a New 

Normality” (2009) 126 SALJ 270.
37 290.
38 See, for example, Liebenberg Socio-Economic Rights, which takes the court’s socio-economic rights 

reasonable review jurisprudence and seeks to push the boundaries in more transformative directions. See 
also Davis & Klare (2010) SAJHR 403-509 (identifying a range of transformative judgments); Albertyn 
(2007) SAJHR 253-276 on transformative possibilities in equality. 

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2 2 3  Women and transformation39

For women, transformation in general means that each woman is afforded 
the ability and the resources to pursue her well being, that the vision of the 
Constitution, set out in broad terms above, is fulfilled.40 Poor women require 
the resources necessary not only to meet their basic needs, but also to enhance 
their control over their lives and ability to make real choices for themselves and 
their dependants. As stated above, this includes attention to recognition and 
redistribution, to poverty and inequality, to structure and agency, to inclusion 
and transformation. Poor women present the challenge of overcoming such 
dualisms, and of finding legal ways of doing so.

What that means practically in any given case or context is open for debate. 
However, it usually entails choices about legal arguments, in terms of content 
and approach, characterisation of the case, rights arguments, and remedies. 
Certainly, there is often a choice of inclusive or transformative strategies, 
those that affirm the status quo and those that seek to dislodge its rules, norms 
and institutions.41 However, what is actually transformative, and in what 
manner, in any particular case – and whether it is capable of legal argument 
and resolution – remains contested.

For example, it is transformative to extend equal rights within marriage 
and inheritance, as well as to land, resources and leadership, to women living 
under customary law. As occurs under civil law, the shifting of a normative 
framework of inequality (that defers to men as heads of households and 
providers, and women as subordinates serving the sexual and reproductive 
needs of men within patriarchal families) to one of equality (which recognises 
the entitlements of women to power, status and resources within the family), 
fundamentally affects underlying legal and social norms. It is true that this 
does not immediately translate into actual equality, nor does it necessarily 
challenge embedded gender roles (such as women’s social position as mother 
and sole care-giver). However, it enables a revaluing of women’s status and 
constitutes a real shift in recognition. It also enhances the possibilities of 
redistribution of resources within the family and even beyond.42 It opens up 
the opportunity to advance a more sex and gender equal society in which 
women are not the sole custodians of child and male welfare. Perhaps the most 
important cases concerning poor women in the Constitutional Court were 
therefore the equality cases of Bhe v Magistrate, Khayalitsha43 (that found the 
rule of patriliny to be unfair gender discrimination and extended inheritance 
rights to women); Gumede v President of the Republic of South Africa44 
(which removed the discriminatory proprietary consequences of customary 

39 For more detail on these arguments, see C Albertyn “Law, Gender and Inequality in South Africa” (2011) 
39 Development Studies 139.

40 Part 2 2 1 above. See also C Albertyn & B Goldblatt “Facing the Challenge of Transformation: Difficulties 
in the Development of an Indigenous Jurisprudence of Equality” (1998) 14 SAJHR 248.

41 For a discussion on this in relation to gender, see Albertyn (2007) SAJHR 253-276.
42 Women’s access to family property for example, extends their ability to secure credit for income 

generating purposes.
43 2005 1 SA 580 (CC).
44 2009 3 SA 152 (CC).

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marriages concluded prior to the enactment of the Recognition of Customary 
Marriages Act 110 of 1998); and Shilubana v Namwita45 (which accepted that 
women could be traditional leaders). Equally important are cases extending 
rights to women in Muslim marriages.46

It is also transformative to amend the law to recognise and protect partners 
to a broad range of relationships outside of marriage, so that parties to 
these relationships are afforded status, rights and opportunities, and their 
relationships recognised as valuable social institutions. For poor women, who 
are least likely to be able to rely on the income of a spouse within marriage, 
but who tend to live in more informal relationships of various kinds, the 
failure of cases such as Volks NO v Robinson47 to recognise their plight in any 
meaningful way is a missed opportunity for both protection and transformation. 
(In Robinson the Court denied that the exclusion of co-habiting partners from 
claiming maintenance from the estate of a deceased partner – a right extended 
to spouses in a marriage – was unfair discrimination based on gender and 
marital status). Although a case concerning spousal maintenance from a 
deceased estate does not reflect the reality of the limited resources available 
in the relationships of poor women, Robinson nevertheless presented the 
Court with a chance to address the underlying norms and rules of cohabiting 
relationships in a transformative manner. At the very least, the Court might 
have established a normative framework that was inclusive of the needs and 
relationships of poor women (for whom marriage is not the norm).48

At the same time, judgments that produce positive outcomes for poor women 
are not necessarily transformative. It is hugely significant to grant women 
access to life-saving treatment to prevent HIV transmission to their babies, 
but it is only transformative to do so on terms that recognise the agency of 
poor young women in doing so. If women are granted access to such treatment 
solely out of a need to “save” their children, they tend to be viewed as mere 
vessels of reproduction rather than as rights-bearing citizens. Arguably, this 
was the outcome of Minister of Health v Treatment Action Campaign (No 
2),49 as discussed in more detail below.50 Indeed, I would suggest that the 
practical extension of socio-economic rights to women (whether housing, 
water, social assistance or health-care) is always significant in terms of 
alleviating the burden of poverty, but is rarely transformative if it does not 
address – and undermine – the gendered barriers to access and full enjoyment 
of these rights.

Given the invisibility of women in all socio-economic rights cases so 
far (except for Minister of Health v TAC), the mere inclusion of women, as 
women rather than (gender neutral) applicants, would be significant. It would 

45 2009 2 SA 66 (CC).
46 Daniels v Campbell 2004 5 SA 331 (CC); Hassam v Jacobs 2009 5 SA 572 (CC).
47 2005 5 BCLR 446 (CC) (denying partners in cohabitating couples the same rights as married couples to 

maintenance from the estate of a deceased spouse).
48 This was more evident in the two minority, dissenting judgments of O’ Regan and Mokgoro JJ and Sachs J 

in Volks NO v Robinson 2005 5 BCLR 446 (CC).
49 2002 5 SA 721 (CC).
50 See part 3 2 below.

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begin to recognise women as citizens and rights-bearers to whom the state 
is accountable. Developing a gendered understanding of women’s particular 
position and needs in relation to socio-economic rights, and shaping arguments 
and remedies around this, is potentially transformative.

Seeking transformative outcomes for women thus entails attention to 
social and economic inequalities, to recognition and redistribution, and to 
the connections between them. Put another way: poverty is always, also, a 
matter of gendered inequalities. For example, improving access to jobs or 
resources will not assist women in the long term unless this takes into account 
the particular social and economic ways in which women are excluded from 
work. Broadening access to basic services will reproduce gendered social and 
economic hierarchies unless the extra burdens caused by women’s gender 
roles and economic marginalisation are addressed. Extending social grants 
to women to address the additional social and economic burden of care might 
alleviate economic hardship, but reinforce unequal recognition.51 It is always 
important to address gendered inequalities in a manner that subverts, rather 
than reinforces, the gender roles and stereotypes that place women in unequal 
positions. Improving the lives of poor women must comprehend the multiple 
barriers that poor women face in accessing rights, including the resistance 
of overlapping systems of law, power and authority: the state and state law, 
community, custom and tradition, and family.

What does this mean for transformation through law? It seems that there are 
at least three areas that could be fruitfully addressed. They are listed briefly 
here, and discussed further below.

Firstly, the context of an alleged rights violation should be understood to 
include these intersecting social and economic inequalities – the particular 
complexity of women’s lives. When (poor) women bring their claims to court, 
lawyers and judges need to understand this context: how gender inequality 
and poverty intersect, how gendered material conditions relate to gendered 
norms and social attitudes. This information needs to be introduced in court 
as part of the contextual analysis that is required in determining whether a 
right has been violated. The importance of context is discussed further in 
parts 3 and 4 below.

Secondly, attention needs to be paid to overcoming the divides between 
gender and poverty manifest in, for example, equality and socio-economic 
rights cases. Poor women fall between the different conceptual approaches 
that address gender or poverty. Thus poor women may find that a court’s 
reluctance to entertain arguments of poverty and class (or redistribution) 
in equality cases results in a narrow focus on recognition issues that does 
not meet their specific needs.52 Alternatively, a court might acknowledge 
the complexity of their plight but defer it to social policy to address (often 

51 N Fraser “Social Justice in the Age of Identity Politics: Redistribution, Recognition and Participation” in 
N Fraser & A Honneth Redistribution or Recognition? A Political-Philosophical Exchange (2003) 1 64.

52 See, for example, the manner in which the majority in Volks NO v Robinson 2005 5 BCLR 446 (CC) 
acknowledges the plight of poor co-habiting women, and then leaves this issue for Parliament or the 
Executive to address through policy and legislative measures (especially paras 63-66). See further part 3 
1 below.

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as a matter of redistribution). In socio-economic rights cases, lawyers and 
judges tend to address the problem of poverty without reference to gender.53 
Transformative cases need to address poverty and gender, recognition and 
redistribution.

Thirdly, remedies need to be shaped to meet the particular needs of women. 
Here the practical and normative effects of judgments and remedies must be 
considered. Courts need to worry about practical relief at the same time as they 
consider the message about women that is present in a particular judgment and 
remedy. Although space prevents a detailed discussion of this, it is important 
to pursue remedies that shift the traditional understandings of gender.54

What all of this means practically in any given case or context is always 
open for debate, involving choices about legal arguments, in terms of content 
and approach, amicus curiae briefs, and remedies. Certainly, there is often 
a choice of inclusive or transformative strategies, those that affirm the 
status quo and those that seek to dislodge its underlying rules, norms and 
structures. However, what is actually transformative, and in what manner, in 
any particular case remains contested. Sometimes, transformative outcomes 
might not be practically or strategically possible. For example, the case of 
Minister of Health v TAC discussed in part 3 2 below was – subjectively – 
determined by lawyers to be strategically problematic, even dangerous. The 
cases of Volks NO v Robinson and S v Jordan55 suggest that judicial attitudes 
might prevent transformative outcomes.

3  Determining poor women’s claims– legal choices and 
constraints

Lawyers play a crucial role in selecting and characterising the cases that 
end up in the Constitutional Court. A particular experience of poverty or 
inequality is given meaning, evidence is chosen, applicants identified, legal 
arguments are developed. These decisions and choices set important limits 
to the kinds of gendered outcomes that are possible, so a few points on these 
choices are relevant.

3 1  Poverty and/or inequality?

Both equality and socio-economic rights jurisprudence place some emphasis 
on notions of disadvantage and vulnerability. How important is it to select 
applicants and cases on the basis of extreme disadvantage or vulnerability? 
Marius Pieterse has argued that the “certain unique circumstances or 
characteristics of individual plaintiffs, [including the degree of privilege] may 

53 See part 4 below. Whether socio-economic rights cases, in fact, address issues of poverty is beyond 
the scope of this article. See, for example, S Wilson & J Dugard “Taking Poverty Seriously: The South 
African Constitutional Court and Socio-Economic Rights” (2011) 22 Stell LR 664 for further reading on 
this subject.

54 See Albertyn (2007) SAJHR 262.
55 2002 6 SA 642 (CC).

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influence … outcome[s]” in equality cases.56 Choosing the “right” poor or 
disadvantaged claimant is arguably significant in equality cases. The framing 
of claims around the needs of relatively privileged claimants in both S v Jordan 
(criminalisation of prostitution not considered to be a violation of equality 
rights) and Volks NO v Robinson57 (providing benefits to married couples, but 
not unmarried, heterosexual co-habiting partners not unfair discrimination) 
was certainly important in the court’s rejection of those claims. yet it was not 
determinative.58 In both instances, the majority judgments are better explained 
by the Court’s resistance to recognising co-habiting couples on the same basis 
as married couples, and accepting prostitution as a legitimate activity chosen 
under difficult circumstances. Poor applicants might have elicited more 
sympathy, but not necessarily different results. The real problem in these 
cases was not the absence of poor women as applicants, but judicial attitudes 
that valorised marriage over other relationships, misunderstood the nature of 
women’s choices in an unequal world, and were uncomfortable with women 
who fell outside the traditional norms of wife and mother.59 It is questionable 
whether more emphasis on the plight of poor women would have shifted such 
attitudes towards gender, sexuality, choice and relationships.

Indeed, had the Court wanted to address the plight of poor women, 
there was arguably sufficient contextual evidence in amici curiae briefs to 
enable a much more sensitive gendered analysis of the plight of women in 
unprotected relationships and in sex work. In addition, although neither Ellen 
Jordan nor Mrs Robinson could be classified as “poor”, their lives certainly 
reflected a combination of gendered inequalities that place women in positions 
of dependence upon men and in precarious work, and that demonstrate 
continuities with the plight of poor women. As both minority judgments show, 
a more sensitive analysis of the impact of the law on “poor” prostitutes or 
women in co-habiting relationships was clearly possible.

Although the Constitutional Court has previously recognised the persistence 
of “deep patterns of disadvantage” in our society, which are “particularly acute 
in the case of black women”,60 the Court’s approach to unfair discrimination 
in terms of section 9(3) has largely sidestepped the intersection of poverty and 
complex, group-based inequality. Instead, the Court has tended to focus on the 
implications of status based discrimination arising from singular grounds.61

56 M Pieterse “‘Finding for the Applicant’: Individual Equality Plaintiffs and Group-based Disadvantage” 
(2008) 24 SAJHR 397 423.

57 2005 5 BCLR 446 (CC).
58 In Volks NO v Robinson 2005 5 BCLR 446 (CC), the Court suggests that it would be sympathetic to claims 

of poor women for protection within their relationships (paras 66-68). However, it seems clear from its 
readiness to accept a legitimate distinction between the regulation of married and unmarried couples, that 
this could not be achieved through the broadening of legislated rights of married couples to unmarried 
couples. Similarly, in S v Jordan 2002 6 SA 642 (CC), the Court’s finding that sex work is not gender 
based discrimination was not dependent upon who the sex worker was. 

59 Albertyn (2007) SAJHR 253-276; E Bonthuys “Institutional Openness Resistance to Feminist Arguments: 
The Example of the South African Constitutional Court” (2008) 20 Can J Women & L 1 23-26; Pieterse 
(2008) SAJHR 405-413. 

60 Brink v Kitshoff 1996 4 SA 197 (CC) para 44.
61 See S Liebenberg & B Goldblatt “The Interrelationship between Equality and Socio-Economic Rights 

under South Africa’s Transformative Constitution” (2007) 23 SAJHR 335 349.

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As discussed in more detail in part 5 below, women are largely invisible in 
socio-economic rights jurisprudence. These cases have focused on poverty at 
the expense of equality. This is at least partly due to legal choices by lawyers. 
Therefore, in both equality and socio-economic rights cases, legal choices 
might exclude, subvert or limit the particular experiences, needs and concerns 
of poor women (and thus limit the possible outcomes). The development of a 
jurisprudence that is truly reflective of the needs and interests of poor women 
at the very least requires that public interest lawyers understand and present 
the complex context of poor women’s lives, but also that they are alert to the 
kind of jurisprudential developments that are needed for more transformative 
legal outcomes. This is discussed further in parts 4 and 5 below.

3 2  Poor women and non-transformative outcomes62

Sometimes poor women are the primary claimants because they are 
central to the case. The question that then arises is whether such cases are 
“transformative”. Minister of Health v TAC63 is a particularly fascinating 
case-study of how the context of a case, and the choices made by lawyers about 
that case, can shape the possibilities of transformative outcomes in courts.

Minister of Health v TAC is a rightly praised case, securing the rights 
of poor, HIV-positive pregnant women to obtain antiretroviral therapy in 
public sector hospitals to reduce the risk of transmitting HIV to their babies. 
Although this was a triumphant outcome to a case fought within a hostile 
political climate, as part of a highly successful public campaign for access 
to affordable treatment for HIV-positive poor people,64 it also represented a 
missed opportunity for a more transformative jurisprudence on reproductive 
choice and the rights of access to reproductive health-care.

The TAC case is the only socio-economic rights case that has directly 
addressed gender issues, in this case women’s role as mothers. Initially 
conceived as a violation of multiple rights, the case eventually turned on 
section 27 of the Constitution, the right of access to health care services, 
including reproductive health care. Central to a transformative idea of 
reproductive healthcare is the idea of women as able to make real choices 
about their sexuality, reproduction and fertility. Rather than cast as “vessels” 
of reproduction – mothers whose primary role it is to bear and raise children 
– the centrality of reproductive and sexual choice sees women as independent 
and equal agents and rights-bearing citizens, able to act to secure their bodily 
and moral autonomy. This idea of gender and choice is also critical to an 
ideological and policy context concerning HIV/AIDS that affirms the right 

62 This part is based on C Albertyn & S Meer “Citizens or Mothers? The Marginalization of Women’s 
Reproductive Rights in the Struggle for Access to Health Care for HIV-Positive Pregnant Women in South 
Africa” in M Mukhopadhyay & S Meer (eds) Gender, Rights and Development: A Global Sourcebook 
(2008) 27 <http://www.kitpublishers.nl/net/KIT_Publicaties_output/ShowFile2.aspx?e=1456> (accessed 
31-05-2011).

63 2002 5 SA 721 (CC).
64 For an excellent study of the context of this case, see M Heywood “Preventing Mother-to-Child HIV 

Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action Campaign 
Case against the Minister of Health” (2003) 19 SAJHR 278.

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of women to choose when and whether to have sex, to act to protect herself 
from HIV, to choose whether to have children, and to be entitled to treatment 
in their own right.

The dominant characterisation of the TAC case, as a campaign to “save 
babies”, while undoubtedly laudable, ends up by casting poor women as 
victims and dependants, their decisions subordinated to the overriding goal 
of treatment, and the lives of their children. This approach reinforces, rather 
than undermines, “the ethical and legal inequalities inherent in a societal 
structure that places more value on a women’s reproductive capacity than her 
… individual well being”.65

Mindful of these problems, feminist groups had sought to intervene as an 
amicus curiae in the TAC case to raise the choice arguments, to assert the 
conditions necessary for women to exercise their own choices, and to illustrate 
the consequences of an approach that treated women solely as mothers. These 
arguments were withdrawn after lawyers in the case indicated a concern 
with court time available, given the multiplicity of parties to the case. There 
was also evidence of a concern that feminist arguments about choice would 
undermine the case, suggesting that women might choose not to take the 
potentially life-saving nevirapine.66

Although the withdrawal of these arguments was the immediate result 
of the approaches of the TAC lawyers and their legal choices about the best 
strategic approach to the case; it also reflected a political context that was 
characterized by state-civil society conflict over HIV/AIDS and a weaker 
women’s movement.67 The hostile political context of HIV policy was certainly 
influential in how the case was fought and won. Nevertheless, it illustrates that 
the strategic choices that lawyers make in framing cases means that they are 
important gatekeepers to transformative outcomes.68 The case also suggests 
that strongly gendered arguments are difficult to make in courts, and that 
these difficulties are both political and legal. Lawyers make legal choices 
within a particular political and legal context.

It is important to note that ten years after the judgment, “choice” arguments 
remain contested in HIV policy, which is consistently criticised for its focus 
on women as “vessels of reproduction”:

“Women of reproductive age bear the brunt of the epidemic. For prevention to work, we need to 
be affirming women and providing them with better choices. There is a need to move away from a 
maternal paradigm that conceptualises treatment for women only as mothers. With the highest rate of 
infection, women of reproductive age need a continuum of care that takes into account their sexual, 
reproductive and fertility intentions.”69

65 C Eyakuze, D Jones, A Starrs & N Sorkin “From PMTCT to a more Comprehensive AIDS Response for 
Women: A much-needed Shift” (2008) 8 Developing World Bioethics 33 36 (writing about the intersection 
of HIV and pregnancy generally).

66 See Albertyn & Meer “Citizens or Mothers?” in Gender, Rights and Development 41. 
67 47-49.
68 A second, and different, example in which strategic legal choices possibly trumped arguments of poverty 

and inequality is the constitutional challenge to CLARA in Tongoane v Minister for Land and Agricultural 
Affairs 2010 6 SA 214 (CC). 

69 M Stevens “Sacrificing the Woman for the Child” (2008) 28 RJR 60 60-61.

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The courtroom offers an important space to challenge these ideas and 
comparable assumptions in other policy areas (especially in the absence of 
widespread political support). Judgments play an important symbolic and 
standard-setting role. But this requires public interest lawyers, as gatekeepers 
of litigation, to be responsive to these claims, and incorporate them into 
the manner in which a case is conceptualised, characterised and presented 
through evidence and argument.

4  Equality jurisprudence and poor women

To what extent does equality jurisprudence (in theory and practice) address 
issues of poverty and gender inequality?

The shift from “formal” to “substantive” equality adopted by the South 
African Constitutional Court enabled a jurisprudence that moves away from 
an abstract analysis of discrimination to one that is more focused on the actual 
context in which rights violations occur. In theory, the Court’s emphasis on 
context and impact, as well as its concern with disadvantage, should allow 
a proper examination of the actual impact of law and policies on the poor, 
including poor women.70 In addition, the adoption of a value-based approach 
should facilitate a nuanced engagement with the extent to which a law or 
policy falls short of the kind of society that is envisaged in the Constitution. 
In practice, two fault-lines appear in the jurisprudence: one between formal 
and substantive equality, and a second between a liberal egalitarian model 
of substantive equality and a more critical or radical idea of substantive 
equality.71

The distinction between formal and substantive equality has been widely 
discussed by legal scholars. Important to understanding the ambit of this debate 
is the distinction between formal and substantive equality as philosophical 
goals and as legal means. In addressing equality jurisprudence, I am more 
concerned with the latter. Here formal equality, as the abstract, mechanical, 
“value-free” and acontextual comparison of two groups, is found in cases 
such as Jordan and Robinson. Underlying the majority judgments in these 
cases are more dominant, libertarian views of freedom and individual choice, 
an acceptance of certain norms as inherently dominant (over egalitarian 
difference), as well as a more limited role for the courts, even in deciding 
issues of status and recognition.72

Legal ideas of substantive equality are characterised by an understanding 
that difference is an aspect of equality, and that the problem is with 
disadvantageous impact. An understanding of context is necessary to decide 
when differentiation is indeed discrimination, and when (re)distribution is 
permitted. Values and mediating principles are important to the determination 
of inequality.

70 See Albertyn (2007) SAJHR 258-261.
71 These models and fault-lines are examined in more detail in Albertyn Equality Law (forthcoming).
72 See, generally, Albertyn (2007) SAJHR 253, Bonthuys (2008) Can J Women & L 1; Pieterse (2008) SAJHR 

397; H Botha “Equality, Plurality and Structural Power” (2009) 25 SAJHR 1. 

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However, there is also a difference between a liberal egalitarian model of 
substantive equality and one that might be constructed within a more critical 
approach. This difference has not always been clearly drawn, but is significant 
in understanding the limits and possibilities of South African equality 
jurisprudence, especially in addressing the role of equality jurisprudence in 
addressing poverty and inequality, and the connections between them.

A liberal egalitarian model is characterised by a concern with equality 
and distribution, accepting that individual freedom must, on occasion, 
defer to equality concerns. The balance is sought through the application of 
values and mediating principles, including the remedying of (group-based) 
disadvantage and the importance of dignity, as well as legitimate, equality-
related, state purposes. The idea of fairness achieves this balance. The context 
of discrimination is important in the sense that the history and impact of the 
impugned law on an outsider or disadvantaged group must be interrogated.

Underlying this model is the idea of fair equality of opportunity: the idea that 
a degree of redistribution is necessary to enable the fair pursuit of individual 
freedom. However, the separation of social and economic inequalities that 
this entails tends to mean that anti-discrimination law (and courts) addresses 
status-based discrimination (although more widely defined to include forms of 
group-based disadvantage) and affirmative action, especially in employment 
and education. Although courts play a far greater role in adjudicating 
discrimination and affirmative action than under a more classic liberal model, 
for the most part, economic redistribution remains within the purview of 
government, and is protected (by courts) from constitutional attack where 
the purposes are legitimate and remedial.73 The model permits important, 
and even transformative, advances for outsider groups. Ultimately, however, 
this model does not fundamentally challenge the structures and institutions of 
society (broadening the ambit of inclusion rather than transforming them) and 
tolerates significant socio-economic inequalities.

A more critical perspective on substantive equality is characterised by 
a more robust approach to redistribution (requiring a greater equality of 
resources and substantive conditions to enable individuals to pursue their well-
being) and recognition of the need to transform structures and institutions 
to achieve actual “substantive” equality. Grounded in actual socio-economic 
inequalities, this approach also entails a more nuanced idea of individual choice 
and the conditions in which it can be more freely exercised. In legal terms, it 
differs from a more egalitarian liberalism in (at least) the following respects: 
a deeper understanding of structural disadvantage and the manner in which 
social and economic inequalities are bound up together; a broader approach 
to the context (and impact) that are relevant to a legal dispute; a more complex 
understanding of intersectional discrimination; greater attention to difference 
and diversity; a concrete reliance on values as constituting an articulated 
standard for adjudication and thus for forward movement by our society; a 

73 Under s 9(2) of the Constitution. See Minister of Finance v Van Heerden 2004 6 SA 121 (CC).

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more robust role for courts; and a willingness to engage redistribution and to 
formulate innovative remedies to manage separation of powers issues.

Ultimately, it is the South African courts’ tendency towards the former 
model of egalitarian liberalism that limits the reach of equality jurisprudence, 
especially where poor women are concerned. This is not to deny the huge 
importance of judgments in terms of this model: the cases concerning sexual 
orientation and the minority judgments in Jordan and Robinson all testify to 
its power (and the extent to which it has moved equality jurisprudence from a 
formal model). However, its reach is limited.74

A detailed exposition of this approach is beyond the scope of this article,75 
but a useful way of illustrating the differential approach, reach and impact 
of liberal and critical models of equality is to consider the different phrasing 
of the “equality question” under each. For example, in Jordan the minority 
considered how to address, and reduce the harm of, the gendered patterns of 
stigma and stereotype that characterised the criminalisation of female, but 
not male, sex workers. A more critical approach might phrase the question in 
terms of the structural social and economic inequalities that shape the choices 
faced by women (and men) in particular contexts and mean that they end up 
in sex work. In such circumstances, is it discriminatory to criminalise this 
conduct? The latter question is much wider in terms of understanding context 
and impact (and thus scope of evidence), as well as inequality itself (social and 
economic, not just a matter of stigma and stereotype), thus allowing a more 
detailed consideration of poor women within sex work. It also speaks to a 
different interpretation of the values of dignity and freedom (choice).76

Perhaps the most interesting recent example of the liberal/critical split in 
substantive equality is the case of Mazibuko v City of Johannesburg,77 a 
matter directly concerned with poverty and redistribution in relation to the 
right of access to sufficient water by the poor.

Mazibuko concerned two major constitutional questions, does the right of 
access to sufficient water include a right to a basic minimum supply? Was the 
installation of prepaid water meters constitutionally permissible? An equality 
argument was raised in relation to the second question. The applicants argued 
that the instalment of pre-paid water meters in poor areas of Soweto, but not in 
more affluent, largely white, suburbs constituted unfair racial discrimination. 
In support of this, the applicants argued the pre-paid water meters resulted 
in water cut-offs without notice, and thus in poor people not having access to 
water once cut off.78

74 Albertyn (2007) SAJHR 265-273.
75 This is part of a larger project. See Albertyn Equality Law (forthcoming).
76 See J Barrett “Dignatio and the Human Body” (2005) 21 SAJHR 529 for a discussion of how dignity could 

have been more transformatively conceived in S v Jordan 2002 6 SA 642 (CC). A more radical notion of 
choice would have elicited more compassion for the rational nature of choices made by poor women in 
difficult circumstances. 

77 2010 4 SA 1 (CC).
78 The High Court found this to be unfair discrimination: Mazibuko v City of Johannesburg 2008 4 All SA 

471 (W) paras 94 and 155. However the matter was not addressed in the SCA: City of Johannesburg v 
Mazibuko 2009 3 SA 592 (SCA).

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However, the Constitutional Court differed. It accepted the presence of 
discrimination, but in weighing up the nature of the disadvantage, the purpose 
of the policy and the harm inflicted, it found that this discrimination was 
not unfair. In brief, the Court accepted that Soweto residents constituted a 
historically disadvantaged group, although less so than poor, black residents 
of informal settlements such as Orange Farm or Ivory Park.79 However, the 
Court concluded that the differential treatment did not necessarily deepen this 
disadvantage, especially as its purpose was both necessary and desirable (the 
eradication of severe water losses in Soweto).80 Overall, the Court found the 
policy not to be harmful or disadvantageous to consumers, especially when 
compared to the flat rate policy and credit meter customers. In particular, pre-
paid customers paid less for their water than credit meter customers, and avoided 
negative consequences of non-payment in the form of interest and blacklisting 
as creditors.81 In sum:

“The group affected by the installation of pre-paid water meters is a vulnerable group, the purpose for 
which the meters are installed is a laudable, indeed necessary government objective, clearly tailored 
to its purpose. Moreover the difference between the pre-paid water meter system and a credit system 
is not disadvantageous to the residents of Phiri… [I]t cannot be said that the introduction of a pre-paid 
water meter system in Phiri was unfairly discriminatory.”82

The equality analysis is brief. The comparative nature of equality, context and 
impact are all present, but narrowly defined. The equality question is defined as 
a comparison of the impact of policy provisions that address payment rates and 
consequences. The nature of disadvantage is not poverty, but race (poverty is 
not a permitted, prohibited ground). Gender was not argued, and is absent. The 
long-term remedial aspects of the policy in relation to overcoming apartheid 
inequalities are broadly stated,83 thus justifying differential policies as a form of 
substantive equality.84 The context is thus the nature and purpose of the policy 
in relation to scarce water, rather than the actual conditions of poor people’s 
(and women’s) lives in a situation of insufficient water. Most surprisingly, there 
is no mention of the standard of dignity in determining fairness.

In line with some of the components of substantive equality, the Court 
is concerned with context, disadvantage and difference (although not with 
values), but in a limited manner. Thus Mazibuko finds the limits of substantive 
equality in the liberal egalitarian model, largely, I suggest, because of a 
consequent discomfort with matters of poverty and redistribution (unless 
defending state action), rather than status and recognition, and of the courts’ 
role in such matters.

How might the matter be better addressed under a more critical approach to 
substantive equality? Here, the delineation of context, the assessment of impact 
and the role of values would play out differently, as would the willingness to 
find creative remedies.

79 Mazibuko v City of Johannesburg 2010 4 SA 1 (CC) paras 149-150.
80 Para 151.
81 Paras 152-153.
82 Para 154.
83 Para 148.
84 Paras 151 and 156.

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Instead of limiting the equality question to narrow policy provisions, the 
problem could be phrased as follows (starting with the nature of inequality): 
Should impoverished communities in Soweto’s poorer neighbourhoods, 
whose position is a result of deep structural social and economic inequalities 
of apartheid, be given prepaid water meters (without a sufficient basic supply) 
that allow water to be cut off without notice and without the financial means to 
reconnect to ensure basic needs for water are met? The “comparator group” would 
be found amongst those who live in areas that benefitted from apartheid and 
where higher income levels mean that they have the means to pay for sufficient 
water. Here the context would require evidence and/or judicial notice of the 
inherited and current socio-economic inequalities that structure the inability of 
the poor to pay for water, as well as how the prepaid water meters and a limited 
basic supply affected this. To insert a necessary gendered analysis, one would 
demonstrate how a lack of water always impacts disproportionately on women, 
making poor women especially vulnerable in this context. One would expect 
the Court to take account of the detailed and diverse picture of poor households 
and their struggle to live a dignified life with adequate water.

A conscious articulation of the values underlying equality85 might see 
the court envisaging a society in which women and men were afforded the 
substantive conditions necessary to exercise meaningful choices: the provision 
of adequate and affordable water being one of these. Fairness would require 
the state to enable these conditions.

Such an approach would begin to set standards for non-discriminatory 
conduct in relation to the right to water and is a significant component of a legal 
approach to reducing poverty and inequality. The Court’s extensive remedial 
powers would allow it to enhance accountability and accommodate any 
separation of powers concerns that it might have in requiring a different mode 
of water provision that does not amount to unfair discrimination, including 
structural interdicts that allow government to address the problem.86

Although sketchy in the confines of this paper, I suggest that the 
development of such a critical approach would enable courts to grapple with 
more substantive redistribution within an equality framework, mediated 
through remedial powers.

In the end, the Court’s egalitarian liberal approach, although capable of 
significant judgments and important equality gains, sets boundaries to equality 
jurisprudence that tend to marginalise the experiences and concerns of poor 
women. Poor women thus fall outside the protections of legal liberalism. While 
a critical engagement with legal liberalism might sometimes secure important 
rights (such as in status based gains in customary law), in most instances issues 
of poverty and gender inequality are not adequately addressed. In the end, 
therefore, equality jurisprudence needs to rest on different philosophical and 
conceptual foundations to those based on a liberal egalitarian model. Those 

85 See C Albertyn “‘The Stubborn Persistence of Patriarchy?’ Gender Equality and Cultural Diversity in 
South Africa” (2009) 2 CCR 165 for a development of these in relation to gender and cultural diversity 
issues.

86 See L Williams “The Role of Courts in the Quantitative-Implementation of Social and Economic Rights: 
A Comparative Study” (2010) 3 CCR 1 on this. See also Liebenberg Socio-Economic Rights ch 8.

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foundations require not merely an equality of equal concern and respect, but 
of substantive conditions for a decent life. More conceptual work is required 
to advance a more critical and indigenous model of substantive equality.

5  Socio-economic rights and poor women

5 1  Why Women?

As alluded to earlier, women are largely invisible in socio-economic rights 
cases. For example, the Grootboom community represented a “textbook” 
example of gendered poverty: an informal settlement in which the majority 
of residents were women and children,87 and arguments would clearly have 
been available about the particular plight of poor woman-headed households. 
While the absence of gendered arguments might not have affected the eventual 
outcome, it can be seen as a missed opportunity in the development of socio-
economic rights jurisprudence. Introducing a gendered analysis could have set 
important standards for the evaluation of reasonableness, as discussed below. 
Similarly, in Mazibuko, a case concerning the right of access to adequate water 
by poor households living within a formal township, three out of five applicants 
were women living in woman-headed households. Household water shortages 
have a disproportionate impact on women who bear the burden of domestic 
reproduction, meaning that it is women who usually have to seek out available 
water for the needs of the entire household: drinking, cooking, cleaning and 
care work. It is also women who usually defer their own needs to those of the 
family. However, nothing was made of this in the application or judgment.

The emphasis on poverty at the expense of other forms of inequality and 
exclusion, or on singular rather than intersectional forms of discrimination, 
is commonplace in political and legal discourse. Single issues simplify the 
complexities of life, making them easier to describe and adjudicate. However, 
if addressing gendered poverty and inequality is central to our constitutional 
project – rather than an after-thought, an add-on, or a rhetorical device – then 
gender is a nettle that must be grasped.

Firstly, Everatt has written about the failure of government anti-poverty 
programmes to target the specific needs of different groups of the poor. He 
suggests that a general concern with disadvantage and the “poorest of the 
poor” tends to translate into large (and unmanageable) groups and undirected 
programmes.88 Similarly judgments might be ineffective or reinforce 
inequalities. Courts can assist with more nuanced judgments, but this would 
only be possible if the cases are argued in a more gender conscious manner.

Secondly, a more careful consideration of the gendered context of claims 
can affirm women as citizens, build a more “gendered” accountability through 
courts (a primary function of socio-economic rights jurisprudence), and help 
publicise the issue for political action. Legal action is almost always a moment 

87 Government of the RSA v Grootboom 2001 1 SA 46 (CC) n 2, which states that 510 children and 390 adults 
lived in desperate circumstances. Although no gender breakdown is provided, it is statistically probable 
that the majority of adults were women.

88 Everatt (2008) Politikon 305-311.

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in a longer political battle – positive judgments can be significant weapons in 
those bigger battles for gender equality.

Finally, properly conceived and argued, such cases will assist in more 
transformative outcomes at a practical or symbolic level. Judgments are 
important indicators of how we can or should see the world.

5 2  Engendering “reasonableness”

Despite the preponderance of women amongst the poor, and substantial 
qualitative and statistical evidence of gendered access to socio-economic 
rights, gender issues are almost completely absent in socio-economic rights 
jurisprudence. A small, but important, body of academic literature has begun 
to engage this gap. Beth Goldblatt and Sandra Liebenberg have called for the 
interpretive interdependence of socio-economic rights and equality,89 while 
Sandra Fredman has extended this approach to argue for a more engendered 
conception of socio-economic rights.90 In the same edition of the South 
African Journal of Human Rights, various authors have begun to document 
the ways in which women’s enjoyment of socio-economic rights is gendered, 
meaning that we need to rethink some of our conceptual approaches to socio-
economic rights as well as our understanding of women’s (lack of) enjoyment 
of these rights.91

The current jurisprudence of reasonableness is ultimately limited by the 
same kind of constraints as equality jurisprudence. There is no doubt that a 
more critical and gendered approach to socio-economic rights is required, and 
that this needs to be located in a substantive understanding of our democratic 
values of freedom, equality and dignity, and a nuanced consideration of 
differing material conditions of poor people’s lives.

A more pressing concern is the absence of poor women from the current 
jurisprudence. Within the confines of this article I want to suggest (albeit very 
briefly) that there is substantial room to engage in a more gendered analysis 
within this jurisprudence: firstly, in the depiction of context; secondly in the 
procedural and “governance” criteria of reasonableness; thirdly, in a more 
nuanced understanding of “the needs of the most desperate”; fourthly, in a 
more gendered idea of the accountability that underpins the jurisprudence; 
and fifthly, within the meaning of “meaningful engagement” as a form of 
remedy.

As with equality, the Constitutional Court has emphasised that socio-
economic rights must be judged within their social, economic and historical 
context of inequality and deprivation,92 even if it has not always addressed this 
context sufficiently. There is ample scope for the development of a gendered 
analysis in respect of the context of socio-economic rights claims generally, 
and not merely those that refer to women claimants alone. Building gender 

89 Liebenberg & Goldblatt (2007) SAJHR 335-361.
90 See, generally, S Fredman “Engendering Socio-Economic Rights” (2009) 25 SAJHR 410.
91 See, generally, the articles in issue 3 of (2009) 25 SAJHR.
92 Government of the RSA v Grootboom 2001 1 SA 46 (CC) para 43.

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inequality within this contributes to the idea that a gendered analysis should 
be the norm.

The courts’ test for reasonableness tends to focus on process and 
accountability rather than substance. It looks at whether government action 
to give effect to socio-economic rights is appropriate or fair, but omits an 
engagement with the objective norms promoted, or the specific goods and 
services guaranteed, by the rights themselves. Thus, as is well-known, the 
Court has identified a number of criteria to assess reasonableness including 
availability of resources; flexibility; the comprehensive, coherent and 
effective nature of the policy; its balance in terms of short, medium and long 
term needs; and the allocation of governmental responsibilities.93 It appears 
that a carefully crafted engagement with these elements of reasonableness 
could be used to hold government to account for ensuring that its policies 
are appropriately “engendered”, and that the needs of women and men are 
built into the conceptualisation, resource allocation, budgeting et cetera of 
government policies.94

The most “substantive” criterion of reasonableness is that a policy needs 
to pay special attention to the needs of the poorest and most vulnerable, the 
most desperate.95 This remains an undeveloped category within the Court’s 
jurisprudence and it is not always clear who the most desperate are. What 
is clear, however, is that more specificity is required and, again, a gendered 
analysis of the “most desperate” will always be important to addressing the 
needs of poor women.

In Mazibuko, the Constitutional Court highlighted the accountability aspect 
of justiciable socio-economic rights.96 This provides important space to 
develop an idea of state accountability, that the delivery of goods and services 
must be structured in a manner that meets the needs of women and men. 
It also develops notions of equal participation within the structures of civil 
society. Socio-economic rights cases could be used to set standards for a more 
gendered form of accountability. Similarly, any imposition of “meaningful 
engagement”97 over the implementation of socio-economic rights needs to 
take account of gender, especially of how women participate equally within 
this engagement.

The development of a more critical and transformative jurisprudence of 
socio-economic rights remains important. However as described above, even 
within the confines of reasonableness currently utilised by the Constitutional 
Court, there are opportunities to begin to address the intersections of gender 
inequality and poverty.

93 Paras 40-46.
94 For example, the manner in which the Court assesses reasonableness in Mazibuko v City of Johannesburg 

2010 4 SA 1 (CC) shows a lack of consideration of context of poverty and impact of policy on living poor 
and women (paras 82-88 provide just one example of the absence of any reference to the lived reality of 
the applicants). 

95 Government of the RSA v Grootboom 2001 1 SA 46 (CC) paras 42 and 44.
96 Paras 61 and 70.
97 Occupiers of 51 Olivia Road v City of Johannesburg 2008 3 SA 208 (CC).

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6  Conclusion

If the constitutional project is to effect change and transformation in the 
lives of women and men, then all of us who engage in that project have 
limited its potential: in how we select cases, prepare our arguments, write 
our judgments, and engage in the jurisprudence. Gender inequalities, like 
poverty, raise particularly difficult issues about the connections between 
reform and transformation, recognition and redistribution, law and politics, 
and between a “strategic engagement with legal liberalism” and something 
more than that.

While it remains important to critically engage with legal liberalism and 
the jurisprudence that we have, in order to pursue those transformative claims 
and judgments that are possible within the bounds of liberal egalitarianism; 
an important academic and legal pursuit continues to be to construct more 
critical and “indigenous” conceptions of equality and socio-economic rights. 
Importantly, these should be shaped within the particular context (“political 
economy” and cultural or social values) of South Africa as a constitutional 
democracy and a developing state. While the ideas generated by welfare 
liberalism and social democracy of western welfare states are important 
footholds in equality and socio-economic rights jurisprudence, they require 
significant development to meet the challenges of South Africa’s constitutional 
project.

SUMMARY

Central to the transformative project of the South African Constitution, although not always 
recognised as such, is the need to address the distinctive forms of poverty and inequality experienced 
by women. This article explores the extent to which, and how, poor women have been included within 
the constitutional project, firstly, by describing the complexity of poor women’s lives and then through 
a brief analysis of cases and jurisprudence on equality and socio-economic rights. Underlying these 
two facets of the article are two key questions: What does the experience of poor women tell us 
about the meaning of transformation and a transformative Constitution? How can we seek a more 
transformative (and gendered) understanding of equality and socio-economic rights jurisprudence? 
The article argues that the lived realities of poor women remind us that the kind of transformation 
– and transformative legal strategies – that are necessary to generate meaningful change require 
attention to structure and agency, to redistribution and recognition, to individual and community, to 
public and private (especially care-giving roles in family), to inequality and poverty. To achieve this 
through equality and socio-economic rights jurisprudence entails greater care in the choices made by 
lawyers in selecting and arguing cases, and in advancing critical arguments that push the boundaries of 
progressive and strongly egalitarian forms of liberalism. It also requires a more gendered jurisprudence 
in courts where attention to women’s socio-economic context is combined with a conscious attempt to 
give meaningful content to the values informing constitutional rights, the gendered interests at stake 
and the manner in which application of legal principles, such as reasonableness and fairness, can be 
shaped to include women. In the end transformation requires the construction of a society in which 
women and men are afforded equivalent, substantive conditions for exercising the choices that matter 
to them, about how to live their lives, maintain their relationships, raise their children and pursue their 
aspirations.

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