Intersecting Rights and Conflicts
Gender equality rights; cultural, religious, and linguistic rights; educational rights; and the right to speak in any language were important as they all sought to redress many inequalities that existed under apartheid. In and of themselves, such rights served a good purpose. However, when several of those rights intersected, one could become diluted or, in some cases, conflict with another.
An example, which is still playing out in various forms in South Africa today, is the conflict between gender equality and the recognition of traditional and tribal customs as provided under the right to cultural, religious, and linguistic communities. As will be explored in detail in the next chapters, black South African women, particularly those in rural areas, are still living under the Customary Law and tribal rules of their communities. Those customs and norms at times run counter to the rights that the Bill of Rights provided women. Although the legitimacy of Customary Law and practices are secondary to the rights granted in the constitution, according to the late Elaine Salo, former professor and the director of gender studies at the University of Pretoria,15 many South Africans abide by and identify themselves through them. And, the reality is that the South African government continues to support those laws and practices.
For example, the Recognition of Customary Marriage Act of 1998, enacted in Section 15 (3) of the constitution,16 recognizes polygamous marriages, the practice of ukuthwala (the abduction of a girl to another family household in order to force the girl’s family to give permission for the marriage), and lobolo (negotiation of marriage based on the price of the bride).17 Those practices, acknowledged in the constitution, have been seen by some people as contradictory to the rights of women as guaranteed in the Bill of Rights.
Part of the debate related to the recognition of Customary Law is that, while the Bill of Rights recognizes individual rights, Customary Law reflects the rights of a community or collective. That debate intensified when the cabinet of Jacob Zuma, who was elected president in 2009, approved the establishment of the ministry of traditional affairs, the role of which was to give traditional leaders a more structured way to engage with the government. Many observers viewed the acceptance of a ministry of traditional affairs as a political move to satisfy traditional leaders, who hold sway over many voters.18
Another example of when two individual rights intersect and the exercise of one right dilutes the other is when the right to education and the right to speak in any language creates an unintentional consequence for students who enter the higher education system. That happens when the language of the university they attend is not the language they have chosen to learn or use. By exercising their right to choose any official language, they may have diluted their right to education because they must then struggle to learn in a different language. Although there are 11 official languages, most universities use one of only two languages, English or Afrikaners.
A 2009 report produced for the vice chancellors association Higher Education South Africa (HESA) by the National Benchmark Tests Project found that many students had difficulty performing at a level necessary to be successful in their classes. According to the report, 47 percent of the students who took the test were proficient in English, the dominant language in higher education, while 46 percent were intermediate, and 7 percent had only basic academic literacy. Half the students in the higher education system were African first-language speaking, 42 percent English speaking, and 8 percent Afrikaans speaking.19 That means that many students have effectively been learning in a language for which they have limited proficiency—which ultimately has had an impact on their retention and graduation rates.
The problem is a difficult and complex one. The challenge is to create a solution that minimizes the language barrier for students entering into the higher education without also limiting people’s right to their choice of language. These issues will be explored in detail in Chapter 7.