An Assessment of the Constitutional, Legislative and Judicial Measures against Harmful Cultural Practices that Violate Sexual and Reproductive Rights of Women in South Africa

Sexual and reproductive rights of women are widely violated and abused in Africa, partly because of numerous gender-based cultural and traditional practices. All these practices exist to varying extents in many African countries—including South Africa. The Bill of Rights in the South African Constitution has several provisions that relate to the protection of sexual and reproductive rights of women, but the Constitution also provides for the right to culture, which allows for traditional and cultural practices—some of which violate certain human rights norms including the sexual and reproductive rights of women. International and constitutional protection notwithstanding, such rights can only be realised and enjoyed if they are given force through constitutional, legislative and judicial measures. This paper explores these three measures. A conceptual understanding of sexual and reproductive rights is presented, before the international dimension of those rights is discussed. The constitutional and legislative framework relating to the relevant cultural practices is then interrogated—before case law from the application and interpretation of that framework in relation to women’s sexual and reproductive rights is analysed. The paper argues that despite the constitutional, legislative and judicial attempts to minimise the clash between cultural practices and the sexual and reproductive rights of women in South Africa, the violation and abuse of such rights still abounds. The paper concludes that legislative intervention does not go far enough, that the courts should be more proactive and assertive on the issues concerned, and that a much more holistic approach—including advocacy, human rights education, a change of patriarchal mind-sets, and political will—is urgently needed