Author Archive: Simon Dippenaar | SD Law Cape Town

Restorative justice – the arguments

Reconciliation vs. retribution

Globally, conventional criminal justice systems, based on punishing people for their crimes through incarceration and instilling fear of imprisonment as a deterrent, seem to have limited success. Prisons are overcrowded and rehabilitation is largely failing. Instead, restorative justice methodology, with its focus on resolving crimes by holding offenders accountable for their actions, is gaining ground.

Restorative justice supporters claim that the promotion of healing, restitution and rehabilitation of offenders will prevent future offences. This is because revenge does not help victims make sense of or restore their losses. It doesn’t answer questions or provide closure. Restorative justice falls within the ambit of alternative dispute resolution (ADR) and is a process of mediated dialogues. The term was first coined by Albert Eglash, a psychologist working with prisoners in the 1960s.

Alternative Dispute Resolution is rooted in South African customary law

Restorative justice and ADR have always been an integral part of customary law in South Africa. The Truth and Reconciliation Commission (TRC) is a good example of restorative justice. The TRC was established to deal with apartheid crimes in a participative and reconciliatory manner to promote healing of families, communities and the country. The Commission for Conciliation, Mediation and Arbitration (CCMA), which tackles labour disputes, is another example.

ADR and restorative justice – is there a difference?

Although negotiation, mediation and arbitration are components of both ADR and restorative justice, there is an important distinction. ADR involves conflict resolution and compromise assessment with the help of an impartial mediator. In ADR the parties agree on the terms of the settlement themselves. By contrast, restorative justice sets out to address the harm done once an offender has admitted to a crime and is willing to take responsibility for it. It does not aim to resolve a dispute.

In each case both parties are directly involved and are engaged in decision making, compared with conventional criminal processes, which regard the victim and offender as passive opponents, with key decisions taken by judges and lawyers.

Young offenders (under 18) may be offered diversion rather than restorative justice.

Advantages and application of restorative justice

Restorative justice functions within the framework of the criminal justice system. It is often seen as a way to deal with petty or moderate crimes, but can be used in criminal cases, taking into account the severity of the offence.

ADR mechanisms have become increasingly popular in South Africa: ADR is cheaper, quicker, more efficient and less stressful than going to court. It is informal and voluntary and can happen at any stage before or during civil proceedings as long as judgement has not yet been passed. The process also gives victims and communities a voice and can therefore be a more empowering experience.

Let the punishment fit the crime

The State vs Shilubane, 2005 was a significant victory for the principles of restorative justice. The accused, a 35-year-old first-time offender, stole and cooked seven fowls worth R216.16. He pleaded guilty and despite showing “genuine remorse” was sentenced to nine months in prison. On review, the sentence was deemed “disturbingly inappropriate”with Judge Bosielo stating that the “punishment should fit the criminal as well as the crime, be fair to the accused and to society, and be blended with a measure of mercy.”

Although it requires a significant mind shift on the part of the legal fraternity, victims and offenders, the positive outcomes of restorative justice are heartening, and the process has done much to build relationships in South Africa.

A key argument in favour of restorative justice is that participating offenders are less likely to commit further offences, compared with those who are subject to conventional justice interventions (see “Restorative Justice: The Evidence”, by Lawrence Sherman and Heather Strang).

The solution to prison overcrowding?

Retributive justice and harsh sentences are failing to stem the ever-growing crime rate in South Africa. Restorative justice, with its emphasis on reconciliation over retribution, has much to recommend it, beyond reducing the seemingly insurmountable backlog in the South African courts. This is not to suggest that serious crimes should go unpunished or untried. Clearly, the merits of ADR/restorative justice must be carefully considered on a case‑by‑case basis, but it may be a viable alternative to a custodial sentence for less serious crimes or where the offender does not pose a danger to society.

The punishment should still fit the crime.

We can help

SD Law & Associates are criminal law experts. We’ll fight for you and protect your rights. If you need advice on alternative dispute resolution or independent mediation services or help with any aspect of criminal law or bail, call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

Read More

Wounding Words

Law firm Cape Town

by Simon David Dippenaar

As children, we were raised hearing the old adage that ‘sticks and stones may break one’s bones, but words can never harm one.’

However, one soon comes to the stark realisation that this is not actually true. This is particularly so, for example, when one considers all those that have committed suicide as a result of words.

Words are powerful. They can bring down governments, they can start wars, and they can destroy lives. The reality is that words can hurt more than broken bones in many cases. Some people actually bear the physical marks on their body from someone else’s words.

Too often we use words without considering their impact.

What we need is a society that is cognisant of the impact of words and a desire to temper them so that they are a force for good, and not for destruction.

This post was prompted by a very recent client who was repeatedly called a “moffie” and even beaten up by his neighbour because he is gay. “Moffie” is a word that has often been used to degrade gay men and is riddled with negative connotations.

More often than not, individuals choose to ignore the discrimination, but it can sometimes cause so much pain and make it impossible for some to break out of the psychological torture. This is one of those pillars of prejudice that has to be toppled in the creation of a non-sexist society.

The South African Constitution protects everyone in the country, irrespective of whether they are citizens or not, and all have the right to dignity and equality. The Constitution specifically provides that the right to freedom of expression does not extend to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

It is important to note, however, that ‘hate speech’ does not refer to words that are merely hurtful, insulting or upsetting. For words to amount to hate speech, they must be regarded as advocating hatred and must constitute an incitement to cause harm to that person or group of persons.

Social ambiguity about men being abused is a factor in their not speaking up; they also run the risk of not being believed. In situations where individuals have experienced discrimination, there are various legal avenues that can be pursued.

At SD Law South Africa, we understand the pain caused by words that are intended to hurt and destroy. You need not suffer in silence. We can help so that you can walk tall and hold your head up high. We can ensure that your rights are protected, whether through alternative dispute resolution, litigation or other avenues.

Get in touch with me if you have a matter you would like to discuss.

Read More

Eviction law – changes

How Constitutional law is transforming eviction law

The Constitution is the backbone of society and South Africa is fortunate to have “the most admirable Constitution in the history of the world,” according to Harvard law scholar Cass Sunstein. Our Constitution is unique in that it includes “positive rights” which require the State to enact policies that minimise inequality, free South Africans from discrimination and redress historical inequalities. Any legislation that contradicts the Constitution is deemed invalid.

The lie of the land

In terms of eviction law, these Constitutional principles are being applied by the Courts in an attempt to strike a balance between the rights of landowners and the rights of the landless.

Section 26(3) of the Constitution states that “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” Section 26(1) of the Constitution further provides for everyone’s right “to access to adequate housing” and sets out the State’s obligation to ensure this right is upheld (Section 26(1).

Clearly it is residential evictions, regulated by The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), and the rights of landowners that are most affected by the implementation of these Constitutional principles. Read more about PIE here.

So, although section 26(3) of the Constitution has not amended our common law, it does mandate legislation that impacts the common law rights of landowners. In addition, the Courts tend to place a greater burden on the applicant-owner where the State is the applicant.

Burden of proof

A landowner must prove ownership by producing title deeds for the property and must show that the defendant is occupying his property to ensure eviction. This is known as rei vindicatio. The onus then falls to the defendant to prove he has a valid right to occupation.

Majority of disputes about day-to-day tenancy

While changes to legislation have indeed contributed to greater social justice, there have been some negative side effects, such as the reluctance of landowners to provide housing for their labourers, uncontrolled squatting and an influx of rural residents into urban areas, with the associated health and safety hazards of overcrowding. But it is day-to-day tenancy issues and the maintenance of property values that comprise the vast majority of disputes, rather than the extreme cases of large-scale land invasions and the plight of the homeless.

Navigating your way through an eviction

Eviction law has developed significantly over the last few years and some procedures have changed because of the Consumer Protection Act. Recent cases also indicate that the same procedures must be followed in both the Magistrate’s Court and the High Court. Navigating your way through an eviction and making sure you follow the correct process can be daunting. So, whether you’re a tenant or a landlord, don’t try to go it alone.

We can help

At SD Law & Associates we are specialists in property law. Let us help you with the eviction process or other property matter. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

 

Read More

Eviction – when your tenant is also your employee

In South Africa it is not uncommon for employees to be tenants. This is most often the case when a domestic worker or gardener occupies a cottage on the property of their employer. Usually the accommodation is part of the remuneration package, and often the employer pays the utilities and sometimes even provides food. The dual nature of the relationship can make things complicated if it becomes necessary to terminate one or other of those contracts, but in law the situation is straightforward.

We’ll look first at the simple application of the law, and then consider a couple of alternative scenarios.

Employment terminated

In the simplest scenario you terminate the employment of your domestic worker, including accommodation. You must give reasonable notice, compliant with the terms and conditions of employment (e.g. you may have agreed a contract stipulating 90 days’ notice). If you wish to terminate the employment prematurely and the Basic Conditions of Employment Act applies, you must give one month’s notice of termination. The employee is then required to vacate the premises provided, unless other provisions have been made. In the event of premature termination of a contract, the employee is entitled to accommodation for one month, or longer, according to the outstanding period of the contract.

Employment terminated, accommodation is extended

But perhaps the contract of employment is concluded, or the employee retires or is sick and unable to work. Their replacement does not wish to live on your premises and therefore the accommodation does not need to be vacated. You are happy for the former employee to remain a tenant. In this case the employee becomes a conventional tenant. You draw up a lease as you would for any other tenant. Whether you charge a rent or allow them to stay as a “grace and favour” tenant is between the two of you, but it is still advisable to have a written lease in place. Some families promise accommodation for life to a loyal domestic worker. If you have made this commitment in the past you are obliged to honour it, whether or not it was in writing.

Employment continues, lease is cancelled

On the other hand, you are very happy with your domestic worker, but your daughter is returning from varsity and wants to live in the property currently occupied by the employee. You wish to cancel the lease but retain the employee. In this case you are bound by the Rental Housing Act and the Consumer Credit Act. Firstly, you must check the lease agreement (or the employment contract, if the provision of accommodation is an integral part of that and not a separate agreement). You must then give notice in accordance with the provisions of the lease or employment contract. See our article Lease Agreement – How To End It With Dignity. If there is no specified notice period given, you must give one month’s notice (20 business days to be compliant with the CCA).

Eviction

If the tenant refuses to leave as requested, you may then resort to eviction. You must comply with all the statutory measures and procedures that apply to your situation, i.e. if the property is in an urban area, the Prevention of Illegal Eviction (PIE) applies (see our article on PIE). If the property is in a rural area and is subject to the Extension of Security of Tenure Act (ESTA), then the provisions of that Act must be followed.

Bear in mind that if you have to evict your employee from your property, you will place your working relationship under severe strain, making it difficult for you both to continue as employer and employee. Try to resolve the situation without resorting to eviction if you can. It may mean being flexible with the notice period to allow your tenant time to find alternative accommodation. Be aware that they now may have to travel a distance to work and be sensitive to how that might impact their start and finish times. Review the employment contract to reflect the new live-out status and consider the implications for total remuneration. If accommodation was provided gratis as part of the package, you will need to revisit the wage you pay. Make sure all contracts are up to date and represent fair and reasonable employment practices.

Take professional advice

If you need help with any aspect of lease agreements or employment contracts for your domestic workers, we can help. Simon Dippenaar and Associates are experts in property and contract law. We will make sure you are fully compliant with all relevant regulations. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

 

Read More

Dagga – It’s now legal – The Con Court ruling explained

Dagga legalisation in South Africa

Dagga legalisation has been big news in the past week. But what exactly does it mean in practice?

Since last week’s Constitutional Court ruling on the possession of dagga for private use, SD Law has been inundated with queries about the practical implications of this decision. How does it differ from last year’s Western Cape High Court ruling? Is possession of dagga now legal? We attempt to answer your questions.

 

The High Court ruling

If you’ve been following our blog you’ll remember that we wrote recently about the difference between possession of marijuana – dagga or cannabis – and intent to deal (read more). We also covered the 2017 Western Cape High Court ruling that allowed the use of dagga by adults at home (read more).

Last year’s ruling cited the right to privacy guaranteed by our Constitution, and allowed for this right to be used as a defence if charged with possession in your own home. As we’ve pointed out previously, that decision did not legalise marijuana use, but it did pave the way for Parliament to enact a change in legislation.

 

What the Constitutional Court ruling means

The Constitutional Court decision of 18 September 2018 went further than the 2017 High Court ruling in that it effectively decriminalised the possession and cultivation of cannabis in private by adults for personal consumption. It’s important to note that the Con Court does not make the laws; it can only rule on the constitutionality or otherwise of existing laws. However, if a law is found to be unconstitutional, the onus is then on Parliament to remedy the fault in the law. So, the law criminalising possession of marijuana is still on the statute books, but the order has been suspended. The Court has provided interim relief that renders it unlawful for the police to arrest adults for private cultivation, possession and use of small amounts of cannabis. Parliament should enact a change in legislation within the next two years.

 

How much is a small amount?

As we explained in our blog post on possession last month, the historical threshold of 115g has been relaxed, in favour of a more pragmatic approach to determining intent. The burden of proof is now on the State to show that the accused intended to supply the dagga in his or her possession to someone else for profit. This might hold true for an amount less than 115g, or a quantity in excess of 115g could still be purely for personal use.

Last week’s ruling did not contain any indication of the quantities that would be considered ‘for private consumption’. It acknowledged that the greater the amount held, the greater the likelihood that dealing would take place. However, it reinforced the onus on the State to prove intent and ensured that police officers would give a potential accused the benefit of the doubt. According to Deputy Chief Justice Raymond Zondo, “…there will be cases where it will be difficult to tell whether the possession is for personal consumption or not. In the latter scenario a police officer should not arrest the person because in such a case it would be difficult to show beyond reasonable doubt later in court that that person’s possession of cannabis was not for personal consumption.”

 

The definition of ‘private’

Another point of difference between the Con Court and the High Court rulings is the definition of privacy. Whereas the High Court was quite specific about the right to privacy providing a defence if found in possession in one’s own home, the Con Court did not specify in the judgement what constitutes a private place. Rather, the Court modified last year’s Order to reflect that a ‘private place’ can extend to more than just one’s literal home. It is probably safe to assume that a home, office, pocket, storage facility or car would amount to a private place.

 

Cultivation

The Con Court ruling also specifically allowed for cultivation of cannabis for private use, and went on to define privacy in the context of cultivation: “An example of cultivation of cannabis in a private place is the garden of one’s residence. It may or may not be that it can also be grown inside an enclosure or a room under certain circumstances. It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.”

 

What is the right to privacy?

The right to privacy simply means the right to live your life without interference from the State or from other individuals or entities. The right to privacy is enshrined in the United Nations Universal Declaration of Human Rights: “The Right to Privacy. Nobody should try to harm our good name. Nobody has the right to come into our home, open our letters, or bother us or our family without a good reason.”

Given the iniquitous abuse of this right in the apartheid era, it is unsurprising that our Constitution upholds the right to privacy as a pillar of a fair and just society. The Court stated, “A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place…”

 

A global trend

South Africa joins 33 jurisdictions around the world where the use of cannabis has been decriminalised or legalised. Canada is the most recent to liberalise its laws on possession and cultivation, with some variance from province to province on the details (e.g. number of plants allowed to be grown and where) but an overall national legalisation framework. The US also has state-by-state legislation, with some states fully decriminalised, some allowing medical use only and some still criminalising all use; but a growing number of states allow recreational use and cultivation, with a varying number of plants permitted to be grown depending on the state.

 

No deal

Remember it is still illegal to deal in dagga! If you grow or carry cannabis for sale or supply to others, you are breaking the law. The relaxation in approach does not extend to dealing in the substance. The right to privacy will not protect you if you sell marijuana, or if you consume it in a public place. Enjoy the new freedom, but don’t abuse it. Consume cannabis responsibly or you could still fall foul of the law.

 

If you have been charged with possession…

Ordinarily, under the doctrine of objective Constitutional validity, the moment a law is declared unconstitutional, the legal position is that the law has always been so. The implications for criminal law are that any prior convictions are invalid, and will be set aside. To prevent disorder, Courts may postpone or suspend the operation of invalidity. In this case, the Court rejected retrospective operation. This means that previous convictions stand. If you would like more information, feel free to contact us – we’re here to help.

 

Contact us

If you need advice regarding a charge of possession or dealing, call Simon immediately on 087 550 2740 or contact us. It is important to know your rights and have legal representation to ensure you are treated fairly and within the law, especially if the police have acted without full knowledge of the recent changes.

Read More

Cannabis – possession or dealing? There’s a big difference!

Cannabis possession vs dealing

 

Cannabis – The seriousness of the crime and the sentence are much greater for dealing, but what determines dealing vs. possession?

 

Many of you may recall that last year the Western Cape High Court ruled that cannabis (dagga or marijuana) can be used by adults in the privacy of their own homes, and may be cultivated for private use (read more). This ruling was founded on the right to privacy. However, it did not decriminalise or legalise cannabis use. It simply allowed for the defence of privacy if charged with possession in your own home. If you are found in possession of dagga outside your home, you are still subject to the full force of the law.

But what is the law? Confusion surrounds the specifics of the offence of possession vs. dealing in cannabis. Here’s how it works.

 

How much cannabis is too much?

Possession of marijuana is illegal and punishable in terms of the Drugs and Drug Trafficking Act 140 of 1992. The amount of cannabis you can possess for your own use is 115g or less. Historically, quantity was the determining factor when an arrest was made involving cannabis – below 115g, the charge was possession. Above that quantity, the charge was the much more serious offence of intent to supply (dealing).

 

Other criteria

Recent cases have challenged the use of quantity as a simple measure of whether or not an accused is holding cannabis for personal use or for supply to others. The Constitutional Court has overturned the previous presumption that placed the burden of proof on the accused. What this means is that, in the past, someone accused of intent to supply, on the basis of possessing more than 115g of cannabis, had to disprove the accusation. Disproving anything is much harder than proving it, so it was often difficult for justice to be fairly served.

Now the State must prove beyond a reasonable doubt that the intention of the accused is to deal. A range of criteria is used to ascertain the purpose of the cannabis in question. For example, is there any profit involved? Someone could be transporting a quantity of cannabis above 115g from a source to a recipient, purely as a friend or conduit. If the go-between does not earn any income from the transaction, but simply transports the drug from one person and delivers it to another, it can be argued that he is not dealing, regardless of the amount on his person at time of arrest.

Of course the opposite can also be true. It is possible to be accused of intent to supply cannabis even if the amount held is below 115g, because the factors used to determine intention are more sophisticated. So breaking a large transaction down into small units will not protect you from a charge of intent to supply, if that is the true purpose of your possession of cannabis.

 

Why it matters

Possession of cannabis is a relatively minor offence. Punishment may include a fine and/or community service. Intent to supply – dealing, on the other hand, can be quite serious, potentially resulting in a custodial sentence. It is also a much more significant crime to have on record, impacting on future employment prospects. So the distinction between possession of cannabis for personal use and intent to supply is a critical one.

 

Contact us

If you are found in possession of dagga, call Simon immediately on 087 550 2740. It is important to know your rights and have legal representation to ensure you are treated fairly and within the law. If you or someone you know has been charged with intent to supply and you need advice, call Simon now or contact us now.

Read More

Cohabitation – What is it?

Cohabitation

Cohabitation vs. marriage – the legal differences

For various reasons, marriage is not for everyone. Some prefer not to marry as a matter of principle; some can’t marry (for example if one party is waiting for a divorce to come through). Others want to live together prior to marriage, to road-test their compatibility. Whatever the motive, the status of cohabitation is generally socially acceptable in South Africa and we often hear the term ‘life partners’ used for committed, cohabitative relationships where there is no marriage.

However, in South Africa there is no ‘law of cohabitation’ and cohabitation is not a recognised legal relationship. Notwithstanding, there are legal consequences of cohabitation and some legislation defines ‘spouse’ in such a way that includes a partner in a cohabitative relationship.

 

What is cohabitation?

Cohabitation refers to a stable, monogamous relationship in which the couple, either male-female or same-sex, chooses not to marry but to live together as spouses. Familiar terms for cohabitation include living together, shacking up, de facto marriage, quasi-marriage, common-law marriage, domestic partnership or private marriage. A cohabitative relationship looks to the observer exactly like a marriage. The only distinguishing feature is the lack of legal sanction.

Cohabitation is defined differently in different legal systems, but there are three universal components: a sexual relationship between the couple, a factual cohabitative relationship (i.e. they live in the same home), and stability of the relationship. There may also be a requirement for a sense of responsibility for each other.

 

Common-law marriage – quashing the myth

Many people believe that if a couple cohabitates for a long period of time, the same marital rights apply that spouses in a marriage enjoy…that a ‘common-law’ marriage exists. This misconception exists in many jurisdictions but it is just that – a misconception. There is no such thing as common-law marriage.

 

Universal partnership

Despite the lack of legal status, the South African courts have ruled that there may be an express or implied universal partnership proper (societas universorum bonorum) in existence between a cohabiting couple. In a universal partnership both parties agree to put their current and future property in common, which would resemble a marriage in community of property.

 

Universal partnerships must satisfy four legal requirements:

  1. The aim of the partnership must be to make a profit
  2. Both parties must contribute to the enterprise
  3. The partnership must operate for the benefit of both parties
  4. The contract between the parties must be legitimate

 

The universal partnership argument can be used to give both parties a share in all property acquired during (and before) the commencement of the relationship. However, if a universal partnership cannot be proven, the private property owned by the cohabitees prior to cohabitation belongs to the partners separately and there is no community of property. Property acquired before the relationship is also exempt from any consequences of the Insolvency Act.

 

Cohabitation agreement

Proving the existence of a universal partnership on separation can add to the stress that already accompanies the end of a relationship. It is much more sensible for a cohabiting couple to draw up a cohabitation agreement at the outset of the living arrangement. A cohabitation agreement is a relatively simple contract that includes details of a couple’s assets, property and the financial contributions each partner makes to the joint home. It is valid when ratified by an appointed lawyer.

 

And that’s not all

There are many other issues cohabitative couples must contend with, should they decide to call it a day. There will be a home and associated mortgage or tenancy and decisions to be made about what happens to it, with the accompanying financial consequences. There may be children of the union. There could be shared debts. There may be insurance policies with both partner as beneficiaries, or a shared vehicle. A cohabitation agreement can help to mitigate conflict when it comes to deciding how these matters will be resolved.

 

If the worst happens

A will is often the last thing on the mind when a couple is caught up in the excitement of moving in together. But it’s an important consideration, particularly a few years down the line when there are children and/or shared property involved. Cohabiting partners have no automatic legal right to inherit from the other, as per the Intestate Succession Act, and no right to spousal maintenance on death, as provided for by the Maintenance of Surviving Spouses Act. If you want to be sure of looking after each other in the event of one or other’s death, it is important to make a will.

 

Free Cohabitation Agreement

Download our free Cohabitation Agreement

 

Contact us for more information

If you are about to move in with your partner and would like to draw up a cohabitation agreement and/or a will, or if you need help with the dissolution of a cohabitative relationship, call Simon today. Simon Dippenaar and Associates are experts in family law, including cohabitation. We’ll explain your rights and responsibilities and make sure your interests are protected. Contact Simon on 087 550 2740 or email contact us.

Read More

Women’s Day 2018 – why is it still necessary?

Women's day 2018

Why are women still fighting for basic human rights? Women’s Day 2018

Every year in South Africa we observe Women’s Day on 9th August, to commemorate the women who raised their voices against racial injustice during the Struggle, marching in 1956 on the Union Buildings in Pretoria in protest at the oppressive pass laws.

National Women’s Day 2018 is intended to celebrate the progress of women in all walks of life in South Africa. Back in 1994, at the dawn of democracy, women constituted less than three per cent of the South African parliament. Today over 40 per cent of parliamentary representatives are women. We tend to observe all of August as Women’s Month, setting time aside each year to mark South African women and their accomplishments.

At SD Law we are proud of the achievements of South African women in so many walks of life, but Women’s Day 2018 also inspires us to reflect on the many inequities that still exist in our country. Why are we not yet where we should be, in terms of equality, fairness and justice? Many women still live in fear of violence from intimate partners, or suffer lower wages than male counterparts (despite legislation to prevent this), or lack agency to conduct their lives meaningfully as they choose. We are left pondering what more we – women and men – need to do to bring about lasting change and to create a society that is fairer for all.

Several things have happened recently that have given us pause for thought.

 

#TheTotalShutdown

On 1 August, marches took place across South Africa calling for an end to gender-based violence (GBV). Petitions were handed over to government officials, demanding stronger government action against GBV, and marches brought major cities like Tshwane to a halt. Men were asked not to attend the march, and to support their women friends, family members and colleagues by staying away from work that day, or at the very least refraining from any economic activity for the half hour between 13.00 and 13:30.

Gender-nonconformists and members of the LGTBQI community took part, but cis men were not invited, because men are the (most common) perpetrators of violence against women. On the one hand, we understand the sense of sisterhood that the march organisers wanted to invoke. On the other hand, a) not all men violate women and b) men need to be part of the fight to end violence against women. Men who abhor violence must be vocal and must take action. They must call their fellow men out not just on violent conduct but on misogynistic mentalities and behaviours that foster a culture that allows GBV to happen. The exclusion of men from an event like #TheTotalShutdown somehow contradicts the ultimate objective of the marches – to create a society where men and women live together in mutual respect and without fear.

 

The Allbright Club

Recently a women’s business networking club in London, called the AllBright Club (after US Senator Madeleine Albright, famously credited with saying, “there’s a special place in hell for women who don’t help other women”), hit the headlines because it appointed a man as Chairperson. The founders, Debbie Wosskow and Anna Jones, have been widely criticised, but have defended the appointment because “…the group is operating amid the uncomfortable realities of scarce finance, where men still control the majority of start-up capital, so men have to be brought on board…”

This is a tricky one. Surely the symbolism of having a male Chair of a women’s networking organisation is counterintuitive, if not counterproductive. On the other hand, Wosskow and Jones live in the real world, and if the club is to succeed, to advance women in business, it needs finance. Is it ironic that their cause will find more favour if a man pleads their case to investors? Yes. Is it wrong? Absolutely. But to challenge that iniquity (and that inequity) they have to work within the system to change it.

We know not everyone will agree with us. But organisations like the AllBright Club want to see a world where men and women have equal access to capital, equal opportunities to succeed in business, and an equal share of resources and assets. They are not trying to create a parallel, women-only universe. So men need to be part of the vision and part of the machinery that achieves that vision. Enlightened men should have no problem with this concept.

 

Mothers vs. lovers

Finally, we were saddened and frustrated by recent news from a friend: her husband left her because she was “spending too much time running after their son”. Their son. Said son is eight years old – a child. And his father is jealous of the time his mother spends with him. It’s hard to know how to respond to such an antediluvian sentiment. A woman, with a busy professional job, contributing equally to the household finances, raising a child in a supposedly modern relationship where parental responsibilities are shared, has been criticised and abandoned because she is too much of a mother and not enough of a lover. No doubt if her time were allocated differently, there would be plenty of criticism of her for not being a good enough mother.

 

The problem is patriarchy

The problem is not one of whether men march in protest at GBV with women or not, or whether it is right or wrong to appoint a man to the Chair of a women’s business club. The issue is one of patriarchy: a social structure that insists a woman be perfect mother, dedicated homemaker, financial partner and available lover all at once; a social structure that dictates that the women’s club will stand a better chance of raising finance with a man at the helm; a social structure that allows women to be so denigrated and violated that they are forced to rise up in protest, and prefer to do so without the presence of the very men who abuse them.

Patriarchy is the construct that must be challenged. And it can only be changed with the input and influence of all members of society, not just half of it. If men are the problem, they must be part of the solution.

Did you enjoy our Women’s Day 2018 post? You may enjoy this too – Women in the workplace

Read More