In 1997, the Constitutional Court handed down a judgment in the case of President of the Republic of South Africa v Hugo 1997 (6) BCLR 708. In this case, the appellant (Hugo) challenged a special remission of sentences granted by the president of the Republic of South Africa to certain categories of prisoners, including all mothers in prison on 10 May 1994 with minor children under the age of twelve (12) years. The appellant argued that the president's decision unfairly discriminated not only against him on the ground of sex or gender, but also indirectly against his son because his incarcerated parent was not a female. In the course of his majority judgment, Goldstone J made the following remarks: "[33] The advantage that was afforded mothers was not afforded to fathers of small children and that failure is sufficient to establish discrimination within the context of section 8(2) of the interim Constitution. The Presidential Act, in fact, discriminates on a combined basis, sex coupled with parenthood of children below the age of twelve. Only women who are parents of such children were released: women without children were not." AND "[37] The reason given by the President for the special remission of sentence of mothers with small children is that it will serve the interests of children. To support this, he relies upon the evidence of Ms Starke that mothers are, generally speaking, primarily responsible for the care of small children in our society. Although no statistical or survey evidence was produced to establish this fact, I see no reason to doubt the assertion that mothers, as a matter of fact, bear more responsibilities for child-rearing in our society than do fathers." 

 

2.1 Based on the feminist legal theory (critical gender theory), is it wrong to treat men and women differently on the basis of gender? Discuss. (10) 

 

2.2 As shown above, the president's decision was also found to discriminate against female prisoners who are not mothers. This is similar to rewarding women for motherhood and punishing those who choose not to be mothers. Briefly explain how this constitutes discrimination against women on the basis of parenthood in the context of Mary Joe Frug's argument that the law "encodes" the female body with meaning.  (5) 

 

2.3 The president relied upon evidence demonstrating that mothers are the primary caregivers of small children. Discuss how cultural and societal factors influence gender roles. 

Answer rating: 100% (QA)

21 Feminist Legal Theory and Differential Treatment From a feminist legal theory perspective treating men and women differently solely based on their ... View the full answer