GROWTH AND DEVELOPMENT OF DEMOCRACY IN SOUTH AFRICA

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CHAPTER 3: LEGAL AND REGULATORY FRAMEWORKS

INTRODUCTION

Women face the challenge of responding to stereotyped expectations of male leadership characteristics. To achieve the required level of country competitiveness, it is necessary to acknowledge the participation of women in organisations. Historically, women have always been subjected to less favourable treatment in the workplace when compared to their male counterparts. This is especially true where issues of pregnancy and maternity leave come into play, whether it is the intention to start a family through adoption or by becoming pregnant.
In this study, it is crucial to discuss the legal and regulatory frameworks in order to understand the representation of women in leadership positions in MPDs. This section provides a description of the growth and development of democracy in South Africa. This is followed by the policy framework and legal protection afforded to women in South Africa. This incorporates an explanation of the Constitution of the Republic of South Africa of 1996 (South Africa, 1996), the LRA of 1995 (South Africa, 1995), the Basic Conditions of Employment Act (BCEA) of 1997 (South Africa, 1997), the Preferential Procurement Policy Framework Act (PPPFA) of 2000 (South Africa, 2000b), the Broad-based Black Economic Empowerment (B-BBEE) Act of 2003 (South Africa, 2003), as well as the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) of 2000 (South Africa, 2000a).
Furthermore, a description of the policy framework and the status of gender equality is presented. In addition, the implementation of policies on gender equality is discussed.
This includes factors, progress, and achievement that influence the implementation of policies on gender equality. This is followed by a discussion on gender equality as a constitutional mandate. Finally, a discussion on the implementation of equity legislation is provided.

GROWTH AND DEVELOPMENT OF DEMOCRACY IN SOUTH AFRICA

The growth and development of democracy in South Africa could, among others, be assessed through the progress made in pursuing gender equality. According to CEE (2011), gender equality is a critical aspect of employment equity. It is, to a large extent, an instrument for advancing and empowering women, following the discrimination against women during the apartheid era. During the past two decades (1994-2017), the proclamation and implementation of policies on gender equality have made noticeable transformations regarding the status and quality of life of some South African women. However, much more needs to be done to promote gender equality, since the living conditions of and employment opportunities available to many women have not yet improved, especially compared to those of men. Progress towards gender equality is slow and this does not augur well for women. Therefore, the pursuit of gender equality will remain an important and unremitting objective until policy objectives pertaining to gender equality are realised (CEE, 2011).
The White Paper on Local Government (South Africa, 1998c) states that democratisation is a multidimensional process that occurs within a particular context in any country. The context is normally determined by, among others, the policy framework of the country concerned. This also applies to South Africa’s democratisation process – the context of which is derived from the Constitution. The progress of the South African democratisation process can be assessed through the growth, development, and consolidation of the critical aspects of South Africa’s democracy, which are espoused in the country’s 1996 Constitution. These aspects include the founding provisions of the Constitution and the Bill of Rights, which include holistic equality.
During the 20 years of democracy, the South African government has discussed the milestones that have been undertaken to address the issue of equality in general, and gender equality in particular, which can be used to assess the extent to which the South African democratisation process has progressed in this regard. Prior to the introduction of democracy in 1994, the principle of equality did not receive the attention it deserved. This apathy also applied to gender equality. However, over the past two decades (1994-2017), various pieces of legislation relating to gender equality have been promulgated. This has been accompanied by the establishment of various custodians of gender equality; examples include the Commission for Gender Equality (CGE) and the Ministry for Women, Children and People Living with Disabilities. The current scenario in the country indicates that some positive achievements on gender equality are receiving attention.
However, despite such achievements, it appears that much more needs to be done in pursuit of this goal. The next section presents the policy framework and legal protection afforded to women in South Africa.

POLICY FRAMEWORK AND LEGAL PROTECTION AFFORDED TO WOMEN IN SOUTH AFRICA

The establishment of various public institutions, parastatals, and government entities is provided for by legislation (South Africa, 1996; 2014). Examples of institutions that were established for the purpose of promoting gender equality include the CGE, Ministry of Women, Children and People Living with Disabilities, as well as the National Gender Machinery. Some pieces of legislation relating to the functions of these institutions are discussed below.
Women are increasingly participating in the employment sector in South Africa (Casale, 2004). In this regard, Zhao et al. (2006:464) ask, “What role then can the law play in protecting women’s detrimental treatment on grounds of pregnancy and maternity; and dismantling the systematic barriers to advancement facing women with child-care responsibilities?”
This section provides an overview of the progress that South Africa has made concerning women’s rights and how they were discriminated against for being pregnant at work. The section presents the Constitution of the Republic of South Africa (South Africa, 1996), the LRA (South Africa, 1995), the BCEA (South Africa, 1997), the PEPUDA (South Africa, 2000a), the PPPFA (South Africa, 2000b), and the B-BBEE Act (South Africa, 2004). The next sub-section presents a discussion on the Constitution (South Africa, 1996).

The Constitution of the Republic of South Africa (No. 108 of 1996)

South African law provides an abundance of legislation that aim to protect women. Many pro-gender equality policies were enacted after the equality clause of the Constitution was introduced. Policies that protect the rights of vulnerable groups like pregnant women were enacted only after the Constitution was introduced.
Two fundamental rights in the Bill of Rights, Chapter 2 in the Constitution, are the right to equality and the right to human dignity (South Africa, 1996). Section 9 of the Constitution provides for the right to equality and section 10 provides for the protection of human dignity. Some sections of the Constitution protect vulnerable groups such as pregnant women. Section 9(3) of the Constitution provides that the state may not unfairly discriminate directly or indirectly against anyone on grounds of gender or pregnancy  (South Africa, 1996). In addition, section 9(4) of the Constitution prohibits direct and indirect unfair discrimination against any person(s). This means that discrimination should not be tolerated under any circumstances. Thus, women have a constitutional right not to be discriminated against on the grounds of their status regarding pregnancy or any gender-related issue. The Constitution (South Africa, 1996) therefore also protects women from unfair dismissal and discrimination in MPDs.
The following section presents the LRA (South Africa, 1995).

Labour Relations Act (LRA) (No. 66 of 1995)

Before the advent of the LRA, vulnerable groups like pregnant employees were afforded very little, if any, protection against unfair treatment in the workplace (Kay, 1993; Grogan, 2014:218). Some repealed laws prescribed that women who were absent from work to give birth were in danger of being dismissed, especially where the employer had not permitted their absence. With the enactment of the LRA, the Industrial Court restrained such unfair dismissals (Barnard, 2008, 2009; Grogan, 2014:218). The enactment of the Constitution made provisions for humane working conditions for vulnerable groups like women.
The LRA (South Africa, 1995) provides that no employee may be unfairly dismissed or subjected to unfair labour practices. Section 186(1) defines the term ‘dismissal’ in great detail. Section 186(1)(c)(i) of the recently amended LRA (South Africa, 2004) refers to dismissals where the employer does not allow the employee to return to work after she had been on maternity leave. Section 186(1)(c)(ii) provides that unfair dismissal occurs when an employer does not allow a female employee to return to her post if she was absent from work prior to giving birth and/or after giving birth. Section 186(1)(c) of the LRA provides that an employer cannot, under any circumstances, assert that an employee’s extended absence, which is associated with the birth of her new-born baby and use this to automatically dissolve the employment contract (Grogan, 2014:173).
It is important to note that the LRA derives its mandate from section 23 of the Constitution. Section 23 of the Constitution states that, “[e]veryone has the right to fair labour practices”. The word ‘everyone’, as contained in the Constitution, also includes non-permanent employees. Section 186(2) defines the term ‘unfair labour practice’. The unfair labour practice provision in section 186(2) of the LRA protects ‘employees’ only. What is ‘fair’ will be decided on a case-by-case basis and all circumstances must be taken into account before a decision is made. Thus, an unfair labour practice toward a pregnant person could not only result in an unfair labour practice in terms of the LRA, but may also amount to unfair discrimination in terms of the EEA (South Africa, 1998a).
Section 187 of the LRA explicitly lists the various types of dismissals that are considered automatically unfair. An automatically unfair dismissal means that the employee who claims that the dismissal is unfair does not have to prove the unfairness of the dismissal (Gobind & Ukpere, 2012). The dismissal is deemed to be unfair from the outset. Section 187(1)(e) of the LRA distinctly provides that it is automatically unfair for the employer to dismiss a female employee on grounds of “pregnancy, intended pregnancy, or any reason related to her pregnancy”.
In the judgment of Mashaba v Cuzen and Woods Attorneys (Mashaba v Cuzen and Woods Attorneys, Landman J (21) ILJ Labour Court (J236/97)), Landman J. declared that:
“The purpose of protecting female employees from dismissal for reasons of pregnancy, intended pregnancy or reasons related to pregnancy, is to ensure as far as possible that female employees are not disadvantaged, as they traditionally have been, by virtue of them being women and the
child-bearing member of the human race”.
In this case, it may be argued that women in policing organisations and those in leadership positions are also protected by the LRA (South Africa, 1995), which protects them against unfair dismissals as well as unfair labour practices. The historical discrimination of women on the grounds of pregnancy is restrained by developments in legal frameworks, like the BCEA (South Africa, 1997). The next section discusses this act.

Basic Conditions of Employment Act (BCEA) (No. 75 of 1997)

The Basic Conditions of Employment Act, No. 3 of 1983, protected pregnant employees. Pregnant employees were exempted from the employment environment from four weeks prior to giving birth and eight weeks after giving birth (Barnard, 2008; 2009). Maternity leave conditions have dramatically changed under the current BCEA (South Africa, 1997). The BCEA provides for the regulation of basic conditions of employment (South Africa, 1997). The BCEA (South Africa, 1997) reports that the basic employment conditions provided by the Basic Conditions of Employment Act of 1983. The BCEA of 1997 accommodates parental, family, and employment responsibilities that were historically gender specific. For example, section 25 provides for maternity leave.
Section 25(1) of the BCEA of 1997 provides that pregnant employees are entitled to four consecutive months of maternity leave (South Africa, 1997). Section 25(2)(a) of the BCEA provides that maternity leave must commence from four weeks before the expected birth of the baby. In terms of section 25(7) of the BCEA and the Unemployment Insurance Act (UIA) (No. 63 of 2001), women are entitled to claim maternity benefits from the Unemployment Insurance Fund (UIF) during maternity leave. Section 26 of the BCEA provides for the protection of employees before and after birth, and section provides for family responsibility leave (South Africa, 1997). Sections 26 and 27 fall under the same category as section 25, as they provide for basic conditions of leave from work. The BCEA also regulates remuneration and ensures that no one, including vulnerable groups like women, is deprived of financial security.
Section 31 provides for payment of remuneration. Section 31(1)(a) of the BCEA provides that an employer must pay an employee remuneration that is paid in money and the money must be in South African currency. Furthermore, section 31(3)(b) provides that an employer must pay remuneration not later than seven days after the termination of the contract of employment. Women were historically discriminated on grounds of pregnancy (Du Toit, 2014; Grogan, 2014), and in the past, pregnant women in the police force were dismissed without pay (South African Democratic Trust, 2004), therefore this provision protects women from past injustices.
In this regard, the BCEA protects women in policing, whether they are in subordinate or in leadership positions. The following section presents the EEA (South Africa, 1998a).

Employment Equity Act (EEA) (No. 55 of 1998)

The EEA (South Africa, 1998a) defines discrimination and specifies when discrimination is permissible. In the past, women aspiring to work in the police force were assessed to establish if they were compatible with men and this was one of many forms of gender-based structural discrimination (Prenzler & Sinclair, 2013:130). Currently, psychological tests and other similar assessments are regulated under section 8 of the EEA. The EEA prohibits certain forms of discrimination.
Unfair discrimination is prohibited but affirmative action as a method for addressing inherent injustices resulting from unfair discrimination is legitimised by section 2(b) of the EEA. The act takes into account the consequences of apartheid discriminatory laws and practices, such as the disparities in employment, occupation, and income in the 53 national labour market. The EEA also takes into account that disparities exist between various social groups, and provides that redress requires more than just the repealing of discriminatory laws (South Africa, 1998a).
The EEA provides for equal representation and employment opportunities in all occupational categories (Melanie, 1999:6-17; Bentley & Habib, 2008; Naidoo, 2008; CEE, 2009, 2010), which were previously prohibited by the segregation laws of the apartheid regime in South Africa. Section 20 of the EEA provides for equity plans (South Africa, 1998a). In order to understand the role of affirmative action and the implications of race and gender discrimination in the South African context, there is the need to discuss South African history (Mathur-Helm 2005). During apartheid, black people, Indians, coloured people, Asians, women, and minorities such as people with disabilities were discriminated against and were denied access to education, career development, and job opportunities. These privileges were, however, readily available to white people, especially white men (Msimang, 2000:36; Mathur-Helm 2005). Women experienced alienation from formal-sector employment, except for a few white women who were employed in administrative occupations (Msimang, 2000:36). On the other hand, black women were relegated to domestic and menial employment areas such as cleaners and tea ladies who worked in poor conditions and had little or no education, compared to their white counterparts. This situation is a reflection of what De Beauvoir (1949 [2009]:85) refers to in a classic Marxian expression as primitive division of labour, where two sexes constituted, in a way, two classes and there was equality between these two classes, and in consequence, women played a large part in economic life. The laws in South Africa did not provide protection for women because South Africa was then a predominantly patriarchal society and women were considered inferior to men in status, and were subjected to family care roles (Msimang, 2000:37; Mathur-Helm, 2005:56-71).
This power disparity between men and women indicates that resources, including information and income, were not equitably distributed (Mathur-Helm, 2005:56-71).
At the end of apartheid in 1994, the new democratic and non-racial government sought to redress past injustices and to eliminate all forms of unfair discrimination among previously disadvantaged people, both in terms of education and in the workplace (Msimang, 2000:37; Esterhuizen & Martins, 2008). As a result, labour policies were introduced as corrective measures in employment; giving preferential treatment to designated people in order to protect and improve their status in the workplace (Msimang, 2000:39; Esterhuizen & Martins, 2008:66-85; Molebatsi, 2009).
The introduction of the EEA (South Africa, 1998a) and other labour legislation such as the LRA (South Africa, 1995) and the BCEA (South Africa, 1997) have been crucial in the process of protecting all workers. The application of these labour legislation and policies sets minimum working conditions and promotes the employment of designated people. Section 2 of the EEA (South Africa, 1998a) provides as part of its aim the promotion of affirmative action policies and ensures equal representation of all groups of people at all levels within the workplace. These corrective labour policies have been criticised for using tokenism, which is perceived as creating reverse discrimination in terms of race and gender (Wynn, 1999; Wyllie, 2000). Organisations need to remain committed to transformation, particularly gender transformation. At the same time, organised labour unions should implement labour policies fairly, eliminate unfair discrimination in the workplace, and focus on ensuring justice and fairness in the workplace (Esterhuizen & Martins, 2008:66-85). These are the underlying principles for gender transformation in the workplace in South Africa. These objectives are in line with the vision of South Africa’s liberation icon, Nelson Mandela, regarding equity for the South African society, pronounced during his famous trial in 1964: “I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities” (Mandela, 1964).
Another aim of the EEA (South Africa, 1998a) is to ensure that black people, women, and people with disabilities receive equitable representation in all occupational categories and levels in the workplace. Certain mandatory requirements exist that are expected to be met by employers. For example, an employer with 50 or fewer employees, referred to as a small business, is required by the EEA to implement affirmative measures (Bentley & Habib, 2008).
Also, in consultation with unions and employees, the EEA requires employers to do the following:
• Conduct an analysis of employment policies, practices, procedures, and the work environment, and identify employment barriers faced by designated people.
• Develop a profile of its workforce in order to determine the degree of underrepresentation of designated people in all occupational categories and levels of their workplace, report on remuneration and benefits in each category and level, and take measures to progressively reduce any disproportionate differentials.
• Prepare and implement an employment equity plan that includes objectives, numerical goals, timetables, strategies, monitoring and evaluation procedures, internal dispute resolution mechanisms, and the allocation of responsibility for the implementation of the plan, and report the implementation plan (Bentley & Habib, 2008).
The 2006-2007 Employment Equity Report gives some indication of the level and pace of accelerated transformation in the South African workforce in terms of race and gender. There is an increasing number of black people and women employed in higher positions (Modisha, 2008). Between 2000 and 2006, black people’s occupation of top management positions increased by 9.5% (from 5.1% to 6.2%). A 2009 review on the effectiveness of the EEA shows that black people have recently realised a slight but positive change of transformation in South Africa (CEE, 2009; 2010). For example, African representation in top management increased from 10% in 2002 to 12% in 2012. The CGE has also indicated a slight increase, but lamented the fact that women’s representation in top management moved only marginally from 13.7% in 2002 to 24.8% in 2014, and at management levels, from 26.6% in 2012 to 32.7% in general terms (CGE, 2015:29).
The EEA protects women in policing and in leadership positions against discrimination that involves race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, and birth. This act also redresses the policy of the post-apartheid era in South Africa by ensuring equal representation in all occupational categories and levels in the workplace among black people, women, and people with disabilities. The 2006-2007 Employment Equity Report indicates an increase in the number of black women employed in leadership positions in the police. The next section discusses the PEPUDA (South Africa, 2000a).

TABLE OF CONTENTS
SUMMARY
DECLARATION
EDITORS’ DECLARATION
ACKNOWLEDGEMENTS
DEDICATION
CHAPTER 1: INTRODUCTION AND BACKGROUND TO THE STUDY
1.1 INTRODUCTION
1.2 RESEARCH RATIONALE
1.3 PROBLEM STATEMENT
1.4 RESEARCH QUESTIONS
1.5 AIM AND OBJECTIVES OF THE STUDY
1.6 SIGNIFICANCE OF THE STUDY
1.7 DEFINITION OF KEY CONCEPTS
1.8 SUMMARY
CHAPTER 2: AN OVERVIEW OF THE LITERATURE ON WOMEN IN LEADERSHIP POSITIONS IN POLICING ENVIRONMENTS
2.1 INTRODUCTION
2.2 THEORETICAL FRAMEWORK
2.3 HISTORICAL DEVELOPMENT OF FEMALE LEADERSHIP IN POLICING: INTERNATIONAL PERSPECTIVE
2.4 HISTORICAL DEVELOPMENT OF FEMALE POLICING IN SOUTH AFRICA
2.5 GENDER PERSPECTIVES AND FEMALE LEADERSHIP IN SOUTH AFRICA
2.6 CHANGING TIMES FOR WOMEN IN THE WORKPLACE
2.7 SUMMARY
CHAPTER 3  LEGAL AND REGULATORY FRAMEWORKS
3.1 INTRODUCTION
3.2 GROWTH AND DEVELOPMENT OF DEMOCRACY IN SOUTH AFRICA
3.3 POLICY FRAMEWORK AND LEGAL PROTECTION AFFORDED TO WOMEN IN SOUTH AFRICA
3.4 POLICY FRAMEWORK AND THE STATUS OF GENDER EQUALITY
3.5 IMPLEMENTATION OF POLICIES ON GENDER EQUALITY
3.6 IMPLEMENTATION OF GENDER EQUITY LEGISLATION
3.7 SUMMARY
CHAPTER 4 RESEARCH METHODOLOGY
4.1 INTRODUCTION
4.2 RESEARCH APPROACH
4.3 RESEARCH METHODOLOGY AND RESEARCH DESIGN
4.5 DATA ANALYSIS
4.6 TRUSTWORTHINESS OF THE STUDY
4.7 ETHICAL CONSIDERATIONS
4.8 SUMMARY
CHAPTER 5 PRESENTATION OF THE RESEARCH FINDINGS
5.1 INTRODUCTION
5.2 BIOGRAPHICAL DATA
5.3 EMERGING THEMES
5.4 SUMMARY
CHAPTER 6 INTERPRETATION OF THE FINDINGS
6.1 INTRODUCTION
6.2 POTENTIAL BARRIERS TO ADVANCEMENT TO LEADERSHIP POSITIONS
6.3 ORGANISATIONAL RESPONSES TO SEXUAL HARASSMENT AND BULLYING
6.4 POSSIBLE REMEDIAL STEPS FOR THE ADVANCEMENT OF WOMEN TO LEADERSHIP POSITIONS
6.5 LACK OF EFFECTIVE IMPLEMENTATION OF POLICIES AND PROCEDURES
6.6 RECOMMENDATIONS TO ADVANCE WOMEN TO LEADERSHIP POSITIONS
6.7 SUMMARY
CHAPTER 7 SUMMARY, RECOMMENDATIONS AND CONCLUSION
7.1 INTRODUCTION
7.2 SUMMARY
7.3 RECOMMENDATIONS
7.4 RECOMMENDATIONS FOR FUTURE RESEARCH
7.5 CONCLUSION
REFERENCES
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