By Rashmika Singh – Varsity College

Introduction

A century ago, women were not considered “persons” for the purpose of admission into the legal profession. While the judges’ personal patriarchal biases are somewhat to blame, this decision may have partly been made due to masculine legislative drafting. Accordingly, this essay will discuss the issues with masculine drafting and explore some possible feminist alternatives.

1. The problem with masculine drafting

In Incorporated Law Society v Wookey, the court used positivistic reasoning. The judges argued that it was customary for women to be disallowed from legal practice, and that it was not the court’s duty to question international precedents or local legislation. While a post-Constitutional court might follow more critical and naturalistic lines of thought, the legacy of masculine drafting (and patriarchal biases) remains.

The South African Interpretation Act is almost a replica of the 1899 Interpretation Act of Britain. Both Acts view the pronoun “he” to be inclusive of women. Despite this, even post-Constitutional courts have interpreted the word “he” in line with its ordinary meaning. In Rahube v Rahube and Others, the court interpreted the phrase “heads of household” to apply exclusively to men. Many laypeople and academics alike would point out that women have been heads of households for centuries, due to racial segregation in South Africa, and the nature of migrant labour.

Why, then, did the court deny such a well-established sociological phenomenon? Arguably, masculine drafting may be to blame.

1.1 Selective masculinity, and selective neutrality

In the UK, the Representation of People Act allowed “every man” to vote. Predictably, the ordinary meaning rather than the legal meaning was used—and women were therefore not allowed the vote. When feminists argued for the Representation of People Act to be read with the Interpretation Act, the judges engaged in circular, positivistic rhetoric. The court argued that according to the common law, women were not permitted to vote or hold office.

If the pronoun “he” is supposed to include women, why do judges overrule the Interpretation Act at every opportunity? Based on the above, there seem to be two issues.

• Judges rule in favour of the ordinary meanings of
• Masculine legislative drafting is insufficient to disrupt the patriarchal biases of judicial officers and society at large.

1.2 Is neutrality enough?

The South African legislature has recognized the need to depart from masculine drafting. Accordingly, gender-neutral legislative drafting was introduced in response to the high rates of gender-based violence (GBV) in South Africa. When the Constitution was drafted, the legislators made it gender-neutral rather than masculine, in the spirit of inclusion. While this is admirable, it still promotes the gender binary and erases other forms of gender expression that have existed since pre-colonial times.

There are many examples of legislation that do not necessarily use masculine drafting, but that are still problematic from a feminist standpoint. The Recognition of Customary Marriages Act is heteronormative and cis-normative, meaning that it may directly and indirectly harm LBGTQIA+ individuals who wish to follow customary law.

2. Feminist alternatives to masculine drafting

Toro emphasizes that gender neutral drafting is insufficient from a feminist standpoint because said drafting is not sufficient to address the deep-rooted gender inequality that exists in international legal systems (and society at large.) While gender neutral drafting was introduced to combat GBV, said drafting does not address the root of GBV—gender discrimination.

Legislation, therefore, needs to create gender awareness and sensitivity rather than gender blindness.

While gender neutral drafting is insufficient, it is crucial to begin the transition away from masculine drafting. Most people who use legislation are not legally trained, and they will therefore be unaware of legal idiosyncrasies (like masculine drafting). Accordingly, they will approach legislation with their personal (and probably patriarchal) biases. Legislation must therefore be as precise as possible while also using plain language.

South Africa’s Constitution (and its implementation) has often been described as more progressive than the people it rules over. In S v Makwanyane and Another, the court ruled that in our Constitutional democracy, law must be more than a mere reflection of majoritarian prejudices. Instead, law is a powerful tool that can be used to improve society through its implementation.

Words (whether written or spoken) form the backbone of the legal profession. Diction must therefore be a central consideration in legal drafting. Grabham describes the phrase “he or she” as benevolently patriarchal because women are only included as an afterthought. Grabham (and many other feminists) emphasize the almost “magical” power of words. They argue that most legal language is “contaminated” by patriarchy, and that it is therefore crucial to question and reconstruct the way we use language.

Revell and Vapnek argue that although feminist legal drafting requires interrogation of the status quo, all discrimination takes effort to undo.

3. Conclusion

Although women have worked in the legal field for over a century, legal language still systemically excludes, devalues, trivializes, and ignores female perspectives.

After the advent of the Constitution, gender neutral legislative drafting was introduced. Although this was an admirable response to gender-based violence at the time, gender-neutral drafting is insufficient to address the root of gender-based discrimination.

In contrast with gender neutral drafting, feminist legal drafting encourages awareness and sensitivity to gender issues. Feminist legal drafting is likely to be difficult, but it will create changes for both the legal field and society at large.

BIBLIOGRAPHY LEGISLATION

Constitution of the Republic of South Africa Act 108 of 1996 Cybercrimes Act 19 of 2020
Interpretation Act 33 of 1957
Recognition of Customary Marriages Act 120 of 1998

CASE LAW

Incorporated Law Society v Wookey 1912 AD 63
Rahube v Rahube and Others 2019 (2) SA 54 (CC)
S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391;
[1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995)

LAW JOURNALS

Grabham, E “Exploring the Textual Alchemy of Legal Gender: Experimental Statutes and the Message in the Medium” (2020) feminists@law 10(2) 1-47
Klare, K “Legal culture and transformative constitutionalism” (1998) SAHRJ 14(1) 148-188
Mulaudzi, M “Afro-feminism and the Coloniality of Gender in Constitutional and Legislative Drafting: South Africa as a Case Study” (2023) UNISA Press 38(1) 1-21
Preston-Whyte, E “Women Headed Households and Development: The Relevance of Cross- Cultural Models for Research on Black Women in Southern Africa” (1988) 18 Africanus 58-76
Revell, DL; Vapnek, J “Gender-silent legislative drafting in a non-binary world” (2020) 48 Capital University Law Review 103-147
Toro, C “Gender neutral drafting: Gender equality or an unnecessary burden?” (2018) IALS Student Law Review 5(1) 34-40

BOOKS

Fluckinger, A, (Ed.) La rédaction administrative et législative inclusive, la francophonie entre impulsions et résistances. (2019) Stämpfli Verlag: Bern. [CHAPTER: Xanthaki, H “Gender- inclusive legislative drafting in English: A matter of clarity” 57-72]

WEB RESOURCES

Ngcukaitobi, T “Let the world know that women were once not persons in the eyes of the law” August 2018 website at: https://mg.co.za/article/2018-08-09-let-the-world-know-that-women-were-once-not-persons-in-the-eyes-of-the-law/ [accessed 22/03/2024]