We are excited to welcome Nonkululeko Sibambato back to LvA! Nkuli worked with LvA in 2017 as a legal intern before completing her articles with MNS attorneys. She is now an admitted legal practitioner and is currently pursuing her Master of Laws (LLM) in Human Rights Law at the University of South Africa.
What do you find compelling about LvA’s work?
The justice system appears to protect the rights of both men and women equally, but in truth it still protects the rights of men disproportionately. It is for this reason that I am eager to work with an organisation that does the work of strengthening the justice system while supporting and protecting women and children.
On 8 October 2021, Acting Judge Tembeka Ngcukaitobi and Judge Nyameko Gqamana handed down judgment in an appeal against a conviction of rape, in the Eastern Cape high court (Coko v S). Lawyers for Human rights, CALS and other civil society organisations describe this judgment as “problematic”…for example, Sheena Swemmer states that “two issues emerge from this problematic judgment. They both centre on South Africa’s prevalence of rape culture and thus rape stereotypes. The first is that a woman must be threatened or forced in order for a rape to be considered as “legitimate”. This is explicitly absent from our laws on sexual offences… the second issue that emerges from this judgment is the idea that if one consents to one type of sexual encounter, then one consents to everything…” What are your thoughts about this ruling?
The judgment was controversial and instigated several debates as to whether foreplay constitutes consent, which we are clear it does not. Whilst the judgment does not explicitly state that kissing and foreplay constitutes consent, it implies that because the complainant consented to the kissing and foreplay, she implicitly consented to penetration, which is problematic and dangerous. This creates the implication that consent to one sexual act means consent to all sexual acts, including penetrative sex. This highlights a statement made by Judith Lewish Herman that “…in practice the standard for what constitutes rape is not set at the level of women’s experience of violation but just above the level of coercion acceptable to men”.
South Africa’s 1996 Constitution declared the new nation to be “a society based on democratic values, social justice and fundamental human rights… with the express mission to ―[i]mprove the quality of life of all citizens and free the potential of each person.” Women have more legislative rights than ever before, but we have seen in our work that the rights women enjoy on paper do not always translate into lived realities. What do you think the law’s role is in changing socio-economic injustice and substantive inequality? Or does it play a role?
The law absolutely plays a role in advancing socio – economic justice and preventing substantive inequality. We have seen the constitutional court make rulings that give effect to socio – economic rights, particularly in the Grootboom and PE Occupiers judgment. We have also seen how the courts have applied the law to protect citizens against substantive inequality. Unfortunately, the courts do not have unrestricted power, their role is limited.
I believe that Afrikan feminism(s) negotiate a space within feminist thought for consideration of race related subjectivities. Its main idea is to show the world that women are of many colours, religions and ethnicities. It challenges the assumption that there is a universal female identity and the centering of upper middle-class white womxn. It is strongly situated in a context of “anti-imperialism in the various forms illustrated and articulated by Third World Feminism(s) drawing on similar influences but centered in local struggle. These struggles include racism, neo-colonialism, cultural imperialism, capitalism, religious fundamentalism as well as dictatorial and or corrupt systems as informed by their regional specificities and local context” (Charter of Feminist Principles for African Feminists 2006:5). How would you describe your feminism?
I would describe my feminism as intersectional. I say this because there are many lens with which I see the word, I am a black, heterosexual, able bodied women and this will impact how I see the world and how I am treated and it requires that I remain mindful that my experience of the world will be completely different to a white woman or a black man. I think intersectional politics and feminism are important because it give people who are on the margins of society who experience often overlapping forms of oppression a voice. Voices of people who exist on the margins of society are often overlooked, which is a huge problem