CGE ANNUAL REPORT

2022/23 ANNUAL REPORT

1.1.3 Systemic gender violations in Shelters The Legal Department compiled its final progress report on the state of shelter investigation and submitted on 31 March 2023. The report highlighted that most entities complied with the recommendations made by the Commission. However, the lack of adequate resources has contributed to some of the recommendations not being effected. The Legal Department is nonetheless satisfied with the National Department of Social Development’s commitment to not only comply with the recommendations of the investigation but further, to put progressive measures in place that will enhance the functioning of shelters in South Africa. 1.1.4. Maternal Health During the reporting period the Legal Department attempted to engage the Department of Health, without success, regarding the implementation of the recommendations from the previous report of the Commission. The Legal Department will endeavor to hold an investigative hearing during quarter 1 of the 2023/2024 financial year, and call the Department of Health to account to the Commission on the failure to implement its recommendations. 1.1.5. Litigation 1. C GE intervening as co-applicant in van Wyk / Minister of Employment and Labour (Case number 2022-017842) This matter concerns the constitutionality of section 25 and 26 of the Basic Conditions of Employment Act to the extent that the said provisions fail to provide paternity leave of four months to fathers or mothers in same sex marriages. The Commission was admitted as a co-applicant. The matter has been set down for hearing on 23-25 August 2023.

2. CGE as amicus curiae in State / Coko & Another appeal (High Court case number CA&R 219/2020)

The matter dealt with the question of implied consent on rape matters. The High Court held that the victim consented to penetration when she allowed the perpetrator to perform oral sex on her. This decision sets a dangerous precedent and the CGE as amicus curiae aims to demonstrate to the court the need to not have implied consent in rape matters.

3. CGE as amicus curiae in Greyling / Minister of Home Affairs (Constitutional court CCT Case No: 158/2022

The matter concerns the constitutionality of section 7(3) of the Divorce Act. The CGE as a litigant supports the unconstitutionality of section 7(3) of the Divorce Act and It advances four arguments to support confirmation. First, international law obliges South Africa to allow for the departure from unjust antenuptial contracts in all marriages. Second, comparative law shows how – in countries with comparable legal and constitutional systems – it is possible to construct systems that respect antenuptial contracts but allow departures to avoid injustice in all marriages. Third, judicial interference in antenuptial contracts is consistent with the ordinary justifications for courts refusing to enforce contracts if doing so would be contrary to public policy. Section 7(3) merely provides a mechanism, a standard, and a remedy. Fourth,

19