Introduction
In January 2016, the Maidens Bursary scheme was introduced by the mayor of the UThukela District, a condition of which is that the girls had to remain virgins and focus on their education. This bursary scheme had as one of its requirements the testing of the virginity of the girls. The first brief on this topic written in April 2016 it highlighted the unconstitutionality of such a bursary scheme [1]. The matter has been considered by the Commission for Gender Equality which ruled that the Maidens Bursary was unfair and unconstitutional.The Commission is established under Section 187 of the Constitution and the Commission on Gender Equality Àct (39 of 1996. Section 11(1)(e) of the Act provides that the Commission:
shall investigates any gender-related issues of its own accord or on receipt of a complaint, and shall endeavour to
i. resolve any dispute; or
ii. rectify any act or omission,
by mediation, conciliation or negotiation: Provided that the Commission may at any stage refer any matter to -
a. the Human Rights Commission to deal with it in accordance with the provisions of the Constitution and the law;
b. the Public Protector to deal with it in accordance with the provisions of the Constitution and the law; or
c. any other authority, whichever is appropriate.
The Ruling
The Commission on Friday 17 June stated that the “programme discriminated against women because male students were not subjected to the same tests” [2]. The Commission went on to state further that “any funding by an organ of State based on a women’s sexuality perpetuates patriarchy and inequality in South Africa” [3]. The Commission’s Thoko Mpumlwana stated that the conditions for the bursary was discriminatory and excluded many candidates who deserved a bursary [4].
This ruling has been welcomed from various human rights organisations as well as political parties. Lawyers for Human Rights stated that cultural practice is not the issue. But the allocation of state funds on the basis of the girl’s sexuality violates equality, dignity and privacy [5]. The EFF labelled the Bursary Scheme as “patriarchal” and “anti-women” [6].
The Ruling explained
The ruling is welcomed by many but what does it actually mean for the people and for the UThukela Municipality? The Commission in its ruling gave the UThukela Municipality two months to change its policy for the bursary scheme. Those who have been awarded the Maidens bursary should be allowed to retain the bursary without the virginity testing as a condition [7].The UThukela District can take the ruling on review if they are unhappy with the decision.
Conclusion
The ruling is a step in the right direction as it is not fair to discriminate against women based on their sexual practice in order to obtain an education. We urge that the UThukela Municipality abides by it. In the event that they do not, court action appears inevitable.
Arvitha Doodnath
Legal Researcher
arvitha@hsf.org.za
Sarika Doodnath
Intern
Intern1@hsf.org.za
Sources:
1. http://hsf.org.za/resource-centre/hsf-briefs/keeping-of-virginity-in-exchange-for-higher-education-a-moral-and-legal-evaluation
2. http://www.timeslive.co.za/local/2016/06/17/Commission-for-Gender-Equality-rules-against-Virgin-bursaries-scheme
3. Ibid.
4. http://ewn.co.za/2016/06/17/Commission-for-Gender-Equality-finds-Maidens-Bursary-unconstitutional
5. http://www.timeslive.co.za/local/2016/06/17/Commission-for-Gender-Equality-rules-against-Virgin-bursaries-scheme
6. ibid
7. https://www.enca.com/south-africa/maiden-bursaries-unconstitutional
