Our Constitution is amongst the most progressive in the world in its protection of the rights of the individual. One such Constitutionally entrenched right is that of equality, a component of which is the right not to be unfairly discriminated against on the basis of gender.
The importance of this right in our law is evident when one considers that:
the achievement of equality and non-sexism are listed amongst the founding values of the Constitution;
the Bill of Rights of the Constitution states that ‘[e]veryone is equal before the law and has the right to equal protection and benefit of the law” and ‘—no person may unfairly discriminate directly or indirectly against anyone on one or more grounds, including —.. gender”;
specific legislation, such as the Promotion of Equality and Unfair Discrimination Act, has been enacted to give effect to the right to equality; and
all new and amended legislation, as well as decisions of our courts take this right into account. This is because the Constitution obliges them to promote the values that underlie an open and democratic society based on human dignity, equality and freedom when interpreting such provisions.
This protection of our right to equality does not, however, mean that we are all entitled to be treated equally all the time in all situations. There are many instances in which a limitation of the right to equality is justifiable in our law. For example, age limits on films are likely to be considered a justifiable limitation of a child’s right to watch the film in question and on the filmmakers right to freedom of expression.
It seems to be a worldwide phenomenon that men continue to occupy an overwhelmingly larger percentage of positions of power in media. The higher the position of power on the corporate ladder, the less likely it is that it will be occupied by a woman. For example, in Canada 75 percent of positions of power in the mass media are occupied by men (according to the Media Awareness Network). A recent UNESCO report (released in March 2003) states that ‘women are very underrepresented in Southern Africa’s Media.” According to the report, not only do women receive less coverage in Southern African media than their male counterparts, but Southern African women do not occupy the same positions of power in media as those occupied by men.
In South Africa, it cannot be said that there is any intention on the part of our government or those currently occupying positions of power in media to prevent women from entering or remaining in the media. Accordingly, a general Constitutional challenge to this power imbalance is unlikely to succeed.
On an individual level, however, there are many remedies available to women who feel that they have been unfairly discriminated against in the media world. There are also onerous obligations on employers to ensure that they do not discriminate against employees and future employees on the basis of gender. As a result, it seems likely that this power imbalance will change.
Ultimately, even though we have very progressive laws in place, it will take time for the intention of these laws to be reflected in reality.
Toni Erling is an attorney with Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg.