Reflecting on Former Chief Justice Ngcobo’s Approach to Gender Equality: Revisiting the Jordan and Volks Judgments

Abstract

More than a decade ago, Ngcobo CJ upset gender scholars and activists in two judgments for failing consider the interface between social context and legal rules in relation to women as sex workers, in one instance, and those who are in unmarried permanent life partnerships, in another. These two judgments were the topics of much scholarly work. Further, there have been recent legal developments in relation to these two issues. This article examines these criticisms with a view to reflecting on Ngcobo CJ’s jurisprudence on gender equality in relation to Jordan and Volks. The aim is not to determine the validity or invalidity of these claims, but to highlight the issues raised in order to discuss Ngcobo CJ’s legacy in relation to these two judgments. The latest developments since the two cases will also be examined. The article emphasises the significant role of the Legislature and argues that the Legislature has a constitutional duty to protect the rights enshrined in the Bill of Rights: the time has arrived for it legislate on these issues.