Relational Feminism: Home in the Era of a Pandemic

Abstract

Home forms a central part of every individual’s life. Home is meant to be a space of safety, security, peace, and serenity. However, for such a central point in everyday life, the law does not reflect an adequate understanding and interpretation thereof. Home as a space during the COVID-19 pandemic has changed drastically, especially insofar as it relates to domestic violence. It is, therefore, fitting to discover what exactly home means and what home ought to mean in order to protect all legal rights that flow from it adequately.

1. Introduction

Home is where the heart is. It is, or at least it is meant to be, a space of safety, security, privacy, equality and human dignity. All these aforementioned rights are protected by the Constitution of the Republic of South Africa, 1996 (“the Constitution”) and are contained in the Bill of Rights [1].

However, the COVID-19 pandemic and the national lockdown caused people to be confined to four walls, exposing existing inequalities and the scary reality that many women, in particular, face, especially with regard to gender-based violence. It can be said, during this period, that there were, in fact, two pandemics – COVID-19 and domestic violence.

Since the COVID-19 outbreak, ‘home’ has taken on a new meaning. This chapter aims to determine what home means versus what home ought to mean if the rights therein are unlimited or unfettered by diminishing practical realisation. The chapter intends to interpret the ideal form of home from a relational feminist perspective and will look at how home as a safe space has been tarnished due to domestic violence, which has increased exponentially during the COVID-19 pandemic. The research is predominantly theoretical in nature in the sense that we aim to analyse and synthesis feminist theories in an attempt to achieve a holistic understanding of home in law. The research is a combination of interpretive and critical analysis of the law insofar as it pertains to ‘home-ing’ rights, autonomy and domestic violence.

2. The meaning of home in law (from a South African perspective)

Home has been defined in various disciplines. However, it greatly lacks adequate interpretation in law. One should have a legal understanding of home because as it stands, there are laws generally applicable to the home as underlined in the Bill of Rights. This includes rights such as equality, human dignity, freedom and security of the person, privacy, housing, and to a large extent, the right to life. The reason is that home is meant to be a space of equality, human dignity, freedom, safety, and security and is the penultimate place for exercising one’s right to life [2]. Home encapsulates the most intimate parts of one’s life, it is a space of existence and freedom. However, home carries with it very subjective feelings and interpretations.

2.1 Home and house

In order to fully discern what home could mean, one first needs to consider what elements make up the home and this can be achieved by looking at the right to housing, the structural form of the home. However, as a point of departure, it is essential to note that home is not merely a physical location but also an inalienable emotional construct [2].

Although South African case law and legislation refer to ‘home’, no formal definition is in place. For instance, Section 14(1) of the Constitution deals with the right to privacy and reads as follows: “Everyone has the right to privacy, which includes the right not to have – their person or home searched” [1]. Section 26(3) of the Constitution reads: “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions” [1]. Further, Section 3(5)(b) and 17(1) of the Housing Act 107 of 1997 (“Housing Act”) speaks of “home ownership” and not “house ownership” [3]. Furthermore, the preamble of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (‘the PIE Act’) reads as follows: “AND WHEREAS no one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances” [4]. Lastly, case law also refers to the home, and the courts have attempted to define it. For example, in the case of Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) (‘PE Municipality’), par 17, the court considers home as a concept in relation to adequate housing. The case provides that the Constitution recognises that “home is more than just a shelter” (see para 17 of the judgment) [5]. It considers the importance of the house as a home and the home as a place of “personal intimacy” and “family security” which becomes a “familiar habitat” [5].

In light of the above, it seems as though the rational point of departure would be to understand housing rights as encapsulated in the Constitution and the Housing Act. The Constitution provides for the right to “adequate housing” [1]. Housing is a complex matter, hence the difficulty in defining adequate housing. Housing has a profound emotive aspect because it plays such a central role in forming a person’s life and livelihood. Access to adequate housing provides for the enjoyment of life and living as a human being. Therefore, it is crucial to establish a definition of adequate housing. There is no definition of adequate housing within South African legislation; however, there is mention of it in policies, case law and international law which has proven to assist in understanding what it entails. As a starting point, Section 26 of the Constitution provides that everyone has a right to access adequate housing and that the state must take reasonable legislative and other measures to realise the right progressively. The Housing Act was implemented to effect Section 26 of the Constitution. The preamble of the Housing Act states that housing, in the form of adequate shelter, is a “basic human need” and that it forms a vital part to the “socio-economic well-being of the nation” [3]. This is a highly regarded right.

Despite this, there is no definition of housing. The closest definition relating to adequate housing is the definition of ‘housing development’:

“which means the establishment and maintenance of habitable, stable and sustainable public and private residential environments to ensure viable households and communities in areas allowing convenient access to economic opportunities, and to health, educational and social amenities in which all citizens and permanent residents of the Republic will, on a progressive basis, have access to –.

Permanent residential structures with secure tenure, ensuring internal and external privacy and providing adequate protection against the elements; and.

Potable water, adequate sanitary facilities and domestic energy supply” [3].

International law provides a wider scope of what adequate housing necessitates. South Africa became the 163rd state party to the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’) on 12 January 2015 [6]. Therefore, the ICESCR has interpretive value in South Africa, and a definition of adequate housing may be considered from this covenant. The Convention further informs South Africa on the Elimination of All Forms of Discrimination Against Women 1979 (‘CEDAW’), which was ratified by South Africa on 15 December 1995 [7].

The international standard of housing should be the minimum standard of housing at a national level. Furthermore, adequate housing, even on an international level, means more than just having a place to live - it is interconnected with other rights, including the right to privacy, freedom, equality, and even property rights. The interdependence and interrelatedness of other human rights associated with housing rights must be recognised on an international basis as they are on a national basis. Once again, the right to adequate housing cannot be understood in isolation and must be considered within its context of other human rights [8].

Article 11 of the ICESCR deals with the right to an adequate standard of living, including “adequate food, clothing and housing, and the continuous improvement of living conditions.” The ICESCR General Comment no. 4: The Right to Adequate Housing, was implemented in response to Article 11 (1) of the Covenant, which holds an interpretive value [2]. It recognises the importance of the right to adequate housing on the enjoyment of other economic, social, and cultural rights. The paper provides that the right to adequate housing applies to everyone regardless of their age, economic status or group and that the right must be absent from any form of discrimination [6]. Furthermore, this right must be interpreted in the wide sense of the word, meaning that the right to adequate housing consists of more than a roof and four walls. The right to adequate housing includes a right to security, peace, and dignity since it is not a right interpreted in isolation but within its context with other human rights that affect it and which it affects. Furthermore, it is not merely a right to housing but a right to adequate housing, which means that there should be adequate privacy, space, security, lighting and ventilation, adequate basic infrastructure, and adequate location to work and basic facilities, all at a reasonable cost. Many factors affect adequacy, including social, economic, cultural, climatic, and other factors, all of which must be considered when defining adequacy in respect of housing [9].

This understanding of housing, has a strong impact on the understanding of home since it informs part of the structural narrative of the home. However, home is not as one-dimensional as housing. It encompasses additional values and is gendered in nature. Reason being, that it can be said that for many years, and even to this day, women have traditionally been confined to the home. Therefore, it is crucial to elucidate the importance of gender and the imbalanced enjoyment of said fundamental rights in the home.

2.2 Home and city

Henri Lefebvre coined “the right to the city” and Chris Butler muses on it in Henri Lefebvre: Spacial Politics, Everyday Life and the Right to City. The city, according to Butler and Lefebvre, is more than just an urban product of industrial production and capital accumulation. The right to the city, according to Lefebvre, entails participation in collective and creative acts. Denying people of these acts results in a denial to the right to the city [10]. Lefebvre further suggests that the right to the city is linked to access to urban life which in turn links to centrality, gathering and convergence [10]. As a result, one can see how the home connects to the city. Both are inherently creative, expressive, and participatory spaces.

In addition to the foregoing, Allison Goebel further links the right to the city to inhabitance [11, see in general Chapter 7 and in particular, page 179]. She contends that inhabitance goes beyond merely a place of residency, occupation or habitation. Rather, this extends to aspects such as access to work, access to adequate housing and basic services [11]. These aspects all culminate to confer on one person a sense of rootedness in a particular place which brings forth an individual’s sense of belonging in a certain place. Once these aspects are compromised, the sense of rootedness and belonging dissipates with it.

These places that people find themselves in are gendered (among other things) in nature. In other words, it is important to be cognizant of how geography is also of importance to the notion of gender. For instance, there have been various historical patterns of migration to urban areas within South Africa, which women have all done under very different conditions to men. In the 1980s in South Africa, restrictions on migration shifted which meant that more people, including women, began to fill new informal settlements in urban areas. Preceding the removal of said restrictions, urban areas were formed for the purposes of accommodating the male workforce. It is thus clear that the right to the city is riddled with a history of struggle and that these struggles in themselves are gendered.

Moving back to the home, and as we have argued before, home has often also been viewed as a space of imprisonment for women, especially when subjected to strong patriarchal power structures. Women’s limitation of movement is as a result of certain cultural and social contexts and ultimately results in the subordination of women. For instance, women are often confined to particular places, usually the home, which can be associated with the private sphere. This not only limits her right to the public sphere, but also places a limitation on her identity. In this instance, the city, although not necessarily attainable in circumstances where she is confined, is embraced as a space of freedom, liberation, and empowerment in paradox to the perceived liberty lived in the private sphere. In other words, the city becomes her ‘private’ or ‘intimate’ space where she can fully express herself and feel autonomous, despite the different power structures within the public sphere. In comparison, her space, her home, which is meant to be a space of freedom of expression and autonomy is ripped from her and a space, the public sphere, becomes her intimate space. Thus, she is unfairly stripped from her right to a home because the only space where she can be herself is a space that nonetheless limits her freedom, but in this instance, to a lesser extent than at home.

Furthermore, many women have been and still remain subject to discrimination in several cultures, religions, political contexts, in the city and the state (i.e., socially, economically etc.), and this discrimination occurs within the city (the public sphere) congregates within the home space. Therefore, it can be seen that city and home equally struggle with discrimination, and one influences the other, meaning that discrimination occurring within the home flows into the city and vice versa. The two concepts are interlinked but nonetheless separate.

The paradoxical enjoyment of the public sphere was more so deprived as a result of the COVID-19 pandemic which resulted in further reduction of the enjoyment of an already diminished liberty experienced by women. This not only pertained to one’s freedom of movement for instance, but where one identifies as their sphere of autonomy. It showcased the said reductions due to the fact that it was realised by all South Africans within a small time frame – South African’s became increasingly more aware of each other’s home spaces.

Additionally, when considering the right to a city, it is also important to consider it within the South African context and how many South Africans are excluded from having a right to the city and thus, having a right to the home (on the basis that the two concepts remain interrelated). Both home and city serve as anchors and rootedness in place. Where basic human rights, such as housing, are denied, the rootedness dissipates and along with it the individual’s sense of belonging. This results in exclusion from society, and once you are excluded from society, as Hooks indicates, home becomes your only source of protest and belonging.

It is true that in most instances in South Africa (and elsewhere) women are and have been, denied the right to a city. By this, we mean that the public sphere is dedicated to perpetuating the idea of it being the male’s domain, and women belong to the ‘private’ sphere. For instance, women are statistically more at risk of enjoying the public sphere. Therefore, they are cast aside to the so-called ‘private’ sphere (also related to the home space). However, our argument will show that their right to live and use is denied even in the ‘private’ sphere. Tovi Fenster notes that the right to use public spaces must begin at the home scale. One cannot invoke such a stark separation between the public and private spheres because the two have substantial impacts on each other. By isolating the discussion on the right to the city from the right to a home, one creates neutral ideation of the public domain, which is removed from any power relations, which is simply not a realistic view of the public and private spheres.

The above displays how many women are deprived of the right to a city for reasons such as not having fair opportunities to work, having additional care-giving burdens which prevent them from moving to a more structured and urban setting which can provide them with fundamental human rights such as the right to water, housing, social grants, transport etc. However, it is true that for some women, it is a choice to remain in these rural areas. However, often these rural areas do not cater for all the needs that an individual requires. Ultimately unequal opportunities are at play when it comes to women and men based on stereotypical gender roles. It is thus important to consider how equality should be interpreted and eventually implemented to ensure that all individuals, whether male or female, are treated equally in the true sense of the word.

When considering the right to the city one needs to consider how history has played a role in women’s sense of place, home, safety and their right to a city. Apartheid in South Africa caused segregation, poverty, protest etc. The legacy of apartheid remains, and post-apartheid urban studies have followed these trends of segregation, protest, and urban poverty.

3. The gendered home

As previously stated, home is a physical location related to housing. Furthermore, it is a psychological construct. Intangible factors such as emotional, psychological, social, and cultural factors are associated with home. Home, for example, can be perceived as a place of memory and nostalgia, comfort and security. It is an innately gendered concept in this sense because there is an appeal to regress to past traditions or social norms, which results in unequal relationships between men and women. These nostalgic memories and feelings can create a sense of comfort in the discomfort - there is a comfort in being rather than becoming.

Among other reasons, this is primarily why many feminist theorists (such as liberal feminist theorists) have rejected the idea of home because it creates a false sense of security in the nostalgia where patriarchal patterns are re-implemented which confine women to one space, and limits them from entering the public sphere to a large extent. In order to illuminate how home is gendered, Martin Heidegger’s philosophy of dwelling is considered as a point of departure. In 1954 Heidegger published ‘Baren wohnen denken’ translated to ‘building, dwelling thinking’ [6]. Heidegger wrote that ‘we attain to dwelling, so it seems, only by means of building’ [12]. In his discussions, he, unfortunately, abandons the importance of preservation. Although the word bauen also means to cherish and protect, preserve and care for, he contends that building in the sense of preserving and nurturing does not make anything [12]. Iris Marion Young reflects on this writing and counters Heidegger’s argument by expressing that preservation contributes to establishing one’s identity [13]. She explains that preservation entails the act of keeping physical objects intact; moreover, it renews their meaning in life. Preservation is distinct from construction/building because construction disrupts the current state of being, whereas preservation is cyclical and temporary in nature [13].

Between 1946 and 1949, Simone De Beauvoir wrote The Second Sex. In her book, she asserts that women’s housework has a negative basis. Acts such as tidying up, washing, and cleaning dirt are repetitive in nature and thus make nothing. One removes the dirt, only for it to be dirty again, and then the cycle starts again. She argues that human existence involves transcendence and immanence [14]. In other words, being human involves some form of moving forward (not being repetitive). Therefore, women subjected to housework alone perpetuate humanity without making any discernible change.

A potential gendered limitation of this definition reveals itself in Heidegger’s argument that building in the sense of preserving and nurturing does not make anything. This indicates that women (generally speaking, preservers) are not on an equal footing as men (builders) [13]. However, Young demonstrates that preservation is in fact, world-making. She discusses the many facets of preservation and states that preservation entails not only the act of maintaining the physical things among which one dwells (which gives context to people’s lives) but that it also entails the telling and re-telling of stories so that memories live on and in that sense, keeping people alive as it informs and develops and informs their identity.

The effect of nationwide lockdown brought on by the COVID-19 pandemic highlighted the imperative nature of maintenance within the home, as families could not help but notice the imperfections and shortcomings of their living environment due to the elongated confinement in their homes.

The contrasting views on what home means for women have created duality in meaning, and the purpose of this chapter is to illustrate how home can once more, be a space of safety, equality, privacy, autonomy, and the like.

However, before delving into how home can be a positive space, it is very important not to neglect the realities that many women face daily with specific reference to domestic violence. Therefore, home as a space of danger and fear, especially in the face of the COVID-19 pandemic, will be considered next.

4. Domestic violence and the COVID-19 pandemic

On 31 December 2019, The World Health Organisation first reported the occurrence of the COVID-19 pandemic [15]. Governments across the world adopted regulations that forced citizens to make sacrifices in the interest of the public good. On 23 March 2020, the President of the Republic of South Africa, Cyril Ramaphosa, announced that the National Coronavirus Command Council took the decision to implement a nationwide lockdown for 21 days with effect from 26 March 2020 [16]. The announcement of a national lockdown, which would confine persons to their residential homes, is a novel occurrence in this country’s history. To effectively deal with the rapid spread of the virus, the government gazetted various regulations. Ultimately, the COVID-19 pandemic placed the spotlight on another pandemic, namely the ‘the shadow pandemic’ [17]. In 2014, the UN Women started to use the term ‘pandemic’ to capture the global prevalence of gender-based violence [18]. During the lockdown period, the world had to deal with two pandemics simultaneously which proved to be interrelated [18]. The term ‘shadow pandemic’ was first referred to by the United Nations in a 2021 report to describe the exponential increase of domestic violence during lockdown [18].

A home includes different role-players of which the eldest male tends to be regarded as the ‘head of the household,’ and women seldom get elevated to the ‘head of the household’. Women typically take on an inferior role of doing what the ‘head’ wishes; if non-compliance with such demands, violence often occurs. The occurrence of violence is the most common violation of an individual’s human rights [17]. Domestic violence has existed in society for a long time but remains underreported as it is regarded as a private matter [19]. Domestic violence affects the development of a nation and can therefore not be regarded as a private matter [20]. The costs associated with domestic violence costs nations fortunes which hinders overall development [21]. Despite the costs to individuals, health systems and the society, domestic violence remains widely ignored and misunderstood [21]. The World Bank reported that only 7% of women reported abuse to a formal source [21]. The main reason why victims of domestic violence fail to report abuse is due to the stigma surrounding victims of domestic violence [22]. Victims who were raised in a violent home tend to think that violence is the norm and thus stay in the abusive home environment [23].

In response to the Covid-19 pandemic, the South African government prohibited the sale of non-essential items such as tobacco and alcohol [24]. One would expect that this prohibition would somewhat assist in regulating or reducing the occurrence of domestic violence. Unfortunately, the government did not fully consider the implications of family members being confined in an (often small) family home. Frustrations related to unemployment, the restriction of movement, and the prohibition of substances inadvertently and habitually used to emotionally cope, caused an increase in the reported cases of domestic violence. During April 2020 (amid the lockdown period) gender-based violence rose by 500 percent [25]. During the first week of the national lockdown the South African Police Services received an estimate of 2300 complaints concerning gender-based violence [26].

4.1 Restriction of movement

After the state of disaster was announced, regulations under Section 3 of the Disaster Management Act 57 of 2002 were gazetted. For the period of lockdown every person was confined to his or her home unless the individual was performing an essential service, obtaining an essential good or service, collecting social grants, or seeking emergency, life-saving or chronic medical attention [24].

For some, adopting the regulations which confined one to one’s home was seen as a blessing as it meant spending more time with your family in the safety of your home. For others, it meant that they would conduct their work duties from the convenience of their home, which also led to financial savings. Despite the negative connotations associated with the COVID-19 pandemic, some experienced benefits from the announcement of the national lockdown period.

For others, primarily women and children, the announcement of the national lockdown led to further oppression and isolation. One of the prominent tactics of domestic violence perpetrators are to socially isolate their victims [27]. As stated by Jacky Mulveen, project manager of Women’s Empowerment of Recovery Educators, Covid19 does not make an abuser, but it provides the abuser with more tools to control the victim [28]. The regulations made provision for an abused partner to leave the confines of her home to seek assistance, but this did not provide adequate protection for such victim. Women who were forced to leave their homes due to an abusive partner was ultimately deprived of her physical home structure and her sense of safety, security and serenity.

In this regard, it is imperative to consider how shelters for battered women were affected during the COVID-19 pandemic. Many women who leave their abusive homes have no option but to approach a shelter. Shelters for battered women are thus critical during these times. The problem in South Africa lies in the fact that at this point and even during the COVID-19 pandemic, the Department of Social Development only has 84 shelters set up nationally [29]. Over and above the lack of shelters, considering the vast spread of the so-called shadow pandemic, many of these shelters are inadequate in terms of their infrastructure and their facilities [29]. This would naturally make women hesitant to approach such shelters and leave them stranded in their unsafe homes.

Moreover, shelters are not a permanent solution. The lack of financial means of these shelters means that many of these shelters can only accommodate women and children for a period of three to six months. Moreover, specific admission measures and criteria tend to be in place. For example, some shelters tend to exclude women who have children over a certain age, which poses the risk of being placed in general shelters alongside men, facing the potential of abuse all over again, not to mention the recurring trauma they will face in these spaces.

It is evident that women who seek out temporary shelters lack autonomy because their ability to make choices has been stripped from them [29]. This poses a serious risk. When women have nowhere else to go, they run the risk of homelessness or facing the dreadful reality of returning to their abuser. Thus, there is a dire need to establish funding for domestic violence shelters and temporary homes in a country ridden with domestic violence.

4.2 Financial deprivation of women during the pandemic

During the COVID-19 pandemic, women were placed in a very uncertain position as some women lost their employment or experienced a reduction in their income. Even before the implementation of the national lockdown, women faced the reality of unemployment. The Committee on Economic, Social and Cultural Rights (CESCR) reported that South Africa has one of the highest unemployment rates in the world. Stats SA reported that 2.2 million jobs were lost in quarter 2 of 2020 [30]. The NIDS-CRAM survey showed the gendered nature of job losses, with 2/3 being attributed to women [31]. Social grants were made available for persons who met certain criteria; however, grants were only accessible to those who could complete the application via WhatsApp, SMS, and e-mail [32]. This had the potential of inhibiting women subject to domestic violence from reprieve as abusers are inclined to limit their access to communication devices. Women who were subjected to domestic violence were forced to rely on the government or their abusive partner for financial support. Due to the administration involved in claiming funds from the government, women often elected to remain in the unsafe environment of their abusive partner.

During the national lockdown, some women struggled to claim spousal and child maintenance. Debtors of maintenance (mostly men) opportunistically abused the State of Disaster to evade their maintenance responsibilities. Even though a party may not unilaterally decide to abandon his or her maintenance obligations, this was done, and the court provided little support for the party who relied on the maintenance to ensure a functioning household. Family courts were deemed essential services but directives were issued which, in most cases, did not provide the party claiming maintenance with immediate relief. The Minister of Justice and Correctional Services Ronald Lamola, said during the lockdown period that only first-time applications for maintenance and applications in respect of enforcement of maintenance orders would be dealt with [33].

During the lockdown period women took on more unpaid labour tasks such as caregiver, educator, and domestic worker. An inadequate interpretation of the law providing for home indirectly affects children as well. Any imbalance of home protection for women is cascaded down to children as well. It is regrettable that there is no systemic attempt to encourage men to take more responsibility when it comes to such tasks. On average, women perform three times more unpaid work than their male counterparts [34]. While being confined within four walls, women’s tasks increased and in some instances, had a negative effect on their mental health. The additional household responsibilities reduced the women’s work productivity which ultimately had (and still has) a negative impact on their career prospects.

When one thinks of ‘abuse,’ one is usually more concerned with physical abuse as this type of abuse is more widely reported and discussed on social media platforms. However, as seen from the above discussion, economic abuse is often more of a concern as an abusive partner is in a position to exploit an abused partner who was no other financial support.

As mentioned earlier, products such as alcohol and tobacco were banned during the lockdown period to ensure bed availability in hospitals [24]. This ban was a blessing for some victims of domestic violence, however, in other cases, individuals used all available funds to secure alcohol and tobacco products illegally [35]. They would pay exorbitant amounts for such products instead of providing for their family’s basic needs.

Moreover, the COVID-19 pandemic resulted in many individuals losing their source of income. As mentioned in the discussion above, insofar as domestic violence shelters, women lack the financial means to seek out alternative options. The effect of people losing their source of income as a result of the pandemic has exacerbated this problem. As a result, many people, particularly women, become welfare recipients of the state. This places them in a very unfortunate position because there is a preconceived notion that welfare recipients are a burden to the whole of society [36]. Society views reliance as a form of failure, failure to achieve autonomy and views these persons as a financial burden. Society at large views these women as capable of working and earning an income to care for herself and her children. However, the several factors which prevent her from achieving this are often overlooked [2]. These women are seen as dependent, which is linked with weakness. The public sphere develops many plans to enforce self-sufficiency and a perverse form of autonomy [36]. Suppose women continue to live in these unpleasant conditions. In that case, the state and the public are disappointed and confused because they believe that these vulnerable women “choose” to remain in such conditions [36].

The first goal of the relational approach requires compromises. These compromises require changing the subjective understanding/belief of autonomy and how to achieve it. The public sphere pleads helplessness and believes that these circumstances of abused women are inherent in the structure of society. They see no feasible solution to these vulnerable circumstances because the only reasonable solution would necessitate a complete loss of the most basic structures of society they are familiar with [2]. The only solution requires sacrifices, which entails challenging the association of independence with autonomy and viewing interdependence as a way of achieving independence, thus, denying the conventional claim to independence [37]. An alternative understanding of autonomy is required, one which does not negate the possibility that the development of a person stems from relationships, which includes dependency relationships [38]. The importance of the relational approach in this context is to make oppressed and abused women feel safe and more autonomous, regardless of their dependency on state welfare [39]. The relational approach denies the exclusive association of independence with autonomy because this association often devalues people who do not fit the ideal image of independence [39]. The relational approach redefines autonomy in terms of relations which enhance this value.

4.3 Domestic violence Act 116 of 1998

Women, children, and elderly people are more prone to suffer from violence. The reported cases of gender-based violence in South Africa are among the world’s highest, and this was the position even before the outbreak of the Covid-19 pandemic [40]. The increased number of reported gender-based violence cases led to the South African government declaring gender-based violence a national crisis [41].

The Domestic Violence Act’s preamble specifically states that the Act intends to provide more effective remedies to deal with acts of domestic violence. The Act aims to ensure that the home environment is a place of safety. Research on the implementation of the Domestic Violence Act has revealed that law reform does not automatically change women’s experience of violence. More legal remedies and easier access to such remedies do not liberate women from violent behaviour within their homes [42].

In KV v WV 2020 (1) SACR 89 (KZP), the court inter alia states that the legislature’s intention in dealing with domestic violence matters was to apply different principles to those set out in criminal law and delictual laws. In this case the court had to determine whether unlawfulness would be a requirement to determine whether the conduct constituted domestic violence. The court explicitly held that the requirement was ‘harm’ and the requirement of unlawfulness need not be considered. The court recognised that domestic violence can take on a multitude of manifestations and that the home environment should be protected by providing victims (primarily women and children) with a wider form of protection by making reference to the word ‘harm’ [43]. Even though this Act can provide some sort of protection and remedies for victims of domestic violence, such orders are seldom made final.

There are various non-profit organisations whose main aim is to assist victims of domestic violence with court procedures, shelters, and general emotional care. One of these organisations is MOSAIC. MOSAIC is an organisation that provides court support services to victims of domestic violence who apply for protection orders. The organisation estimated that almost half of its clients were not returning to court to finalise their protection orders. In most instances, the victim reported that she was threatened by bodily harm or harm to a loved one and therefore did not return to make the protection order final. Victims also reported not adhering to the return dates due to systemic issues. These issues mainly relate to the victim not being adequately informed of the process and what is expected of her. Other victims simply claim that they lost confidence in the criminal justice system [44].

CEDAW found that nearly 144,000 requests for protection orders were made from 2018 to 2019, of which only 22,200 were granted [45]. In many cases, the protection order simply called on the abuser to sleep in a different bedroom within the same house. This shows that in some cases, the home remains a source of anxiety, fear and oppression even if the victim is deemed as protected under the law as it stands.

4.4 International response to gender-based violence during lockdown

The increasing rates of domestic violence during the COVID-19 pandemic have given rise to a range of additional responsibilities placed on governments and non-profit organisations around the world. Worldwide regulations were implemented to curb the spread of COVID-19. Most countries, such as Italy, Spain, and France, implemented strategies to assist individuals in abusive relationships during the lockdown period.

Italy implemented a smartphone system where victims could seek help with the use of a smartphone application which made it possible to seek assistance without making a phone call [46]. A new law was also implemented that orders the abuser to leave the family home and not the abused party. In Brazil, a similar innovation was implemented. The Human Rights BR application was launched in April 2020, which provides victims with a method of reporting that would be more secure than a traditional phone line [47]. Domestic violence matters could also be filed electronically, and the matter could be heard virtually in some of the Brazilian courts [47]. Protection orders which would have expired during the lockdown period were automatically extended [47]. The Maria da Penha Patrulha police, which was established in 2019, provided services that include house visits to victims’ homes to ensure that court orders are complied with [47]. This initiative is aimed at both the abuser and the abused and ultimately does not just place the responsibility on the abused. Such innovation ensures that the home and the human rights of the abused are properly protected.

The Spanish government enabled exemption from lockdown regulations for women who found themselves in domestic violence [47]. In most cases, women are clearly left with one option: she must leave the communal home whilst the abuser remains comfortable in the home pending the possible finalisation of court cases. It is believed that Spain was the first country to implement the Mascarilla-19 campaign [48]. Women who found themselves in an abusive relationship were urged to visit a pharmacist and use the code word ‘Mask-19’, which would then alert the pharmacist that the woman required assistance. Similar campaigns took root in France, Argentina, Chile, and India [48]. The French government went as far as providing free counselling and paid for the bills of the hotel rooms of the victims who asked for help at the pharmacies. During the first lockdown, the French government subsidised 20,000 nights of accommodations in hotels for victims of domestic violence. The Spanish and the Belgian government took a similar approach by purchasing several nights of private hotel accommodations for victims [48]. These initiatives provided temporary relief, which did not protect the home environment of the abused. Despite the noble intentions of the abovementioned initiatives, these initiatives only provided temporary relief and did not protect the home environment.

5. Evictions during the National Lockdown in South Africa

An eviction process sparks various emotions such as powerlessness and humiliation. In an attempt to ensure that persons remain within the confines of their homes, the Disaster Management Act Regulations placed a moratorium on evictions [49]. Unfortunately, this protection did not provide adequate protection for women in informal settlements. Residents of informal settlements, inner city occupiers, tenants, and mortgage payers were the most vulnerable groups who had to face the risks associated with the pandemic and losing their access to housing [49].

Interpretation of ownership in rural areas differs markedly from the acquisition of immovable property in accordance with South African laws [49]. In rural areas, a home is regarded as a collective ‘home,’ and it is passed on from one generation to another. The Constitution does not recognise this practice and is not legalised as it is based on a verbal or written agreement between families [49]. When it was found that women and their children did not belong, they were forcefully removed from their homes, curtailing their right to health services [49].

In March 2020, a group of about 210 occupiers of a building belonging to the City of Cape Town was evicted following a court order which was obtained before the implementation of the national lockdown Regulations. These occupiers were left without alternative accommodation [50]. Further, in April 2020, the City of Johannesburg evicted 23 residents in a building that accommodated City employees. This eviction process was challenged, and the Gauteng High Court, Local Division ruled that it was indeed an unlawful eviction [50]. The City of Cape Town’s Law Enforcement Unit forcibly evicted over a hundred residents of Empolweni without a court order. This eviction was also found to be unlawful [50]. The above examples illustrate the helplessness experienced by many (mostly women and children) amid the COVID-19 pandemic despite so-called legal safeguards [50].

6. Towards a relational (feminist) understanding of home

The gendered aspect of home requires a reconceptualization of home through the lens of equality. For instance, domestic violence will not stop unless abusive relations are restructured. Therefore, there is a need to interrogate these sets of relations which inform unequal powers between parties. The task of restructuring abusive relations is challenging on the one hand because it aims at restructuring intimate relations as well as relations in broader public spaces, which shape and uphold domestic violence [37]. However, on the other hand, relations are dynamic and ever-changing which means that there is scope to interrogate and change these harmful relations. Once this can be achieved, the true and hopeful meaning of home can be achieved.

Furthermore, if rights are understood in terms of relations, it brings forth the possibility to determine which relations are destructive, and which are constructive to values such as privacy, security, safety and autonomy. Such values are only made possible by structures of relationships [2]. In other words, a relational approach determines which relations structure the right to a home (being safe, secure, and settled in one’s identity and the relations that form it). Certain relations take away from this right to the home (not always directly), often indirectly, by being complicit to the threat of these values. For instance, it is not solely the violence between intimate partners within the home that causes a threat to such values, but also the state’s complicity. This complicity contributes to the violence occurring privately [37]. Hence, there is a clear need to restructure these detrimental relations and how they undermine these values, into a way that considers alternative relations which are beneficial to them. Many social relationships have constrained and oppressed women. Therefore, imbalanced power relations between men and women need to be restructured, alongside a transformation of the social and intimate relations that give rise to these values threat.

Relations of inequality and patriarchal conceptions of masculinity are what shape domestic violence. However, these relations are only understood when seen in the light of broader gender relations that society instills [37]. It is, therefore, critical to understand how masculinity and patriarchy intersect with other hierarchies and state structures and how they affect both men and women [37]. In order to eliminate violence and to ensure that cherished human values are upheld, a serious rearrangement of power relations between men and women is required [2]. This is a rearrangement of how relations are structured, not only from an interpersonal level but from a broader societal level as well [51]. The dichotomous relationship between the public and private spheres is part of the destructive relations that contribute to the prevalence of violence. The divide insulates the private sphere from regulation, even when such regulation is necessary. This insulation leads to women’s continued force and subordination in the private sphere [52].

Therefore, it can be argued that Jennifer Nedelsky’s concept of relational autonomy can add some value to redefining the home and the relationships that exist within it. Autonomy exists because of constructive relations. Autonomy is imperative to all feminist theories. It is a notion that aims at dismantling oppression, subjection, and individuality [37]. Nedelsky defines autonomy in terms of a relational approach and looks at autonomy as the feeling of comprehension, confidence, dignity, efficacy, respect, and a degree of peace and security from oppressive powers. Domestic violence is a prime example of how oppressive relationships stand in the way of achieving autonomy and, equivalently, the ideal of home. The relational approach calls for a need to restructure state involvement in a way that does not threaten her autonomy. The relational approach does not invite more state involvement but rather a different form of state involvement [37]. This different form of state involvement will be achieved when underlying structures in the public sphere are restructured in such a way that it informs values within the private sphere. In other words, we require a restructuring of the values in the public sphere which enhance patriarchal practices to ones that celebrate autonomy as understood in relational terms [37]. This does not equate to more state involvement. It results in a different application and practice of state involvement which merely upholds already existing rights. It results in the state applying its duties in a manner that mandates change. The principal purpose of the public/private divide is to ensure that autonomy is protected. However, such a divide has proven to be ineffective in ensuring autonomy. Often the divide protects the violence within the walls of the private sphere instead of autonomy. It results in violence within the walls of the private sphere, which is being protected, instead of autonomy. The fundamental question should not be how to maintain and build more boundaries but rather how to advance autonomy between these boundaries.

Although autonomy is rooted in liberal theories of individualism, Nedelsky argues that relational autonomy has the capacity to incorporate the human experience of embeddedness in relationships, both good and bad. Relational autonomy and relational feminism investigate social norms and institutions that are detrimental to the value of autonomy and consider methods of restructuring these destructive norms. In redefining autonomy from this perspective, it becomes easier to protect it because it is no longer limited to independence and to the private sphere. When redefining autonomy in terms of relations and protecting it, we reclaim autonomy as an ideal and simultaneously reclaim home. By reclaiming autonomy in terms of relations, we reclaim home as a place, and we reclaim home as a feeling.

7. Conclusion

Since the outbreak of the COVID-19 pandemic people have been expected to adjust their entire lifestyle. Individuals were inter alia expected to remain home in an attempt to curb the spread of COVID-19. It has become apparent from the above discussion that a home is not merely a location or a physical structure, but it is a space where one longs for a sense of security, autonomy and belonging. In the case of PE Municipality the court specifically recognised that a ‘home is more than just a shelter.’ It further recognised that a home is a place of ‘personal intimacy.’ Many feminist theorists reject the idea of home as the home is regarded as a measure of confinement as it purports lofty conceptions of the enjoyment of rights, however, when not provided an adequate consideration of the factors and relationships contained within this concept it is merely a vehicle for further divide/disparity and oppression.

The home thus goes beyond a functional dwelling as currently defined and should be considered within the context of other human rights. The implementation of the lockdown regulations emphasised the already existing pandemic – the shadow pandemic. Gender inequalities were further brought to light during this state of disaster/pandemic, ultimately for the restructuring of abusive relations. The COVID-19 regulations and lockdown were crucial in highlighting the disparities and inequalities suffered by women and, ultimately, families within South Africa, showing now more than ever the importance of the law to adapt its conception of the home and the inequalities to be addressed therein. This does not equate to more state involvement but an appeal for a different application and practice of state involvement which would promote human rights.

Acknowledgments

We would like to acknowledge all the brave women who have suffered in silence and in the face of domestic violence. We would also like to commend all those fighting the courageous fight against domestic and gender-based violence. If you or a family member has experienced domestic violence, the following helplines are available in South Africa:

• The 24 hours Gender Based Violence National Command Centre: 0800 428 428 or (Please Call me) *120*7867# (free) for counselling and other services, including shelter.

• Women Abuse – Call: 0800 150 150

• People Opposing Women Abuse – 011 642 4345

• National Shelter Movement of South Africa (NSMSA) – Helpline for GBV survivors – 0800 001 005, SMS/WhatsApp/Please Call me to 082 057 8600/082 058 2215/072 239 7147.

With greater discourse on these problems, will come greater equality for all.

Conflict of interest

The authors declare no conflict of interest.

Thanks

We would like to thank IntechOpen Limited for providing us with this opportunity to not only spread awareness of the dangers that many women face, but also as an avenue to provide solutions and assistance where it is greatly lacking.