REPUBLIC OF SOUTH AFRICA COMBINED SECOND PERIODIC REPORT UNDER THE AFRICAN CHARTER ON HUMAN AND PEOPLE`S RIGHTS and INITIAL REPORT UNDER THE PROTOCOL TO THE AFRICAN CHARTER ON THE RIGHTS OF WOMEN IN AFRICA 36. South African courts, in accordance with the Constitution, have established the practice of using international human rights treaties as interpretative guidelines when interpreting the Bill of Rights.288 Reservations to the Protocol 37. At the time of ratification, South Africa made three reservations and two interpretative declarations to the Protocol. The reservations were made in respect to article 4(2)(j) which deals with the imposition of the death penalty on pregnant and nursing mothers; article 6(d) on the registration of marriages; and article 6(h) which deals with the equality of parents to pass nationality to their children. 38. The interpretative declarations were made in respect to article 1(f) which defines ‘discrimination against women’ and article 31 on the status of the Protocol vis-à-vis more favourable domestic provisions. These reservations and interpretative declarations have not in any way undermined the enjoyment by South African women of the relevant rights and freedoms guaranteed in the Protocol. On the contrary, they offer more favourable conditions for the enjoyment of those rights and freedoms. 39. In respect to article 4(2)(j), South Africa stated that the article does not find application in South Africa because the death penalty has been abolished in the country. In relation to article 6(d), South Africa indicated that it would not be bound by the requirement that a marriage shall be recorded in writing and registered in accordance with national laws in order to be legally recognised. This reservation was made to protect women in customary marriages of which many are not registered. Otherwise the application of article 6(d) of the Protocol would exclude many South African women from the protection of the law. Thus, the Recognition of Customary Marriages Act, 1998289 provides that the non-registration of a customary marriage does not affect the validity of the marriage. 40. South Africa’s reservation to article 6(h) was intended to protect the inherent right of a child to citizenship and nationality. Article 6(h) subjugates this right to national legislation and national security interests, in effect providing the possibility for taking away a child’s right to take the citizenship and nationality of either or both parents. 41. In respect of article 1(f), South Africa made an interpretative declaration to the effect that the definition of ‘discrimination against women’ has the same meaning and scope as is provided for in section 9 of the South African Constitution, as interpreted by the Constitutional Court of South Africa from time to time. The Constitutional Court of South Africa has developed a sound and 288 In Bhe and Others v Magistrate, Khayelitsha 2005(1) SA 580 (CC), the Constitutional Court observed that a number of international instruments, to which South Africa is a party, including the African Women’s Protocol, underscored the need to protect the rights of women, and to abolish all laws that discriminate against them. In Gumede v President of the Republic of South Africa (2008) ZACC 23, the Constitutional Court cited articles 2, 6, and 7 of the African Women’s Protocol to support its position that the eradication of all laws and practices that discriminate against women was not only a constitutional obligation, but that it was also an obligation that flowed from international instruments to which South Africa is signatory. 289 Act No. 120 of 1998 148