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Land Rights in South Africa – Constitutional Law, Apartheid and Gender Inequality

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Source: EUobserver.com

ANALYSIS Sophie Stange 12 February 2021

In 2018, the High Court of South Africa delivered Rahube v Rahube and Others a landmark decision protecting women’s rights to equality and land ownership.

On October 30, 2018 in the case of Rahube v Rahube and Others ZACC 42 the Constitutional Court upheld the Pretoria High Court’s finding that a key section in South Africa’s Upgrading Land Tenure Rights Act (ULTRA) violates women’s right to equality and has therefore declared it unconstitutional. The apartheid-era law, which upgraded land tenure rights to ownership only recognized men as the head of the family and as legal landowners.

The 68 years old Mrs. Rahube was facing eviction in 2009 by her brother based on apartheid property laws. The Applicant and her extended family had moved onto the property in Mabopane, in the North West Province around the year of 1970, at a time when they were removed by the apartheid government from the area known as Lady Selbourne. The Applicant and her immediate family had exclusively occupied the property since 2000. When the family moved onto the property, apartheid laws at the time prevented black people from having a title to landed property. Therefore, the Applicant was issued with a certificate of occupation in the name of her brother, the Respondent, as only an adult male could hold occupational rights in property. The Respondent moved out of the property in 1990 and since then had not resided there. It was not until 2009 when the Respondent commenced eviction proceedings against her, that the Applicant discovered that her brother had been granted a deed of grant in 1988 under Proclamation 293 of 1962, the Regulations for the Administration and Control of Townships in Black Areas in accordance with the Native Administration Act 1927. The enactment of the Upgrading of Land Tenure Rights Act in 1991, section 2 (1) of which automatically converted deeds of grant relating to certain property, including the property in dispute, into ownership rights, meant that the Respondent became the legal owner of the property, although he no longer lived there.

Women’s Right to Property

South Africa’s Constitution provides for the existence of a dual system of statutory law and customary law. Traditionally, women have been denied rights to property under customary law. According to customary law, a woman was generally regarded as a minor under the guardianship of her father, husband or brother, incapable of owning or acquiring property. While the situation has changed on the legal level, mostly through the pioneering jurisprudence of the South African Courts in practice, women still remain excluded from accessing property, particularly land.

The exclusion of women from property ownership uncovers the deeply entrenched gendered differences between men and women that are primarily premised on the domesticity of women. By domesticating women, the capitalist-patriarchal system of law and governance, which formed the basis of colonial and apartheid South Africa, ensured the protection of men’s privileged access to resources. This phenomenon is not only limited to the borders of South Africa, but can be seen throught the entire world.

The finding of the Court can be considered a positive development as it attempts to address the inequalities meted against women by virtue of law and custom. The exclusion of the Applicant from the property and the initial granting of Deed of Grant to the Respondent was based on customary practices which privileged male ownership over property. As a consequence, the historical exclusion of women from property, which was formalised by the Native Proclamation R293, and continued by the automatic upgrading and conversion into full ownership of such titles in terms of ULTRA have placed many black women in a vulnerable position, excluding them from entitlements relating to property and land. Thereby fostering the idea of women being dependent on men and their wealth and property.

The Decision of the Constitutional Court

The Constitutional Court held that although ULTRA was well intentioned to provide ownership rights to previously prohibited groups, section 2 (1) indirectly discriminates against women and “it perpetuates the exclusion of women, such as the applicant, from the rights of ownership in so far as it provided for automatic conversion and failed to provide any mechanism in terms of which any other competing right could be considered and assessed and a determination be made”. According to the Court, this was contrary to the right to equality guaranteed in section 9 of the 1996 Constitution of South Africa and therefore unconstitutional. The order of constitutionality invalidity was suspended for 18 months to allow parliament to make the necessary amendments to ULTRA to bring it in conformity with the Constitution.

Land Reform

On February 25, 2020 the Department of Rural Development and Land Reform published the Upgrading of Land Tenure Amendment Bill. Section 1 of the Bill seeks to amend section 2 (2) of the Act. Additionally, Section 1 (a) of the Bill now states that “any person who is, the registered holder of a land tenure right according the register of land rights in which that land tenure right was registered in terms of the provisions of any law or could have been a holder of that land tenure right could not as a result of laws or practices that unfairly discriminated against such person, may apply, as prescribed, for the conversion of such land tenure right into ownership”. As the Court stated in Rahube v Rahube and Others: “Laws and policies must seek to do more than merely regulate formalistically. The Legislature is enjoined to ensure that laws and policies promote the participation of women in social, economic and political spheres while also advancing the spirit, purport and objects of the Constitution”.

The Bill is considered a step in the right direction to secure land tenure rights to women previously marginalised by discriminatory policies and was passed by the National Assembly with amendments on December 1, 2020. Especially women living in the rural areas need to be educated about the many pieces of legislation that have been introduced to promote the protection of women in the rural settings or those married through traditional customs. The challenge remains education of all the citizens about the constitution and its improvements to protect women from domestic violence, from rape and to ensure their rights in political, social and economic setting. A way to draw attention to the improvements for women is for example the commemoration of the Women’s March that is held every year. 

But there is still a long way to go to ensure that women, particularly black women enjoy their right to equality not only on a legal level, but also in their everyday life.

Sophie Stange studies African Culture and Society at the University of Bayreuth.

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