1. Summary of the presentation
2. Introduction
3. Background
4. Relevant legislation that impacts on women’s right to property

1. Constitutional provisions
2. Black Administration Act
3. Recognition of customary marriages Act
4. Matrimonial Property Act

5. South Africa’s international obligations
6. Comments on various section of the Bill
7. Conclusion

The Women’s Legal Centre ("WLC") welcomes the opportunity to make submissions before the Land and Agriculture Parliamentary Committee on the Communal Land Rights Bill ("the bill").

The WLC is a public interest law centre started by women to enable women to use the law in advancing and achieving their rights to equality. WLC employs two main tools in fulfilling its objectives: Litigation and Advocacy.

The WLC has in the past litigated and given advice on matters where security of tenure for women living under communal land has been threatened. In our client community we see women who continue to live with domestic violence as a result of insecure tenure. Women often become victims of forced evictions when they get divorced or separated from their husbands. Sometimes this situation extends to women who have been widowed and more recently to women living with HIV/AIDS. Discriminatory inheritance practices that served to disinherit women have been the subject of our most recent litigation.

Our interest lies in ensuring that special attention is to given to categories of women who have suffered because of their insecure tenure.

The story of black women’s access to land begins with the collusion between two legal systems. Customary law denied women the capacity to be allocated land in their personal capacity. Their tenure was linked to their status in relation to other male members of the family as wives, mothers, daughters and sisters. The formal legal system gave ad hoc recognition to customary law by creating a legal framework that enabled customary law to remain undeveloped. The Black Administration Act ("BAA") created a legislative framework that recognized the customary law of succession.

The Courts, in their efforts to interpret customary law, enforced the customary law of succession and defined it to mean the "eldest male heir inherits". The effect of the combination of all of these factors meant that women had no access to land. It is therefore important to note from the outset that the racially discriminatory laws and practices as well as the interpretation and implementation of customary law has aggravated the position that many black women find themselves in.

The nature of the rights that women hold in land throughout sub-Saharan Africa has not been able to provide security of tenure because they remain largely undefined. More importantly when land becomes scarce or rises in value, or when rights are formalised through title or registration, these rights to use land are revealed as secondary or tenous. This happens regardless of the beneficial use of land that women have enjoyed over the land.

The Constitution is the supreme law of the country and any conduct inconsistent with it is invalid and the obligations imposed in it must be fulfilled. The bill of right imposes an obligation on the state to protect, promote, fulfill and respect the right in the bill of rights. The Constitution further entrenches the right to freedom of religion, belief and opinion. Section 31 (1) provides that:

Section 31 (2) goes further and provides for an internal limitation to this right.

Despite all the protections conferred by the Constitution there are still serious tensions that exists between the law and practice. What follows below is a summary of the problems with regard to the existing legislation that adversely impact on women’s rights to property.

The continued existence of the BAA has undermined the existence of constitutional rights. The administration of deceased estates of people living under customary law is still done in terms of the BAA.

• There is also a law reform process that was tasked to look at the development of customary law of succession to ensure that it is in line with the constitution.

• Some deceased estates continue to be dealt with outside the formal legal system. They never get reported to the Magistrates court and therefore the customary courts decide on the appropriate manner to deal with estate.

The impact of all of this is that women continue to be excluded from inheriting under customary law

i

Customary marriages enjoyed ad hoc recognition from the previous regime. The enactment of the Recognition of Customary Marriages Act ("RCMA") has been the most prominent attempt to recognize customary marriages thus offering some form of protection to parties married in terms of the RCMA.

• The RCMA creates a distinction between parties who were married between November 2000 and parties married after this date. Parties who were married after November 2000, are married in community of property and parties who were married before this date will have a marriage whose consequence will be out of community of property.

• One of the unintended consequences of this legislation is to exempt parties who were married after November 2000 from the application of the BAA. Even though such spouses are married under custom, such estates do not devolve according to black law and custom but in terms of the Intestate Succession Act ("ISA"). This has enabled parties who were after married after November 2000 to register their husbands’ estates at the Master’s office and have their estates administered in terms of the Administration of Estates Act and ISA. The proprietary consequences of marriages before this date continue to be governed by black law and custom, and such marriages are said to be out of community of property.

• On 14 May 2003, there were 28 321 customary marriages registered since the coming into effect of the legislation. Registration of customary marriages has been a problem from the onset. The Act makes it possible for either party to a customary marriage to register a customary marriage. The regulations to the Act are drafted in such a manner that both parties have to be present when the customary marriage is registered. One of the biggest lessons learnt during this process is that people tend to seek the protection of the law when they are faced with a problem i.e. at the dissolution of the marriage or at divorce. At this stage it is usually only one party who has an interest in the registration of the marriage, the other party’s interests are better served by denying the existence of a customary marriage.

• The failure of the Act to define the status of a customary marriage when the husband had married another wife in terms of civil law has also not helped matters. The Act aims to recognize all customary marriages that were valid at customary law before the Act came into being. It recognizes the marriage without reservations but it does not state what the legal consequences of such recognition will be in instances where the husband married someone else in terms of civil law.

• This legislation governs the administration of matrimonial property. It offers some form of protection for spouses against the unilateral disposal of matrimonial party by one party to a marriage. Section 15 (2) equires both parties to consent when movable property to the joint estate is to be disposed of. The protection offered is however limited to instances where there has been fraud. If the third party was not aware of the fact of the marriage or that the other party’s consent was needed, the wronged party has no cause of action against the third party.

We recognize that the above-mentioned laws are laws dealt with by the Department of Justice and Constitutional Development and most of them deal with family law which is not a line function of the department of Land Affairs. However, these summaries serve to illustrate the flaw of passing gender-neutral laws without taking into account what the practical implications of such laws will be. Communal land reform can not be done in isolation from family laws that regulate the lives of people living under communal land. Failure to co-ordinate efforts and the lack of a holistic approach may undermine any achievements. This law runs the risk of failing to translate to benefits for its intended beneficiaries if it does not make the link between family law and communal land reform.

The special rapporteur recognises the problem often faced by women even when laws are gender neutral. The following factors continue to act as barriers for women accessing land:

• Traditional and cultural structures
• Patriarchal attitudes
• Lack of knowledge and about housing, and land rights
• Economic constraints

South Africa’s shortcomings in addressing problems associated with providing adequate housing in the form of secure tenure has not missed the attention of the Committee on Economic, Social and Cultural Rights. The committee made the following concluding remarks regarding South Africa:

117. The committee expresses concern that in spite of the legal measures put in place, de facto implementation of such laws and policies have yet to be achieved in many areas. It also notes with concern the continuing recognition of customary and religious laws and their adverse effects on the inheritance and land rights of women and women’s rights in family relations. The committee notes the absence of a definition of gender discrimination in the Constitution.

118. The committee recommends that the government complete, as a matter of priority, the adoption of legislation as well as ensure its effective implementation in order that women’s de jure and de facto equality will be guaranteed. It also recommends that a uniform family code in conformity with the convention be prepared in which unequal inheritance rights, land rights and polygamy are addressed, with the aim of abolishing them.

Clause 1

The definition of an "old order right" is gender neutral but in reality women are not holders of old order rights because of the manner in which old order rights were allocated. The "permission to occupy certificates" which were granted to people living under communal land were granted to men who were regarded as heads of family. Under customary law land was also allocated to men only. The continued existence of the Kwazulu Code Act 16 of 1985 which codified customary law continues to ensure that some women can not own property in their own names.

"Old order right" – the definition needs to be broadened to ensure that women who have lived and worked on land are included as old order rights order.

Clause 4

• The section does not provide how an old order right must be secured, except to say it must be done in terms of the Act.
• The clause gives an unqualified entitlement to holders of old order rights to be granted security of tenure.
• The definition of "old order rights" does not include people who had beneficial use of land. In effect, this means that women will not be able to benefit from the provisions of clause 4 as they will not fall in any of the categories listed under the definition of "old order rights".
• The Bill does not provide for a process of how these old order rights will be secured.

Clause 5 (1) Communal land and new order rights are capable of being and must be registered in the name of the community or person including a woman entitled to such land or in terms of community rules.

• Clause 5 (1) which incorporates the words "including a woman" is misleading.

• Throughout the bill one is led to believe that there is clause that will make substantive provision to enable women to own communal land. The section alludes to the transferability of communal land to women by providing for a procedure to register communal land. The current wording of the Bill does not provide for mechanisms to change the status quo or to confer title on women who are the existing users of the land.

• The language of the clause is peremptory in that it states that communal land and new order rights must be transferred. The question that remains is,

Clause 9 (1) the holder of a registered new order right may apply to the community owning the land to which such rights relates to for the conversion of such rights into freehold ownership.

This clause suffers from the same defects as clause 5(1) above. It is difficult to comment on clause 9 and 5, because the failure of the bill to explain how new order rights will come about. A "new order right" is defined as

• The land rights inquiry envisaged in clause 14 does not have to be conducted when one acts in terms of section 5 and section 9.

• A land rights inquiry needs to be instituted prior to securing an old order right in terms of section 4 or when transferring communal land to a community in terms of section 6 or when determining an award for comparable redress in terms of section 12.

• When the Minister makes a determination regarding new order rights this will be done without having had regard to an integral part of this process, a land rights inquiry.

Proposal:

• Set out in the legislation what the content of the new order rights will be.
• Set out the procedure of making an application for new order rights.

‘The Minister, may, on application by the holder of an old order right which is legally insecure as contemplated in section 25 (6) of the Constitution and which the Minister determines can not be legally secured, determine an award of comparable redress to such order.

• By giving discretion to the minister the legislation infringes on the Constitutionally guaranteed right to give comparable redress as provided for in section 25 (6).

• The wording of clause 4 is peremptory in that it states that the security of tenure which is not secure must be legally secured. The clause does this by incorporating the provisions of section 25 (6) of the Constitution. Clause 14 however does not follow the language of 25 (6). It sets out to empower the Minister with discretion that the Minister does not have in terms of the Constitution.

• The circumstances upon which the Minister may determine that an old order right can not be secured is not defined.

14 (1) provides that to secure old order rights (clause 4), transfer communal land (clause 6) provide comparable redress in terms of section 12 the minister must institute a land rights inquiry. 14 (2) sets out what the land rights inquiry must inquire into; this includes

• This section envisages a situation where people who hold old order rights will make an application in order to secure their old order rights.

• It is also envisaged that part of the enquiry will look at the measures required to promote gender equity in the allocation and registration of new order rights.

• The existence of new order rights will thus depend upon the inquiry regarding securing old order rights.

• This points to the failure of the legislation to recognise that women will not be able to hold old order rights because of the manner in which the rights have been allocated.

• There is a need for this legislation to provide a process that enables the creation of new order rights.

Clause 18 (4) (b) provides a follows "

(4) In making a determination in terms of this section, the Minister must take into account the Integrated Development Plan of each municipality having jurisdiction and, after consultation with the Minister responsible for local government, each municipality and other land use regulator having jurisdiction may

(b) confer a new order right on a woman –

• (i) who is a spouse of a male holder of an old order right to be held jointly with her spouse
• (ii) who is the widow of a male holder of an old order right, or who otherwise succeeds to such right to be held solely by such woman
• (iii) in her own right

Perhaps before embarking on comments regarding this provision it is important to state what the special rapporteur said regarding legislation:

National governments ……… need to ensure that the strategies and objectives envisioned in numerous legal instruments are realised and that women are accorded substantive rather than illusory rights as they pertain to housing.

The special rappourteur recommended that laws must be articulated and implemented in ways that recognise the specific constraints and vulnerabilites of women in relation to the right to housing.

It is our submission that this clause does not meet the recommendations set down by the special rapporteur, and the equality jurisprudence that has been articulated by the Constitutional Court:

• In principle Women’s Legal Centre does not support the idea of women accessing land by virtue of their marital status as opposed to their own capacities or existing use of the land.

• We however welcome the clause that will enable to women living under communal land to own their land jointly with their spouses. This will help in the protection of their rights.

• We are concerned that this provision is discretionary not mandatory.

• We are however concerned that this provision, as it stands, only allows the minister to make such a determination on the basis of the application by a party who has an old order right.

• The legislation fails to provide for a procedure where women will be able to make an application to be joint owners of the property with their husbands. It does not provide for an entitlement to women living under communal land to be joint owners of the property with their husbands. This is also left to the discretion of the Minister to offer women joint ownership of the property.

• The recent landmark law passed in Uganda to allow both spouses to be joint owners of house property has been hailed as a great victory for women. This approach will undoubtedly benefit women because women will be in a position to automatically own the land jointly with their husbands when the legislation is passed. This will not be depended upon the discretion of the Minister.

• It is also not clear as to what the legislation means when it refers to "measures required to promote gender equality" that must be taken into account during the land rights inquiry.

• The clause also does not set out the conditions upon which a woman will be conferred a new order right in her own name.

• At customary law women can not inherit from their husbands estate. This legislation provides that a new order right can be conferred on a widow of a holder of an old order right. This is done without reference to the customary law rules that prevents women from inheriting.

• People, including women, who have enjoyed beneficial occupation of land need to be conferred an old or new order right to the land.

• This will enable women who have occupied land and have worked on it to have a basis for the new order right without having to prove the existence of a marriage. This will also assist women who are not married to get title to land that they have occupied.

• The Commission on Gender Equality concludes that the bill is constitutionally deficient because it does not address the issue of gender equality in a manner consistent with the Constitution.

• The South African Human Rights Commission concludes that the bill is constitutionally deficient because it does not give people whose tenure is legally insecure as result of past racially discriminatory laws or practices, the right to secure tenure or comparable redress.

• We support their submissions.

• We are also of the view that this bill is constitutionally defective because of its failure to fulfill, promote, protect and respect women’s rights as envisaged in the Constitution. It fails to put in place mechanisms will ensure security of tenure for women in future. It also threatens the tenure that women presently have on land.

• The Bill does not meet its intended objectives and should therefore not be passed in its current form.