UUUU URGENT

In order to understand the impact of this process on gender equality, it is necessary to understand the gendered nature of the 'old order' rights which the process is to address.

Regulations: The issuing of PTO's which can be issued to people who were in the lawful but unregistered occupation of Trust land at the commencement of the Regulations, and to a person who is 'the head of a family'.(A woman can not have a PTO while her husband or customary union partner is alive, and she can not hold an independent or permanent right.)

Customary law: Only men are allocated land. Women can generally access use rights to land only through relationships with men. The only right 'derived from or recognised by the law' which a woman can hold is a derivative or secondary and temporary right.

Insecure tenure double discriminates against African women.

The primary rights in the land are held by men, and women's rights are secondary or derivative. Clause 4 reinforces a system in which there is fundamental structural discrimination against women, which is inconsistent with the equality requirements of sec 9 of the Constitution.

There are two difficulties with Clause 4, clause 14, clause 18(1), 18(4)(b) provisions.

In the first place, they have to be read with the general provision in section 4 that old order rights must be legally secured. The effect of this is to reinforce the subordinate position of women. In the second place, this power is discretionary: the Minister 'may' confer a new order right on a woman who falls into one of the categories described.

No guidance is given as to how they are to be weighted, or under what circumstances (if any) the constitutional right to equality may be limited. The Bill does not 'limit the risk of an unconstitutional exercise of the discretionary powers it confers'.

The land administration committee will be the key local body for administering land rights, and this Bill does not protect women against the exercise of wide-ranging discretionary powers in a manner which discriminates against them;

This Bill entrenches the existing inequality of women with regard to land rights, because it: strengthens and reinforces the results of a discriminatory system which has conferred primary rights on men, and only secondary or derivative rights on women; does not protect women against the exercise of wide-ranging discretionary powers in a manner which discriminates against them; does not direct decision-makers to give proper weight to the positive constitutional obligation to promote equality; does not explicitly prohibit practices which discriminate against women; and places key administrative powers in the hands of bodies on which women are in a permanent minority; which in the past have been primary agents of discrimination in relation to land administration and allocation; and which are not accountable to the people affected in the ordinary democratic manner.

We therefore recommend that the definition of Old Order Rights should include women living on the land, and should not be legally secure, as prescribed by Clause 4, as this is a direct discrimination against Black Women, as they are prejudiced by Clause 4.

Yours sincerely