WOMEN’S LEGAL CENTRE SUBMISSIONS:

PARLIAMENTARY PORTFOLIO COMMITTEE ON LAND AND AGRICULTURE AFFAIRS

PUBLIC HEARINGS ON: THE PACE OF LAND REFORM

19 OCTOBER 2004

OUTLINE OF THE SUBMISSION

  1. About the Women’s Legal Centre
  2. Introduction
  3. Emphasising women’s rights in land
  4. Gender neutral laws
  5. Laws that are not guided by gender principles and fail to provide for mechanisms to implement gender equity
  6. What are we asking for?
  7. Lessons that have to be learnt (conclusion)

1. ABOUT THE WOMEN’S LEGAL CENTRE

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 to women living with HIV/AIDS. Discriminatory inheritance practices that serves to disinherit women has been the subject of our most recent litigation

 

 

 

 

2. INTRODUCTION

We welcome the opportunity to be able to make these submissions before the portfolio committee. We note the progress that has been made by the Department of Land Affairs on land reform to date. We however choose to focus our submissions on the areas where improvement needs to happen to accelerate the pace for law reform. Our interest in these proceedings and in land reform in general has a very narrow focus: the law as a tool for effecting societal change and advancing women’s rights in land.

In our submission, our analysis will look at mainly two examples: The Extension of Security of Tenure Act and the Communal Land Rights Act. We will use these Acts as tools to examine whether the programme of the DLA has responded to these challenges.

In 2000, Liebenberg and Pillay referred to a study that rated the performance of the Department of Land Affairs and produced the following results:

- The Department of Land Affairs programme in relation to women’s rights has ‘clearly shown a lack of vision’;

 

 

3. EMPHASISING WOMEN’S RIGHTS IN LAND

South Africa still suffers from extreme levels of inequality. African women remain arguably the most marginalised and vulnerable group. They also suffer from extreme levels of poverty, landlessness, vulnerability to HIV/AIDS and other forms of social ills that thrive on their helpless state. The existence of a combination of these factors serve to increase the vulnerability of these women. Measures aimed at ameliorating the hardships endured by this group of women are not only recognised by the Constitution but the Constitution further recognises these measures as an instrument to correct and redress these imbalances. Our barometer of the pace of land reform is premised on whether the laws passed to date have responded to these realities and whether the measures advanced have translated to benefits to this group of women.

4. GENDER NEUTRAL LAWS

Gender neutral laws do not address inequalities where they exist but they serve to entrench and preserve the status quo. The Extension of Tenure Act highlights this point.

Extension of Security of Tenure Act:

The rights conferred by ESTA can accrue to both men and women individually and judicial interpretation has extended those rights to other members of the family in support of the right to family life.

In the celebrated Land Claims Court decision of Conradie v. Hanekom and Another, the Land Claims Court set aside an eviction order against a husband and wife who were employed on the same farm. The husband was dismissed but the landowner sought to evict both the husband and wife. The court held that the wife, as employee, had a right not to be evicted under the Act. The court also held that she was also guaranteed the right to family life which enabled the husband to continue to reside on the farm in pursuance of that family life.

This case only confirms that women’s land rights, where they are entitled to those rights in their personal capacity, can not be scrapped simply because their husbands right to be on the land no longer exists. What this approach fail to engage with is that the majority of women farm workers, reside on the land because their husbands or male partners are employed in the land. Their status, often as casual and seasonal labourers do not entitle them to ESTA rights. The law only protects those women who are entitled to rights. It does nothing in the form of addressing the plight of women who hold title as part of their partners right. It protects rights that fewer women have and thus perpetuates the status quo by failing to address the factors that act as barriers for women in getting the rights conferred by the Act.

Communal Land Rights Act

The Communal Land Rights Act is the most recent example of the manner in which we have begun to understand that the danger of gender neutral laws has not received the attention of the Department. The draft bill was criticised as the definition of "old order right" constituted unfair discrimination relating to women’s rights because the rights were gender neutral.

In the various drafts of the Bill the Department alluded to the discrimination suffered by African women and stated its intentions to remedy these defects in the legislation. It failed to take into account women’s socially and legally constructed disadvantage. The draft bill did not attempt to provide for women’s rights. It was this portfolio committee that had try and fix the problem after a number of women’s rights organisations had made various submissions on the flagrant violation of women’s rights. It was on that basis that this committee changed s 4 (2) of the CLRA. The idea that such an omission could pass through various drafts undetected is not only disconcerting but it makes one question whether at a fundamental level what are the tests that the department sets for itself in bringing about gender equality. What was the basis of setting out what African women were going through if the legislation did not have measures for undoing it?

The Constitutional Court has emphasised many times that equality is not only a norm or a value in the Constitution that South Africans must aspire to but that it is a justiciable right. The draft Bill only insisted on norms and set out gender principles in the preamble but did not insist on measures in the legislation to undo the inequalities alluded to.

5. LAWS THAT ARE NOT GUIDED BY GENDER PRINCIPLES AND FAIL TO PROVIDE FOR MECHANISMS TO IMPLEMENT GENDER EQUITY

The role of the law in altering societal relations has been and still is a heavily contested terrain. It therefore becomes crucial when legislating that when legislation that aims to alter societal norms is passed that it must have clear directives on how the intended objectives are going to be met by the proposed legislative framework.

The difficulties of implementing laws aimed at advancing women's rights to access to land suggest that implementation is more difficult in some areas than others. The factors responsible are varied but some factors keep on resurfacing. Discriminatory socio-cultural norms and practices make it difficult for women to enforce their rights. The inability of some women to understand rights due to high illiteracy levels and lack of access to information also needs to be considered. There is also evidence of resistance to change by those who have a vested interest in retaining the status quo. Lack of access to judicial institutions where rights can be enforced and the failure of legislation to provide for other forms of dispute resolution mechanisms have also been mentioned as factors influencing the ineffectiveness of laws. In areas where family law intersects with property rights litigants have been reluctant to go to court to enforce their rights against other members of the family or community. A consideration of these factors by providing for an institutional framework that seek to address the commonly cited shortcomings is notably absent in the CLRA.

Women's access to justice is constrained in a number of ways but the laws and courts remain key in the protection and enforcement of women's rights. The South African courts have become an integral part of the societal change that South African court has undertaken. At the very least legislation seeking to vest rights should have dispute resolution mechanisms and provide for access to judicial institutions when there is a threat of violations of rights.

Communal Land Rights Bill – examples of conflict with gender principles

Non – insistence on processes

Inability to articulate the intended objective of the legislation

6. WHAT ARE WE ASKING FOR?

" …To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken"

7. LESSONS THAT HAVE TO BE LEARNT (CONCLUSION)