Apartheid, gender and property relations in South Africa: Some reflections from Rahube v Rahube & Others

Authors: Kennedy Kariseb & Nimrod Muhumuza

Kennedy Kariseb	Nimrod Muhumuza

Land reform is a litmus test for how far post-apartheid democratic South Africa is willing to go to redress its abhorrent racist and sexist history. There have been several attempts to reconcile colonial and apartheid-era laws with their concomitant rights and obligations in the new democratic dispensation, epitomised by the transformative 1996 Constitution. The latest proposal is to expropriate land without compensation which is currently undergoing public consultation. However, scant attention has been paid to the gendered land relations that have excluded women from owning land in their own name.

The recent  judgment of Kollapen J in Rahube v Rahube & Others,[1] is one such case that indicates the difficulty of reconciling the impact of a skewed racial, gendered history in a new democratic dispensation premised in a supposedly transformative constitutional regime.[2] The Rahube judgment is another (rather unfortunate) reminder of the subordinate position that women occupy in South Africa, as in most parts of Africa, reminding us that inasmuch as land and property relations in South Africa were racially anchored, they were, (and still are) thoroughly gendered. This is because for the most part, colonial and apartheid laws and practices limited, and at worst excluded women from accessing and controlling resources such as property, including land.[3]

Despite the transformative rhetoric enshrined in the 1996 Constitution, women, particularly black women, have not benefited from attempts at land reform, including housing and access to property. South Africa’s Constitution provides for the existence of a dual system of statutory law and ‘indigenous customary law.’ This body of customs and practices observed among the indigenous African people of South Africa pre-dates colonialism and apartheid. Traditionally, women have been denied rights to property under customary law in South Africa. Under 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.

The subordination of women by customary law further found root in colonial and apartheid statutory law. For example, in rural areas, the 1913 Land Act (later the Black Administration Act) legalised the restriction of access to land by women in their own name. In urban areas, the Group Areas Act prevented women of different racial groups from having access to land and homes and resulted in many forced relocations. As stated already, a woman was barred from owning property under customary law as she was considered a minor and was therefore a ward of her father, husband or brother. The intestate law on succession also excluded women from ownership of property. Succession under customary law was based on the principle of primogeniture which requires that only males can be heirs to estates of deceased owners. Since only men could own land and property, it followed that only sons could inherit that property. As a result, women were incapable of inheriting from the deceased estate of their father or husband if the deceased died without a will. While the situation has changed at the legal level, mostly through the pioneering jurisprudence of the South African courts, in practice many women still remain excluded from accessing property, particularly land.

These practices and gender relegation entrenched in the laws and practices referred to above continue to haunt women in democratic South Africa. This is evidenced in the case of Ms Mantshabelle Mary Rahube who in 2009 was faced with an eviction order based on apartheid property laws. By way of background, the Applicant, Ms Mantshabelle Mary Rahube, the elder sister of Mr Hendrine Rahube, (the First Respondent) together with other members of their family, moved into property known as Stand 2328 Block B, Mabopane in about 1970 following their forceful removal from the area known as Lady Selbourne. With time some members of the family moved out of the property. Although far younger than the Applicant, the first Respondent was appointed as head of the household in compliance with the Native Proclamation Act R293 of 1962, which amongst others ceded occupational rights to the “head of the household” in trust for the family based on his gender in tandem with customary practice, when their grandmother died in 1978. He, however, moved out of the property in 1990. Even though the occupants of the property have varied over time, since 2000, the property has been exclusively occupied by the Applicant and her nuclear family.

In 2009, the First Respondent instituted eviction proceedings against the applicant. He  argued that he was the lawful owner of the property having been granted a Deed of Grant issued in his name on 13 September 1988 in terms of the Native Proclamation R293 of 1962, read together with the Black Administration Act 38 of 1927.

Following the enactment of the Upgrading of Tenure Land Rights Act 38 of 1991 in September 1991, the First Respondent’s tenure rights, which he held as ‘family head’ were automatically converted in to full ownership pursuant to section 2(1) of the Act. Having been granted such full ownership, without formal notification to that effect to the Applicant, or, any of the other occupants of the property, the Applicant was denied an opportunity to make representations with regard to her interest, or claim to title, in the property Facing eviction from the First Respondent, the Applicant instituted action against the First Respondent in the High Court in Pretoria wherein she sought a declaration that she be declared owner of the property situated at Stand 2328, Block B, Mabopane. In the alternative, the Applicant sought for a declaration that section 2(1) of the Upgrading Act be declared unconstitutional and invalid to the extent that it deprives occupants of the property subject to a land tenure right from claiming ownership of the property without affording them an opportunity to be heard before converting the land tenure rights into full ownership contrary to section 33 of the Constitution.

In its finding, the Court refused to address itself on the question of ownership over the property, based on the possible multiple interests that were held in the property and the fact that such prospective subjects were not joint in the application. The Court was, however, quick to find section 2 (1) of the Upgrading Act unconstitutional and invalid to the extent that “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 rights could be considered and assessed and a determination be made”. [4] This finding was considered in light of sections 9 (right to equality) and 34 (right to access to Courts) of the Constitution.

In a sense, 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 without a doubt formed the basis of colonial and apartheid South Africa, ensured the protection of men’s privileged access to resources.  For example, the concept of the ‘head of household/family,’ has in most instances been conceptualised and appreciated to elevate men’s social standing over that of women. Because men primarily occupy the central space in the public arena, the privileged area of politics, economy, military and intellectual engagement, they are resourced economically and financially to lead households. Women, who have been socialised for the domestic space of home and family, generally rely on their sustenance from men. As a result of this private-public binary, it has become standardised that men are the custodians and guardians of their families and households. An immediate consequence of this trend has been the subordination of women and the limitation of their capacities to access resources and the privileges that are centred in the public arena.

The finding of the Court is a positive development as it attempts to address the inequalities meted against women by virtue of law and custom. Clearly, the exclusion of the Applicant from the property and the initial granting of the Deed of Grant to the Respondent was based on customary practices which privileged male ownership over property.  This practice was further entrenched by positivist law. In fact, the wording of the applicable legislation, namely the Native Proclamation R293 of 1962 clearly denotes racist sentiments based on racial segregation and it also remains deeply sexist in its effects.[5] The gendered nature of the legislation is further evident from its repetitive use of the noun ‘he’ throughout and its reference to ‘head of the family,’ in the masculine form. It is quite evident that the Applicant, purely based on her gender would be precluded, and was precluded in this case, from holding any title or right in land in her own name. As a consequence, the historical exclusion of women from property, which was formalised by the Native Proclamation R293, and cemented by the automatic upgrading and conversion into full ownership of such titles in terms of the Upgrading Act has placed many black women in a vulnerable position, excluding them from entitlements relating to property and land.

The Rahube judgment comes at a time where South Africa seeks to review its land reform processes. Years after the formal end of apartheid, land relations, including housing, continue to stir great controversy. While it is imperative that the racial imbalance in land ownership be addressed, we should also not lose sight of the massive gender disparity in land ownership. Any reform process, including the proposed amendment to section 25 should take that into account.

[1] Case No. 101250/2015, judgment dated 26 September 2017, Gauteng Division of the High Court of South Africa.

[2] See general K Klare “Legal Culture and Transformative Constitutionalism” 14 South African Journal on Human Rights (1998) 146, for a detailed discussion on the transformative nature of the South African Constitution.

[3] According to the Department of Land Audit Report of 2017, women in South Africa own just 13% of individual land holdings in the country. This is astounding given that the fall of apartheid was supposed to usher in a new era in terms of equity and equality.

[4] Par. 51

[5] See for instance section 9 (1) of Chapter 2 of the Native Proclamation Act. While contemporary interpretation of statutes provides that the use of ‘he’ should be interpreted to include ‘she’ such an assumption is not a given regard being had to the contextual and historical positioning of this legislation. See also Western Cape Provincial Government & Others In Re: DVB Behuising (Pty) Limited v North West Provincial Government & Another 2001 (1) SA 500 (CC), where the Act was described as “admittedly racist and sexist and [that] constituted a key element in the edifice of apartheid.”

About the Authors:

Kennedy Kariseb is a doctoral candidate at the Centre for Human Rights, University of Pretoria. His areas of research are broadly blended between family law, gender law (i.e. vulnerability of women to violence), and (international) human rights law (with a stern focus on special procedure mechanisms).

Nimrod Muhumuza is an LLM candidate at the Centre for Human Rights, University of Pretoria.