LEGAL RESOURCE CENTRE
Gender and Land
Oral Submission to the Portfolio Committee on Land
Our Constitution envisages a new democratic order in which there is "equality between men and women and people of all races". The Constitution also describes itself as a "bridge between the past of a deeply divided society and a future founded on the recognition of human rights, democracy, peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex".
The government RDP and Land Reform Process undertakes to redress apartheid's land legacy and to create security of tenure for all South Africans including women. The White Paper on South African Land Policy notes that "it is essential that gender equity be ensured in the land distribution and land reform programme so that women achieve a fair and equitable benefit".
These positive constitutional provisions and policy provisions must be seen against the background of the acute social, economic and political disadvantage suffered by the majority of women in South Africa. Black women in particular are subject to a disproportionate burden of poverty and illiteracy as well as discriminatory customary laws and practices. The task of reconstructing the state and society to meet these constitutional aspirations is enormous.
Position of Rural Women
In South Africa, seventy percent of rural women scratch a subsistence living from the land. They cannot own the land they work or even the implements with which they farm, They have also not been drawn into the land reform programme in any significant way.
Most rural women in South Africa are agricultural producers, cultivating mainly subsistence crops. Most were forced to become farm managers when their husbands and sons were forced into wage labour on the mines and in the cities. Most women are heads of households, bearing the responsibility for childcare and household maintenance in addition to agricultural production. In keeping the "home fires burning" they have to put in extra hours of work carrying water and finding wood fuel since they do not enjoy such infrastructural support of electricity, piped water or other social services. Women's position is the result of discrimination emanating from a triple source of race, class and gender oppression and each finds expression in relation to land.
A part of the black majority, black women were prevented by apartheid from owning land i.e. in 87 percent of SA. Rural black women experience class discrimination on account of being among the poorest of the poor even though the racial restriction on owning land has been lifted, they simply cannot afford to buy land.
As for gender discrimination, customary laws prevents women from owning land. A minority status that was perceived to be the customary law, was legally inflicted on women by section 11 (3b) of the Black Administration Act of 1927. Up until 1986 with the insertion of S(11)A a women was not able to obtain real rights to land without the permission of her husband or guardian.
Women have also been discriminated in all forms of land tenure. In urban areas, men were allowed to obtain site permits, women were included under the definition of "dependents" of the holder of the certificate. On the death of the permit holder all permits automatically collapsed, but preference was given to the dependent or heir, only in exceptional cases it was re-allotted to a women if a dependent was involved. Certificates to occupation were also only issued to men. In rural areas under SADT land provision was made for permissions to occupy and quitrent. These rights may not be inherited in terms of a will under S(23) of the Black Administration Act of 1927. Regulations precluded the transfer of quitrent to women and provides for the devolution of quitrent land after the death of the holder. Interstate succession rules favour male inheritance, if there is no competent heir, the official may cause the land to be sold and the proceeds divided between female members and their descendants.
Women have no rights in land of their own. Customary Law according to the Black Administration Act of 1927, treats women as perpetual minors, preventing them from holding rights in land, even freehold rights and from inheriting anything from their husbands. As a consequence women can and do become homeless when their marriages break up or when their husbands die. With reference to some of the cases being dealt with by the LRC many women (pensioners and widows) are being evicted from their family homes by their sons, since the family home could not be registered in their name. Women who do not marry may have no option but to become squatters. Rural women who have to sustain the family's needs daily in collecting wood, planting crops for food, collecting water and building their homes have limited use rights of natural resources.
Women's participation in the land reform process has not been on an equal basis with men so far. Many of the trusts and committees that have been established in the land restitution and redistribution process are still male dominated. The Communal Property Associations of 1996, ensures equal representation of women but the equal participation of women is not guaranteed.
Constitutional Obligations to obtaining Real Rights in Land for Women:
The TRAC an NGO that works with rural communities states that if South Africa's land policy is to be equitable, "Rural women's voices must be heard" and women must have access to processes of political decision making. To guarantee a gender sensitive land policy process which includes the needs of rural women there is a need to construct suitable channels for reaching out to women and providing opportunities for them to participate fully.
The legacy of entrenched traditional values which makes it difficult for women to speak in community meetings needs to be changed.
Where legislative measures allow discrimination they must be amended. It is recommended that section (11)3 of the Black Administration Act 1927 be repealed, which institutionalises the perpectual minority status of African women. This is a clear challenge to Constitutional Principles.
The Law of Inheritance must be revisited and amended with the participation of the communities involved.
Subsistence farming need infrastructural support, not only commercial farming i.e. training, access to finance and equipment.
DLA to evolve appropriate gender integration strategies with a gender sensitivity training programme for all staff.
In the case of tenure upgrading it is to be taken into account that women were previously disadvantaged:
* where permits or certificates were issued in the name of the male partner who has left the family home, the upgrading to leasehold or ownership be done in the name of the wife if resident in the home.
* where a usufructary was created, the title of ownership be transferred to women.
* access to land and land tenure be granted to all without regard to gender or marital status.
To attain gender equity in the Land Reform Process, women must participate fully at all levels. Equity will be achieved only with the removal of all legal, social and economic restrictions on the participation of women. The Land Reform Process must include the reform of customary marriages, natural resource management policies and inheritance laws where they are obstacles to women receiving and holding rights in land. Our Constitutional and Land Policy Processes challenges thus goes well beyond reforming rights in land.
Legal Resources Centre
Land, Housing and Development Unit:
In the white paper @ 5.6 public land is defined as including land which belongs to parastatals. it states that:
"public land is a national resource, the uses of which should be governed by a policy which supports governments macro economic, human development and redistribution goals."
Government's key responsibilities are defined as
· to establish in consultation with other tiers and departments of government clear and transparent criteria for the development or disposal of public land
· to establish acceptable mechanisms for public consultation on the use of state and public land
The White Paper does not acknowledge or suggest mechanisms to resolve the tension which exists between government's macro economic and redistribution goals. One of Government's macro economic goals is that of privatisation. which involves converting public ownership of assets to private ownership. Public land owned by Parastatals is included within this programme. Some privatisations involve land subject to land claims.
These claims often create a tension as the National Framework Agreement does not specifically provide a role for local communities to participate as a stakeholder in the process of privatisation.
The white paper should acknowledge the potential impact of privatisation upon restitution and include the policy that:
where public land is to be disposed of by privatisation and is subject to land claims, the constitutional goals of restitution should be incorporated within the privatisation process.
The role of the state: institution-building and conflict management
Markets on their own are not capable of providing the impetus for development. In a world of uncertainty, where individuals are averse to risk and there are immobile assets the transformation from a predominantly agricultural to an industrialised economy requires technological learning, an upgrading of skills and innovation. This innovation often requires complex institutional arrangements which cannot be provided by arm's-length relationships and maximum price competition. So the state, which is the ultimate guarantor of property relations and has the ability to effect incentives for action, has a role to play in building institutions to facilitate the realisation of a vision incorporating learning and from this perspective, rather than being an obstacle to development policy, which coordinates complementary investment decisions, is essential for economic change.
A role for the state, that of conflict manager, arises because development is conflictual by nature, all states are involved in influencing who the losers are in development; and state action to compensate losers is necessary for dynamism in the economy. Failure to manage conflict can result in losers engaging in action that undermines development. In order to prevent social discord, the state must engage in redistribution and govern markets in a way that encourages, but the need for conflict resolution is greater than this, because by providing "governance" which allows people to receive "fair treatment" in changing circumstances, the state in its role of conflict manager performs an important insurance function, which improves productivity in the economy by encouraging risk-taking and investments in specific assets with limited mobility. If uncertainty is not reduced, people remain reluctant to take the risk of investing.