WOMEN’S LEGAL CENTRE
PARLIAMENTARY SUBMISSIONS: COMMUNAL LAND RIGHTS BILL
STRUCTURE OF THE PRESENTATION
SUMMARY OF THE PRESENTATION
The submission places in context the situation of women living under communal land. It highlights the manner in which the interface between customary law and civil law has adversely impacted on women’s access to property. It looks at what the barriers are with laws that apply at present and also at how this bill, in its current form, will worsen the position of women living on communal land.
Our submission is that women do not qualify as holder of older rights and this is due to the manner in which old order rights were allocated. New order rights are discretionary and are not available to women as of right. The land administration system created in the bill does not deal with the prohibition of unfair discrimination and therefore it is doubtful whether the system will ensure women have equitable access to land. All of these factors combined undermine the right entrenched in section 25(6) of the Constitution.
In conclusion we submit that the bill in its current form does not meet its intended objectives of securing tenure.
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 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.
Interest in making these submissions
Our interest lies in ensuring that special attention is to given to categories of women who have suffered because of their insecure tenure.
- We recognize that the purpose of this legislation as stated in the preamble is about giving effect to section 25 (the property clause) of the Constitution and section 25 (6) in particular:
"S 25 (6) A person or community whose tenure is legally insecure as a result of past racially discriminatory laws or practices is entitled to the extent provided by an Act of parliament, either to tenure which is legally secure or to comparable redress."
- We also recognize that giving effect to section 25(6) can not be done in isolation from giving effect to section 25 (5) which provides that:
"The state must take reasonable legislative and other measures within its available resources to foster conditions which enable citizens to gain access to land on an equitable basis (my emphasis)".
- We view this bill as a measure provided for in s 25(5) that will enable citizens and women in particular to gain access to land on an equitable basis.
- We also recognize that for this legislation to achieve its stated objective, securing tenure, it needs to take into account the unenviable position that women find themselves in in relation to land security. The legislation needs to do more than be gender neutral. It needs to go further and ensure that security of tenure is conferred to women in practice.
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.
RELEVANT LEGISLATION THAT IMPACTS ON WOMEN’S RIGHTS TO PROPERTY
Provisions of the Constitution
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:
Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community –
Section 31 (2) goes further and provides for an internal limitation to this right.
The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.
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.
Black Administration Act
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.
- The BAA states that the estate of a black person who is not exempted from the application of the BAA will devolve according to black law and custom. The courts have consistently interpreted black law and custom to mean primogeniture. At present a wife, girl child, or any other child who is not a firstborn will not be able to inherit from their deceased parent.
- The administration of estates under black law and custom has proven to be inconsistent. The form of protection that people get depends on where they reside. Some magistrates have been open to the idea of appointing women as representatives of their husband’s estates. Some magistrates continue to refuse outright.
The impact of all of this is that women continue to be excluded from inheriting under customary law
The Recognition of Customary marriages Act
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.
Matrimonial Property Act
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.
SOUTH AFRICA’S INTERNATIONAL OBLIGATIONS
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:
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.
COMMENTS ON VARIOUS SECTIONS OF THE ACT
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.
Chapter 2 – Juristic personality and legal security of tenure
"As required by section 25 (6) of the Constitution an old order right which is legally insecure as a result of past racially discriminatory laws or practices must be legally secured as provided for in this Act"
Clause 5 - Registration of communal land and new order rights.
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.
Where are the substantive mechanisms that will enable these new order rights to exist and consequently get land transferred to women?
- Lessons learnt from the Kenyan experience in land reform regarding the registration of communal land rights teaches us when there are no mechanisms to ensure that the interests of the vulnerable are protected, registration can serve to deprive the vulnerable groups of the rights that they have previously enjoyed in the land at customary law.
Clause 9 - Conversion of registered new order right into freehold ownership
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
"tenure which has been confirmed, converted, conferred or validated by the minister in terms of section 18."
Section 12 – Award of comparable redress
‘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.
Clause 14 - land rights inquiry
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
(g) the measures required to promote gender equality in the allocation and registration of new order and the exercise of such rights
Clause 18 - Determination to be made by ministers
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 –
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:
- Women who live with their husbands need to be given a real right to joint title to the property.
Land Administration systems
- Although there has been an attempt to democratise traditional councils in terms of "Traditional Leadership Governance and Framework Bill". A traditional council is not the appropriate body to ensure that women get access to land. A failure to appoint Land Administration Committee will mean that the traditional council will perform the land administration functions. The traditional leadership bill fails to provide for sanctions if a traditional council does not comply with its obligations or gender quotas. This bill does not provide for a complaints mechanism for aggrieved individuals. The Bill fails to provide for positive measures aimed at dealing with the systemic discrimination of the institution of traditional leadership’s refusal to allocate land to women.