COMMISSION ON GENDER EQUALITY
SUBMISSION TO THE PORTFOLIO COMMITTEE ON AGRICULTURE AND LAND AFFAIRS
COMMUNAL LAND RIGHTS BILL [B67-2003]
10 November 2003
The Commission on Gender Equality is a statutory body set up under section 187 of the Constitution to protect and promote democracy and gender equality in South Africa. Its mandate is outlined in its constitutive Act 39 of 1996. Amongst its responsibilities is to ‘evaluate…any system of indigenous law, customs or practices…’ in terms of gender equality.
The CGE welcomes the opportunity to present on this Bill, as we realise the importance of a democratic process of administration, and provision of legally secure tenure; as well as the transfer and registration of communal land to families and individuals.
We would like at the outset to say that we accept that South Africa is a diverse society with a large number of people who identify themselves as belonging to a traditional community, living on communal land, headed by a traditional leader, and subject to customary law. Our Constitution has recognised this reality, and the reality of legal pluralism. Any recognition of the role of traditional structures has to be limited by the Constitutional principles of equality in general, and the principle of gender equality in particular.
The recognition of traditional leadership and traditional communities needs to take account of the fact that these institutions are not democratic in their formation, are highly patriarchal, and historically have underpinned the subordination and oppression of women. Hence the rights of women within traditional communities should be protected and extended to at least equal those enjoyed by men.
It is trite to state that the legal system of the past has largely failed to benefit the majority of South African women. In particular, black, working class and poor women living in rural areas have been marginalized, both by the so-called Westernised system of justice and the customary structures. The socio-economic and legal position of black women in South Africa has been shaped by Apartheid policy, customary and religious law and more recently by political reform. On the one hand, women have been marginalized and denied access to justice, while on the other hand, accessing justice is viewed as a fundamental human rights. For black women living in rural areas however, accessing justice has been particularly difficult because of their socio-economic circumstances, low levels of literacy, discriminatory cultural practices, infrastructure and so on. Hence, the principles entrenched in the Constitution, particularly, the substantive equality principle is crucial to ensure the transformation of the status and lives of women.
( A ) WOMEN’S REALITY
(1) Problems Faced By Women in Southern Africa
In a WILSA study of Women and Land in Southern Africa the legal and factual situation regarding women’s access to land as a resource in Southern Africa generally, was found to be problematic. We quote from their findings:
A critical analysis on the ground in all the seven countries shows that there are no tangible programmes that have been put in place to facilitate women’s access to land. In the area of the law, although changes in the legislation in some countries provide for equal access to land for women and men, traditional and cultural structures have effectively barred women from acquiring land in rural areas. The WLSA studies reveal that customary law; conservative attitudes and behaviours further prevent women from enjoying their full land rights.
In addition women’s own submissive attitudes to male domination and their lack of enlightenment due to poor education also contribute to their failure to acquire land. Lack of access to credit and banking services is one of the other main constraints to both acquisitions of land and increasing women’s productivity. The situation of lack of access to credit is further compounded by the general poverty situation of women in Southern Africa. Poverty is directly linked to the absence of economic opportunities and autonomy, lack of access to economic resources, lack of access to education and support services and their minimal participation in the decision making process.
The gendered nature of society also negatively affects women’s access to land resources in general. The gender dynamics in social relations at a family level depict a blatant imbalance of power, which has a bearing on whether a woman can access land.
(2) Problems faced by Women in South African Rural Areas
This research commenced with a community consultation process which consisted of bringing representatives from 75 rural communities together in 7 large rural meetings that took place over two days. These meetings were held in different provinces and reflected the diverse nature of tenure problems in South Africa. Two of the seven meetings focussed specifically on women and land rights. The other 5 focussed on general tenure issues, but in all the meetings people, including many men, raised the difficulties women face in communal areas. The problems that were articulated at the hearings included:
These included stories of unmarried women with children being made to feel unwelcome in their natal homes, especially after the death of their parents, but also while their mothers were still alive. In various instances brothers had used violence to get their sisters out of the family home, in two instances whilst the mother was still alive. In all these instances the brothers asserted that, in terms of customary law, only men are entitled to land rights in the natal home.
Separation and divorce - Various women recounted stories of sustained violence against them by their husbands. A fairly common theme was that of husbands evicting their first wives when they took another wife. In three cases the husband used the cattle from his first wife’s daughter’s lobola to pay for the lobola for his second marriage. There were instances of husbands assaulting their wives so badly and so often, that the wives fled of their own accord, leaving not only their homes but all their possessions behind them. There were also instances of the husband and his family locking the wife out of the house so that she could not return.
In all instances expect one, wives lost access to the house and the land on separation.
There were instances of arranged marriages, where the families of young women arranged their marriages to much older men, as either second or third wives. All of these women and their children were "chased away" by the husband’s family – including the first wife - after his death. In all three cases the families asserted that the young wife was not properly married, and she and her children lost their home and possessions.
Many of the problems recounted were about inheritance – the loss of home and land on the death of a husband or father, especially in instances where there were no sons.
In one instance young sisters have been sexually abused by their father’s brother. Their father has died, and their mother is struggling to protect them because her security of tenure depends on maintaining good relations with her deceased husband’s brothers.
Time and again women said that their attempts to report their eviction from their homes and enforce their rights had been met with the response that their problems were "family disputes" and they must go home and sort them out within the family. This was the response both from the clerks whom they approached at the magistrate’s offices and from most of the indunas they approached.
The unequal and discriminatory nature of women’s access to land under customary law has been re-enforced by formal law and court decisions. For example the most common record of land rights in communal areas is a PTO. Yet the PTO regulations state that PTO’s may be issued only to men. Current PTO’s embody ongoing discrimination against women.
Another problem relates to customary marriages. The Black Administration Act (section 11 (3)) deemed wives in customary marriages to be minors, and subject to their husband’s guardianship. They could not own property or contract in their own right. This provision has been repealed, but its legacy remains. The position is worse in Kwa Zulu Natal where customary marriages were not governed by the Black Administration Act, but by the Code of Zulu law. This remains in force and it prevents women from being able to acquire property in their own names: they remain legal minors, subject to their husbands’ guardianship.
A very serious consequence of the Black Administration Act is the impact on succession. The Act provides that "black law and custom" governs intestate succession. Until the recent Bhe judgement this had been interpreted to mean male primogeniture. This has obviously had a major impact on women’s land rights in communal areas. In the first place the PTO regulations reinforced the customary prohibition on allocating land to women. In the second place, property (including land) bypasses women on the death of their parents, even if the land belonged to their mother.
The research report concludes that the one of the most serious problems facing rural women is that their rights are not taken seriously by existing institutions, including magistrate’s courts and customary courts. Time and again they are turned away, even when they have come to report serious problems such as violence, confiscation of property and eviction. The legacy of past discriminatory laws, and the operation of some aspects of customary law, has created a situation where most women in communal areas do not have secure land rights. Their position remains vulnerable and unequal. Not only do they not have land rights, but customary practices restrict (and in some cases completely prohibit) their right to participate in decision making processes under communal tenure.
(3) Legal Resources Centre (LRC) experience
According to the LRC’s experience with clients, a great majority of women living on communal land have a very weak position as regards land tenure rights. They have very little opportunity to hold rights in land, even if they in many instances use the land for important purposes such as subsistence farming. As regards residential rights, they are in a particular vulnerable position. Even when it comes to residential rights of married women, whether their marriage is based on customary law or not, and independently of their marriage being in or out of community of property, their position is extremely weak in cases of divorce or death.
( B ) INTERNATIONAL OBLIGATIONS
Women’s rights to inherit housing and land are protected under international human rights norms. International laws of protecting women’s equality and rights to non-discrimination exist in numerous conventions, covenants and resolutions, further protecting women’s rights to housing, land and property ownership, access and control, and the right to inherit on an equal basis with men. These include International Covenant on Economic, Social and Cultural Rights, the International Covenant on the Elimination of All forms of Discrimination against Women and the International Covenant on Civil and Political Rights.
Article 2.7 of the Convention of the Elimination of all Forms of Discrimination Against Women (CEDAW) which South Africa has ratified without reservations states that:
State parties [governments are] to take all appropriate measures including legislation to modify and abolish existing laws, regulations, customs and practices which discriminates against women. (Furthermore) State parties shall take all appropriate measures to modify social and cultural conduct of men and women with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of inferiority or superiority of other sexes or stereotyped roles for men and women.
( C ) CONSTITUTIONAL OBLIGATIONS
The Constitution compels government to promote social and economic development, and ensure that they are sustainable. Land distribution and administration is therefore an important arena for the transformation of South African society and the effective delivery of services to local communities. The task of the CGE in the sphere of government is to play an oversight role in ensuring that land distribution and service delivery are in line with constitutional entrenched principles. We support measures which provides for legal security of tenure, and the democratic administration of communal land, particularly in line with Section 25 of the Constitution.
The Bill is clearly intended to give effect to the requirements of sections 25(6) and 25(9) of the Constitution, which respectively provide as follows:
‘A person or community whose tenure of land 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.’ and
‘Parliament must enact the legislation referred to in subsection (6).’
Furthermore, Section 9 of the Constitution which provides for the right to equality, is also relevant in the formulation of all legislation.
CONCERNS AND RECOMMENDATIONS
( A ) GENERAL
The Commission on Gender Equality has received numerous concerns about the fast tracking of this Bill through the Parliamentary process. Concerns were raised about lack of adequate consultation with rural communities, and there is a perception that more consultation was done with the Traditional leaders than with communities. Concerns have also been raised about the drastic changes from the previous draft Bills, which was underpinned by the protection of human rights norms and standards. There have been various calls for the tabling of this Bill to be delayed until after the elections, to avoid it being used as a political tool, at the expense of the rural poor communities in general, and rural women in particular. Another concern raised was about government absolving itself of the responsibility and the expense of land administration in communal areas, and transferring this function onto unpaid community structures.
The CGE is also concerned about the gaps in this Bill which fail to address, and adequately cater for the effective sustainable implementation of land reform in our country within a constitutional paradigm. In our view, this Bill must address land reform in communal areas in a manner that ensures real substantive tenure rights to women, instead of legitimising old apartheid tribal systems, and elevating them to positions of land administrators. Furthermore, the legitimacy, recognition and acceptance of traditional leaders is a contested issue, and the delegation of the function of land administration, could lead to further divisions and conflicts in communities. The differential treatment of urban based and rural based people in respect of land administration, impacts on citizenship rights. There is recognition by government that land redistribution has to be accelerated, but there seem to be a lack of recognition that the state has the responsibility to ensure that women’s security of tenure of land must be guaranteed through such legislation, to ensure substantive gender equality.
( B ) GENDER EQUALITY PERSPECTIVE
The starting-point in the Bill is clause 4, which provides as follows:
‘An old order right which is legally insecure as a result of past racially discriminatory laws or practices as contemplated in section 25(6) of the Constitution must be legally secured in terms of this Act.’
The Bill creates a mechanism for the Minister to institute a land rights enquiry (clause 14), and on receiving the report of the enquirer to determine the location and extent of the land to be transferred to a community or person (clause 18(2). Clauses 18(3) and (4) give the Minister wide discretionary powers in this regard.
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.
THE FIRST QUESTION IS: CAN WOMEN HOLD OLD ORDER RIGHTS, AS DEFINED IN THE BILL?
It will be observed that one of the key requirements for the existence of an older order right is that it is derived from or recognised by law, including customary law. There are two main ways in which rights in communal land are derived from or recognised by law. These are through the applicable regulations or by customary law.
The regulations which govern land rights in the communal areas are the Black Areas Land Regulations R 188 of 1969, which were made under the Black Administration Act 38 of 1927 and the Development Trust and Land Act 18 of 1936. (Hereafter referred to as the Regulations). The main method of establishing rights under the Regulations is through the issuing of the Permission to Occupy (PTO). This is dealt with in Chapter 5 of the Regulations. Regulation 49(1) deals with the issuing of PTO in respect of arable and residential allotments. PTO 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’.
It is therefore clear that under the Regulations, the only right ‘derived from or recognised by’ the law which can be held by a woman is a right to continue occupying the land after the death of her husband or customary law partner, and that right continues only until she remarries or enters into another customary union. It follows also that under the Regulations, the only right a woman can hold is a derivative and temporary right, once her husband or customary union partner has died. 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.
Under customary law, only men are allocated land. Women can generally access use rights to land only through relationships with men. On divorce, wives lose the right to use the land because the land is held by the husband, and the marital house attaches to the land. On the death of a man who has not made a will, including a married man, the land and the house pass to a male relative on the principle of male primogeniture.
It follows that under the customary law, as under the regulations, the only right ‘derived from or recognised by the law’ which can be held by a woman is a derivative or secondary and temporary right. The conclusion is that the only right ‘derived from or recognised by the law’ which a woman can hold is a derivative or secondary and temporary right. The legal rights created by the law are therefore highly gendered, and discriminate against women.
THE SECOND QUESTION IS: CAN WOMEN SECURE OLD ORDER RIGHTS?
As has been pointed out, clause 4 of the Bill stipulates that old order rights ‘must be legally secured’ in terms of the Act. The Bill does provide that rights recognised by practice or usage can also qualify as old order rights. However, the primary rights in the land are held by men. The rights held by women through practice or usage are generally secondary or derivative. The effect of the injunction that old order rights are to be secured is to therefore reinforce a system in which there is fundamental structural discrimination against women. This is plainly inconsistent with the equality requirements of sec 9 of the Constitution.
In clause 14, the Bill attempts to address gender equality, in that the rights enquirer must enquire into (amongst other matters) the measures required to promote gender equality in the allocation and registration of new order rights and the exercise of such rights; the clause 18(1) provision that amongst other factors the Minister must have regard to the need to promote gender equality; and the clause 18(4)(b) provision that the Minister ‘may’ confer a new order right on a woman who is:
(I )the spouse of a male holder of an older order right, to be held jointly with her spouse, or
ii) the widow of the male holder of an old order right, or
iii) ‘in her own right’. (The meaning of this last provision is unclear.)
In the first place, they have to be read with the general provision in section 4 that old order rights must be legally secured. As has been pointed out, 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.
Case Law: In Dawood and another v Minister of Home Affairs and another; Shalabi and another v Minister of Home affairs and another 2000 (3) SA 936 (CC), the Constitutional Court held that where a law gives an official an administrative discretion which may affect the constitutional rights of a person who is affected, the law must instruct the official to exercise the discretion in a manner which achieves the realisation of the right concerned.
The Bill stipulates a wide range of factors which the Minister (who will usually act through a delegated official - see clause 44) must or may take into account in making a determination. Clauses 4, 14(2), 18(1)and 18(4) together list approximately 20 different factors which the decision-maker must consider in making a clause 18 determination. 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 THIRD QUESTION IS: WHAT IMPACT WILL THE CREATION OF A LAND ADMINISTRATION COMMITTEE HAVE ON WOMEN?
Clause 21(1) of the Bill provides that a land administration committee is to be established in each community. The land administration committee will therefore be the key local body for administering land rights.
Clause 21(2) provides that if the community has a recognized traditional council, the powers and duties of the land administration committee may be exercised and performed by that council. The recognition of traditional councils and their structure are dealt with by the Traditional Leadership and Governance Framework Bill.
Our concern is the impact on women of making the structures created by that Bill into the central bodies for the administration of land rights. While women are now to participate in these councils, the structure created by that Bill has the result that they will be in a permanent minority on the councils. By their nature, the traditional councils are not democratically elected bodies. This may further increase the vulnerability of women: certainly, it can not be said that it promotes equality in relation to land rights. If women are aggrieved by decisions made by the land administration committees which are traditional councils, they will have only very limited remedies. In particular, their land rights will be subject to the decisions of bodies which have an inbuilt male majority, and which are not accountable to them through the democratic process. To this extent, their rights will not be secured or protected and promoted in a manner which ensures gender equality. This defect is underlined by the failure of the Bill to address adequately the question of discrimination in land allocation.
Clause 19(4)(c) states that the community rules may not be registered unless they are consistent with the Act and the Constitution: clause 19(4)(c). They may therefore not discriminate on the basis of gender. However, it is well known that one of the most pervasive problems faced by women in communal areas is the refusal of some traditional leaders to allocate land to women. Given that the traditional councils will now have this function, there is a very real risk this discrimination may continue either in terms of community rules, or in accordance with unwritten practice. If the rules provide for discrimination, they will plainly be invalid, and can not be registered. The problem is what will happen if the discrimination is not recorded in the new rules, but continues in accordance with past practice.
Given the context in which the statutory land allocation system is being created, one could reasonably expect that the Bill would contain an explicit provision banning discrimination in land allocation, or requiring that women be allocated land on the same basis as men. The Bill which was published for comment in August 2002 had such provisions. For example, the objects of the August 2002 version of the Bill included, in clause 2(h) -‘to provide, in the context of this Act, for the protection of the fundamental human rights contained in the Bill of Rights in the Constitution, including -the right to equality, especially gender equality in respect of the ownership, allocation, use of, or access to land’. This object has not been included in the current version of the Bill. The current version has no such clear provision banning discrimination in land allocation, or in the community rules governing land allocation. Clause 24(3)(a)(i) states that new order rights should be allocated to persons ‘including women, the disabled and the youth in accordance with law’ but does not prohibit discriminatory practices of the kind described in clause 7(2) of the August 2002 version of the Bill. It is difficult to understand why the explicit prohibition of all discriminatory practices, whether or not contained in community rules, has been dropped.
The Constitution places a duty on the state to ‘respect, protect, promote and fulfil’ the right to equality. Section 7(2) of the Constitution
The section 7(2) duty to ‘protect’ constitutional rights obliges the state to put in place laws to protect individuals and groups against a violation of their rights by other third parties. The scheme of the Bill does not protect women against the continued violation of their rights by others, including men and those who are responsible for administering the system which it creates. The new order rights which are created in terms of the Bill may be converted into ownership or other rights which are capable of being transacted - see for example clause 18(3)(d)(ii). If men gain the ability to sell and realise a profit from land that is occupied by deserted wives or mothers, the registration process will thereby increase the vulnerability of women. Given the serious and pervasive nature of the existing problem of discrimination in land allocation and related practices, the failure to provide a clear prohibition of those practices results in a failure to ensure that the right to equality is respected, protected, promoted and fulfilled. This is particularly so given that it is the very structures which have discriminated against women in the past, which are to be given the relevant powers by the Bill.
In conclusion, the Communal Land Rights Bill does not give effect to the constitutional obligation on the state to respect, protect, promote and fulfil the right to gender equality. On the contrary, it is likely to have the effect of entrenching and aggravating the existing inequality of women with regard to land rights, because it:
In addition, the Bill has a further and related fundamental flaw, which arises from the double discrimination which African women suffer. The insecure tenure held by African women is not only because they are women - it is also because they are African. Other women are not subjected to insecure tenure by the Black Administration Act, the Development Trust and Land Act, and the Black Areas Land Regulations. It follows that African women are, in the words of section 25(6) of the Constitution, people ‘whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices’. They therefore have a constitutional right to tenure which is legally secure or to comparable redress.
( C ) CHAPTER BY CHAPTER CONCERNS AND RECOMMENDATIONS
DEFINITIONS AND APPLICATION OF ACT
"beneficial occupation" means the occupation of land by a person for a continuous period of not less than five years prior to 31 December 1997 as if that person was the OWNER, without force, openly and without the permission of the owner, and .The word ‘owner’ was problematic, because women do not occupy as if they are "owner", and this could possibly exclude women.
"communal land" means land contemplated in section 2 which is, or is to be, occupied or used by MEMBERS of a community subject to the rules or custom of that community;
"community" means a group of PERSONS whose rights to land are derived from shared rules determining access to land held in common by such group;
"land administration committee" means—
(a) a traditional council, in respect of an area where such a council has been established and recognised; and
JURISTIC PERSONALITY AND LEGAL SECURITY OF TENURE
4. Security of tenure
An old order right which is legally insecure as a result of past RACIALLY discriminatory laws or practices as contemplated in section 25(6) of the Constitution must be legally secured in terms of this Act.
*See discussions under Gender equality
TRANSFER AND REGISTRATION OF COMMUNAL LAND
5. Registration of communal land and new order rights
(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 right in terms of this Act and the relevant community rules.
9. Conversion of registered new order right into freehold ownership
(2) After considering an application referred to in subsection (1), such community must, subject to its community rules and any applicable title conditions, approve or REJECT such application.
(3) If a community approves an application in terms of subsection (2) it may impose any condition or reserve any right in favour of the community.
PROVISION OF COMPARABLE REDRESS WHERE TENURE CANNOT BE LEGALLY SECURE
THE CONDUCT OF LAND RIGHTS ENQUIRY
14. Land rights enquiry
(g) the measures required to promote gender EQUITY in the allocation and registration of new order rights and the exercise of such rights;
There is no definition of "new order rights" and it is unclear what is in fact being conferred on women.
16. Notice of land rights enquiry
18. Determination by Minister
(1) If the Minister, having received a report by a land rights enquirer, is satisfied that the requirements of this Act have been met, she or he must, having regard to such report, all relevant laws including law governing spatial planning, local government and agriculture, the old order rights of all affected right holders and the need to PROMOTE GENDER EQUALITY in respect of land, make a determination as contemplated in subsections (2) and (3).
(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—
(i) who is a spouse of a male holder of an old order right, to be held jointly with her spouse;
(ii) who is the widow of a male holder of an old order right, or who otherwise succeeds to such right, to be held solely by such woman; or
(iii) in her own right; and
LAND ADMINISTRATION COMMITTEE
21. Establishment of land administration committee
(4) One member of a land administration committee must represent the interest of vulnerable community members including women, children and the youth, the elderly and the disabled.
LAND RIGHTS BOARD
seven members from the affected communities, of whom at least—
KWAZULU-NATAL INGONYAMA TRUST LAND
36. Provision of assistance to community
The Minister MAY designate an officer of the Department to assist a community or person to give effect to the implementation of this Act.
43. Delegation of Powers
The only right ‘derived from or recognised by the law’ which a woman can hold with regard to legally secure land tenure, is a derivative or secondary and temporary right. The legal rights created by the law are therefore highly gendered, and discriminate against women.
On promulgation of legislation in respect of communal land, government must rise to the challenge, to ensure that democracy does prevail, when giving effect to Section 25 of the Constitution of South Africa. The Constitution and our international obligations demand that women and men are treated equitably in all spheres, but particularly in respect of succession and, access to land. To ensure this, we strongly urge Parliament to delay this Bill until after the elections. This will enable government to engage in meaningful consultations with women, and research what women want in terms of land reform and security of tenure and also, ascertain whether women who live under traditional leadership structures, want to be governed by such structures.
COMMISSION ON GENDER EQUALITY
PARLIAMENTARY SUBMISSION "ANNEXURE A"
COMMUNAL LAND RIGHTS BILL
‘A person or community whose tenure of land 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.’
‘Parliament must enact the legislation referred to in subsection (6).’
‘An old order right which is legally insecure as a result of past racially discriminatory laws or practices as contemplated in section 25(6) of the Constitution must be legally secured in terms of this Act.’
CAN WOMEN HOLD OLD ORDER RIGHTS?
‘a tenure or other right in or to communal land which—
(a) is formal or informal;
(b) is registered or unregistered;
(c) derives from or is recognised by law including customary law, practice or usage; and
(d) exists immediately prior to a determination by the Minister in terms of section 18'
‘may ... continue in occupation of such allotment until her death or remarriage or entry into another customary union, during which time the allotment shall remain registered in the name of the deceased’.
Regulation 53(1) and (3)
Sec 23 of the Black Administration Act 38 of 1927
Regulation 2 of the Regulations for the Administration and Distribution of the Estates of Deceased Blacks promulgated under Government Notice R200 of 6 February 1987
Kerr The Customary Law of Immovable Property and of Succession 124
Madolo v Nomawu (1896) 1 NAC 12
Mthembu v Letsoalo 2000 (3) SA 867 (SCA) at 
Conclusion: Can women hold old order rights under the law?
SECURING OLD ORDER RIGHTS
‘There is, however, a difference between requiring a court or tribunal in exercising a discretion to interpret legislation in a manner that is consistent with the Constitution and conferring a broad discretion upon an official, who may be quite untrained in law and constitutional interpretation, and expecting that official, in the absence of direct guidance, to exercise the discretion in a manner consistent with the provisions of the Bill of Rights. Officials are often extremely busy and have to respond quickly and efficiently to many requests or applications. The nature of their work does not permit considered reflection on the scope of constitutional rights or the circumstances in which a limitation of such rights is justifiable.’ [para46]
‘In a constitutional democracy such as ours the responsibility to protect constitutional rights in practice is imposed both on the legislature and on the executive and its officials. The legislature must take care when legislation is drafted to limit the risk of an unconstitutional exercise of the discretionary powers it confers.’ [para 48]
‘It is an important principle of the rule of law that rules be stated in a clear and accessible manner.... Moreover, if broad discretionary powers contain no express constraints, those who are affected by the exercise of the broad discretionary powers will not know what is relevant to the exercise of those powers or in what circumstances they are entitled to seek relief from an adverse decision.... If rights are to be infringed without redress, the very purposes of the Constitution are defeated.’ [para 47]
‘... In the case of the statutory discretion at hand, there is no provision in the text providing guidance as to the circumstances relevant to a refusal to grant or extend a temporary permit.... Nor can we hold in the present case that it is enough to leave it to an official to determine when it will be justifiable to limit the right in the democratic society contemplated by section 36. Such an interpretation, of which there is no suggestion in the Act, would place an improperly onerous burden on officials, which in the constitutional scheme should properly be borne by a competent legislative authority. Its effect is almost inevitably that constitutional rights (as in the case of two of the respondents before this Court) will be unjustifiably limited in some cases. Of even greater concern is the fact that those infringements may often go unchallenged and unremedied....’ [para 50]
‘We must not lose sight of the fact that rights enshrined in the Bill of Rights must be protected and may not be unjustifiably infringed. It is for the legislature to ensure that, when necessary, guidance is provided as to when limitation of rights will be justifiable. It is therefore not ordinarily sufficient for the legislature merely to say that discretionary powers that may be exercised in a manner that could limit rights should be read in a manner consistent with the Constitution in the light of the constitutional obligations placed on such officials to respect the Constitution. Such an approach would often not promote the spirit, purport and objects of the Bill of Rights. Guidance will often be required to ensure that the Constitution takes root in the daily practice of governance.’ [para 54]
Clauses 4, 14(2), 18(1), 18(4)
THE LAND ADMINISTRATION SYSTEM CREATED BY THE BILL
‘to provide, in the context of this Act, for the protection of the fundamental human rights contained in the Bill of Rights in the Constitution, including -
(i) the right to equality, especially gender equality in respect of the ownership, allocation, use of, or access to land’
‘A person or customary or communal system of land tenure may not unfairly discriminate against anyone, directly or indirectly, with regard to a community rule or practice or decision, which determines
59 The current version has no such clear provision banning discrimination in land allocation, or in the community rules governing land allocation. Clause 24(3)(a)(i) states that new order rights should be allocated to persons ‘including women, the disabled and the youth in accordance with law’ but does not prohibit discriminatory practices of the kind described in clause 7(2) of the August 2002 version of the Bill.
60 It is difficult to understand why the explicit prohibition of all discriminatory practices, whether or not contained in community rules, has been dropped.
61 The Constitution places a duty on the state to ‘respect, protect, promote and fulfil’ the right to equality.
Section 7(2) of the Constitution
62 The section 7(2) duty to ‘protect’ constitutional rights obliges the state to put in place laws to protect individuals and groups against a violation of their rights by other third parties.
City of Cape Town v Rudolph and others  3 All SA 517 (C) at 546i
63 The scheme of the Bill does not protect women against the continued violation of their rights by others, including men and those who are responsible for administering the system which it creates.
64 The new order rights which are created in terms of the Bill may be converted into ownership or other rights which are capable of being transacted - see for example clause 18(3)(d)(ii). If men gain the ability to sell and realise a profit from land that is occupied by deserted wives or mothers, the registration process will thereby increase the vulnerability of women.
65 Given the serious and pervasive nature of the existing problem of discrimination in land allocation and related practices, the failure to provide a clear prohibition of those practices results in a failure to ensure that the right to equality is respected, protected, promoted and fulfilled. This is particularly so given that it is the very structures which have discriminated against women in the past, which are to be given the relevant powers by the Bill.
66 In my opinion, the Communal Land Rights Bill does not give effect to the constitutional obligation on the state to respect, protect, promote and fulfil the right to gender equality. On the contrary, it is likely to have the effect of entrenching and aggravating the existing inequality of women with regard to land rights, because it:
67 The focus of this opinion has been on whether the Bill addresses the issue of gender equality in the manner required by the Constitution. For the reasons which I have given, in my opinion it does not do so.
68 I need to add that in my opinion the Bill has a further and related fundamental flaw, which arises from the double discrimination which African women suffer.
69 The insecure tenure held by African women is not only because they are women - it is also because they are African. Other women are not subjected to insecure tenure by the Black Administration Act, the Development Trust and Land Act, and the Black Areas Land Regulations.
70 It follows that African women are, in the words of section 25(6) of the Constitution, people ‘whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices’. They therefore have a constitutional right to tenure which is legally secure or to comparable redress.
71 From what I have said above, it appears that the Bill does not provide African women with legally secure tenure or comparable redress. The Bill is therefore also inconsistent with the requirement of section 25(9) of the Constitution that Parliament must enact the legislation referred to in section 25(6), to provide them with legally secure tenure or comparable redress.
72 I have read the opinion which the SA Human Rights Commission has received from Adv Gilbert Marcus SC, in which he concludes that the Bill as a whole is constitutionally deficient because it does not give people whose tenure is insecure as a result of past racially discriminatory laws or practices, the right to secure tenure or comparable redress. I respectfully agree with Adv Marcus. His conclusion applies with all the more force to African women.
73 For this reason, too, in my opinion the Bill does not comply with the requirements of the Constitution.
Legal Resources Centre November 2003