The Tension Between Women’s Individual Rights To Tenure In Communal Land Structures

(Traditional Leadership Structures, Communal Property Associations (CPAs), and Trusts)

A collaborative effort by Ms Sipesihle Mguga and Ms Ona Nomveliso Xolo –
Legal Resources Centre Land Programme.

South Africa is a multicultural society where legal pluralism exists because of the prevailing cultural pluralism.[1] From the date when the first colonists set foot on South African soil, the colonial and African legal systems needed to exist together, despite wide divergences.[2] Western legal categories and terminology were used to categorise and make sense of customary law for the colonists. It is against this context that we are required to navigate the budding tension between women’s individual rights to tenure and their place, role and ranking in structures holding communal land.

In South Africa, communal land is home to approximately seventeen million people[3]. This is what the apartheid government referred to as homelands. Twenty-seven years into a democratic government, many of these South Africans particularly the women still endure insecure tenure, rendering them vulnerable to victimisation by breakdown in family relationships, exploitation by business developers, arbitrary decisions by traditional authorities, and unlawful evictions by monied opportunists.

In South Africa some of the structures holding communal land are traditional authorities, trusts, and communal property institutions (CPIs)[4]. Land tenure is widely recognised as the relationship either legally or customarily defined, among people, as individuals or groups, with land, including natural resources and constitutes rules invented by these societies to define how property rights to land are to be allocated; how access is granted to rights to use, control, and transfer land, and the associated responsibilities and restraints.[5] It encompasses social, economic, institutional, legal, and political aspects that are often ignored but must be considered. The question is whether it is sufficiently well-defined and enforceable in South Africa as envisaged in our Constitution or is it riddled with convenient ambiguities that fail to serve the rights and interests of affected groups such as women.

The Communal Property Association Act[6] has supported notable strides in the participation of women in Communal Property Associations (CPAs) and other land structures. This Act posits ways for ensuring equitable representation in the CPAs. Section 8 (2) (f) (ii) of the Act states that upon the registration of a CPA, the members of the CPA need to ensure that the constitution that is adopted emanates from a consensus with the majority of the members of the association and that when this decision is taken it be inclusive and fair.[7] Section 9 (b) (i), speaks to the equality of membership and provides that there be no gender and sex discrimination amongst others, as it relates to CPAs.[8] In practice despite the formal representation of women in these CPAs, women in rural areas often enjoy little or no  decision-making powers in the CPA, as men dominate the relevant decision-making processes.[9]

In South Africa the land debate remains and is largely centred on racial and socio-economic grounds but in this debate Black women’s rights to occupy, use, own and control land does not appear to enjoy the prominence that one would expect of a democracy committed to substantive gender equality. This is despite the shadows of discrimination that persist against arguably one of the most discriminated against groups in our country due to the intersection of race, gender, age, opportunity, and class that remains land disenfranchised. Black women remain marginalized as multiply burdened, and their claims are obscured due to formal equality benchmarks that fail to tease out the discrete sources of the discrimination they suffer.

Notwithstanding our nations commitment to gender equity as far back as 1992 when the Land Policy document called for special procedures to ensure women’s equal access to land and decision making. Then the RDP recognised women’s land rights and said: “Women face specific disabilities in obtaining land. The land redistribution programme must therefore target women. Institutions, practices, and laws that discriminate against women’s access to land must be reviewed and brought in line with national policy. In particular, tenure and matrimonial laws must be revised appropriately”.  

The 2008 census established that 58.9% of people living in communal areas are women but whether these women have a hand in the rights related to communal land and any decisions which need to be made about this type of land is adroitly avoided in the fiercely contested land debate.[10]

With the advent of Constitutional Supremacy, the state sought to address historical imbalances by, inter alia redistributing land. Section 25 of the Republic of South Africa’s Constitution of 1996 recognises property rights for all citizens but equitable redistribution of land in respect of Black women as a distinct group is not supported by land redistribution statistics when disaggregated in respect of gender. The issue does not simply lie with women not having access to land, but places women at a disadvantage from the outset due to past discriminatory apartheid laws and customary laws that did not consider women capable of being rightful owners of land.[11] This is compounded by inter alia patriarchy and customary practices. For example, customary laws[12] and apartheid legislation considered men to be the head of the household and all the important decisions are made by a husband and not a wife.[13] Additionally, during the course of a marriage, the land on which a wife and a husband live on, is placed under the husband’s name and when the husband passes away, the land is not transferred to the wife’s name, but rather this land will pass to the husband’s brother, and the wife is often kicked off the land.[14] These practices do not align with the Constitution and therefore should have no place in our society but is still in practice.

The government has a constitutional obligation to promote equitable access to land and natural resources through legislative and other means. Section 25(6) of the Constitution, places an obligation on the state to enact legislation to provide secure tenure for those living on communal land:

“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 legally secure or to comparable redress.”

Tenure security over land, gives people the confidence to participate in decision-making, act on those decisions, and reap the benefits. All people including women should be included in decisions concerning the land on which they live. Similarly, if certain community members who live on the land are barred from participating in decision-making, they will have little room to exercise any degree of agency over the resources and opportunities the land they live on offers. This is especially true for Black South African women who reside on communal land.

Women are the primary workers in agriculture; around 400 million women globally work in agriculture, yet in our country we have no conclusive data on the number of women who own or control land.[15] When women work on agricultural land, they provide food security for many people who depend on them and when they are removed from these spaces a woman’s income is removed and if she also lives on that land then, she is left without a place to stay.[16]

Nkuzi Development Association a non-profit organization providing a range of support services to historically disadvantaged communities wishing to improve their rights and access to land, is for prioritising women’s individual rights to land. The organisation stated that in the structures holding communal land, whether it be traditional, or CPIs, women are in the minority and their rights are completely disregarded. Nkuzi submits that women’s land rights be formalized, by having their rights registered. Nkuzi calls for the mapping and recording of women’s land rights, for example their rights to plough, graze, with just rights to common resources and submit that these rights must be capable of being bequeathed to these women’s children.

It is unfortunate that in South Africa women’s land rights are often derived from their relationship to a man, whether it is a father, husband, or son. As a result, they are susceptible to changes in their social status or family structure. In most cases, woman’s property rights are limited to the time she is either young and under her father’s supervision or married; upon divorce, desertion, or the death of her father or husband, she may lose her rights to land. Leaving her insecure and isolated from her own community. With this backdrop, the LRC supports measures intended to make women a priority in any legal framework governing land. Much like our government found it necessary to introduce the Black Economic Empowerment legislation in South Africa, we support calls for dialogue aimed at addressing how our nation intends redressing the intersecting inequalities that pose real barriers to women’s equitable access to land in contemporary South Africa.  

For women, like all other groups, land represents a key to economic empowerment and security; permitting their influence over finances and household decisions and the means to support their families. Land is a key path to a life with dignity and a basis for entitlements that may ensure an adequate standard of living and economic independence and, therefore, personal empowerment.[17]

In South Africa, the Communal Land Rights Act (CLRA) was passed in 2004 to give effect to Section 25 (6) of the Constitution. This Act had far-reaching consequences for rural communities, but especially for women, who account for approximately 59 percent of those on communal land who face oppression due inter alia to patriarchal dominance. The act established traditional authorities as the ostensible custodians of communal land, granting them broad powers such as control over land occupation, use, and administration.

The CLRA was later declared unconstitutional in its entirety in 2010 as it was not adopted in terms of the correct procedure prescribed in the Constitution. We highlight one of the major assumptions that the CLRA made in terms of tenure security. The CLRA and other legislation governing communal land most often vests communal land rights to a single entity (or persons), such as traditional leaders or heads of households. These Acts include the Traditional Leadership and Governance Framework Amendment Act (TLGFA) as well as the Traditional and Khoi-San Leadership Act (TKLA). These acts entrench the unequal distribution of land power, shifted away from women.

There is currently no legislative framework that offers redress to people living on communal land without security of tenure and significantly no protection for the scores of women rendered silent in the governance of communal land. The Interim Protection of Informal Land Rights 31 of 1996 was enacted as a temporary measure to protect vulnerable customary land rights while waiting for a permanent piece of legislation that will give proper effect to section 25 (6). This has been the saving grace for the 17 million people in this country that live on communal land. And for most of them their rights to the land that they live on are uncertain and vulnerable.[18]

In her report The Contested Status of Communal Land Tenure in South Africa, Weinberg reminds us that in trying to understand the concept of communal land and to try and develop a legal framework for the inhabitants of communal land it is important that we first understand the past to develop a framework for the present. The salient points that Weinberg makes in her report are the distorted perception of communal land tenure by colonial administrators and the tendency of the administrators to interpret customary land law through the lens of common law from their own countries. This seems to be the dichotomy facing the legislature today.

The task for contemporary South Africa is to draft legislation that will recognise and respect the indigenous systems of the land while at the same time ensuring that it aligns with the spirit and ethos of our Constitution. For women to be able to exercise their rights to land, within these CPAs and trusts or any land holding structures there needs to be more than mere implementation of equal representation of women or inclusion of women and men. However, this will only happen if statute law and customary law commit to substantive gender equality and transformation.

Okoth-Ogendo articulates it well when he says that what is truly needed is tenure reform legislation that will legally recognise informal land rights held according to ‘living’ land tenure practices, so that they are on an equal footing with individual property titles.[19]

The importance of land and its unequal distribution, between male and female, requires a rethinking of land reform and women’s land rights and is well analysed by Akinola,[20] who posits that despite formal equality legislation, gender roles are still determined by ideological, ethno-religious, economic, and socio-cultural factors, the major determinants of the distribution of responsibilities and resources between men and women. She highlights the challenge to reconcile this for equitable redistribution or tenure security in legal frameworks that purport to accommodate women’s land rights but where the actualization of the rights remains a mirage.

We cannot help but agree that our Constitutional guarantee of gender equality in land has not been sufficiently tested against customary law practices which deny women equitable access to land. This silence remains the proverbial elephant in the room when so much of our land representing a vast economic asset, is under customary tenure, subject to historical practices and unwritten traditional laws and cultural affiliation. We find this a contradiction in the face of the promised effective land reform intended to redistribute wealth, increase access to land and bridge the gender-gaps in our economy.

On the face of it, there are no legal barriers to women’s property rights but of all the limitations, the most complex to confront is the cultural and customary law practices that are deeply entrenched against women’s property rights. Will the latter hold sway or will the duty to support the many female-headed households, resulting from the demise of husbands, high rates of divorce, violence against women, the prevalence of ‘single motherhood’ as well as supporting Black women’s financial, economic, and social aspirations – prevail?

This is not to deny that both black men and women have been ‘historically oppressed’ and dispossessed of their land, but the land reform agenda data unfortunately appears to reinforce the patriarchal nature of the communal land system, to the detriment of the women. Traditional authorities with custodianship of culture and land have become ‘land distributors and land entrepreneurs’ and do not espouse the cultural values that advance women’s land claims or gender parity or the principle of equality. Unfortunately, this same male domination is recorded in land institutions, traditional leadership structures and land holding structures such as CPAs. Our willingness to enact equality legislation must demonstrate commensurate efforts toward enforcing it, especially by the legal, cultural, social, and political institutions that dominate land reform. The attainment of women’s land rights is not only achieved by the drafting of laws and formal equality but requires a change in our traditional belief systems that rest at the core of the recognition of women’s land rights in our country.[21] 

[1] C Rautenbach, JC Bekker and NMI Goolam, Introduction to Legal Pluralism 2010 (pg. 3)

[2] Ibid

[3] T Weingberg, The Contested Status of ‘Communal Land Tenure’ in South Africa, 2015 (pg. 6)

[4] Communal property institutions are participants in the land reform programme that can hold property through different forms of communal property institutions. These include communal property associations (CPAs), trusts, non-profit companies, close corporations, and cooperatives.

[5] G Payne and A Durand-Lasserve, Holding On: Security of Tenure – Types, Policies, Practices and Challenges, Research paper prepared for an expert group meeting on Security of Tenure convened by the Special Rapporteur on 22-23 October 2012.

[6] Act 28 of 1996

[7] S 8 (1) (f) (ii).

[8] S 9 (b) (i). 

[9] E Sjaastad, B Derman, M Tshililo, The Reconstruction of Communal Property: Membership and Rights in Limpopo`s Restitution Process 2011 (p.g.14).

[10] A Daniels, South Africa: Women: A Focus on Land 2016, Accessed at https://landportal.org/node/28207 .

[11] A Facio, Insecure land rights for women threaten progress on gender equality and sustainable development, 2017 (pg.1-2).

[12] It is important to note that though for several reasons, the customary law as reflected in textbooks and applied by the courts is not always the original version of customary law. There is a difference between official customary law and living customary law.

[13] A Facio, (pg.1).

[14] A Facio, (pg.1).

[15] Ibid

[16] A Daniels, South Africa: Women: A Focus on Land.

[17] FAO, Land and Property Rights: Junior Farmer Field and Life School – Facilitator’s Guide (Rome, 2010)

[18] T Weingberg, The Contested Status of ‘Communal Land Tenure’ in South Africa, 2015

[19] Okoth-Ogendo “The nature of land rights under indigenous law in Africa 2008

[20] Adeoye O. Akinola, Women, Culture and Africa’s Land Reform Agenda, Public Administration, University of Zululand, Richards Bay, South Africa, 2018.

[21] Adeoye O. Akinola, Women, Culture and Africa’s Land Reform Agenda, Public Administration, University of Zululand, Richards Bay, South Africa, 2018.