Maria Rahube never owned her family home in Mabopane, as apartheid legislation prohibited black females from owning land.
In a groundbreaking judgment addressing past gender and racial discrimination in relation to owning property, Judge Jody Kollapen on Tuesday declared a section of the Upgrading of Land Tenure Rights unconstitutional.
This is insofar as it automatically converted holders of land tenure rights into owners of property, without providing the occupants and affected parties lacking ownership, the opportunity to make submissions to an appropriate forum.
Judge Kollapen referred the law to Parliament, giving it 18 months to take steps to cure the unconstitutionality of the discriminating section of the Upgrading Act.
Rahube had asked the court to declare that the property be registered in her name at this stage, but the judge said the legal provisions must first be put in place.
The judge said her claim to the house would rely on a finding that she was prevented from obtaining title to the property because of a racially discriminatory law.
Lawyers for Human Rights (LHR) lawyer Louise du Plessis said the judgment was the first step for Rahube to one day have the house registered in her name.
Once Parliament had rectified the outdated legislation, an investigation could commence into the circumstances of how she came to live in it, and how long she had stayed there.
As only an adult male could be the holder of this limited occupational right, her brother, Hendsrine Rahube, obtained a Deed of Grant for the family home under the then Republic of Bophuthatswana.
He wanted to evict Rahube and her family from the house in 2009 and that sparked her court application.
Judge Kollapen yon Tuesday interdicted Rahube's brother from selling the property until Parliament had spoken the last word, which means she and her family can stay there for now, without any fear of being booted out.
The judge made it clear in his judgment that anyone else who is in the same position as Rahube owing to these discriminatory laws, is entitled to approach a court for similar relief.
Rahube, 68, had been living in the family home north of Pretoria since the 1970s. She, her siblings and their grandmother, moved into the house in Block B, Mabopane, following their removal from the Lady Selborne area in Pretoria.
Due to the apartheid laws of the time, the family could not obtain title for the property and were issued with a so-called certificate of occupation. As only an adult male could be the holder of this limited occupational right, the certificate was issued in the name of her brother.
In the early 1990s Rahube’s brother left the family home and she continued to live in the house with her daughter and grandchildren. It was not until an application for the family’s eviction was brought by her brother in August 2009 that she discovered her brother had automatically become the owner of the family home through the Upgrading of Land Tenure Rights.
Rahube said she was now the head of the household and she had always been responsible for the expenses related to the upkeep and maintenance of the property.
She said the only thing that prevented her from owning the property, were the racist, sexist laws.