Johannesburg - In recognising the rights of all women to own land, the Constitutional Court on Tuesday spoke the final word as it declared 24 years into democracy, that a piece of legislation which was created by the racist and sexist apartheid era, cannot pass constitutional muster.
In an unanimous judgment, the highest court in the country addressed past gender and racial discrimination in relation to women owning property, when it declared a section of the Upgrading of Land Tenure Rights (ULTRA) unconstitutional.
This was a confirmation of the groundbreaking judgment earlier by the Gauteng High Court, Pretoria, which paved the way for an elderly woman to in future apply for the house she had called home for the past 40 years, to be hers.
Maria Rahube never owned her family house in Mabopane, as apartheid legislation prohibited black females from owning land.
But Judge Jody Kollapen earlier declared a section ULTRA unconstitutional - which was now confirmed by the ConCourt.
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.
As this was a constitutional issue, the ConCourt had to finally give the green light for this law to change.
Rahube, her brother Hendsrine Rahube and other siblings lived in the Mabopane property since the 1970’s.
Their grandmother “owned” the property, although not in the legal sense as the was by law precluded from doing so as she was a woman.
When she passed away the children remained living there. Hendsrine was in 1987 nominated by the family to be the holder of a certificate of occupation regarding the property.
The following year he was issued a deed of grant regarding the property. Some years later he turned to court to have his family evicted from “his home”.
This was the start of Mary’s long and drawn out battle to have the apartheid era legislation overturned and declared unconstitutional. Lawyers for Human Rights (LHR) assisted her.
Judge Patricia Goliath said African women under apartheid were systematically disenfranchised in a number of ways. The pervasive effects of patriarchy meant that women were often excluded from seemingly gender-neutral spaces.
“The perception of women as the lesser gender was and may still be, a widely-held societal view that meant that even where legislation did not demand the subjugation of women, the practices of officials and family members were still tainted by a bias towards men. The prioritisation of men is particularly prevalent in spheres of life that are seen as stereotypically masculine, such as labour, property and legal affairs.”
She said under apartheid, the effects of patriarchy were compounded by legislation that codified the position of African women as subservient to their husbands and male relatives.
The court meanwhile gave Parliament 18 months to take steps to cure the unconstitutionality of the discriminating section of the Upgrading Act. The court ordered that the order is made retrospective to April 27, 1994.
LHR meanwhile welcomed the judgment as it has taken great strides in ensuring the property rights of women are protected.
While Rahube asked the court to declare that the property be registered in her name, the legal provisions must first be put in place before her ownership was considered.
Her brother, however, may not in the meantime dispose of the property.