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Land judgment gives women rights to own land

The Constitutional Court yesterday recognised the rights of all women to own land .Picture: African News Agency (ANA) Archives

The Constitutional Court yesterday recognised the rights of all women to own land .Picture: African News Agency (ANA) Archives

Published Oct 31, 2018


THE Constitutional Court yesterday recognised the rights of all women to own land.

It spoke the final word on the matter and declared that 24 years into democracy a piece of legislation created by the “racist and sexist apartheid era” could not pass constitutional muster.

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In a unanimous judgment, the highest court in the country declared a section of the Upgrading of Land Tenure Rights 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 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; apartheid legislation prohibited black females from owning land.

But Judge Jody Kollapen earlier declared a section of the legislation unconstitutional - and this has now been confirmed by the Constitutional Court.

It automatically converted holders of land tenure rights into owners of property, without providing the occupants and affected parties lack- ing 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 be changed.

In her opening remarks in yesterday’s judgment, Justice Patricia Goliath reiterated the Universal Declaration of Human Rights, which reads that, “All human beings are born free and equal in dignity and rights”.

The judge said that during apartheid, the African woman was a particularly vulnerable figure in society.

She suffered discrimination based on race, her class and gender.

“Reflecting upon the present, we must ask ourselves whether the African woman truly benefits from the full protection of the Constitution

“We must establish whether enough has been done to eradicate the discrimination and inequality many women face daily.

“This is a case where a woman seeks to vindicate her rights to access to housing - a right which is intrinsically linked to her dignity - by challenging a piece of legislation which she contends perpetuates apartheid legislation that precluded her and countless African women from holding land tenure rights.

“This was simply because of her race and gender.”

Rahube, her brother Hendsrine Rahube, and other siblings had lived in the Mabopane property since the 1970s.

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 died the children remained 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 with Lawyers for Human Rights at her side to have the apartheid era legislation overturned and declared unconstitutional.

Judge 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.”

Judge Goliath said that 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 gave Parliament 18 months to take steps to undo the unconstitutionality of the discriminating section of the Upgrading Act. The court ordered that the ruling is made retrospective to April 27, 1994.

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 is considered.

Her brother, however, may not in the meantime dispose of the property.

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