African women to get land back after ConCourt judgment

The Constitutional Court has given parliament 18 months to rectify a piece of apartheid-era legislation which prevented African women from owning property and left them permanently dependent on the male heads of their families.

In a unanimous ruling, written by Acting Judge Patricia Goliath, the court declared section 2(1) of the Upgrading of Land Tenure Rights Act of 1991 unconstitutional insofar as it solidified the position created by apartheid legislation which excluded African women from the property system and resulted in discrimination on the basis of sex and gender.

The order, which was made retrospective to April 1994, was suspended for 18 months for parliament to introduce a constitutionally permissible procedure for the determination of rights of ownership and occupation of land.

A Soshanguve woman, Mary Rahube, challenged the validity of the act after her brother Hendsrine Rahube in 2009 sought to evict her from the family home in Mabopane where she had been living for many years.

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The Rahubes and their siblings moved into the house in the 1970s. The Bophuthatswana government issued an occupation certificate and a deed of grant in Mr Rahube’s name in the late 1980’s.

Mr Rahube maintained the land tenure right he held over the property had been converted to a right of ownership in terms of the Upgrading Act, but his sister opposed the eviction and obtained a High Court ruling that the tenure rights which the Upgrading Act sought to recognise and convert were acquired under a legislative regime that was discriminatory, automatically converted rights of ownership without notifying interested parties and continued to exclude women from ownership right because only men could be the head of the family.

The Constitutional Court held that because section 2(1) was based on a position created by apartheid legislation, it was contrary to the overall aims of the Upgrading Act, could have no legitimate governmental purpose and was irrational and unconstitutional.

Mr Rabube was also interdicted from selling or encumbering the house in any manner until parliament cured the defect.

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Judge Goliath said the oppression meted out by apartheid was felt no more accurately than by African women, who were relegated to the status of perpetual minors, often forced to work in the unregulated domestic care sector to look after children who were not their own and prevented from owning property which left them permanently dependent on the male heads of their families.

“Twenty four years into democracy, a piece of legislation that refines the factual position created by a racist and sexist apartheid act cannot pass constitutional muster. The Upgrading Act, in its attempt to redress one injustice, exacerbated another.

“When enacting remedial legislation, parliament must be aware of the historic omnipresence of patriarch which will otherwise undermine even the noblest and legislative endeavours.”

The Constitutional Court confirmed the High Court order and its retrospective effect, but ruled that it did not invalidate land tenure rights that were upgraded to ownership rights held in property that was transferred to a third party acting in good faith, property that had been inherited by a third party in terms of a finalised estate and property that had through an unforeseen event ended up in the control of a woman.

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