Rural women redefining land rights in the context of living customary law

South African Journal on Human Rights

Volumn 25, Issue 3, 2009, Pages 491-516

  Claassens, Aninka ^a   Mnisi, Sindiso ^a  

^a UNIVERSITY OF CAPE TOWN   (South Africa)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84864969423     PISSN: 02587203     EISSN: 19962126     Source Type: Journal    
DOI: 10.1080/19962126.2009.11865214     Document Type: Article

References (123)

1. For example see TR Nhlapo 'African Customary Law in the Interim Constitution' in S Liebenberg (ed) The Constitution of South Africa from a Gender Perspective (1995) 162.
2. A Whitehead & D Tsikata 'Policy Discourses on Women's Land Rights in Sub-Saharan Africa: The Implications of the Re-turn to the Customary' (2003) 3 J of Agrarian Change 104.
3. I Ikdahl, A Hellum, R Karhus & TA Benjaminsen 'Human Rights, Formalisation and Women's Land Rights in Southern and Eastern Africa' Noragric Report (2005).
4. L Gray & M Kevane Land Tenure Status of African Women (1996).
5. S Lastarria-Cornhiel 'Impact of Privatization on Gender and Property Rights' Africa World Development (1997) 25;
6. Whitehead & Tsikata 2003 (note 2 above) 74-9.
7. I Yngstrom 'Women, Wives and Land rights in Africa: Situating Gender beyond the Household in the Debate over Land Policy and Changing Tenure Systems' (2002) 30(1) Oxford Development Studies 34.
8. J Adoko 'Fighting the Wrong Battles? Towards a New Paradigm in the Struggle for Women's Land Rights in Uganda' (2008) .
9. Nhlapo (note 1 above) 162.
10. Such as Permission to Occupy Certificates (PTOs).
11. See ss 30, 31, 39(2) & (3), & 211(3) of the Constitution.
12. See the Banjul Charter, arts 17(2), 18(2), 18(3), 19, 20(1) & 22; African Protocol for Women, arts 9 & 17; Declaration on the Right to Development, arts 1 & 2.
13. D Budlender, as cited in A Claassens & B Cousins (eds) Land, Power and Custom; Controversies Generated by South Africa's Communal Land Rights Act (2008) 2 fn 2 and 168 fn 22.
14. M Mamdani Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (1996) 61.
15. 2005 (1) SA 580 (CC).
16. JK Cowan, M-B Dembour & R Wilson Culture and Rights: Anthropological Perspectives (2001).
17. C Nyamu Musembi 'Towards an Actor-Oriented Perspective on Human Rights' in N Kabeer (ed) Inclusive Citizenship: Meanings and Expressions (2005) 31-49;
18. SE Merry 'Changing Rights, Changing Culture' in Cowan et al (eds) Culture and Rights: Anthropological Perspectives (2001) 31-55;
19. L Hajjar 'Human Rights' in BH Blackwell Ltd & A Sarat (eds) The Blackwell Companion to Law and Society (2004).
20. Nyamu Musembi (note 13 above).
21. It is often pointed out that the United States, which is the main 'culprit' in this regard, has refused to ratify major human rights conventions. See U Mattei & L Nader Plunder: When the Rule of Law Is Illegal (2008).
22. Cowan,Dembour & Wilson (note 13 above) 3;
23. Merry (note 13 above) 41-3.
24. Merry (note 13 above) 39-41.
25. C Lund 'Development and Rights: Tempering Universalism and Relativism' in C Lund (ed) Development and Rights: Negotiating Justice in Changing Societies (1999) 3.
26. Cowan,Dembour & Wilson (note 13 above) 6.
27. SS Mnisi The Interface between Living Customary Law(s) of Succession and South African State Law DPhil thesis (2010) 153-9.
28. Lund (note 17 above) 2.
29. A Hellum 'Women's Rights and African Customary Laws: Between Universalism and Relativism - Individualism and Communitarianism' in Lund (note 17 above) 96.
30. C Nyamu Musembi 'Are Local Norms and Practices Fences or Pathways? The Example of Women's Property Rights' in AA An-Na'im (ed) Cultural Transformation and Human Rights in Africa (2002) 126-50.
31. Nyamu Musembi (note 13 above) 37.
32. Ibid 46.
33. J Nedelsky 'Reconceiving Rights and Constitutionalism' (2008) 7(2) J of Human Rights 143.
34. J Nedelsky 'Relational Autonomy, Relational Rights: Alternatives to Core Legal Concepts' (2005) Spring/Summer Nexus 40, 41 http://www.law.utoronto.ca/documents/alumni/Nexus_2005_summer.pdf.
35. J Nedelsky 'Reconceiving Rights as Relationship' (1993) 1(1) Review of Constitutional Studies 13.
36. Nedelsky 2008 (note 23 above) 139.
37. Ibid 143-4.
38. S Fredman 'Engendering Socio-Economic Rights' (2009) 25 SAJHR 410, 411.
39. Fredman (note 28 above) 422, 441.
40. B Goldblatt 'The Right to Social Security - Addressing Women's Poverty and Disadvantages' (2009) 25 SAJHR 422, 450.
41. Fredman (note 28 above) 422-4.
42. A Claassens 'Community Views on the Communal Land Rights Bill' (2003) PLAAS Research Report.
43. And in subsequent field investigations by one of the authors, A Claassens, into land allocation processes in other areas, for example, at Makuleke in September 2004, at Mundzedzi in October 2004 and at Kalkfontein in November 2004. Also at a workshop with women from 12 areas in KwaZulu-Natal in October 2008, at a workshop with women from six areas around Qunu in November 2008, and a workshop with women from six villages in North West in Madikwe in February 2009 and in research trips to Cata and Msinga in May 2009.
44. C Cross & M Friedman 'Women and Tenure: Marginality and Left Hand Power' in S Meer (ed) Women, Land and Authority (1997).
45. M Sithole 'Communal Land Tenure Versus Individual Housing Tenure? Working Together in Housing Provision' Paper presented to the National Rural Housing Symposium (2004).
46. R Alcock & D Hornby 'Traditional Land Matters: A Look into Land Administration in Tribal Areas in KwaZulu-Natal' (2004) Legal Entity Assessment Project Occasional Paper.
47. S Turner 'Land Rights and Land Administration in the Herschel and Maluti Districts, Eastern Cape' (1999) PLAAS Occasional Paper No 10.
48. R Odgaard & AW Bentzon 'Rural Women's Access to Landed Property: Unearthing the Realities within an East African Setting' in A Hellum, J Stewart, SS Ali & A Tsanga (eds) Human Rights, Plural Legalities and Gendered Realities: Paths are Made by Walking (2008) 202.
49. On 4 November 2004, attended by Aninka Claassens and Moses Modise from the Legal Resources Centre.
50. A Claassens & S Ngubane (2008) 'Women, Land and Power: The Impact of the Communal Land Rights Act
51. Claassens & Cousins (note 9 above) 158.
52. Ibid 160.
53. L Mbatha 'Reforming the Customary Law of Succession' (2002) 18 SAJHR 259.
54. W Bikaako & J Ssenkumba 'Gender, Land and Rights: Contemporary Contestations in Law, Policy and Practice in Uganda' in LM Wanyeki (ed) Women and Land in Africa (2003) 249-51 for similar changes in rural Uganda.
55. Odgaard & Bentzon (note 35 above) for Tanzania.
56. J Stewart 'Why I can't Teach Customary Law' in J Eekelaar & T Nhlapo (eds) The Changing Family: Family Forms and Family Law (1998) 222-5 for Zimbabwe.
57. Interview by Claassens at Makuleke, 8-9 September 2004.
58. See the testimony of Thandiwe Zondi in Claassens & Ngubane (note 37 above) 154.
59. Constitution s 211(3).
60. Constitution s 211(1).
61. Constitution 211(2).
62. See Mogkoro J in S v Makwanyane & Another 1995 (3) SA 391 (CC) paras 307-8.
63. Gumede v President of the Republic of South Africa & Others 2009 (3) SA 152 (CC) para 20.
64. Alexkor Ltd v The Richtersveld Community 2004 (5) SA 460 (CC) para 52.
65. Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC).
66. Quoted in Shilubana (note 52 above) para 4.
67. The preamble to the Act states that 'gender equity within the institution of traditional leadership may progressively be advanced'.
68. Shilubana (note 52 above) para 39.
69. Ibid para 45.
70. Ibid para 46.
71. Section 39(2) provides: When interpreting any legislation and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
72. Shilubana (note 52 above) para 49.
73. Ibid para 72. This decision focuses on the powers of formally recognised customary institutions to develop customary law. Hopefully, the Court will also recognise developments of customary law at lower, less centralised levels when the opportunity is presented to it.
74. See Claassens & Cousins (note 9 above).
75. See P Delius 'Contested Terrain: Land Rights and Chiefly Power in Historical Perspective
76. Claassens & Cousins (note 9 above) 211.
77. HWO Okoth-Ogendo 'The Nature of Land Rights under Indigenous Law in Africa' in Claassens & Cousins (eds) (note 9 above) 95.
78. A Claassens 'Power, Accountability and Apartheid Borders: The Impact of Recent Laws on Struggles over Land Rights' in Claassens & Cousins (note 9 above) 262.
79. See Okoth-Ogendo (note 64 above).
80. T Bennett '"Offical" vs "Living" Customary Law: Dilemmas of Description and Recognition' in Claassens & Cousins (note 9 above) 138;
81. B Cousins 'Characterising "Communal" Tenure: Nested Systems and Flexible Boundaries' in Claassens & Cousins (note 9 above) 109;
82. Claassens & Ngubane (note 9 above).
83. Also Van der Walt AJ 'Towards the Development of Post-apartheid Land Law: An Exploratory Survey' (1990) De Jure 1-45;
84. CRM Dlamini 'The Role of Customary Law in Meeting Social Needs' (1991) Acta Juridica 71.
85. Paras 33-4 of Nhlapo's affidavit in the CD ROM of Court papers that is included in Land, Power and Custom (see note 9 above).
86. Gumede (note 49 above). Mrs Gumede was married under customary law in 1968. She challenged those provisions of the Recognition of Customary Marriages Act which provided that only customary marriages entered into after 2000 would be in community of property. Marriages prior to 2000 would continue to be governed by 'customary law' which in the province of KwaZulu-Natal where she lives, is codified by the Natal Code of Zulu Law and the KwaZulu Act on the Code of Zulu Law, both of which, in ss 20 & 22 respectively, assign husbands not only dominium over all family property but also custody of all family members in that home. Mrs Gumede successfully challenged these provisions as well as s 7(1) of the Recognition Act.
87. Gumede (note 49 above) para 18 refers to historical and ethnographic sources reviewed and discussed by A Claassens in 'Women, Customary Law and Discrimination: The Impact of the Communal Land Rights Act' (2005) Acta Juridica 42.
88. Ibid para 1.
89. Ibid para 17.
90. Nhlapo (note 1 above) 157-66, quoted in para 17 of the judgment.
91. Section 4(2).
92. Affidavit by D Budlender in Tongoane v the Minister of Agriculture and Land Affairs (TPD 11678/06) available in Claassens & Cousins (note 9 above) (para 10 of Budlender's affidavit in CD ROM of Court papers included with Land Power and Custom).
93. Nhlapo (note 66 above) para 36.
94. PTOs issued in terms of the Proclamation 188 of 1969.
95. Receipts for land allocations by traditional leaders or would-be traditional leaders. The word 'khonza' implies recognising a chief's authority, but in many areas khonza payments have degenerated into informal land transactions.
96. The witnessing of land allocation processes by neighbours constitutes important proof in disputes over tenure security, especially in areas where written records are not kept.
97. Problems arise where the law formally recognises customary rights but fails to define the status of women's use rights or provide mechanisms to assert them against stronger countervailing rights (see Claassens (note 68 above) 54-7 for the implications in relation to the CLRA). I Ikdahl 'Engendering the Human Rights Protection of Property Rights: Women's Local Land Use in Tanzania' in Hellum et al (note 35 above) 262, 271 writing about Tanzania refers to Manji's argument that the status of women's custom-based land use is therefore dependant on how those in power categorise use, which is often as insecure access.
98. Communal Land Rights Act s 6.
99. Compare Rie & Weis writing about Tanzania (note 35 above). They found that the preferred dispute resolution forum is the one nearest to the family. Female respondents were especially likely to say that they preferred the nearest level. Reasons for this choice included 'fear of damaging family ties and losing social networks; fear of not being well understood outside the village; lack of confidence in the higher levels ...'.
100. See Okoth-Ogendo (note 9 above).
101. Cousins (note 9 above).
102. Delius (note 9 above).
103. Claassens (note 9 above).
104. Okoth-Ogendo (note 9 above).
105. Claassens (note 9 above).
106. SA Law Reform Commission Report Traditional Courts and the Judicial Function of Traditional Leaders recommendation 12 (21 January 2003) xiv.
107. TLGFA s 28.
108. The SALRC's 2003 final report addressed problems facing women in traditional courts described in a joint submission by the Commission for Gender Equality (CGE), the Centre for Applied Legal Studies (CALS) and the National Land Committee (NLC) arising from a series of consultation meetings the three organisations convened with rural women in different provinces; pages 1, 7, 8, 9,11, 14, 18 & 19.
109. The Black Administration Act of 1927 was amended by the Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Act 7 of 2008, consequently extending the effective repeal date of the section dealing with the powers of traditional leaders to hear disputes to 30 December 2009, and again by Amendment Act 20 of 2009, thus extending it to 30 December 2010. The effect is that the existing legal provisions dealing with traditional courts remain in force only until that date, unless the Black Administration Act is extended yet again.
110. Despite this the Justice Portfolio Committee held subsequent meetings about the Bill without the participation of the Joint Monitoring Committee.
111. The 1999 joint submission to the SALRC by the CGE, CALS and the NLC raised the problem of customary courts being either dominated by, or exclusively composed of male councillors, and of women's inadequate representation before customary courts (note 85 above).
112. These are not limited to women's land rights and participation in decision-making processes. Other common developments include the emergence of development committees alongside 'tribal authorities' and the development and adoption of 'tribal' constitutions to check potential abuse of power. For a description of the processes of negotiated change underway in Sekhukhuneland.
113. see B Oomen Chiefs in South Africa: Law, Power & Culture in the Post-Apartheid Era (2005).
114. Including the TLGFA and the various provincial laws dealing with traditional leadership enacted pursuant to the national framework Act. It is these provincial laws that appear to be having the most substantial, and in our view negative, impact on the balance of power in rural areas.
115. Goldblatt (note 30 above) 446.
116. Oomen (note 89 above) 251.
117. C Cross 'An Alternate Legality: The Property Rights Question in Relation to South Africa Land Reform' (1992) 8 SAJHR 318.
118. Bennett refers to them as 'complementary interests held simultaneously' (TW Bennett Customary Law in South Africa (2004) 318).
119. Whitehead & Tsikata (note 2 above).
120. Ibid 78.
121. Bennett (note 94 above) 49.
122. See discussion in Mnisi (note 18 above) 148-51.
123. Oomen (note 89 above) 218.