This places rural women at the forefront of the intersection between the law and traditional practices. Nowhere is this intersection played out more apparently than in the manner in which rural women have access to land rights.

Given South Africa’s particular history, this means that women’s access to, and rights to, land are determined by an environment which is dependent upon factors such as class and geographical location. This means that oftentimes, rural women do not have the same rights as women in urban areas. One cannot generalise the identity of rural women as they are not a homogenous group, however, there are threads which ring true for most rural women. This includes a lack of access to land rights, as well as limited decision-making powers on issues concerning land matters.

As such, the constitutional relationship between the principle of gender equality and the status of custom, traditional law and culture – aspects of which are inherently patriarchal – is ever a focus in any discussion involving rural women’s land rights. A brief survey of the legal landscape affecting rural women reveals areas of much concern.

To begin with, an obvious problem with the restitution of land rights programme is that it is premised on restoring former rights.  It is therefore men, as previous owners, who can make these claims and be the key beneficiaries. On this score, the Commission for Gender Equality’s analysis on land reform policy and implementation in South Africa affirms this assertion, concluding that between 2005 and 2010, women comprised only 9% of all restitution beneficiaries.

The Communal Land Rights Act, which was ostensibly meant to secure land rights, would have given traditional councils wide-ranging powers including control over the occupation, use and administration of communal land. It gave traditional authorities unprecedented powers over land administration and allocation. While providing for joint ownership and 30% representation for women on traditional councils, the Act however entrenched and expanded the power of traditional institutions at the expense of women’s interests. It was also inconsistent with the right to equality in that it discriminated on the basis of marital status by limiting access to land rights for single mothers. The Communal Land Rights Act was later withdrawn by the Constitutional Court, albeit for procedural reasons.

2008 saw the introduction of the Traditional Courts Bill which placed power squarely in the hands of senior traditional leaders. The Bill would have replaced the court system in the erstwhile homelands with traditional courts, with traditional leaders presiding over them.  After meeting fierce opposition from civil society organisations, it was withdrawn, only to be reintroduced in 2012, with even more problematic provisions. For example, it would have limited the right to access justice in denying the right to legal representation. This would have negatively impacted rural women, as many traditional courts do not allow women to represent themselves. The Bill was withdrawn following concerns raised by various organisations, including civil society and rural communities. Worryingly, the Minister of Justice and Correctional Services has recently announced that the Bill is to be reintroduced before the end of the year.

The Traditional and Khoisan Leadership Bill, currently before Parliament, seeks to repeal the Traditional Leadership and Governance Framework Act. However, as the University of Cape Town’s Centre for Law and Society has pointed out, the Traditional and Khoisan Leadership Bill will enable both national and provincial government to empower traditional structures, through unaccountable delegations of governmental power. This, without the requirement that such traditional councils or leaders should consult or seek consent of their subjects where decisions are made that will affect livelihoods and land rights.

Encouragingly, the courts, in recent decisions, namely Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority and Others, as well as Premier of the Eastern Cape and Others v Ntamo and Others, have affirmed the principle that traditional practices should conform to constitutional democracy. The decisions recognise customary law as a fully established system of law that continues to develop and change with time. Nonetheless, the decisions highlight the concern that some customary laws are inconsistent with current practice and are out of sync with a human rights culture, particularly the right to equality. The decisions emphasise that customary law derives its authority from the Constitution and should be interpreted in terms of the Bill of Rights. With the Constitution as a backdrop, the rights and interests of rural women should be protected and promoted in order to achieve the ideal; enhancing agricultural and rural development, improving food security and eradicating rural poverty.

The ultimate question however is: what is the exact nature of women’s land rights and access to land within a constitutional democracy, given the context where it would appear that rural women do not have the same rights as their urban counterparts?

By Phephelaphi Dube, Legal Officer: Centre for Constitutional Rights