Despite last-minute amendments to the Communal Land Rights Bill, the legislation still discriminates against rural women, say land and women’s rights activists.
Single women are particularly prejudiced by the Bill, whose latest incarnation was adopted by Parliament’s agriculture and land affairs committee last week.
This is despite strong lobbying by female African National Congress MPs who took to heart the horrific accounts of widows being chased from rural land — which under customary law can only be held by men — as emerged during the parliamentary public hearings in November.
Critics said the adoption of the nine-year-old Bill — after about 70 versions including eight official drafts — was characterised by “undue haste”.
It received the committee’s nod after the Department of Agriculture and Land Affairs tabled three key amendments that, officials say, give lie to the contention that the Bill did not provide for gender equality. The changes, arising out of criticism during November’s public hearings, provide that:
l Land rights will be registered in the names of both spouses;
l A woman is entitled to the same legally secure tenure and benefits as a man; and
l “A community or person” is entitled to legally secure tenure or comparable redress.
A last minute ANC-sponsored amendment to have women-headed households represented on the yet-to-be-established land rights boards was also adopted.
Yet this still leaves single, unmarried women unable to claim land rights as no express provision has been made for them, as was requested by the Commission on Gender Equality. And women married under customary rites may still face an uphill battle to assert their rights, particularly in family disputes.
The Women’s Legal Centre points out that women’s right to land depended on their husbands having asserted their right to occupy under customary law, which bans women from land ownership.
“Women’s entry point remains marriage,” says attorney Sibongile Ndashe, pointing out that doubt also remained over the status of women married under customary rites before 1987.
Although the current law recognises customary marriages, they do not have to be officially registered. In disputes, which occur often when a benefit is up for grabs, the woman may find it difficult to prove her right. In the past it has happened that the families of a deceased man would disavow the marriage and widow, adds Ndashe.
She says this “sugar-coated approach to legislation” left many women insecure. The role of traditional leadership in communal land will continue to affect women, who in some areas have to render free service to the traditional leaders, says Aninka Claassens, land rights consultant for the Programme for Land and Agrarian Studies (Plaas) at the University of the Western Cape.
In a perhaps unintended, but bizarre consequence, the Bill effectively perpetuates control of land by tribal authorities. This situation has arisen due to a lack of coordination between the Communal Land Rights Bill and the recently adopted Traditional Leadership and Governance Framework Act.
The Framework Act recognises tribal authorities as traditional councils and gives them one year to become more representative with a third of members women and 40% democratically elected. But the Communal Land Rights Bill vests land administration with yet-to-be-established traditional councils.
“Tribal authorities exist wall-to-wall in rural areas. It’s going to be formalised [that] the chiefs are getting land administration rights through this Bill,” says Claassens, adding the legislation in fact extended traditional leaders’ powers from the advisory function they held in the apartheid era. “What an enormous betrayal of rural people. Once it is enacted it will take years to undo.”
Land affairs officials have defended the Bill. On Wednesday’s After8 Debate on SAfm, Director General of Land Affairs Gilingwe Mayende said working through traditional authorities would avoid chaos and instability that may thwart the government’s efforts. “The reality on the ground is that we have traditional authorities and we have the people who live in these areas.”
Described as a sop to traditional leaders ahead of elections, the new rural land regimen is still a long way off — even if it will be debated in the National Assembly on February 12 before being sent for approval by the National Council of Provinces ahead of the poll widely expected in April.
The land affairs parliamentary committee was told that the legislation would not be implemented for at least a year. First the implementation strategy must be finalised and various required structures, like the land rights boards, established alongside an education campaign.
Despite this, the Bill is likely to cause government some headaches. Already the projected R68-million implementation cost has increased seven- or eight-fold, and a Constitutional Court challenge by a range of land and women’s rights NGOs is looming.