On September 26, the high court in Pretoria declared a seemingly innocuous section of the Upgrading of Land Tenure Rights Act unconstitutional.
The case was brought by Lawyers for Human Rights and concerned the rights of Mary Rahube, a pensioner, to her home of more than 30 years. The property had been transferred into her brother’s name and Rahube was faced with an application for her eviction and no prospect of finding alternative accommodation. The transfer took place automatically in terms of the Act in the late 2000s and Rahube was given no notice or opportunity to assert her claim to the property.
The Act, which is intended to upgrade the flimsy rights granted under various apartheid-era legislative frameworks, provides, among other things, for the automatic conversion into ownership of some of the second-class forms of tenure. On the face of it, the Act is well intentioned and designed to address some of the inequality created by the pernicious apartheid system and provide secure property ownership in an efficient and cost-effective manner.
Why then would the section of the Act providing for this automatic conversion be found unconstitutional? Like many of the lingering effects of South Africa’s painful history, the devil is in the detail.
To understand why this outwardly benign piece of legislation cannot withstand constitutional scrutiny, one must go back to the reprehensible legislation of our past, such as the Native Administration Act, later renamed the Black Administration Act, and Proclamation 293 of 1962, fully titled the Regulations for the Administration and Control of Townships in Black Areas.
Although the titles of these Acts hint at their distasteful content, reading their provisions lays bare the callous system that infiltrated, restricted and dehumanised the lives of so many South Africans. And it was in terms of legislation of this kind that precarious urban tenure in the segregated townships and isolated “homelands” was granted.
The Constitutional Court has already described the regulations governing this system of tenure as racist and sexist. It is the sexist nature of this historical legislation that puts the proverbial fly in the ointment of the automatic conversion to ownership envisioned by the Upgrading of Land Tenure Rights Act and entrenches the inequality of apartheid in our constitutional democracy.
The preclusion of women from obtaining or holding any title or right to land, regardless of how tenuous, by these reprehensible laws resulted in situations in which grandmothers had to be listed as the household dependents of barely adult grandsons, or female-headed households wishing to remain in their homes were obliged to register distant male relatives as household heads, and thus holders of tenure, to their own homes.
The result of the conversions to ownership by the Act, most of which occurred post-1994, was that male nominees automatically obtained full ownership to the houses and many, often elderly, women and their families were left vulnerable to eviction.
The irony is that an Act intended to grant ownership rights to those who were previously excluded from acquiring them has been tainted by the very system it sought to cure and by its extension of tenure rights continues to discriminate against women — a completely self-defeating exercise, as noted in the judgment.
The potential effect of the judgment, if confirmed by the Constitutional Court, is enormous. With the declaration of constitutional invalidity made retrospective to April 27 1994, it throws into question the already upgraded land titles, previously issued in terms of the above-mentioned proclamation, of vast urban areas within what were the segregated townships of the apartheid era. This would have immediate effects on property sales, eviction proceedings and banking finance, to name just a few. Many of the already upgraded properties have been sold and resold and the historical circumstances of each property will vary.
In the light of the immense financial and policy implications of the judgment, it is not surprising that the court suspended the coming into effect of its order to allow Parliament an opportunity to introduce constitutionally permissible procedures for the determination of ownership and occupation rights for the affected properties.
Therefore, it will be firmly within the hands of the legislature to address the Act’s shortcomings and ensure that fair procedures are put in place for all people to assert their claim to ownership. The need for this to be dealt with as quickly as possible cannot be gainsaid. A failure to do so would once again exclude those who held diminished property rights from fully accessing the benefits and economic opportunity property ownership grants.
Although much of the emphasis in calling for land reform has focused on rural land, the issue of insecure urban tenure has been largely ignored. The recent judgment requires that urban tenure be treated as a pressing issue and placed on the national agenda of land reform.
But other issues regarding precarious urban tenure will also need to go beyond the preconceived and stereotyped ideas of unlawful occupation and illegal settlements — many of the women for whom this judgment did not come in time may have found themselves in these settlements.
What stands out at this juncture of what will still be a complicated legal and political process is that, in 2017, decades after the dawn of our democracy and the abolition of the overtly racists and sexist laws that marred our past, such clear and continuing systemic discrimination and injustice can be found. Despite cases of this kind making their way through various levels of the state machinery, from deeds registries and housing departments to the courts and tribunals, it has taken more than 20 years for the injustice to be addressed.
Nathaniah Jacobs was an attorney for Lawyers for Human Rights