The Constitutional Court has confirmed that a section of South Africa’s land tenure legislation is unconstitutional based on its perpetuation of apartheid-era prescriptions which discriminate against women.
On Tuesday, the country’s highest court confirmed an order made by the Pretoria high court last year which found section 2(1) of the 1991 Upgrading of Land Tenure Rights Act constitutionally invalid on the basis that the rights it sought to entrench were discriminatory.
The Upgrading of Land Tenure Rights Act provides for the transferal of land tenure to full ownership rights. The deed is made out in the name of the person who is the holder of the relevant land tenure right.
Section 2(1) of the Act stipulates that the conversion of the ownership of township land “shall vest exclusively in the person who … was the holder of that land tenure right immediately before the conversion”.
But according to the high court’s 2017 order, this transferal has been allowed to happen without consultation with the other occupants of the land, who face eviction once this process has been approved.
The case was brought to the court by grandmother of three Mantshabelle Mary Rahube. In an affidavit to the Constitutional Court, Rahube recounts how in 2009 her brother, Hedsrine Rahube, attempted to evict her from her home in Mabopane in Pretoria.
The Rahube family had moved to the house in 1970 after they were forcibly removed from Lady Selborne, the affidavit says. Mantshabelle and Hedsrine’s grandmother was the “owner” of the Mabopane property until she died in 1978.
“I am advised that, various apartheid-era statutes rendered it impossible for black people — including my family — to own land, and prevented land tenure rights from being registered in a woman’s name,” the affidavit reads. The affidavit adds that land tenure rights were thus registered in the name of male family members.
Hendsrine’s application to evict his sister was postponed in Ga-Rankuwa Magistrate’s Court as the high court dealt with the constitutional challenge to section 2 of the Upgrading of Land Tenure Rights Act.
Rahube’s counsel, Annemarie de Vos SC, contended that the section fails to protect occupants of property not registered on a deed.
The Constitutional Court was asked to confirm the high court’s order declaring the section constitutionally invalid. In terms of section 167(5) of the Constitution, lower courts that declare Acts of Parliament constitutionally invalid must be confirmed by Constitutional Court.
In heads of arguments to the Constitutional Court, De Vos contended that, because the Act envisioned a conversion process that protects land rights, “it fails to fulfill its mandate and is therefore irrational”.
“It constitutes indirect unfair discrimination on the listed grounds of race and gender because its effects are predominantly felt by black women who could not previously be registered as holders of land tenure rights,” De Vos contended.
In a unanimous judgment, handed down by acting Judge Patricia Goliath, the Constitutional Court sided with this argument, noting that the section was created in a 1962 proclamation which “gave some limited, subservient rights to certain African people, but because of the wording, African women were not included in that group”.
The court found that the language of proclamation in question constructs the image of the “head of the household” as inherently masculine.
In the introduction of the judgment, Goliath writes: “During apartheid, the African woman was a particularly vulnerable figure in society and she suffered three-fold discrimination based on her race, her class and her gender. Reflecting upon the present, we must ask ourselves whether the African woman truly benefits from the full protection of the Constitution.”
The court found that section 2(1) of the Upgrading of Land Tenure Rights Act was not enacted with “a legitimate governmental purpose”, exposed by the fact that it contradicts the overall purpose for which the Act was enacted.
The judgment concludes that the legislation under scrutiny “cannot pass constitutional muster” because it solidifies “the factual position created by a racist and sexist apartheid”.
After the judgment was handed down Tarisai Mugunyani, an attorney for Lawyers for Human Rights (LHR), told the Mail & Guardian that the organisation has dealt with a number of cases brought to them by women who have been left vulnerable to eviction because of section 2(1).
Mugunyani said the judgment means LHR can now look forward to bringing relief to those who have been disadvantaged by the Upgrading of Land Tenure Rights Act.
“We hope to see women, especially those living in townships, empowered by the judgment,” Mugunyani said.
The Constitutional Court’s order is suspended for a period of 18 months to allow Parliament the opportunity to introduce a procedure for determining ownership rights that account for the constitutional invalidity of section 2(1).