Property and access: Inequality of land relations and the continued vulnerability of women

• Citation: (2023) 140 SALJ 387
• DOI: https://doi.org/10.47348/SALJ/v140/i2a6
• Published date: 12 May 2023
• Pages: 387-412
• Author: Boggenpoel, Z.T.
• Date: 12 May 2023

387

https://doi.org/10.47348/SALJ/v140/i2a6

PROPERTY AND ACCESS: INEQUALIT Y OF

LAND RELATIONS AND THE CONTINUED

VULNERABILITY OF WOMEN

Z T BOGGENPOEL†

Professor in Private L aw, Stellenbosch University

This arti cle foregrounds the inter play between property and ac cess from the perspective

of those on the margin s of property law, focusi ng specically on wom en. The aim is

to identify seve ral instances where wo men are still in vulnerable pos itions despite a

constitutional a nd/or legislative f ramework that purp orts to be progressive rega rding

gender equality a nd advancing women’s land right s. The article chal lenges the belief

that individual w ins in some court judgments are en ough to proclaim the strengthening

of women’s land rights. In thi s respect, it is import ant to consider whethe r a picture

emerges that m oves women away from the per iphery towards the centr e of property law.

Women’s property righ ts – margi ns – gender equal ity

I IN TROD UCTION

We can tell a lot about a propert y system by the way the system t reats those

on the margins. The late And re van der Walt made the arg ument that

‘those on the ma rgins of societ y experience t he law dierentl y from those

who hold privi leged property posit ions and that thei r margina l perspective

could be inst ructive in t hinkin g about the tension bet ween stabilit y and

change in t he transfor mational contex ts and the need for and t he possibilit ies

of meanin gful change’.1

Van der Walt was interested in a property system that purports to be

radical ly transform ative yet, in contrast, works towa rds protecting exi sting

property i nterests, providing securit y and stabilit y to the detri ment of

those not obviously i ncluded in the system.2 Today, scholars worki ng on

securing the rights and protection of the vul nerable and marg inalised in

any society a re spoilt for choice regardi ng the numerous contr ibutions

that Van der Walt (and various others across the globe) have made in this

context. In this article, I dr aw on the work of these scholars and their

ground-breaking resea rch as I consider propert y and access and ask very

† B Com LLB LLD (Stel lenbosch). https://orcid.org/0000-0001-7816-3393. South

Afric an Research Cha ir in Propert y Law (‘SARCPL’), hosted by Stell en-

bosch Univers ity, funded by the Depa rtment of Science an d Technolog y and

admin istered by the Nat ional Research Fou ndation (‘NR F’). The nancia l

assist ance of the NRF is he reby acknowledged. O pinions expre ssed are those

of the author and a re not attribut able to the NRF. My sincere g ratitude goe s to

Giséle Lavit a, Tanveer Jeewa, Carolien Kr iek and Khadija Bawa for t heir research

assist ance. Any remai ning errors are my ow n.

1 A J van der Walt Property in t he Margins (200 8) 214.

2 Ibid at 215.

(2023) 140 SALJ 387

© Juta and Company (Pty) Ltd

388 (2023) 140 THE SOU TH AFRICAN L AW JOURNA L

https://doi.org/10.47348/SALJ/v140/i2a6

specica lly: how does property law prov ide (or fail to pr ovide) secur ity for

women as non-owners?

In his impre ssive book The Edges of the Fie ld, Joseph Singer also con-

sidered the impor tance of property for those of ten on the edges or marg ins

of society. He made the following remarks in this regard:

‘If the abil ity to lead a decent l ife is import ant, it is equal ly importa nt for

every pers on. If property i s necessar y to obtain the abi lity to lead a dec ent

life, then , every person must h ave a realist ic opportunit y to obtain acc ess

to property.’

Singer went on to note that

‘if secu rity is a goa l of property, then th is goal can not be reserved for

owners alone, it mu st extend to nonowners as wel l. For this reason, the l aw

of propert y both protects the i nterests of est ablished owner s and ensures

that condit ions exist under which nonown ers can obtai n access to property

and become owner s themselves.’3

I am interested in Singer’s propositions th at, rst, to lead a decent

life, access to property is requ ired and, secondly, that the security t hat

property prov ides is necessar y for property owners and non-owners.

In other words, the prope rty system shou ld create conditions enabl ing non-

owners to obtain property access. If we accept this nor mative position, it

is interesting to consider whether our property system t ruly reect s this

in the context of women’s land rig hts. I would argue that it does not.

The central premise of this article is that th is ability to lead a decent life

through acce ss to property for women as non-owners in South A frica is

not yet entirely poss ible, and I would like to share some thoug hts on where

I think some of the signica nt issues still lie in this regard. I am not saying

that strides have not been made in th is context. I hope to hig hlight some

of those strides throughout the ar ticle. However, I thin k it is important to

consider and reect upon some of the challenges that still exist, mak ing it

dicult to conclude that women have sucient access to property or that

women’s rights are equa lly, or even fundamentally, secure.

I should begin w ith a word of caution. I recogn ise that havin g put

the issue of women’s property rights on the table, one is immediately

confronted with several complexities. First, there may be various ways

to test or reect upon the success of women’s land rights. One could,

for instance, a sk whether sucient law refor m has taken place to en sure,

and give eect to, gender equality on a n overarching level. One would

then be able to ask quest ions about the extent to which these laws are

progressive enoug h to ensure substa ntive gender equality. Linked to this

would be some reection on how cour ts have been able to shape gender

3 J W Singe r The Edges of the Field: L essons on the Obligation s of Ownership

(2000) 21.

© Juta and Company (Pty) Ltd