Securing women’s property inheritance in the context of plurality: Negotiations of law and authority in Mbuzini customary courts and beyond
| Jurisdiction | South Africa |
| Citation | 2011 Acta Juridica 140 |
| Published date | 15 August 2019 |
| Date | 15 August 2019 |
| Author | Sindiso Mnisi Weeks |
| Pages | 140-173 |
Securing women’s property inheritance in
the context of plurality: Negotiations
of law and authority in Mbuzini customary
courts and beyond
SINDISO MNISI WEEKS*
This contribution examines two sets of issues – law and dispute resolution, and
succession and property – with a view to obtaining a better understanding of
the ways in which rural women’s property rights are negotiated, secured and
threatened. These processes occur at the interfaces between different forms of
law and authority. Rather than taking intra-family relations vis-à-vis succes-
sion as a focus of the study of local dispute resolution, this contribution takes
an institutional perspective. It therefore asks: within the many, and volatile,
laws and authorities under which rural women live their lives, how do they
negotiate with local customary institutional actors in their attempts to secure
recognition and respect for their rights in land, particularly as gained through
succession? By necessity,it also asks the converse: given the many, and volatile,
laws and authorities subject to which local customary institutional actors
exercise their functions, how do they negotiate with other institutions and the
community they serve in their attempts to secure legitimacy and authority
over land and related disputes? I use a case study in Mbuzini to illustrate the
complexities of law, authority, dispute resolution, property and succession – a
widow accused of illegally redefining her property’s boundaries. The result of
this inquiry tells us less about women’s inheritance as an event than it does
about the landscape of contestation and power in which women endeavour to
secure their land rights.
I INTRODUCTION
The legal pluralism comprised of living customary law and state law offers
challenges and opportunities to rural South Africans endeavouring to
secure their rights in material resources and institutions dependent on
either or both systems to reinforce their power and authority. The
intended focus of this essay is not on the latter actors, but mainly on rural
South African women and their ability, in local courts, to secure their
property rights from the time of death of a male family member onwards.
However, these women seek to gain this security in the context of a
* BA LLB (Cape Town), MSt DPhil (Oxon); Senior Researcher at the Law, Race and
Gender Research Unit and Senior Lecturer in the Department of Private Law at the University
of Cape Town.
140
2011 Acta Juridica 140
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plurality of laws and authorities. Thus, these same laws and authorities – as
well as the way in which they mobilise to secure power and authority, and
are themselves mobilised by the women – form a significant and indis-
pensable part of the discussion. Understanding this complex interplay
gives a better appreciation of the landscape of resources, power and
rhetoric in which the women’s struggles are situated, and their long-term
effects for women’s ability to secure justice and their rights in property.
Customary land administration and the resolution of disputes over land
are now well known to take place at multiple levels of nested and layered
authority (that align with people’s social identities).
1
Many scholars also
recognise that these land rights and authority systems are, as Cousins
writes, ‘relatively stable, [but] also flexible and negotiable’.
2
While the
latter means that they can therefore be amended to meet the circum-
stances and needs of the community, it also permits self-interested
distortion and abuse by those who have the means and power to achieve
those ends.
3
Women rarely have such means and power, but that does not
mean that they do not also attempt to use this flexibility and stability to
their own benefit.
In South Africa, we cannot disregard the impact of colonial and
apartheid policies on indigenous communities: they tampered with
indigenous laws of authority and power, especially pertaining to land, but
also dispute resolution. Although the ensuing distortions triggered varied
adaptations by the communities they affected, the result has largely been
an imbalance of power between ordinary rural people and the traditional
authorities, as well as between women and men.
4
Under the current
regime, traditional authorities continue to experience significant
strengthening of their power by government, mostly to the detriment of
the people they purport to serve.
5
This also undermines the customary
ability of communities to require accountability, and thereby ensure
justice, from their leaders.
6
One implication of this situation has been the reinforcement of a
centralist model of customary authority and power. Colonial and apart-
1
B Cousins ‘Characterising ‘‘communal’’ tenure: Nested systems and flexible boundaries’
in AClaassens & B Cousins (eds) Land, Power & Custom: Controversies Generated by South Africa’s
Communal Land Rights Act (2008) 109–137 at 129.
2
Cousins (n 1) 129; H W O Okoth-Ogendo ‘The nature of land rights under indigenous
law in Africa’in A Claassens & B Cousins (eds) Land, Power & Custom: Controversies Generated by
South Africa’sCommunal Land Rights Act (2008) 95–108 at 98. Also see Cousins (n 1) 118.
3
Cousins (n 1) 130.
4
According to Debbie Budlender’s analysis, women form 58.9 per cent of those living in
rural areas. See A Claassens & S Ngubane ‘Women, land and power: The impact of the
Communal Land Rights Act’ in A Claassens & B Cousins (eds) Land, Power & Custom:
Controversies Generated by SouthAfrica’s Communal Land Rights Act (2008) 154–183 at 168 fn 22.
5
Cousins (n 1) 127. Also seeA Claassens & S Mnisi ‘Rural women redefining land rights in
the context of living customary law’(2009) 25 SAJHR 491.
6
Cousins (n 1) 127.
141SECURING WOMEN’S PROPERTY INHERITANCE
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heid governments entrenched this model and sometimes succeeded (to
varying degrees) at turning the ‘inverted pyramid’ of land management
7
upside down, to put chiefs at the top of the pyramid with power
devolving downwards. But, even where this model has taken root, it
coexists with, puts pressure on and is challenged by customary ways,
which defy top-down notions of law and authority.The tensions that play
out between communities and their leaders in this context are only
worsened by poor development planning at the interface of (and in the
midst of tensions between) traditional authorities and local government,
and their respective laws.
8
The relationship between continuity and change in the perception and
negotiation of land rights, in Mbuzini in particular, bears witness to many
of these tensions. This is so especially regarding the relationship between
individual and communal rights of access and control in what seems an
individualising yet still ‘communal’ community.
9
Ben Cousins, drawing
from Jeff Peires, aptly sums up the multitude of challenges to rural land
rights justice:
Contemporary case studies suggest that many occupants of communal land
enjoy de facto tenure security. This is because existing systems, many of them
now informal in character, work reasonably well on a day-to-day basis. But
these systems are under severe strain as a result of in-migration, overcrowding,
informal individualisation, breakdowns in administrative systems, abuses by
some traditional leaders, the continued insecurity of many women, and lack of
clarity over the role of traditional authorities and local government bodies.
10
It is for these reasons that my contribution asks: given the volatile and
plural laws and authorities subject to which rural women live their lives,
how do they negotiate with local customary institutional actors to secure
respect for their rights in disputes over land, especially in cases of
succession? The answers suggested by this question also require asking the
converse: given the volatile and plural laws and authorities subject to
which local customary institutional actors exercise their functions, how
do they negotiate with other institutions – and the community they serve
– to secure legitimacy and authority in disputes over land and related
matters?
7
Okoth-Ogendo (n 2) 101. Compare the Black Administration Act 38 of 1927 and Black
AuthoritiesAct 68 of 1951 to the Traditional Leadership and Governance Framework Act 41 of
2003 and Traditional Courts Bill (B15–2008).
8
Cousins (n 1) 113.
9
Cousins (n 1) 112–113, 129; also see C Cross ‘An alternate legality: The property rights
question in relation to South African land reform’ (1992) 8 SAJHR 305 at 314–318 on the
coexistence of an ‘indigenous social land ethic’(314) with greater degrees of individualisation in
South African tenure systems. This provides ‘a basis for either common property rights or
different forms of individual property rights under community supervision’(318).
10
Cousins (n 1) 118.
142 PLURALISM AND DEVELOPMENT:STUDIES IN ACCESS TO PROPERTY IN AFRICA
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