Women, customary law and discrimination: The impact of the Communal Land Rights Act
| Jurisdiction | South Africa |
| Pages | 42-81 |
| Date | 15 August 2019 |
| Author | Aninka Claassens |
| Published date | 15 August 2019 |
Women, customary law and discrimination:
The impact of the Communal Land
Rights Act
ANINKA CLAASSENS*
Legal Resources Centre
I INTRODUCTION
This article discusses the possible impact of the Communal Land Rights
Act
1
(CLRA or the Act) on the land rights of rural women in South
Africa. It asks whether the Act is likely to enhance or undermine tenure
security, not only for women, but also for rural people in general. In the
context of declining rates of marriage it focuses particularly on the
problems facing single women. It examines two inter-related issues: The
first is the content and substance of land rights, including the question of
where rights vest. The second relates to power over land, in particular
control over the allocation and management of land rights.
It begins with an account of the parliamentary process and the last
minute changes to the CLRA. The Communal Land Rights Bill
(CLRB) was opposed by all sectors of civil society apart from traditional
leaders. The most vehement opposition came from rural women and
women’s organisations, who argued that the Bill undermined the
principle of equality in favour of an alliance with traditional leaders.
Traditional leaders on the other hand welcomed the Act as a triumph of
tradition and African custom.
The Constitution guarantees the right to equality and also recognises
customary law and the institution of traditional leadership. During the
constitutional negotiations there was a battle between women’s represen-
tatives and traditional leaders about which should take precedence –
equality or custom. Traditional leaders argued that the constitution
would not be successful if it relied on ‘foreign concepts and institutions’.
2
Equality won: but the inherent tension between the different provisions
has meant that a clash has long been anticipated. Some have seen the Act
as manifesting that anticipated clash.
* BA (Cape Town)BA (Hons) (Witwatersrand); Legal Resources Centre, Cape Town.
1
Act 11 of 2004.
2
From a CONTRALESA resolution that was forwarded to the Constitutional Assembly
(ConstitutionalAssembly TraditionalAuthorities Special Edition (1 March 1995) at 36 quoted in T
Maloka and D Gordon ‘Chieftainship, Civil Society, and the Political Transition in South
Africa’ (1996) 22 Critical Sociology 37 at 47).
42
2005 Acta Juridica 42
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This article argues that in fact the Act has little to do with custom or
tradition. Instead it entrenches key colonial and apartheid distortions
which exaggerate the power and status of the government and traditional
leaders in relation to land, and undermine the strength and status of the
land rights vesting in people, and in women in particular. It argues that
the Act conflicts with and undermines key features of indigenous systems
of land rights. These features continue to manifest themselves in rural
(and indeed urban) South Africa. They have been extraordinarily resilient
in the face of conquest, denial, forced removals and the overlay of a
barrage of laws and legal constructs that conflict with them.
The article describes the layered and ‘nested’ nature of land rights in
African rural areas. It focuses on the status of women’s land rights within
the family, which fit within a hierarchy of nested rights which includes
family rights within the village or clan, and the rights of villages or user
groups to specific portions of land within the broader community or
‘tribe’. The article argues that colonial interventions had a major impact
on power relations, in particular by re-conceptualising the nature of land
rights. Previously power was mitigated by the existence of strong land
rights vesting in women within families, and in family and user groups
within wider communities. Allocation and control functions were
decentralised and managed at the different levels of a layered system.
However, internal power relations within the family changed when the
household head was made the ‘owner’ of family land. Similarly, when
chiefs were made ‘trustees’ of tribal land, control and allocation functions
were re-conceptualised as ‘delegated downwards’ as opposed to being
referred upwards – through a process which varied according to whether
and which higher authority was recognised.
The article argues that the consequences of colonial and apartheid
misrepresentations and distortions of pre-existing systems of land rights
were particularly disastrous for women. It looks at the two key issues
raised by women during the parliamentary process. The first was that
enhancing the powers of traditional leaders over land was likely to
reinforce patriarchal power relations to the detriment of women’s access
to land and security of tenure. The second was that the Bill would
entrench past discrimination against women, by ‘upgrading’ and formal-
ising ‘old order’ rights held by men. Rural women cited the problem of
women being evicted from rural land when their marriages end or their
husbands die. They said current insecurity would deepen if rights
currently held by men were formalised and registered as ‘new order’ land
rights, especially as the Bill proposed that land rights could be bought and
sold.
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WOMEN,CUSTOMARY LAW AND DISCRIMINATION
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The Act provides for the transfer of title to land from the state to
‘communities’.
3
The definition of community is vague, but a senior
official of the Department of Land Affairs told the Land Affairs Portfolio
Committee that the department estimates there are 892 communities
eligible for transfer of title. This is the number of tribal authorities in
South Africa. The sister Act to the CLRA is the Traditional Leadership
and Governance Framework Act (TLGFA). The TLGFA includes a
transitional provision which deems existing tribal authorities to be
traditional councils, provided they meet new composition requirements
within a year.
4
The CLRA provides that where traditional councils exist,
they will be land administration committees. One of the powers and
duties of the land administration committee is to ‘represent a community
owning communal land’.
5
While title will be transferred to the community represented by the
traditional council, the Act also provides for the simultaneous registration
of individual rights within the boundaries of ‘communal ownership’. It
provides that ‘old order’ rights will be converted into registered ‘new
order’ rights. It does not define the content of ‘new order’ rights. The
Minister will determine the content of those rights, and who the holders
will be.
6
The Minister also determines the boundaries of the land to be
transferred.
7
After describing the parliamentary process, the article examines
whether the conversion of old order rights to new order rights will
entrench the consequences of past unfair discrimination against rural
women. It raises questions about the content and status of women’s rights
to land. Thereafter it looks at changes in land allocation practices and asks
how the Act is likely to impact on positive (though uneven) changes in
practice, which are seeing more land being allocated to single women.
This is situated in the context of recent debates about tenure reform and
the ‘development of customary law’.
The next section deals with the issue of power relations and
accountability and discusses the impact of power relations on women’s
land rights. It describes and explains the intersection between the CLRA
and the new TLGFA.
Finally the article asks whether the CLRA is likely to enhance or
undermine security of tenure for women and for rural people generally. It
suggests that the registration provisions of the Act are unlikely to be
implemented at scale, and that the legacy of the Act may be to re-enforce
3
Section 3 of the Act enables communities to acquire ‘juristic personality’, thereby
becoming capable of owning and disposing of immovable property.
4
Section 28 (4) of the Traditional Leadership and Governance FrameworkAct 41 of 2003.
5
Section 24 (1) of CLRA. See section IV for an analysis of the points summarised here.
6
Section 18 (3) (d) and (4).
7
Section 18(2).
44 ADVANCING WOMEN’S RIGHTS
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