In South Africa, patriarchal law cuts some women off from owning their home

Johannesburg, South Africa – For more than a decade, Johanna Motlhamme has been fighting to get her family home back after it was sold from under her, leaving her and her four children without their rightful inheritance.

The 74-year-old’s plight is one that has its roots in the racist laws that prevented Black people from owning land in apartheid South Africa, housing activists have said – a plight inadvertently worsened at the start of democracy when legislation seeking to repair the racial injustices created gender barriers instead.

“Thirty years after the end of apartheid, hundreds of thousands of Black families living in South Africa’s urban townships are facing the same tenure insecurity and the threat of homelessness as they fiercely contest the ownership, occupation, control and rights to access so-called ‘family homes’,” legal rights group the Socio-Economic Rights Institute (SERI) said in a recent report (PDF).

Motlhamme’s story goes back to 1977, when the then-27-year-old married her husband in community of property, meaning spouses share everything equally.

They moved into a small two-bedroom house in Soweto, a sprawling township southwest of Johannesburg, where Motlhamme lived until their divorce in 1991.

At the time, Black people in cities could at most secure long-term leases of their homes as the law sought to keep the country’s majority population landless.

By the time apartheid was defeated in 1994, the government had introduced new legislation, the Upgrading of Land Tenure Rights Act 112 of 1991, which “aimed to provide a more secure form of land tenure to Africans who, under the apartheid regime, had precarious land rights”, according to SERI.

The act upgraded the property rights of Black long-term leaseholders, allowing them to finally own their homes. But there was a caveat. “By legislative provision, only a man, considered the head of the family, could hold the [property] permit,” SERI said.

In a decision housing activists have said was rooted in “patriarchal customary succession norms”, the new law effectively pushed wives, sisters, mothers and daughters out of inheriting.

For Motlhamme, although she owned 50 percent of her township home by right and according to the terms of her divorce, the Upgrading Act did not enable a way to reflect that. So when her ex-husband registered the house in 2000, sole ownership went to him.

Three years later, he remarried and his new wife moved in. Motlhamme, who had not lived in the house since the divorce, did not manage to discuss the ownership details with him before he died in 2013. Then everything changed.

“My three siblings and I were kicked out when our father died. His second wife later sold the house,” Motlhamme’s eldest son Elliot Maimane, 50, told Al Jazeera.

“When it first happened it caused a commotion.”

As a result of the property laws, Motlhamme did not have the title deed and the property permit did not list her as an owner – so the family could not stop the sale.

“[Motlhamme] was excluded from being the bearer of occupation rights in terms of the permit on the basis of her sex,” court papers filed by SERI said.

The legal group, which is helping Motlhamme fight for her home in court in Johannesburg, believes “discrimination was perpetuated” by the adoption of the Upgrading Act.

Placing women outside the law

In 2018, South Africa’s Constitutional Court came to a similar conclusion when it ruled over a separate case regarding women’s insecure land rights in the townships.

The Court declared section 2 (1) of the Upgrading Act relating to gender and property inheritance to be “constitutionally invalid” and “without government purpose”.

It noted that when the legislation first came into force in 1991, it assumed a man headed any household and therefore had a right of ownership – which is a violation of women’s rights – and it ordered amendments to the act.

The Court also ordered parliament to add an adjudication process whereby affected women or people already living in a house could make submissions even if their names were not on the property permit or title deed.

As a result, on the eve of this May’s general election, the government gazetted the Upgrading of Land Rights Tenure Amendment Act of 2021, to come into effect a week after the polls. But people who have lost their homes still face a long road to justice.

In Johannesburg, social services continue to be inundated by people struggling with housing issues.

Busisiwe Nkala-Dlamini, the head of the School of Human Community Development at the University of the Witwatersrand, which offers free social work and therapy services in the city, said most clients seek out their services for housing disputes in the townships.

Such disputes have become “very common” and usually involve “women who face evictions” and prolonged court disputes, she said.

Nkala-Dlamini often refers her clients to the legal clinic at the university for assistance.

“Women’s property rights are not sufficiently recognised by the state for both single or married women in family homes,” said Nerishka Singh, a gender specialist and legal researcher at SERI Women’s Spaces project.

“Customary law has placed women outside the law” and “many in the townships are often surprised when they receive an eviction notice from a family member to vacate a family home they’ve lived in their whole lives,” she added.

 

‘Not for sale’

Thirty-nine-year-old Lebo Baloyi was also blindsided by the loss of her family home more than a decade ago.

The property – a government-issued two-bedroom home in Soweto – was previously registered to her father.

Baloyi was expecting to inherit the house from her mother, who should have shared ownership with him.

“My husband, Paul, and I had even started renovating the house. We had added back rooms to live in the time we were living with my mother,” she told Al Jazeera.

But when her mother passed away in 2009, “my half-sister moved into the house and later, we fought”, about who legally gets to inherit the property, she said.

After a series of what seemed like endless court litigations, Baloyi decided to bow out. “I decided to leave rather than fight with my sister,” she added, now living some 20km (12 miles) away in the Johannesburg suburb of Melville.

Motlhamme’s son Maimane bemoaned the change of the law decades ago, which, despite giving Black people more rights, has caused many problems in families and communities, he feels.

“When the law changed, then people started having issues with title deeds,” he said.

“If you walk around Soweto, you’ll see houses written ‘Not for Sale’ because of the title deeds issue. The system caused this era we are living in where family members fight about a house.”

There are “quite a number of people going through the same problem in Soweto,” he added.

SERI’s August report, A Gendered Analysis of Family Homes in South Africa, highlighted cases where customary law succession is in dispute with the right to equality.

“Women and children are disproportionately at risk of losing their tenure security or being rendered homeless in evictions,” the report said.

The Upgrading Act essentially “subjected black families to a ‘crude version of customary succession’ in terms of which inheritance in black people was determined largely through ‘a blanket rule of male primogeniture’,” it added.

The result of this has been a system that “edified and bolstered the rights of men over family homes, largely to the detriment of women”, the report said.

‘We want our childhood home’

The Land Rights Restitution Act of 1994, which legislated a Land Commission to adjudicate land claims, has been the government’s major policy lever to redistribute land.

In a government newsletter, the newly separated Department of Agriculture and Department of Land Reform and Rural Development reported 3.8 million hectares (9.4 million acres) of land to have been returned to beneficiaries between 1998 to 2024.

Mzwanele Nyontso, the Land Reform and Rural Development minister, announced in a recent budget speech that the government had processed 83,205 land claims, benefitting more than 2 million people.

According to the minister, the department has spent 58 billion rand ($3.2bn), between land transfers, financial compensation and grants, affecting more than 465 000 households.

However, rights groups, like civil organisation Lamosa (the Land Access Movement of South Africa), have previously taken the Land Commission to court over delays in processing land claims.

Confronted with historic restitution claims for marginalised groups who were displaced decades ago, the government now also faces gendered land tenure claims in the townships.

According to Carlize Knoesen, the chief registrar of deeds at the Department of Land Reform and Rural Development, the Deeds Registries Amendment Bill, which is waiting to be signed into law by the president, will resolve current challenges.

The bill, which proposes an online deeds recording system, will assist people “who simply want their property rights recorded down somewhere before they pass,” she said.

“We already have a transformative policy but it takes time,” added Knoesen, highlighting that on average it takes five years for a bill to become law in South Africa.

Al Jazeera contacted the Department of Human Settlements for the City of Johannesburg and the Gauteng Province to comment on the challenges, but they did not respond.

Meanwhile, while the government and the courts deliberate, families who have lost their homes are disheartened and growing impatient.

Maimane wants the court to settle the matter of Motlhamme’s ownership of the family house as soon as possible.

“The system was not fair, it was one-sided. It gave all authorisation to my dad and excluded my mother,” he said. “If it had been equal, then things would not have turned out this way.”

As for his mother, Mainmane says that “she wants to see her kids living in the house and for the house to be returned to its rightful owner.”

“We just want everything back to normal. We want to have our childhood home back.”