womxn and girls have endured discrimination in most societies for thousands of years, even though they make up half the population. In the past, womxn were treated as property of their husbands or fathers – they could not own land, they could not vote or go to school, and were subject to beatings and abuse and could do nothing about it. Over the last century, much progress has been made to gain equal rights for womxn around South Africa, but many still live without the rights to which all people are entitled, the right to land.
Two systems regulate South African law; the formal legislature and the customary law, which helps shape the women’s rights on ownership of land or property. There are many examples of how the two systems can both prevent and promote women’s right to land. The formal legal system has constitutions or land laws that grant gender equality in access to land, and at the same time laws for marriage, divorce and inheritance that contradict these laws by discriminating against womxn and daughters. Traditionally, womxn were denied rights to property under customary law in South Africa; a woman was generally regarded as a legal minor under the guardianship of her father, husband or brother, incapable of owning or acquiring property. While systems of customary law regarding land occupation in precolonial Africa often granted womxn access to land, this right was lost in many cases with the introduction of the idea of individual ownership. Today customary systems tend not to grant gender equality in access to land.
Women’s control of land is restricted by the lack of implementation of existing laws, by customary law, traditional and social practices, norms and power structures within communities and households, and by lack of legal security systems to protect womxn against land grabbing and discrimination. womxn were incapable of inheriting from the deceased estate of their father or husband when they died without leaving a will. womxn continue to experience discrimination in accessing land ownership rights in traditional areas, and suffer from a lack of standing and influence in traditional councils with respect to land issues.
There recently has been important changes to customary laws that recognize and protect women’s property rights. The Constitution guarantees equality, and discrimination on grounds such as gender and race is prohibited. Consequently, customary laws that are discriminatory on the grounds of gender or race are unconstitutional. Since 1996, the Constitution Act 108 of 1996 has protected women’s rights to equality and their property rights, yet many womxn continue to face obstacles, both social and legal, to accessing and using property. There are serious consequences to this dispossession of land that womxn traditionally experience as a result of customary law – many womxn in South Africa, particularly in poor, rural areas, rely on access to land to perform subsistence farming, to produce food and to provide for children. Access to and security of rights to land are critical factors in combating poverty.
South African land law protects those who inherit land that was been owned in families for generations, regardless of gender or age, through various provisions as applied in family trusts. Formal law as opposed to customary law serves to strengthen women’s land rights, particularly in countries where the gap between customary and formal law is closing. Rights to equality and non-discrimination are gratifyingly the consequence of the heroic struggles of the 20,000 womxn who took to the Union Buildings. In present-day South Africa, formal law provides single womxn and men with equal rights to land ownership, while marriage and cohabitation contracts determine specific legal agreements between partners. Due to the Constitution of the Republic of South Africa, today, womxn have the right to acquire land in South Africa whether they do it as individuals in their own name or with their spouses, depending on their marital status.
The constitutional motion for expropriation without compensation was indeed a moment of opportunity to reflect on the question of womxn and Land; and how it translates to a national land ownership system. The motion to amend the constitution to expropriate land without compensation remains unnecessary if it does not include the mechanisms to address gender inequality. The problem of historical and contemporary land dispossession cannot simply be resolved by a semantic summary of a Constitutional mandate that already provides ample space for a political solution. Instead, it requires a deeper and more fundamental shift of the way society is governed supported by meaningful action that addresses gender inequalities. Land reform can be an important vehicle for economic transformation; and also a broader mechanism for building women’s political and social power — a challenge to the reality of the deadly and deeply oppressive patriarchy.
“Through an accelerated programme of land reform, we will work to expand our agricultural output and promote economic inclusion.” Said the president Cyril Ramaphosa during the SONA 2019. The statement in the SONA about the womxn and land was channelled in the agricultural uses and it excluded the broader spectrum. This not only raises questions about the sufficient part the idea aims to play to the womxn and the marginalized, but also about the use of land that does not include agriculture. Many questions about the urban womxn and the marginalized stay unanswered. The womxn and the marginalized of South Africa needs a deeper and more essential shift of the way the government reflects and organizes the matters women’s right to land. Meaningful action that addresses gender inequalities and ends these destructive subjects while coming up with solutions that accommodate the womxn and the marginalized. Land reform can be an important vehicle for economic transformation; and also a broader mechanism for building women’s political and social power
womxn must be treated as independent beings with independent developmental destinies. To realise this, the nature of inequalities must be acknowledged, and permeate into any action when considering land reform. Effectively placing black, working-class, urban womxn at the centre of any policy would manifest as a stated aim of land reform translating into stipulated targets of land reform action. A world where there is land for womxn is a world where there is Safety, job creation, economic development and equal rights for all.