Base de Datos Género y Derecho a la Tierra

South Africa

Normas consuetudinarias, creencias religiosas y prácticas sociales que influyen en el derecho a la tierra diferenciado por género

  • Customary law in the country is a mixture of tradition and colonial and apartheid legislation, such as the Black Administration Act of 1927, the Bantu Authorities Act of 1951 and subsequent laws and regulations.
  • Sociocultural practices in patrilineal systems prevent rural women from holding land titles. Customary land tenure ranges from common property, usually for grazing land and forests, to household farming on plots allocated by the group authority. Under these rules, women are rarely allocated plots by chiefs and usually gain only secondary rights to land, i.e. cultivation rights, through their fathers and husbands (10).
  • Customary rules on marriage are centred on marital power, allowing the husband to take every decision and exclusively administer family property. Under Section 11[3] of the Black Administration Act of 1927, repealed by the Recognition of Customary Marriages Act of 1998, women married under customary law were considered “minors subject to the guardianship of their husbands”. 
  • Customary marriages entered into after the commencement of the Act create a community of property regime, unless the spouses agree differently, while existing marriages remain governed by customary rules (10).

Autoridades tradicionales e instituciones consuetudinarias

  • Traditional courts, also referred to as chiefs’ courts, are an important part of the administration of justice in much of the country, especially in rural areas, where traditional courts administer customary law in over 80% of the villages. 
  • Since 1996, the question of whether traditional courts should be dismissed or not had been on the government’s agenda. The Constitutional Court confirmed in 1996 that Section 166[e], which refers to “any other court established or recognized by an Act of Parliament” accords recognition to traditional courts via the Black Administration Act No. 38 of 1927. 
  • Traditional leaders also lobbied for the improvement and official recognition of their status and role in the new order of the country.
  • Prior to the ratification of the Traditional Courts Bill of 2008, women were not allowed to preside over or to participate in the proceedings of traditional courts, except as litigants assisted by men (15).
  • The Traditional Courts Bill of 2008 and Traditional Leadership and Governance Framework Act of 2003:
    - Set the legal framework for the recognition of traditional courts and leaders. As stated in its objectives, the bill wants to:  
    a) affirm the values of the traditional justice system and align them with the Constitution;
    b) affirm the role of the institution of traditional leadership in enhancing access to justice;
    c) create a uniform legislative framework, regulating the role and functions of the institution of traditional leadership in the administration of justice, in accordance with the Constitution;
    d) enhance the effectiveness, efficiency and integrity of the traditional justice system.

    - According to the guiding principles of application, the traditional justice system must be aligned with the values enshrined in the Constitution, including non-racialism and non-sexism, and “the existence of systemic unfair discrimination and inequalities, particularly in respect of gender, age and race, as a result of past unfair discrimination, brought about by colonialism, apartheid and patriarchy” must be taken into account. 

    - In Article 4, the bill states that “the Minister may… designate “a king or queen recognized as such by the President, as is contemplated in the Traditional Leadership and Governance Framework Act, as presiding officer of a traditional court for the area or areas of jurisdiction in respect of which such king or queen has jurisdiction”.

    - In absence of the king, queen or senior traditional leader, the “Minister may … designate any headman, headwoman or a member of the royal family as an alternative presiding officer of the traditional court”.

    - Those designated are required to attend a prescribed training programme within a period of at least 12 months after appointment and to take a prescribed oath of office or make a prescribed affirmation before a magistrate before they may preside in a traditional court.

    - The Director-General: Justice and Constitutional Development must keep a register of every traditional leader who has taken the oath of office or made an affirmation (16).

Prácticas de hecho en herencia/sucesión

  • The customary tenure system uses patrilineal transfer of land ownership. In patrilineal societies, inheritance and descent are traced through the father’s lineage and property devolves along the male line, to the exclusion of women (10).
  • The male heir is responsible for maintaining and caring for the estate and its dependants: namely, the widow and the children (6).
  • In non-Christian households, polygamy and levirate practices, which compel a widow to marry one of her late husband’s brothers, limit women’s access to land because women depend on their husbands’ land for their survival (10).
  • The only right that a widow of a polygamous marriage can claim under customary law is the right of maintenance against the male heir. The male heir is defined as the first-married wife’s oldest son, or if he is no longer alive, his oldest son. If there are no male descendants of the oldest son, the first wife’s second son is heir, and so on. 
  • In many cases, the male heir is a person who is distant in terms of familial relations and also geographically, since polygamous families live in separate units or houses. If the heir does not pay maintenance to the widow as is required, she can take him to court, often going to great length and expense to do so. For many widows, the possible rewards are simply not worth the effort (6).

Discrepancias/vacíos entre derecho escrito y derechos consuetudinarios

  • In spite of the Recognition of Customary Marriages Act of 1998 (Act No. 120 of 1998), which provides women with “full status and capacity, including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate”, many marriages remain governed by customary rules whereby men make most decisions on the administration of family property (10).
  • The Black Administration Act of 1927, enacted under colonial rule, is a statutory norm but is in contrast with the constitutional values of equality and non-discrimination.
  • The principle of primogeniture of Section 23 of the Black Administration Act severely restricts women’s succession rights and clashes with the Promotion of Equality and Prevention of Unfair Discrimination Act that prohibits any norm or practice discriminating against women in the inheritance of family property.
  • Section 11(3)(b) of the Black Administration Act restricts black women’s right to property. In Hadebe v. Hadebe and Another, June 2000, a black woman had purchased land but registered it to her son as a nominee because of the Black Administration Act. After the enactment of the Restitution of Land Rights Act, she brought a claim before the Land Claims Court to transfer the property into her name. The Court argued that the racially discriminatory statutory provisions were inconsistent with the principle of equality stated in the Constitution and ordered the property transferred in favour of the woman.

Fuentes: los números entre paréntesis (*) se refieren a las fuentes que están en la sección de Bibliografía