Base de Datos Género y Derecho a la Tierra

South Africa

Tenencia de la tierra- formas predominantes

  • In the 1990s, the government launched a comprehensive land reform programme based on three approaches: land restitution; land redistribution by the “willing-buyer willing-seller” principle and state-funded grants; and land tenure reform, to increase farmers’ tenure security for farm workers, labour tenants in white-owned farms and farmers in the former homelands (10).
  • Today, the country’s land tenure system includes: large-scale white commercial farming,  a legacy of the former colonial and apartheid system; state land; customary communities and areas with strong traditional authorities that practice subsistence-type agriculture. 
  • Customary land tenure is still widespread in former homelands, even where land ownership is formally nationalized or privatized. Customary tenure includes very different institutional arrangements, ranging from common property, usually for grazing land and forests, to household farming on plots allocated by the group authority, mainly for arable land (10).

Instituciones nacionales y locales que ejecutan las disposiciones jurídicas sobre la tierra

  • The Department of Land Affairs is responsible for rural development. Its mission is “to provide enhanced land rights to all South Africans, with particular emphasis on black people, that would result in increased income levels and job opportunities, productive land use and well-planned human settlements” (9).
  • In 2009, the Department of Land Affairs’s name has changed to Department of Rural Development and Land Reform (17).
  • The Land Claims Court of 1996:
    - It is a special court that performs an independent adjudicatory function. It hears disputes arising from those laws which underpin land reform initiatives, e.g. the Restitution of Land Rights Act of 1994, the Land Reform Act of 1996 and the Extension of Security of Tenure Act of 1997.

    - It enjoys the same status as the High Court. Appeals go to the Supreme Court of Appeal and, in appropriate cases, to the Constitutional Court.

    - It sometimes imposes conditions to ensure that all dispossessed members of the community have access to the land or to compensation on a non-discriminatory basis, as per the Restitution of Land Rights Act, Section 35(3).

    - It also may “adjust the nature of the rights previously held by the claimant” taking into account the principle of gender equality, according to Section 35(4) (10).

Instituciones de administración de la tierra y cuotas para la mujer

  • The Ministry of Rural Development and Land Reform is responsible for land administration in the country. The ministry has the following directorates among others: Survey and Mapping; Deeds & Registration; Land Reform; Land Tenure Reform and Support Services; and Restitution. 
  • The Land Tenure Directorate assists provincial offices to manage implementation of land policies and programmes.
  • The Land Tenure Reform and Support Services Directorate has the following objectives: i. obtain, gather and maintain relevant information on public land  in order to identify superfluous land for land reform; ii. to promote and oversee the administration of state land under the control of the Minister of Land Affairs, including the acquisition, disposal and vesting, and iii. to supply relevant information and cartographical services to clients. 
  • The Restitution Directorate’s mission is “to promote reconciliation by ensuring equity for victims of land dispossession by the state, through sustainable development initiatives and equitable redistribution of land.”
  • The Ministry has branch offices in the provinces and districts (17).

Disposiciones de financiamiento que garantizan a la mujer transacciones de tierras

  • Under the redistribution component of land reform, women and men can purchase land through a “Settlement and Land Acquisition Grant” of R16 000 (10).
  • The Land Reform Gender Policy of 1997, Paragraphs 4.11 and 4.22, provides for gender equity by means of financial assistance for women and priority for women applicants for grants (10).
  • Under the redistribution component of land reform, women and men can purchase land using a government subsidy. Because of their limited access to capital through credit and formal employment, women face difficulties in purchasing land in the market-assisted land redistribution programme (10).
  • Communal Property Associations, established under the Communal Property Associations Act of 1996, can provide a useful legal tool for women to make group purchases. While anecdotal evidence suggests that women are less informed about the land reform programme than men, available data show substantial participation by women in the redistribution programme. The database of the Department of Land Affairs reports that 47 percent of the beneficiaries of the projects completed or underway under the redistribution programme are women; however, the data do not allow distinguishing between women as individual beneficiaries and as joint beneficiaries (10).
  • Gender activists believe that the shift in the new grant system from households to individuals opens up possibilities for women to acquire rights in land that are independent of family and male control; this could benefit those women who have the resources, knowledge and status to apply for such grants. The main concern is that, given the weak economic position and dependent social status of most rural women, only a very small minority of better-off and better-educated women are likely to be able to capitalize on the new opportunities (21).

Otros factores que influyen en los derechos a la tierra diferenciados por género

  • Because of their limited access to capital, women face difficulties in purchasing land in the market-assisted land redistribution programme (10).
  • Although many women are involved in tenant farming, they cannot benefit from land tenure reform since generally their husbands or male partners are regarded as the tenants (13).
  • Women are largely unaware of the Land Reform Programme and their rights in general (13). Information does not get communicated to women because they are not regarded as potential heirs or tenants of land (18).
  • There are few women’s organizations in rural areas and minimal participation by women’s groups in the land distribution programmes (13).
  • Since customary law is wide-open to interpretation, its application varies depending on the views of different magistrate courts (6).
  • District and local level land reform offices are unaware of the importance of gender equity to land and lack appropriate operational tools and mechanisms to implement and monitor it. They lack gender training and consider women to be incapable of managing economic and agricultural projects (13).
  • Land institutions have very few women representatives. Women are reluctant to take leading roles and usually support what their husbands propose (13).
  • A major barrier for women under the Restitution of Land Rights Act of 1994, which establishes a Commission on Restitution of Land Rights and a Land Claims Court, is that most of the land being claimed is in men’s names and proof of ownership is a prerequisite for land to be restored (4).
  • Prior to the Traditional Courts Bill of 2008, women were not allowed to preside over or participate in the proceedings of traditional courts, except as litigants assisted by men (15).

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