Base de Datos Género y Derecho a la Tierra

South Africa

Derechos consagrados en la Constitución

  • The Constitution of 1996, approved by the Constitutional Court, came into force on 4 February 1997 (12) and was amended seven times. The latest amendment to the Constitution was made on 1 February 2013 but the date of entry into force is yet to be determined.
  • Section 1: Lists gender equality as a basic principle, stating that the Republic of South Africa is founded on four values, one of which is “non-racialism and non-sexism” (6).
  • Section 9: The equality section of the Constitution, which is applicable to persons and the state, specifically calls for legislative and other measures to promote the achievement of equality, including affirmative action to rectify unfair discrimination (6).
  • Sections 26 and 27 assert that everyone has the right to have access to adequate housing, to healthcare services, to sufficient food and water and to social security. The state is obligated to take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of these rights (6).
  • Section 25 addresses the property rights of South Africans:
  • Subsections 25(5), 25(6) and 25(7) provide that:
    - access to land should be on an equitable basis;
    - people living in tenure insecurity are entitled to secure tenure or comparable redress;
    - people dispossessed of property because of racially discriminatory laws or practices in the past can seek judicial redress.
  • Section 25(6) provides that: “A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure, or to comparable redress.”
  • Schedule 6, Section 20, “constitutional institution”, provides for an independent Commission on Gender Equality which reports to Parliament and is responsible for advocating and overseeing the advancement of gender equality in the public and private sectors. The Commission began working in April 1998 (13).
  • Section 181 and 187: establishes a Commission for Gender Equality, whose purpose is to promote respect for gender equality and the protection, development and attainment of gender equality through monitoring, investigation, research, education, lobbying, advising and reporting on gender issues.

Derechos de la mujer de propiedad y uso de la tierra en los Códigos Civil, de Familia y del Trabajo

  • In South Africa, marriage in governed by different laws:
    - The Marriage Act, 1961 (Act No. 25 of 1961)
    - The Matrimonial Property Act of 1984 (Act No. 88 of 1984)
    - The Recognition of Customary Marriages Act of 1998 (Act No. 120 of 1998)
    - The Civil Union Act, 2006 (Act No. 17 of 2006)
  • The Marriage Act, 1961 (Act No. 25 of 1961):
    - Provides for monogamous marriage
    - Section 26: the minimum legal age for contracting a valid marriage is 18 years for men and 15 years for women.  
    - Section 4: customary marriages must be registered but failure to do so does not affect the validity of the marriage
  • The Matrimonial Property Act of 1984 (Act No. 88 of 1984):
    - Section 11 repealed the common law rule by which a husband obtained the marital power over the person and property of his wife
    - Spouses can choose the matrimonial regime they prefer: community of property; separation of property; partial community; or “accrual” system. In the absence of an explicit choice, community of property applies: spouses equally own and administer common property (10).
  • The General Law Fourth Amendment Act of 1993 (Act No. 132 of 1993):  
    - It extended the Matrimonial Property Act of 1984 to all marriages celebrated after 1984, cancelling the last surviving norms on marital power (10).
  • The Recognition of Customary Marriages Act of 1998 (Act No. 120 of 1998):
    - Repealed the Black Administration Act of 1927, which considered customary wives to be minors subject to the guardianship of their husbands.
    - Section 3(1): both prospective spouses must be over 18 years old and must both consent to be married under customary law
    - Section 6: both spouses are recognized equal status and equal capacity to acquire assets and to dispose of them, to enter into contracts and to litigate.
    - Section 7: 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).
    - Section 8: Divorce may be dissolved by a decree of divorce issued by a court on the ground of the irretrievable breakdown of the marriage, when it has reached such a state of disintegration that there is no reasonable prospect of the restoration of normal marriage relationship.
    - Section 9: primacy of statutory law on customary law concerning the age of majority which is set by the Age Majority Act, 1972 (Act No. 57 of 1972)
  • The Civil Union Act, 2006 (Act No. 17 of 2006):
    - It legalized same-sex marriage
    - It governs the voluntary union of two persons who are both 18 years of age or older and which is solemnized and registered by way of either a marriage or a civil partnership
  • The Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (Act No. 4 of 2000):
    - Section 6: Prohibits unfair discrimination
    - Section 8(e): Prohibits systems that prevent women from inheriting family property and policies or conducts that unfairly limit access of women to land rights, finance, and other resources 
  • The Children’s Act of 2005 (Act No. 38 of 2005):
    - Section 12(3): Prohibition of genital mutilation of female children
    - Section 12(4): Prohibition of virginity testing under the age of 16
    - Section 17: Lowered the age of majority from 21 to 18 

Mecanismos legales de herencia

  • The Maintenance of Surviving Spouse Act of 1990 (Act No. 27 of 1990) and the Intestate Succession Act of 1987 (Act No. 81 of 1987):
    - These Acts are gender-neutral and both recognise women’s inheritance rights (10).
  •  The Promotion of Equality and Prevention of Unfair Discrimination Act of 2000:
    - Sections 6 and 8(c) and (d): Prohibit policies and practices which discriminate against women in the inheritance of family property and any inequitable “traditional, customary or religious practice which impairs the dignity of women and undermines equality between women and men” (10).

Legislación de tierras

  • The Promotion of Equality and Prevention of Discrimination, 2000 (Act No. 4 of 2000):
    - Sections 6 and 8(e): Prohibit “any policy or conduct that unfairly limits access of women to land rights” (10).
  • The Communal Property Associations, 1996 (Act. 28 of 1996):
    - Section 9 protects the interests of women through non-discriminatory provisions and inclusive decisions-making processes in communal property ownership and use of communal land (10).
  • The Communal Land Rights Act, 2004 (Act No. 11 of 2004):
    - Section 3: A community acquires juristic personality with perpetual succession upon registration of community rules

    - Section 4: A women is entitled to the same legally tenure, rights in or to land and no law, community or other rule, practice or usage may discriminate against any person on the grounds of gender
  • The Land Reform (Labour Tenants),1996 (Act No. 3 of 1996):
    - Section 3(1) grants labour tenants and their family members the right to occupy and use land (10).
  • The Extension of Security of Tenure Act of 1997 (ESTA) (Act No. 62 of 1997):
    - Provides for measures to facilitate long-term security of land tenure and is gender-neutral and non-discriminatory (14).

    - Section 4: The Minister may prescribe subsidies to facilitate long-term security of secure for occupiers 
  • The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act No. 19 of 1998)::
    - Repealed the Prevention of Illegal Squatting Act of 1951 and other laws

    - States that “special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and that it should be recognized that the needs of those groups should be considered” (10).

Medidas políticas/mecanismos institucionales que refuerzan o limitan el derecho de la mujer a la tierra

  • In 1998, a national Commission on Gender Equality was appointed. It is responsible for advocating and overseeing the advancement of gender equality in the public and private sectors (13).
  • In 1997, issuance of a White Paper on Land Policy and drafting of a Land Reform Gender Policy:
    - Paragraphs 4.11 and 4.22 promote gender equity by removing legal restrictions on women’s access to land, and by providing for gender-sensitive participatory methodologies, financial assistance for women, registration of redistributed land in women’s names and priority for women applicants for grants (10).
  • A Land Reform Government Programme:
  • Its three components: land restitution, land redistribution and tenure security, include gender equity as a fundamental principle (10).
  • Pilot Land Reform Programmes: 
  • It explicitly require women’s participation in project planning. However, women’s participation is limited in practice, both in the number of members in management committees and in the extent to which the voices of female elected members are heard in meetings (10).
  • Land reform guidelines and procedures to identify beneficiaries do not include gender objectives or mechanisms to ensure gender equity (5).

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