Inheriting a New Perspective – Women and the Land of South Africa

South Africa’s distressing history of segregation and problematic implementation of Human Rights standards, unfortunately, still peeking its way into the present day. Gender Rights in regards to Land Laws is especially one of the areas of the law in which these violations are being recognized. If South Africa wants to become a country sensitive to International Human Rights Norms, it must be realized by everyone that this is a feat much easier said than done, especially with South African customary law – laws built of customs and practices of the indigenous peoples - being as complicated and intricate as it is. Legal Pluralism is one of South Africa’s biggest obstacles to overcome; colonialism’s brought regulations translated from both Roman-Dutch law and English common law, which had to mix with a huge number of indigenous or customary laws already in place. Integration of these rules was not a smooth process; the settlers of 1652 from Europe, namely the Dutch East India Company that recognized the Roman-Dutch Law as the official law of the land - at first ignored the native laws of the tribes, then tolerated them after the second British occupation in 1806 when it was stated that there should be no interference with the native laws of the country, and eventually recognized them in the Interim Constitution of 1993. If South Africa wants to accomplish a true pluralistic nature to the law, and a multicultural nature of the society, it is necessary for everyone within that society to become more sensitive to the various cultural practices around them and to use a more bottom-up approach for implementing the changes.

Recognizing Customary Law can only be done if it is understood in itself, which is very difficult to do with the vast number of different regulations and customs followed by the different tribes and native communities. Land Tenure alone is two fold; there are the Official Customary Laws, which are the explicit laws about how inheritance of Land occurs and what procedures are to be followed, and the Living Version of Customary Law, which is the way in which the courts have interpreted and applied the provisions in real cases. The problem resides in the fact that there is a great disparity as to how the laws are applied; the lower courts have a tendency to take social practices and changes into account more so than the higher courts, which have a tendency to strictly apply the original customary rules, even though the laws weren’t in fact that strict at all.

Primogeniture – the preference for senior males as heirs to inherit land – is a dominating feature of inheritance and tenure law within the customary system, and is something which many indigenous tribes still follow, regardless of the new laws put in place. It was codified in Article 23 of the very controversial Black Administration Act 1927, a major piece of Apartheid legislation codifying the segregationist character of South African society. The basic idea behind this rule, under Official Customary Law, is that property of a family head, when deceased, is passed onto the heir, usually the oldest of the sons in the first house. In a Zulu household, “power is inherited by men but transmitted through women”; in polygamous marriages, if the husband were to die, then the property is to be distributed accordingly amongst the sons of the houses that are identified by the wives: the first wife of the “great house” (indlunkulu), the right-hand house (qadi) and the left-hand house (ikhohlwa); determining the seniority of the wives is usually on the basis of marriage order. In a Swazi household, the senior wife is chosen by the family, which helps identify who the heir should be – usually her oldest son. In almost every tribal community household, it is very difficult to say that there is no male heir to the deceased’s estate, due to the fact that an heir will eventually be found along the bloodline -  succession passes onto the deceased’s father, or the brothers, or the descendants in order of seniority.  Sometimes, succession will even be passed onto grandchildren, and then if failing the oldest grandchild, will then follow through the second oldest of the family line of males until an heir can be found. In the event that no heir can be found, however, the traditional leader of the community will then take hold of the estate, but is under the duty to use the estate to maintain the surviving dependants – women included. I have simplified these customs as much as I can, but the basic idea is that the heir to the estate is usually always a male – women seem to be avoided completely. However, women are used by many communities as a way in determining the heirs, for it is the women who are the leaders of the households, especially in polygamous marriages.

Although Primogeniture plays such a large role in intestate succession – succession without a will -, the disparity between the living law and the original customary law is evident when we look at succession as a process, and the goals behind these succession laws – inheriting an estate from a deceased is not a single event, and must always be taken in the light of the benefit for the social needs and survival of the family unit. The main reason behind not allowing women to inherit land is purely because the males are seen as holding the sufficient legal rights and the abilities to manage the estate in such a way to benefit the family; it is the duty of the male head to protect and maintain his family unit. Another reason that women usually do not inherit the estate is because if the heir to the estate is a minor, then the widow is seen as the natural protector of that heir, but not the guardian. The guardian is usually a male who is in charge of the estate matters; the widow, therefore, cannot do both, as both duties are equally as important. The idea that the customary law is to protect the family unit’s social needs becomes hazy when the higher courts apply strict rules of the original customary law to such cases. In its essence, Original Customary Law was not intended to be a rigid concept; it is fluid, and therefore, is meant to change for the benefit of the society. Women are allowed to inherit land if they are seen as the primary caregiver, or if no male heir can be found, if this will benefit the family’s social needs. Women will not be avoided at all costs if it means damaging the well-being of the surviving members of the family. In plenty of cases, women will have sufficient claim to maintenance of the estate, even though the heir will be the ultimate owner.

Inheritance of the estate by the widow of a deceased follows a few basic principles, but is all guided by the underlying point that involvement and membership within the deceased’s family is a necessity. When a husband/family head dies, women hold claim to the estate, usually a claim of maintenance, because the death of a husband does not constitute an end to the marriage. However, to ensure that the marriage is not seen as being terminated by the death of her husband, a widow may enter into a Levirate Union, meaning that under an arrangement made within the framework of the existing marriage with the deceased, the widow will take companionship with the deceased’s kinsman (usually a brother). This is not seen as a new marriage because no lobolo (bride price/dowry) is paid in the union. However, it is necessary that the wife be on good terms with the family of the deceased – the widow must hold good relationships with the family members in order to benefit from the family property/deceased’s estate. This is because the heir to the estate may deny any rights that the widow might hold to the estate; he could deny that she was ever married to the deceased, he could exclude her from participating in the mourning rituals, and sometimes widows may be accused of causing their husband’s death.

Regardless of any rights that a widow may hold over the maintenance of her deceased husband’s estate, the rule of Primogeniture has still been the topic of a great number of legal reforms in South Africa. The first mention of Primogeniture in the courts was in the case Mthembu v Letsela 1997 (Mthembu v Letsela and Another 1997 (2) SA 936 (T)), which discussed whether or not Article 23 of the Black Administration Act was contrary, and therefore a violation, or Article 8(2) of the Interim Constitution, which basically states that any form of unfair discrimination on the basis of gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language is a violation of basic Human Rights. It was held that Art. 23 was not contrary to Art. 8 because the duty to maintain and look after the surviving dependents of the deceased are necessary aspects of the rule of Primogeniture, and therefore are not negative in regards to the wellbeing of the surviving members of the family. This coupled with the freedom persons have to choose this system of governance over their estates meant that Art. 23 could not be in violation of Art. 8. An appeal in 2000 was brought to the Supreme Court of Appeal of South Africa and was dismissed on similar grounds. However, a major turning point for the Land Reform movement was in Bhe and Others v Magistrate, Khayelistha and Others 2004/05 (Bhe and Others v Magistrate, Khayelitsha and Others (Commission for Gender Equality as Amicus Curiae) 2005 (1) SA 580 (CC), CCT 49/03, Constitutional Court, October 15 2004), where it was held by the High Court that Art. 23 was in fact inconsistent with the new Constitution of 1996 – the succeeding and final Constitution to the Interim Constitution of 1993 - and Art. 8. The reasons behind this judgment are what make this decision so interesting; the idea behind inheriting the estate from a deceased family member is that the heir does not only inherit the physical property, but also the responsibilities and debts of the deceased. However, in today’s societies, families are much more spread out and live in different cities across the country, and therefore, inheritance is more focused on the physical property rather on the responsibilities of the family – therefore, the sole reason behind not allowing women to inherit falls away, which causes the rule of Primogeniture to become redundant. Along with this, any ruling that was found in Mthembu v Letsela no longer applies, and S. 23 of the Black Administration Act is to be repealed. Unfortunately, the Bhe case did not end with the happy ending that was intended: Ms. Bhe could not implement the rights that she had been awarded by the court for fear of being ousted from her community. This shows that even with legal acceptance of such succession rights for women, communities on the ground are not all in favour of this new order.

Xhosa Women

Since 1997, there have been many Legal Reform documents put in place to help get the ball rolling in allowing Land Inheritance to be based on a more Gender-Neutral basis, rather than a discriminatory one as was provided for in the Black Administration Act. The Land Reform Gender Policy of 1997 and the White Paper on Land Reform of 1997 are two such documents that have made huge changes to the Land Reform motion. A crystal clear change that can be seen on record is the judgment in Bhe, which of course, cannot be denied as being extremely influential. However, the battle is far from over. Legislative reforms are not enough to change a whole country’s history of segregation of discrimination, as can be seen by the result of the Bhe case. There are three levels where the barriers to gender equalities lie: the market level, the community level and the family/household level. The State and the Legislation put in place can only act as guidelines and goals for implementation of such a vast project, the real implementation involves physically changing the way people within a society view the way things happen, and hopefully being able to change their mind. There are some serious problems in involving the law, namely the Constitution and so-called Western ideologies to interpret issues on the basis of Customary Succession laws and gender equality. The first of these problems is that in native communities, estates are administered privately; no outside authority is involved unless there is a serious disagreement. Family councils will use the guiding principle that the welfare of surviving dependents takes priority, and will determine the distribution of the deceased’s estate accordingly. Therefore, any unnecessary legal involvement may disrupt this process and cause even more friction between the transplanted laws and the customary laws. Secondly, many of the people within these native communities may not even know about the laws put in place, such as those in the Constitution or in any other form of Legislation, and therefore cannot even bring these cases out of the dark. Thirdly, communities may not agree with the laws in place, and therefore refuse to implement the new law into their own customary system, which has a much stronger effect on the people within that community than a statement on a piece of paper somewhere that someone in a higher-up status can read.

In order to make the great changes that so many people have been dreaming of, and have been promised, we need to go back to the roots of the issue – a bottom-up approach. Putting such important legislation and clear rules in place is only a tenth of the task at hand. Implementing these changes will take changing the minds of millions of people, or at least trying to get them to see that slight adaptation in their customs will not cause too much of a problem for them, which in itself is an impossible goal. The Receptor Approach (designed by Tom Zwart, director of the Netherlands School of Human Rights Research) is one such bottom-up implementation strategy that in effect, could be very useful in aiding the implemention such influential legislation. Focusing on the cultural aspect of a human right, and looking for local institutions within the country to implement international Norms is much more effective strategy than changing the law itself and expecting people to follow it, when a vast majority of the country does not even know the law exists. Women are not incompetent, and although many communities may not view them as being so, the new ways in which societies are built calls for changes to be made to the customary laws, and it is up to everyone in the country to start realizing that changing one law to another will not make the difference at a local level. Education, Information and Acceptance are the keys to unlocking a de-segregated community that South Africa has been striving for since Madiba started his long walk to freedom, since South Africa began striving to be the Rainbow Nation that Mandela had envisioned, and since the outside world took interest in helping South Africa to achieve this goal and recognize Human Rights to aid this journey.

Photo courtesy of African Photos website

Guest Post By Kegan Lyndsay Sweetnam