By David Mtshali, Attorney, Legal Resources Centre, Johannesburg Regional Office
The Pretoria High Court (the “High Court”) order which declared Section 2(1) of the Upgrading of Land Tenure Rights Act 1991 (the “Upgrading Act”) unconstitutional, to the extent that it prevented black women from owning property, has been confirmed by the Constitutional Court in Rahube v Rahube and others 2019 (1) BCLR 125 (CC). The Upgrading Act was enacted during the Apartheid era and it was intended to enable black people to own property. It unfortunately also prohibited black women from owning property. The case began when Mantshabelle Mary Rahube (“Mary”) and her children were being evicted from her family home by her brother, Hendsrine Rahube.
Mary (applicant) and her children had been living in their family house since the 1970s when her brother (“Hendsrine”) was granted ownership of the same house in 1988. This was done in terms of the Black Administration Act. When the Upgrading Act was enacted, it automatically made Hendsrine the owner of his sister’s family house. This prompted Mary to file an application with the High Court challenging the constitutionality of the Upgrading Act and she won. This triggered the Constitutional Court’s confirmatory jurisdiction in terms of section 172 (2) of the Constitution, thus the matter was referred to the Constitutional Court for confirmation. The Constitutional Court confirmed the High Court order.
When confirming the said order, the Constitutional Court remarked that “This exclusion was inherently gendered because, in terms of the proclamation [which resulted in Hendsrine being granted a deed of grant], women could not be the head of a family, and could not have a certificate or deed of grant registered in their name”. I think the Constitutional Court’s remarks in this regard were spot on as exclusion based on gender is unfair discrimination in terms of section 9(3) of the Constitution.
I further think that this decision adds emphasis on the need to emancipate black women through doing away with all laws which perpetuate the exclusion of black women from all economic activities. This decision is timely given the context (the amendment of section 25 of the Constitution to give effect to expropriation of land without compensation) in South Africa. It highlights one of the most important issues which affects black women in as far as property is concerned. These are issues which the lawmakers must consider when amending section 25 of the Constitution.
David Mtshali, Admitted Legal Practitioner of the High Court of South Africa as at 03 April 2019. Current LLM (Child Law) candidate at the University of Pretoria. LLB Degree obtained (2015) at the North West University.