By Saadiyah Kadwa and Simone Gray in response to an original article at the Citizen.
The issues of land and gender in South Africa are interlinked and cannot be easily separated. We continue to see women being discriminated against when it comes to land ownership and it is important that women are not side lined in the ever-present land debate. Many traditional leaders continue to regard women as minors who cannot own land in their own right and must be represented by men. This means that when land is allocated, women continue to take a back seat.
The Constitutional Court has on various occasions acknowledged that unequal treatment of women has occurred and has attempted to remedy the issue. The Bhe Case, in which the LRC represented Chalotte Shibi, sought to guarantee women the right to inherit property. This was a landmark decision which overturned the principle of male primogeniture that applied in customary law, thus ensuring the equal treatment of females for the purpose of inheritance. The case of Shilubana, which also looked at the principle of male primogeniture, held that women could finally occupy chieftaincy positions. These cases are indicative that the law recognises and accords women equal rights to men in a customary law setting which is the first step in obtaining formal equality. Substantively, the inequality prevails and women still face hardship when it comes to acquiring land rights.
The Inyanda National Land Movement which is a collection of organisations that focus on advocacy for rights of marginalised communities, have been vocal about this type of discrimination against women’s land rights and marched to the Eastern Cape House of Traditional leaders on 10th April 2019 to demand that discrimination against women in land allocations end immediately. Inyanda National Land Movement has also said that when women ask to be allocated land, they are asked what they will do with it, whereas men are not asked the same question. This illustrates the disparities that still exist within traditional settings and the discrimination still faced by women when trying to access land. The Congress of Traditional Leaders of SA (Contralesa), which represents the majority of traditional leaders in the country, has condemned discrimination against women in land allocations.
Women are often the primary caregivers and in many instances can be food producers if they have land to farm for subsistence. This also assists with ensuring food security for the whole family. In addition, access to land in itself is empowering as it allows women economic freedom. This is important to empower future generations of women who will not have to depend on men for their economic sustainability. By side-lining women in the land debate women will continue to be disempowered and this will deprive them of the opportunities that may have been open to them were they included in land reform initiatives. Organisations that engage in advocacy initiatives like the Inyanda National Land Movement are invaluable as they hold the tools to create change at the grassroots levels by raising awareness and the changing perspectives of those persons who discriminate based on gender.
The message to both traditional leaders and government needs to be clear: women’s land rights are human rights and land reform and allocation of land should be reflective of this.
Saadiyah Kadwa completed her LLB and is currently working on her Masters Degree in Child Care and Protection at the University of Kwa-Zulu Natal. Her interest is in protecting the rights of children, indigent, and vulnerable people. She volunteered at the UKZN Law Clinic and the Family Advocate’s Office in 2018.
Simone Gray holds a LLB and LLM (Medical Law) degree from the University of KwaZulu-Natal and a LLM (Human Rights Law) degree from the University of Cape Town. She has a particular interest in the right to equality and how law can be used as an instrument not only to realise rights but also to bring about social change.