The story of Dudu Xaba from KwaZulu Natal shows vividly how land rights and livelihoods are intertwined. Xaba’s late father left her a farm in his will but her half-brother claimed it, arguing only a male heir could inherit the plot. The brother and the local chief threatened her with violence if she persisted with her demand.
The land falls under the jurisdiction of a traditional authority (but is not owned by the traditional authority). As a result of colonial and apartheid law, land in this category is shrouded in uncertainty as to ownership, the “right” (if any) to allocate land, and current occupiers’ rights. Lack of clarity around communal land tenure means Xaba and other women in her position have no legal recourse in either customary or common law.
This lack of clarity is due to government’s failure to devise legislation that would realise the promise to security of land tenure enshrined in the Constitution. The protections that exist do not cover people living in communal areas. These areas – mostly the former Bantustans – are home to an estimated 16.5 million people, of whom 59 percent are women. Women’s land rights, already structurally vulnerable, have been made even more precarious in the context of the continued uncertainty around communal land tenure. Plotting the way forward in advocating for women’s land rights remains an urgent task.
Multi-faceted challenges face women’s security of land tenure. These include that women are often not treated as persons who possess land rights, meaning that they lose their homes when their marriages break down or end, or when their parents die. When they return to family homes they are made not welcome, and they are often not able to access residential land in their own names as traditional leaders refuse to allocate land to women. Women are excluded from traditional institutions that determine land allocations, such as village council meetings; and traditional courts deciding family and land disputes are dominated by elderly men and favour men over women.
In this context of legal uncertainty and exclusion, elites (men, traditional leaders, and corporates) benefit from the legal confusion that ensues, confusion that they are able to exploit to their advantage. Combined with the imposition of Bantustan boundaries through the laws governing traditional leadership, it means that women’s access to land depends heavily on local power relations.
Only the Interim Protection of Informal Land Rights Act provides a safety net for people seeking to secure their rights in communal areas. This Act, however, protects only those rights that women already possess, adding nothing more. A tougher, more lasting solution is required.
In the lead-up to the 2014 elections, a slew of new land and traditional leadership laws have been introduced. These include the new Restitution of Land Rights Amendment Bill, which, read with the Department of Rural Development and Land Reform’s State Land Lease and Disposal Policy, the Policy for the Recapitalisation and Development Programme and the Traditional Affairs Bill, have the potential to seriously undermine already weak tenure security rights even further.
We have painted a gloomy picture of women’s security of tenure. But the Rural Women’s Action Research programme’s (RWAR) consultations with our rural partners reveal ongoing processes of change at the local level. These changes show that potential solutions to advance women’s tenure security can be found in living customary law. Women in KwaZulu-Natal and the Eastern Cape are increasingly asking for and receiving land and family plots in processes that were traditionally considered the purview of men. This is especially the case for unmarried women with children who ask for residential sites.
Such evidence strengthens RWAR’s theoretical grounding, which rejects essentialist notions of both “human rights” and “custom”. It focuses on the relationships and power relations that rights mediate. Rather than setting up notions of custom and women’s rights as in opposition to one another, RWAR is guided by the idea that both rights and custom are constantly evolving and in dialogue with each other. We do not conceive of rights as fixed, bounded, and individualistic. Instead, we see them as contextual, negotiable, relational and informed by the interdependence of human beings.
Under this conception of rights, the central concern of an activist organisation working on land rights is to amplify a multiplicity of voices in defining customary rights. Land reform processes are ultimately informed by whose voices are permitted to participate.
Therefore RWAR’s work at the Centre for Law and Society consists of three components: research, litigation and working with networks of rural communities. We articulate different kinds of knowledge to foreground the contributions of our rural partners. We also provide a convening role for strategic litigation drawing on an expanded evidence base. Finally, we support rural communities and leaders to engage directly and effectively in research and policy and legislative processes, such a public hearings.
Central to the way RWAR works, then, are two related methodologies: a partnership model of close collaboration in joint initiatives, and an action research methodology. The work brings together different experiences and skills sets that complement each other. Our partners include both established non-governmental organisations (NGOs) and, crucially, small rural NGOs and community-based organisations. Practically, this maintains a knowledge feedback loop. Our research agenda is informed by the concerns of our rural partners, all of whom are encouraged to use the materials that we produce in their advocacy work.
The positive developments enabled by living customary law are put at risk by the new set of laws introduced by the government. Using the Constitution as a backstop, we argue for legal strategies that engage with, and support the struggles for change taking place at the interface between custom and rights in the former Bantustans. Furthermore, legal strategies to secure women’s rights to land should strengthen the inadequate but important provisions already existing in the Interim Protection of Informal Land Rights Act.