Women, (neo-)colonial customary law, patriarchy, custodianship and the land debate

By Narnia Bohler-Muller and Fathima Zahra Ebrahim Mayet

The government has been lethargic in enacting policies that enable some form of equitable land redistribution in South Africa, while attempts at policy have been met with little success.

“[T]he land will be shared among those who work it” (Congress of the People, 1955).

This quotation from the 1955 Freedom Charter is well known in South Africa, but in the 65 years since the cCharter was approved in Kliptown there has not been much progress in terms of land reform. According to Section 25 of the Constitution 1996 the state has a duty to enact some form of equitable land redistribution in South Africa. However, the government has been lethargic in enacting policies and the policies that have been attempted were met with very little success.

In 2018, the debate around land expropriation without compensation took on a new dimension. The EFF proposed the concept of land custodianship and the Constitutional Review Committee, tasked with reviewing a potential amendment to Chapter 25 of the Bill of Rights, recommended that custodianship should be taken into consideration as it may be a mechanism through which land could be equitably distributed to all South Africans.

Custodianship refers to the safekeeping and protection of materials (usually natural resources), which may or may not involve limiting or promoting access to such materials. In the South African context custodianship refers to the government taking on this responsibility. In the context of environmental protection, there is a similar process known as stewardship. Currently water, minerals and some of the land in South Africa are already under state custodianship or stewardship.

Under a system of custodianship, the government does not own the land but is limited to performing an administrative role. It acts on behalf of citizens to facilitate access to resources without managing, controlling or exploiting resources. It is argued that the state is the ideal body to act as custodian of the country’s resources as it is made up of three independent bodies; the executive, an independent judiciary and an elected Parliament that exercise oversight over each other, ensuring constitutional and democratic checks and balances.

The concept of custodianship should not be confused with nationalisation. If the state acts as custodian of the land it cannot profess ownership of the land, unlike nationalisation where the state owns the deed to all state resources and is the only body that may use and exploit those resources.

However, research on custodianship continues to be exclusionary despite the Freedom Charter and the Constitution ostensibly doing away with exclusion in South Africa. Historically women have worked the land, and this persists in rural areas today where men’s labour remains somewhat expendable. During apartheid men moved into urban areas to seek work, leaving women to tend to the land. However, despite women making up the bulk of those who work the land, they have very little or no say when it comes to land matters and this has not changed since the advent of democracy.

Black rural women in particular endure oppression by traditional leaders and untransformed customary laws. They remain economically incapacitated, and the mere existence of legislation which advocates equal rights has not changed their lived experience. The continued effect of entrenched patriarchal structures on the rights of black women in rural areas remain as women are persistently precluded from land ownership and/or tenure, as the rules of access favour men and women remain excluded from pertinent land discussions. In spite of the dawn of democracy, rural women reported that there has been no improvement in their circumstances even though there has been some increase in female traditional leaders.

This is the ideal moment to enter into a dialogue around women’s access to land, more so because they are a group historically denied inheritance and a claim to ownership of, as well as agency on the land they work. Women who work the land have not been consulted regarding their needs, ability to access land and the fact that they remain discriminated against in land matters, among others.

This too is a breach of the Constitution since Section 9 entrenches gender equality. According to Section 25: “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 or Parliament, either to tenure which is legally secure or to comparable redress.”

Black women in rural areas remain the most discriminated against.

Research by the South African Social Attitudes Survey of the Human Sciences Research Council (HSRC) shows that women are more likely than men to support land reform. Despite this they are largely excluded from the Section 25 debate. Women’s opinions on land reform differ according to education, poverty status, geographic location, political affiliation and social disadvantage. Furthermore, there is a generational discrepancy, where younger women are more supportive of land reform. The level of satisfaction derived from the current land expropriation programme has been marginal. Moreover, support for land reform remains high while satisfaction with the government’s implementation is very low.

Gender equality is not limited to domestic legal architecture, but also included in a number of regional and international treaties and protocols South Africa has ratified. This includes the African Union’s Agenda 2063 and the United Nations Sustainable Development Goal 5. In spite of the existing legal architecture there persists a shortfall in terms of implementation. These policies envision a society where women experience security of tenure and the transformation of the current framework governing land use in traditional areas. According to these frameworks, there should also be targeted support for rural women through agricultural development and improved land infrastructure.

A majority of the women who work the land live under traditional leadership and customary law. In this system women are seen merely as wives. In 2019, the Advisory Panel on Land Reform and Agriculture found that rural women form the majority of those who work the land while simultaneously being barred from land ownership or tenure. Existing attempts at redress have fallen victim to customary laws and only served to entrench the customary practices that were in place during apartheid. The shift to democracy has had no effect on patriarchal customary law; in fact it has strengthened neocolonial customary law, despite attempts by the Constitutional Court to reign it in.

If carried out correctly and in consultation with women, there would be many benefits to custodianship, South Africa would finally achieve the equitable redistribution of land without discrimination on the base of gender, religion, race, class, disability and sexual orientation. Customary law would progress beyond its entrenched colonial and patriarchal nature. State custodianship of urban land would negate the need for informal settlements and access to housing would become less challenging. Labour tenants in rural areas would no longer be subjected to forced evictions.

While the original purpose of the Constitutional Review Committee was to seek to amend Section 25 of the Constitution, that may no longer be necessary. The creators of the Constitution entrenched land reform. While an amendment to the Constitution may no longer be required, the state should begin to implement its mandate; what remains necessary is the inclusion of women.

The question remains whether we can engage in dialogue about land reform without talking about redistribution of power and wealth to those who are the perceived beneficiaries, including women living under a patriarchal social and legal system. Land custodianship would be ineffective if black rural women remained a marginalised group that continues to work the land without any rights to the land. If land reform is to be effective and equitable then the parliamentary Ad Hoc Committee should prioritise listening to the voices and experiences of rural women regarding previous, current and future land-reform policies and programmes.

This article first appeared in Daily Maverick on 31 August 2021.

Narnia Bohler-Muller is Divisional Executive of the Developmental Capable and Ethical State (DCES) research division at the HSRC and a research fellow at the Centre for Gender and Africa Studies at the University of Free State. Fathima Zahra Ebrahim Mayet is part of the ASRI Future Leaders Fellowship 2020/21 cohort and is an intern within the Developmental Capable and Ethical State (DCES) division at the HSRC.

Permanent link to this article: https://www.customcontested.co.za/women-neo-colonial-customary-law-patriarchy-custodianship-and-the-land-debate/

Custom Contested