Women are still peripheral to South Africa's land debate
DATE: 11 August 2021
AUTHOR: Andrea Teagle
In 1951, the young intellectual Isaac (‘IB’) Tabata observed that dispossessing black people from their land was central to the machinery of the oppressive state.’As long as the African had land to subsist on, he could not be driven, helpless, into the labour market,’ he said in the seminal lecture ‘Landlessness is a means of exploitation’. Years later, land is at the centre of debates around transformation in South Africa. Yet, the group of people most disenfranchised – black women – remain troublingly peripheral to the land debate. Andrea Teagle draws from a chapter on women and land ownership in Ethics, Politics, Inequality: New directions, the latest book in the State of the Nation series.
Women own just 13% of private farmland in South Africa, against a world average of 20%. In ‘Thinking ethically about women, power and land in South Africa’, a chapter in Ethics, Politics, Inequality: New directions, the HSRC’s Prof Narnia Bohler-Muller and colleagues write that little has changed for South Africa’s rural women since the first attempts to redress unequal distribution of land. In fact, agriculture accounts for just 3.7% of total female employment, down from 9% in 1995, according to the World Bank.
As South Africa becomes increasingly urbanised, men’s employment in agriculture has also declined, but less steeply and from a higher base – 12.5% to 6.5% – suggesting that unequal practices continue to squeeze women off agricultural land.
‘[L]and, voting rights and the right to self-determination have always been intertwined,’ the authors write. ‘Women were greater casualties of discriminatory laws owing to the increased vulnerabilities that arise at the intersection of race, gender and class.’
They argue that policies initiated after the first democratic elections have failed to take the socioeconomic factors that continue to direct patterns of land ownership in South Africa seriously enough. While redistribution policies are intended to be gender equal, in practice women make up just a quarter (23%) of land redistribution beneficiaries.
Rectifying the status quo and shifting the balance of power will require listening to the voices of rural women within the context of land reform – an ethical undertaking that the authors attempt to initiate.
The Section 25 debate
On 25 July 2019, the National Assembly convened a committee to consider new legislation to amend or clarify Section 25 of the Constitution: the expropriation of land without compensation. ‘The Section 25 debate seems the perfect platform for heeding women’s voices,’ the authors write.
In 2017, the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change found that women make up 59% of people living under traditional leadership.
The Presidential Advisory Panel on Land Reform and Agriculture, convened in 2019 to consider the conditions of expropriation without compensation, found that rural women are still oppressed by traditional leaders. Rural women continue to be ‘workers of the land, not owners of the land’. And, while women made up 50% of representatives in Parliament for the first time, there is a danger that they remain mainly tokens of equality and do not use the platform to address issues of land equality.
Attempts to redress dispossession along racial lines have at times fallen into two traps: they reinforced traditional laws that were appropriated during apartheid to bolster the hierarchy of power; and they reinforced patriarchal practices embedded in customary law.
The Communal Land Rights Act (No. 11 of 2004) was intended to address issues of land insecurity in traditional areas. However, Bohler-Muller and colleagues write, the Act came under widespread criticism for extending the decision-making powers of tribal authorities created during apartheid. Since authorities tended to rule in favour of men in land disputes, the Act would likely have reinforced patriarchal barriers to women’s access to land. Ultimately, it was not passed, and ‘[T]he lessons to be learnt from CLaRA are that the inclusion of the public’s voice in any legislative process is imperative to its success.’
In 2017, Mantshabelle Mary Rahube found herself facing eviction from her home at the hands of her brother. She brought a case (Rahube v Rahube and Others) before the Pretoria High Court to declare the Upgrading of Land Tenure Rights Act (ULTRA) unconstitutional. In an attempt to address the exclusion of black people from land ownership, the Act automatically converted the ‘Deed of Grant’ into ownership. But, because customary law favours men in land ownership and possession, the Act effectively discriminated against women, granting ownership to male relatives. The court ruled the Act invalid – a decision confirmed by the Constitutional Court in 2018.
In this and related cases regarding customary law of succession, the Constitutional Court ruled that customary law should be applied ethically and respond to the evolving needs of communities. “Thus far, the courts and parliaments have attempted to perform a delicate balancing act with a dual objective: to promote the cultural uniqueness of customary law … on the one hand and, on the other hand, to promote and protect women’s right to equality and dignity in order to reduce the impact of patriarchy as embedded in customary law.”
Although the Constitutional Court has been instrumental in guiding the evolution of customary law, implementation can be slow, the authors write, and the Court can only address matters that are brought before it. The irony is that those most in need of constitutional recourse – like rural women – often do not have the financial or educational means to access it.
In addition, in recent years legislation that seeks to strengthen customary law appears to be repeating past mistakes, by failing to consider the impacts on communities and on women. For example, the Traditional and Khoi-San Leadership Bill that President Cyril Ramaphosa signed at the end of 2019 allows traditional leaders to ‘sign away vast areas of communal land [to mining companies] without the consent of the community’.
Realising gender equality
South Africa is committed to a number of regional and international human rights frameworks and policy instruments that aspire to gender equality. Gender equality is also embedded in the Constitution, which reflects the relationist philosophy of Ubuntu. However, ‘In terms of women and land rights, one must question whether this encompassing ethos [Ubuntu] is understood, interpreted and implemented to its full extent and potential.’
South Africa is a prime case study for how equality in law does not automatically translate into equality in practice. Bohler-Muller argues that ‘an ethical interpretation of equality requires attention to detail – to lived experiences, stories, responsibilities, relationships and the impact of judgments on real people,’ adding that the government rarely has time for this level of detail.
Yet, in the absence of this kind of practical undertaking, the Section 25 debate will be a lost opportunity to address injustices against women. The authors argue that institutional laws and practices that discriminate against women must be proactively revised to be in line with the Constitution. Additionally, the State should raise awareness of rights and legal recourse, particularly in rural communities.
Prof Narnia Bohler-Muller is the divisional executive of the HSRC’s Developmental, Ethical and Capable State research division. She is one of the authors of ‘Thinking ethically about women, power and land in South Africa’, chapter 3 of Ethics, Politics, Inequality: New directions, the latest volume in the State of the Nation series published by the HSRC Press
This article was compiled by Andrea Teagle, s science writer in the HSRC’s Impact Centre