- A new study shows that, while South Africa's slow land reform is moving lands from white to black hands, black women are increasingly being discriminated against. Customary laws prevent women from obtaining land rights.
Since the end of apartheid, land reforms have been one way of righting the wrongs to which the black South African majority was previously subjected. "But many black women have little or no opportunity to own land, due to the customary laws that still govern ownership rights in rural South Africa," according to a thesis presented by Annika Rudman at the University of Gothenburg (Sweden).
Ms Rudman, who is a PhD student in the field of peace and development research, has studied the relationship between legislation, customary law and opportunities for development in relation to black women's ownership rights and the land reforms implemented in South Africa since 1994.
South Africa's new constitution signed into law in the township of Sharpeville by President Nelson Mandela on 10 December 1996, was to give all South Africans the chance of a dignified life. It puts forward a complex property clause protecting individual ownership, but at the same time leading the way towards extensive land reform; as well as an equality clause prohibiting discrimination on no less than 17 different grounds.
But the 1996 constitution also sets the framework for the coexistence of customary and common law and allows traditional leaders to govern communities living under a customary system. This opened the door for later discrimination against women as South Africa slowly embarked on land reforms.
"The values that govern South Africa's land reforms concern the right to equality between men and women and a prohibition on racial discrimination, but at the same time these have to be balanced against local customary law and the traditional forms of leadership associated with this. Therefore, each reform must take into account the fact that conflicts can arise between the different value systems," says Ms Rudman.
The change process currently under way in South Africa is taking place within the new official legal framework, which emphasises equality and pluralism, Ms Rudman points out.
"I have examined the function and status of customary law in South African land reform, and have attempted to highlight the legal problems many black South African women have to deal with when they try to gain access to land through the new system," says Ms Rudman.
The study refers to landmark cases in South Africa's constitutional court in 2004, giving women ownership to lands they had inherited but had been prevented from taking over due to customary law. While the legal situation for women has improved, the patriarchy in rural South Africa still makes it very difficult for women to get hold on their rightful property, the study finds.
In her thesis Ms Rudman in particular points out the dangers of building new ownership structures around the often patriarchal customary law structures.
"Traditional leadership in South Africa has a prominent role to play in the struggle to increase respect for equality between men and women, particularly in rural areas," says Ms Rudman.
The study therefore recommends that national guidelines be introduced for how the traditional leadership in South Africa can approach and implement equality in relation to the principles of customary law that govern land ownership in many of South Africa's various cultural groups.
"These recommendations are based on the idea, launched by the South African Constitutional Court, that it is the traditional leadership that should be the driving force in the issue of developing customary law in line with the requirements for equality that are set out in the constitution," adds Ms Rudman.
In addition to the legal analysis, the thesis puts South Africa's land reforms in a development context, and studies the possibility that by protecting women's rights, it would help to reduce the growing poverty among women in South Africa, which has in recent years been worsened by the spread of HIV/Aids.
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