News / South Africa

Ilse de Lange
2 minute read
31 Oct 2018
6:20 am

Concourt ruling a legal victory for female African property owners

Ilse de Lange

In a unanimous ruling, the court declared a section of the Upgrading of Land Tenure Rights Act of 1991 unconstitutional.

Property file picture: Northglen News

The Constitutional Court granted a victory to women yesterday when it gave parliament 18 months to rectify a piece of apartheid-era legislation that prevented African women from owning property and left them permanently dependent on the male heads of their families.

In a unanimous ruling, written by Acting Judge Patricia Goliath, the court declared section 2(1) of the Upgrading of Land Tenure Rights Act of 1991 unconstitutional, insofar as it solidified the position created by apartheid legislation which excluded African women from the property system and resulted in discrimination on the basis of sex and gender.

The order, which was made retrospective to April 1994, was suspended for 18 months for parliament to rectify the defects.

A Soshanguve woman, Mary Rahube, challenged the validity of the Act after her brother Hendsrine Rahube in 2009 sought to evict her from the family home in Mabopane, where she had been living for many years.

The Rahubes moved into the house in the 1970s.

The Bophuthatswana government then issued an occupation certificate and a deed of grant in Mr Rahube’s name in the late 1980s. Hendsrine Rahube maintained his land tenure right had been converted to a right of ownership in terms of the Upgrading Act.

His sister opposed the eviction and obtained a high court ruling that the tenure rights the Upgrading Act sought to convert was discriminatory, automatically converted rights of ownership without notifying interested parties and continued to exclude women from ownership rights because only men could be the head of the family.

The Constitutional Court held that because section 2(1) was based on a position created by apartheid legislation, it could have no legitimate governmental purpose and was irrational and unconstitutional.

Hendsrine Rahube was also interdicted from selling or encumbering the house in any manner until parliament had rectified the defect.

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