Legal amendment to allow women to become sole land owners

A legislative amendment is underway to allow women to become sole owners of land without having to be represented by males and for former independent homeland residents to benefit equally with the rest of South Africa in land ownership rights conversion.

Before the black majority government woke up to the significance of gender equality, it passed the Upgrading of Land Tenure Rights Act still allowing females to be excluded from land ownership. But the matter was successfully challenged in court and parliament is in the process of correct this mistake.

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In the main, the Upgrading of the Land Tenure Rights Amendment Bill of 2020, currently before the National Council of Provinces (NCOP), sought to correct this anomaly so as to be in line with the 2018 Constitutional Court ruling.

The NCOP will hold a virtual plenary sitting to consider this Bill, along with the Correctional Service Amendment Bill, on Thursday.

The Upgrading of Land Tenure Rights amendment further extends the law to apply in former apartheid homelands previously known as the Transkei, Bophuthatswana, Venda and Ciskei (TBVC) states where it did not apply before because they were governed by a different legislative framework.

The original Upgrading of Land Tenure Rights Act, 1991 (Act No. 112 of 1991) was enacted to enable the upgrading and conversion into ownership of certain rights granted in respect of land, for the transfer of tribal land in full ownership to tribes and for related matters.

After it came into effect on 1 September, 1991, many individuals grabbed the opportunity and converted some of their rights into ownership. But the conversion process was challenged in the courts for discriminating against women as it provided for men to be the heads of the family and therefore the recognised owners of land.

In the past, many a women who sought land ownership had to be represented by a male, who could either be a family member, a relative or any nominated person.

The court challenge was based on a deed of grant conversion case in Mabopane township which, at the time of the legislation enactment in 1991, belonged to the former Bophuthatswana homeland but has since become part of Tshwane in Gauteng.

The Constitutional Court in 2018 found Section 2(1) of the Act to be unconstitutional as it automatically converted holders of any deed of grant or any right of leasehold into ownership, but violated women’s constitutional rights to become such holders.

In the Constitutional Court’s Rahube vs Rahube and Others matter, the way was opened for nondiscriminatory and equitable land ownership based on rights conversion.

The Upgrading of Land Tenure Rights’ primary purpose is to provide for the application for conversion of land tenure rights to ownership.

It also provided for interested persons to object to conversion of land tenure rights into ownership, give assistance in determination of land tenure rights and for the aggrieved persons to apply to the courts for appropriate relief.

Under the legislation, the land rights earmarked for conversion into ownership include any deed of grant or any right of leasehold as defined in regulations, proclamations and notices between 1962 and 1988.

ericn@citizen.co.za