South Africa’s Highest Court Strikes Racist and Sexist Land Law

On October 30, 2018, the Constitutional Court of South Africa confirmed a lower court decision from the High Court of South Africa in what many consider a legal victory for African women property owners. The applicant, Ms. Matshabelle Mary Rahube, sought to contest several provisions of the Constitution as well as s.2(1) of the Upgrading of Land Tenure Rights (Upgrading Act). The impugned provision of the Upgrading Act, enacted in 1991, provided that rights in property, such as deeds of grant, would be automatically converted rights to ownership rights “without providing other occupants or affected parties an opportunity to make submissions”.

The first respondent, among a total of seven respondents, is Ms. Rahube’s brother, Hendsrine Rahube. Ms. Rahube and her brother lived with other family members in the 1970s in a property owned by the siblings’ grandmother, the “de facto owner”, given the regime which barred African women from formal rights in land. In 1973, Ms. Rahube moved out of the property to live with her husband. She then moved back in 1977 after the dissolution of her marriage and has continued to reside there since. In 1987, the family chose Mr. Rahube to be the certificate of occupation holder, from which he was issued a deed of grant. Under the Upgrading Act regime, Mr. Rahube gained automatic ownership right over the property without residing or using the property.

In recognition of the historical context of gender discrimination against African women during apartheid as well as the effects later entrenched in legislation, the Constitutional Court struck down s.2(1) of the Upgrading Act.

The full case of Rahube v Rahube and Others can be found at http://www.saflii.org/za/cases/ZACC/2018/42.html.

 

This  blog  post  was  written  by  a  CCLA – PBSC  RightsWatch  student.    Opinions  expressed  do  not  necessarily  reflect  the  view s  of  the  CCLA  or  PBSC.