Tensions between traditional law and South Africa’s Constitution, as well as the country’s trend toward a more Western way of living, have been documented extensively.⁽²⁾ The South African Constitution Act 108 of 1996 ⁽³⁾ makes provisions for people to live according to their traditions and customs provided they do not infringe on anyone else’s freedoms. However, rights to land and gender equality are not always synonymous.

This paper briefly considers some of the leading legislation and official documentation regarding customary law, before contemplating how this may conflict with social practices (or the ‘living’ of customary law) which is highlighted through a case study. Using the Land Laws of Msinga Project ⁽⁴⁾ this paper shows how marriage and family life have been used as pillars of social organisation, which are both influenced by and influences women’s ability to own land.

Official customary law

The South African Constitution Act 108 of 1996 ⁽⁵⁾ protects women’s rights to property and affirms that everyone has a right to equality and freedom.⁽⁶⁾ Despite being difficult to achieve, the Act became a cornerstone for the development and re-evaluation of laws that were previously discriminatory to any group (including women).

In line with this, customary law underwent scrutiny particularly because it traditionally gives all property rights to the husband (male head). To counter this, the Recognition of Customary Marriages Act 120 of 1998 ⁽⁷⁾ states that marriages will be in community of property. Section 6 of the Act states:

A wife in a customary marriage has, on the basis of equality with her husband, and subject to the matrimonial property system governing the marriage, full status and capacity, including the capacity to acquire assetsand to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers that she might have at customary law.⁽⁸⁾

This Act explicitly empowers women to own property, the only exception being if the married couple signs a prenuptial agreement.⁽⁹⁾ However, Curran and Bonthuys ⁽¹⁰⁾ indicate a challenge to people who live in rural areas because they lack the resources and knowledge to approach lawyers concerning matters of signing prenuptial agreements. Furthermore, cultural and social practices may hinder husbands’ and community leaders’ (most often men) willingness to condone such legal protection (as it is not within their interests to do so).

The above sentiments for equal rights to land tenure are found in Section 4(3) of the Communal Land Rights Act 11, which provides that “A woman is entitled to the same legally secure tenure, rights in or to land and benefits from land as is a man, and no law, community or other rule, practice or usage may discriminate against any person on the ground of the gender of such person.”⁽¹¹⁾ However, this Act was declared unconstitutional in 2010 on procedural grounds.⁽¹²⁾

One of the biggest social practices hindering the rights of women, discussed further on in the paper, is the practice of primogeniture were land is only afforded along patrilineal lines. However, following the watershed case of Bhe and others vs. Magistrate, Khayelitsha and others,⁽¹³⁾ the Reform of Customary Law of Succession and the Regulation of Related Matters Act of 2009 ⁽¹⁴⁾ was created, which prohibits such practice and stipulates that all spouses have the right to inherit property of the deceased.⁽¹⁵⁾

Although the above statutes exist to protect women’s property rights, Beninger and Williams argue that men may be unwilling to accept legislation in favour of women but that poor awareness about such legislation is also a hindrance to the performativity of such documents.⁽¹⁶⁾ Therefore, without knowledge of such statutes or a disruption of established gender relations, ‘living’ customary law remains prevalent; a situation which the Msinga case study confirms.

Land laws of Msinga project

Msinga, in Kwa-Zulu Natal, South Africa, is a grossly underdeveloped area with poor infrastructure (most severely felt in the community’s difficulty to access water), high unemployment, and low levels of economic activity and education.⁽¹⁷⁾ Additionally, Msinga is a rural community whereby people dwell in thatched huts with mud walls and live by local tribal rules (primarily Zulu).⁽¹⁸⁾ In fact, 69% of the land in Msinga belongs to the traditional authorities with the remaining land used by commercial farmers.⁽¹⁹⁾

The Land Laws of Msinga Project was a three year action research project, undertaken between 2009-2011, in the Mchunu and Mthemba tribal areas. The project was a reaction to the proposed roll out of the Communal Land Rights Act and sought to better understand current land tenure behaviours to consider how the implementation of the Act may impact living conditions.⁽²⁰⁾ The project made use of interviews, observations, and group discussions and produced a plethora of material dealing with the normative ideals which determine how land is distributed. This research culminated in a detailed report (in June 2011) titled yaseMinga: The living law of land in Msinga, KwaZulu-Natal.⁽²¹⁾

Although the gathering of data finished in 2009, Msinga, as a case study, continues to provide a compelling example not only of the patriarchal organisation of society but also of how such organisation is fluid and dynamic and that any land orientated policies should consider local experiences and normative values before implementation. While not a main aim of the project, its key findings were gender-centred on family organisation, polygamy, marriage, and patrilineal ownership, all of which relate to customary practices.

Customary marriage in Msinga

Customary law refers to practices and customs passed down through generations which are dynamic and may change over time.⁽²²⁾ As such, customary marriage can be defined as “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exists in South Africa.”⁽²³⁾ In 2011, 5,084 customary marriages were registered with the South African Department of Home Affairs.⁽²⁴⁾

There is a distinction between official customary law and ‘living’ customary law.⁽²⁵⁾ Official customary law refers to law carried out in courts in accordance to statutes such as the Recognition of Customary Marriages Act of 1998 ⁽²⁶⁾ (and others mentioned above). On the other hand, ‘living’ customary law refers to the social experiences of those living according to customary law. Curran and Bonthuys ⁽²⁷⁾ argue that while there are statutes that seek to empower women married according to customary law, ‘living’ customary law continues to oppress them. That is, official law and social practice are not always reinforcing and, in some instances, may in fact clash with one another.

Whilst South African law ratifies that women should be given equal access to land, this is not always socially practiced and may be blocked through broader social discourses, structures and processes which still tend to be in favour of patriarchal organisation. This is certainly the case in Msinga where, according to Zulu tradition (and in line with ‘living’ customary law), a man must pay lobola (bridal price) to the father of the women he is marrying. Thereafter the woman will move to her now husband’s land and be allocated land (which is not hers to own but to utilise while she is part of the family) of her own on which to raise her children.⁽²⁸⁾

One of the key findings of the project is that practices of marriage are changing. In fact, according to a survey conducted by the Community Agency for Social Enquiry (CASE) involving 1,000 households in Msinga, only 26% of women reported marrying in the traditional, ‘proper’, sense (known as Ugidile). A much bigger proportion (54%) of women stated that they had moved in with their husbands after their family paid ‘damages’ for her falling pregnant out of wedlock (known as Uganile). Some women (18%) reported never being married and 14% were involved in another form of marriage (the meaning of which is unclear).⁽²⁹⁾ Although marriage is no longer being followed in the most traditional or customary sense of the word, this is not necessarily disrupting customary views as to who should own the land, that is, men.

Primogeniture and Msinga

In Zulu culture (and in Msinga more specifically) the principle of primogeniture is practiced.⁽³⁰⁾ This practice means that only males can be heirs and inherit property. Maluleke ⁽³¹⁾ argues that primogeniture is not an original African custom but was imposed by colonialists and retained by males because they benefit from the practice (through monopolising property ownership). The reason for this is because customary law treats women as minors under the guardianship of a male figure (the woman’s father, then later, the woman’s husband) who then retains control of all assets.⁽³²⁾ This is also evidenced in the fact that women face challenges accessing land tenure rights.

The general rules for owning land in Msinga are that one must belong to a tribe (such as the Mchunu or Mthemba tribes) and have children to support. However, these are very masculine orientated rules (‘one’ is not anyone, it is a man) so as to maintain patrilineal ownership of land. As such, a woman may live and farm on her husband’s land and if she is widowed the land ownership will be given to the eldest son. However, if he is not yet of age or there is no son, then a brother-in-law (or other male relative from the husband side) takes ownership. In the case of divorce, a woman may return to her father’s homestead or be ‘abandoned’ depending on whose ‘fault’ the divorce is (although, from our reading, the reasons for blaming women appear to be far more abundant than those for blaming a man). If a woman has a child outside of marriage or there is no father, then the woman may only lay claim to land if she has a son.⁽³³⁾ There are incremental changes to this where some single women may lay claim to land but, if thus is granted, their land is located close to their father’s homesteads so as to give them the security and protection women are thought to need.⁽³⁴⁾

Therefore, challenges surface when husbands die because, according to ‘living’ customary law, it is a male relative or son that inherits the property, and not the wife.⁽³⁵⁾ In order for the wife to enjoy benefits of the inheritance, she has to remain within the homestead. There have been cases reported where women have been mistreated and evicted by the husband’s family after their husbands die.⁽³⁶⁾ The fact that they do not own any property makes them susceptible to abuse (whether it be violent, economic or social – which are of course not mutually exclusive). Women are also disadvantaged during divorces since ‘living’ customary law dictates that they walk out of the marriage with only their personal belongings, regardless of contributions made to the household. In addition, part of the lobola has to be returned to the husband’s family.⁽³⁷⁾ Because of this, it has been found that divorce is rare within customary marriages because sometimes the woman’s family has already used all the lobola money and cannot afford to pay it back from their own pockets.⁽³⁸⁾

It is clear, then, that women’s movement and ability to secure decent provisions are largely dependent on the men in their lives (whether it be father, husband, brother-in-law, or son) and that women are far-removed from the discourse and practice of land ownership. Therefore, although traditional practices may be shifting in terms of how marriages are undertaken, this does not necessarily mean that traditional patriarchal structures are being challenged. Rather, they are dynamic and fluid and still able to maintain control over women and their well-being through social practices (‘living’ customary law) which favour the rights and power of men. Consequently, women not affiliated with men (who are single or have divorced) are the most vulnerable as they are not only limited in terms of where they can live and their access to arable land but they may also be socially outcast. Therefore, creating an official law to help manage customary marriages and access to land may not bear fruit unless social gendered practices are disrupted (not morphed).

Concluding remarks

Therefore, despite the swell in laws to counteract the gender bias of owning land, particularly in traditional settings, more has to be done to understand the social practices of those whom these laws plan to influence. The Land Laws of Msinga Project provides a great case study regarding how an understanding of local practices and discourses provides for a more nuanced analysis and predictions regarding the implementation of policies, and it would be interesting if further research were undertaken in Msinga. It is now three years after the conclusion of the project and a post-analysis regarding how social practices have shifted and whether the Communal Land Rights Act or the Reform of Customary Law of Succession and the Regulation of Related Matters Act of 2009 have had any impact on the social practices of those living in the community.

However, analysis of the impact of these documents should not be superficial because, as much as practices and culture are fluid and dynamic, the question should not be whether they have changed, but rather how they have changed and whether such changes have disrupted existing power relations (which favour men) within the community. As indicated with the example of customary marriages, although the practice of marriage may be changing, it has not translated into increasing levels of power for women. Rather, other practices and discourses (such as primogeniture) are used to maintain male power and land ownership. So, if the official documents have managed to curtail and change this practice, the question then becomes whether there are other structural processes which hinder women’s access to and movement on their land, or whether they remain restricted by emerging practices and discourses which mask themselves as change, but seek to maintain patriarchal power.

Written by Claudia Forster-Towne and Palesa Rose Nqambaza ⁽¹⁾

NOTES:

(1) Claudia Forster-Towne is a Consultant with CAI and manager of the Gender Issues Unit, and currently also lectures at the University of Johannesburg. Palesa Rose Nqambaza is a Research Associate with CAI and has keen gender research interests. Contact Claudia and Palesa through CAI’s Gender Issues Unit ( gender.issues@consultancyafrica.com). Edited by Kate Morgan.
(2) The term ‘Westernised’ refers to ideas which promote advanced civilization, see http://www.westerncultureglobal.org.
(3) ‘The South African Constitution Act 108’, 1996, Cape Town: The Presidency, http://www.info.gov.za.
(4) Cousins, B., et al., ‘yaseMinga: The living law of land in Msinga, KwaZulu-Natal’, PLAAS Report no.43, June 2011, http://www.urbanlandmark.org.za.
(5) ‘The South African Constitution Act 108’, 1996, Cape Town: The Presidency, http://www.info.gov.za.
(6) Ibid.
(7) Ibid.
(8) ‘Recognition of Customary Marriages Act 120’, 1998, Cape Town: The Presidency, http://www.justice.gov.za.
(9) Curran, E. and Bonthuys, E., ‘Customary law and domestic violence in rural South African communities’, Centre for the Study of Violence and Reconciliation, October 2004, http://www.csvr.org.za.
(10) Ibid.
(11) ‘Communal Land Rights Act 11’, 2004, Cape Town: The Presidency, http://www.info.gov.za.
(12) Cousins, B., et al., ‘yaseMinga: The living law of land in Msinga, KwaZulu-Natal’, PLAAS Report no.43, June 2011, http://www.urbanlandmark.org.za.
(13) Beninger, C. and Williams, J., ‘Women’s property rights under customary law’, Women’s Legal Centre, 2010, http://www.wlce.co.za.
(14) ‘Reform of Customary Law of Succession and the Regulation of Related Matters Act’, 2009, Cape Town: The Presidency, http://www.info.gov.za.
(15) Beninger, C. and Williams, J., ‘Women’s property rights under customary law’, Women’s Legal Centre, 2010, http://www.wlce.co.za.
(16) Mamashela, M. and Xaba, T., ‘The practical implications and effects of: The recognition of Customary Marriages Act No. 120 of 1998', Research Report No 59, 2003, http://sds.ukzn.ac.za.
(17) Coan, S., ‘New realities challenge custom’, The Witness, 5 November 2009, http://www.witness.co.za.
(18) Ibid.
(19) ‘Msinga Municipality Integrated Development Plan 2012/2017’, 2012, http://devplan.kzntl.gov.za.
(20) Cousins, B., et al., ‘yaseMinga: The living law of land in Msinga, KwaZulu-Natal’, PLAAS Report no.43, June 2011, http://www.urbanlandmark.org.za
(21) Ibid.
(22) Beninger, C. and Williams, J., ‘Women’s property rights under customary law’, Women’s Legal Centre, 2010, http://www.wlce.co.za.
(23) Western Cape Government website, http://www.westerncape.gov.za.
(24) Lehohla, P.J., ‘Marriages and divorces’, Statistics South Africa, 10 December 2012, http://www.statssa.gov.za.
(25) Curran, E. and Bonthuys, E., ‘Customary law and domestic violence in rural South African communities’, Centre for the Study of Violence and Reconciliation, October 2004, http://www.csvr.org.za.
(26) ‘Recognition of Customary Marriages Act 120’, 1998, Cape Town: The Presidency, http://www.justice.gov.za.
(27) Curran, E. and Bonthuys, E., ‘Customary law and domestic violence in rural South African communities’, Centre for the Study of Violence and Reconciliation, October 2004, http://www.csvr.org.za.
(28) Ibid.
(29) Cousins, B., et al., ‘yaseMinga: The living law of land in Msinga, KwaZulu-Natal’, PLAAS Report no.43, June 2011, http://www.urbanlandmark.org.za.
(30) Further research is needed in the area to see whether the Reform of Customary Law of Succession and the Regulation of Related Matters Act of 2009 had any impact on the social practice of those living in Msinga, or whether social relations have curtailed its implementation. It appears that there has been some movement in this regard with couples living together now officially registering themselves as married so as to gain from death benefits; Cousins, B., et al., ‘yaseMinga: The living law of land in Msinga, KwaZulu-Natal’, PLAAS Report no.43, June 2011, http://www.urbanlandmark.org.za.
(31) Maluleke, M.J., 2012. Culture, tradition, custom, law and gender equality. P.E.R, 15(1), pp. 1-22.
(32) Beninger, C. and Williams, J., ‘Women’s property rights under customary law’, Women’s Legal Centre, 2010, http://www.wlce.co.za.
(33) Cousins, B., et al., ‘yaseMinga: The living law of land in Msinga, KwaZulu-Natal’, PLAAS Report no.43, June 2011, http://www.urbanlandmark.org.za.
(34) Ibid.
(35) Curran, E. and Bonthuys, E., ‘Customary law and domestic violence in rural South African communities’, Centre for the Study of Violence and Reconciliation, October 2004, http://www.csvr.org.za.
(36) Ibid.
(37) Ibid.
(38) Ibid.