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Women’s Land Rights and Customary Law Reform in South Africa: Towards a Gendered Perspective

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Abstract

For obvious reasons, land is arguably the most contentious subject in South Africa today. Racially discriminatory laws under apartheid ensured that a disproportionately large size of the total land in the country is concentrated in the hands of White minority while the majority of Blacks struggle to access land. The negative consequences of this history currently manifests in evictions, homelessness, pervasive unemployment amongst Blacks and entrenched poverty. After the transition to multiracial democracy in 1994, government immediately took steps to address this problem but the land reforms processes so far have been slow and the majority of landless Blacks are increasingly impatient. Proponents of appropriation of land without compensation are becoming more vocal. The land question therefore permeates all aspects of social, economic and political discourse in South Africa and the government faces the challenge to initiate land reform policies that reflect the socio-economic realities and at the same time survive tests of constitutionality. One such challenge is how to give meaning to the constitutional rights guaranteed to women in respect of access to land on the basis of equality.

Based upon a paper prepared for presentation at the 2014 World Bank Conference On Land And Poverty, The World Bank—Washington DC, March 24–27, 2014. The financial assistance of the National Research Foundation of South Africa towards this research is acknowledged. Opinions expressed and conclusions arrived at are those of the author and are not necessarily to be attributed to the National Research Foundation.

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Notes

  1. 1.

    Under Apartheid, 87 % of the total land in the Republic of South Africa was reserved for Whites and only 13 % was allocated to Blacks. See PLAAS. See also Jaichand (2013), pp 445–487.

  2. 2.

    South African land reform policy basically follows three main trajectories: land restitution, land redistribution, and land tenure reform. See Department of Land Affairs (1997); Polity. See also Cousins (2005), p. 488.

  3. 3.

    See Cousins and Claassens (2006), p. 2. Generally, under African customary law, women’s land rights are often limited and tied to inheritance, marriage or gift. See also Cousins (2008a), pp. 109–37 at 111; See generally, Bank and Southall (1996). A woman is not viewed as an enduring member of her natal family because under some customary norms she is expected to get married and leave her parent’s home for her husband’s. See Bennett (2004), pp. 344–345. At the same time, she is not also regarded as a perpetual member of her husband’s family and as such may not inherit from his estate at his death. This is particularly so in respect of land which in most African societies is based on the principle of primogeniture. However, progress in human rights and the opening of the political space for female participation has the potential to introduce changes to some of these customary practices. Many African countries have ratified international human rights treaties to protect the rights of women and have domestic legislation aimed at giving effect to these treaty obligations. Yet, there remain many areas of tension between customary practices and certain values and institutions that underpin a constitutional democracy like South Africa. The principle of equality and non-discrimination, not only on grounds of gender, amongst others, is one of the most fundamental values for the free, open and democratic society contemplated by the South African Constitution. One area in which this tension is manifest is the roles and functions of tribal authorities especially with reference to the allocation and administration of land, and the dispensation of justice.

  4. 4.

    Claassens and Ngubane (2008), pp. 154–183 at p. 173.

  5. 5.

    See Yngstrom (2002), p. 34.

  6. 6.

    Ibid.

  7. 7.

    Claassens and Ngubane (2008), p. 173.

  8. 8.

    See Communal Land Rights Act No 11 of 2004, Government Gazette 20 July 2004. The CLARA was declared unconstitutional by the Constitutional Court in Tongoane v National Minister for Agriculture and Land Affairs 2010 (6) SA 214 (CC). Section 1 of CLARA defines ‘communal land’ as ‘land … occupied by members of a community subject to the rules or custom of that community’, while ‘community’ is defined as ‘a group of persons whose rights to land are derived from shared rules determining access to land held in common by such group’.

  9. 9.

    See for example, Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Republic of South Africa 1996 (4) SA 744 (CC); Alexkor Ltd & Another v Richtersveld Community & Others 2004 (5) SA 460 (CC); Bhe & Others v Magistrate Khayelitsha & Others 2005 (1) SA 580 (CC); Doctors for Life International v Speaker of the National Assembly & Others 2006 (6) SA 416; Matatiele & Others v President of the Republic of South Africa & Others 2006 (5) SA 47 (CC); and more recently, Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC); Tongoane & Others v Minister of Agriculture and Land Affairs and Others 2010 (6) SA 214 (CC).

  10. 10.

    See for example Claassens (2013), p. 71; Budlender et al. (2011), pp. 118–140.

  11. 11.

    Bennett (2004) had proposed that ‘[i]n the circumstances, the solution to a conflict between customary law and gender equality will have to be sought outside the parameters of the Constitution. Both the social implications of specific conflicts and their legal origins would be relevant. Once problems are fully contextualized, certain issues will be revealed as more urgent than others, and certain techniques for solving them will appear more appropriate than others.’ It is possible to avoid the ‘thorough purge of customary law’ by the gender equality clause that Bennett warned about, and at the same time protect and promote the values of equality in an open and democratic society envisaged by the Constitution.

  12. 12.

    Legal Brief, Today “Traditional Courts Bill to be ‘resuscitated’ after elections” Monday 3 March 2014, Issue number 3464.

  13. 13.

    Cousins (2008a), p. 111.

  14. 14.

    Cousins (2005), p. 490.

  15. 15.

    Cousins (2008a), pp. 111–113.

  16. 16.

    Ibid., p. 116.

  17. 17.

    Ibid., p. 119.

  18. 18.

    Ibid.

  19. 19.

    Ibid., p. 120.

  20. 20.

    For a good description of the system of land allocation and administration under indigenous law, see Okoth-Ogendo (2008), pp. 95–108.

  21. 21.

    Van Der Merwe (1989), p. 664.

  22. 22.

    Some of this legislation included The Native Lands Act of 1913, The Released Areas Act of 1936, Black Administration Act of 1927, and Bantu Authorities Act of 1951 amongst others. For a historical account of land administration in South Africa prior to 1994, see Van Der Merwe (1989).

  23. 23.

    ‘Official customary law’ means the version of customary rules created by the state and legal profession while ‘living customary law’ refers to those rules ‘actually observed by those people who created it’. See Bennett (2008), pp. 138–153 at p 144. According to Bennett, ‘The “official” version applied by state courts and the administrative bureaucracy is especially suspect. Because it is presented in the forms of legislation or precedent, it is most likely to have distorted the actual social practice in order to serve some ulterior purpose.’ See also Bennett (2004), p. 7; In Alexkor Ltd & Another v Richtersveld Community & Others 2004 (5) SA 460 (CC), para 54, the Constitutional Court held that books and old authorities on customary law should be used with caution because of their tendencies to give conflicting statements of what the relevant customary law is on the subject. See also Bhe & Others v Magistrate Khayelitsha & Others 2005 (1) SA 580 (CC), 2005 (1) BCLR 1, para 152; Cousins (2008b), pp. 3–31 at p. 10

  24. 24.

    See Cousins (2008a), p. 120.

  25. 25.

    Ibid. See also Meer (1997), pp. 1–14 at p. 1.

  26. 26.

    See Ntsebeza (2005), p. 14.

  27. 27.

    See Walker (2008), p. 2; Van der Merwe and Pienaar (1997), pp. 334–380 at p. 338.

  28. 28.

    For an account of the socio-economic impacts of these removals on contemporary land relations in South Africa, see Van der Walt (2009).

  29. 29.

    See the White Paper on South African Land Policy 1997.

  30. 30.

    Cousins (2008b), pp. 3–31 at p 10.

  31. 31.

    See Ntsebeza (2008), pp. 238–258 at pp. 239 and 246. See also Bank and Southall (1996), p. 418.

  32. 32.

    See Claassens (2008), pp. 355–382 at p. 355. In a series of surveys conducted by the Institute for Poverty, Land and Agrarian Studies (PLAAS), it was discovered that whereas the majority of rural dwellers lamented the abuse of power and corruption of traditional leaders, at the same time, most of these same respondents still preferred that traditional leaders be the central authority in land allocation and administration and demonstrated unwavering loyalty and respect for the resilience and strength of their traditional leaders and institutions. See Ntsebeza (1999); Claassens (2001); Cousins (2008a), p. 126. Another research study by the University of Pretoria also found that notwithstanding the criticisms of traditional authorities, most rural dwellers were satisfied with the communal land administration system and regarded traditional leaders and headmen as the proper institutions for the administration of communal land. See Machethe (2009), pp. 131–146 at p. 145.

  33. 33.

    Budlender et al. (2011).

  34. 34.

    Cousins (2008a), pp. 109–137 at p. 120.

  35. 35.

    Ibid.

  36. 36.

    Ibid.

  37. 37.

    See Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, para 200.

  38. 38.

    There are different proposals on how this problem could be approached. See the collection of essays in Claassens and Cousins (2008).

  39. 39.

    See The Constitution of Republic of South Africa Act No 108 of 1996. See also Bennett (1994).

  40. 40.

    Ibid., p. 123.

  41. 41.

    See Tongoane & Others v National Minister for Agriculture and Land Affairs& Others 2010 (6) SA 214 (CC), para 133 (c) (i) and (ii).

  42. 42.

    The TCB was referred back to the Provinces and was not on the list of legislation slated to be passed before the 2014 general elections. See Joubert (2014), p. 6.

  43. 43.

    It is important to read these provisions with the equality provisions in the Constitution:

    S.9

    1. (1)

      Everyone is equal before the law and has the right to equal protection and benefit of the law.

    2. (2)

      Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

    3. (3)

      The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

    4. (4)

      No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

    5. (5)

      Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

  44. 44.

    See Communal Land Rights Act No 11 of 2004. (Available at http://www.ruraldevelopoment.gov.za/phocadownload/Acts/communal%20land%20land%20rights%20act%2011%20%20of%202004.pdf accessed 27.12.13).

  45. 45.

    See Tongoane & Others v Minister for Agriculture and Land Affairs & Others 2010 6 SA 214 (CC), para 74.

  46. 46.

    For a critical review of the CLARA, see Smith (2008), pp. 35–71.

  47. 47.

    It was tagged and passed as a S. 75 Bill which does not affect the provinces, rather than as a S. 76 Bill which does. See Tongoane & Others v Minister for Agriculture and Land Affairs & Others 2010 6 SA 214 (CC), para 4, 45.

  48. 48.

    See Claassens (2008), p. 355.

  49. 49.

    See Okoth-Ogendo (2008), p. 99.

  50. 50.

    See Clarke (2011), p. 16.

  51. 51.

    See Bennett (2004), p. 6. See also Cousins and Claassens (2006), p. 2. See Allott (1965), pp. 366–368.

  52. 52.

    See Cousins (2005), p. 489. See generally Van Maanen and Van der Walt (1996) discussing some of these conceptual and theoretical issues.

  53. 53.

    See Clarke (2011), p. 4.

  54. 54.

    See World Bank (1989).

  55. 55.

    See Yngstrom (2002), p. 23.

  56. 56.

    See Okoth-Ogendo (2008), pp. 99–101.

  57. 57.

    See Deininger (2003), p. 39.

  58. 58.

    Section 1 of the TCB defines traditional justice system as a ‘system of law which is based on customary law and customs’. Emphasis added. S 1 defines a ‘traditional court’ as a ‘court established as part of the traditional justice system’ headed by a king, queen, headman or headwoman, and which functions in accordance with ‘customary law and custom’.

  59. 59.

    See S 211(3) of the Constitution.

  60. 60.

    Emphasis added.

  61. 61.

    See section 166(e). Some maintain that traditional courts are created under Section 34 of the Constitution. See PMG Report. See however, Mnisi Weeks (2011), p. 34.

  62. 62.

    See Mnisi Weeks (2011) ibid, arguing that traditional courts are not the type of impartial tribunals contemplated under Section 34 of the Constitution (although we do not necessarily agree with the author’s view that traditional courts are not impartial).

  63. 63.

    See Alexkor Ltd & Another v Richtersveld Community & Others, para 54.

  64. 64.

    Community members, councils and other relevant groups play important roles in the traditional justice systems and traditional leaders do not ordinarily preside over traditional courts let alone being sole decision-makers as assumed by the drafters of the Bill. See Shirinda (2012). See also Institute for Poverty and Land and Agrarian Studies (2010). See Mnisi Weeks and Claassens (2011), p. 844.

  65. 65.

    See Mnisi Weeks (2011), p. 32.

  66. 66.

    Ibid., p. 33.

  67. 67.

    Ibid., p. 32.

  68. 68.

    See Mnisi Weeks (2011) citing Dutton (1923), pp. 59–60.

  69. 69.

    See section 1 of the TCB. In family disputes involving male and female parties (and in some cases this would involve dispute over land), customary courts are accused of being biased in favour of male parties; and by providing for a forum of community leaders in which women are hardly members, the TCB continues the marginalisation of women. See Alliance for Rural Democracy (2012), pp. 1–3.

  70. 70.

    See Mnisi Weeks and Claassens (2011), p. 64.

  71. 71.

    See Alliance for Rural Democracy (2012).

  72. 72.

    See Claassens and Ngubane (2008), pp. 156, 163, and 166–167.

  73. 73.

    The story of Stombi Hlombe was one of the oral presentations made by the victim before the Select Committee on Security and Constitutional Development during parliamentary public hearing on the TCB. “I was born with ten fingers. Now, I don’t have ten fingers because the traditional leader stood by and did nothing to protect me because I am a woman.” A male member of the Amahlubi Traditional Council was so upset that she had been elected to the traditional council in KwaZulu-Natal that he bit off one of her fingers so badly that it had to be amputated. See Joubert (2012).

  74. 74.

    See Curran and Bonthuys (2005).

  75. 75.

    See Polity.

  76. 76.

    Mnisi Weeks (2011), p. 34.

  77. 77.

    See Okoth-Ogendo (2008), p. 101.

  78. 78.

    See Shirinda (2012), p. 64.

  79. 79.

    See Mnisi Weeks and Claassens (2011), pp. 829–836.

  80. 80.

    See Alliance for Rural Democracy (2012), p. 2.

  81. 81.

    See section 6 of the TCB for the criminal jurisdiction of traditional courts.

  82. 82.

    Section 20(c) of the TCB makes it a crime not to appear before a traditional court, and arguably, implies that it is also criminal for anyone to refuse to submit to the jurisdiction of the court.

  83. 83.

    See generally Bennett (2004).

  84. 84.

    Ibid.

  85. 85.

    See The Star (2012).

  86. 86.

    See Alliance for Rural Democracy (2012), p. 1.

  87. 87.

    Emphasis added.

  88. 88.

    See Polity (2012)

  89. 89.

    See Shirinda (2012); Mnisi Weeks (2012) (available at http://www.lrg.uct.ac/za/research/focus/tcb/ accessed 15.01.14). Section 9(4) covers situations where the applicable customary law is disputed between the parties.

  90. 90.

    See the extensive case study conducted by Budlender et al. (2011) showing emerging differences in practices relating to women’s land rights in several different rural communities.

  91. 91.

    See S. 9 (2)(b)(i) and (ii) of the TCB stipulating that proceedings must comply with principles of natural justice.

  92. 92.

    See S. 9 (2)(a) of the TCB.

  93. 93.

    Mnisi Weeks (2011), pp. 34–35.

  94. 94.

    See section 3(2)(d). Emphasis added.

  95. 95.

    See S. 2(b) (ii) of the TCB.

  96. 96.

    See section 9(3)(a) of the TCB, Cf. section 35(3)(f) of the Constitution.

  97. 97.

    See Mnisi Weeks (2011), p. 33.

  98. 98.

    Section 21(2) (a) gives the Minister power to make regulations regarding the procedures of customary court proceedings and the methods of executing their sanctions.

  99. 99.

    See SHRC.

  100. 100.

    See sections 13 and 14 of the TCB respectively.

  101. 101.

    See for example, Submission of the Joint-Monitoring Committee on the Status of Women on the Communal Land Rights Act, pp. 3–4.

  102. 102.

    See Section 14(1) (a)–(d) of the TCB.

  103. 103.

    Cousins (2008b), p. 19.

  104. 104.

    See Clarke (2011)

  105. 105.

    Ibid., p. 2.

  106. 106.

    See for example, Claassens and Cousins (2008). Several newspaper articles and editorials have criticised the TCB.

  107. 107.

    See section 2(a) of the TCB.

  108. 108.

    See section 3(2)(d) of the TCB.

  109. 109.

    See Alexkor Ltd & Another v Richtersveld Community & Others 2004 (5) SA 460 (CC), para 51.

  110. 110.

    See Bhe & Others v Magistrate Khayelitsha & Others 2005 (1) SA 580 (CC), para 87.

  111. 111.

    See Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC).

  112. 112.

    See Hartley (2012)

  113. 113.

    See Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC), para 43.

  114. 114.

    In ascertaining customary law, a court must (a) consider the traditions, history, past and current practices of the community in question relying on the paradigmatic settings of the particular community rather that of the common law; (b) respect the rights of communities living by the customary law to develop their own law; (c) strive to balance flexibility and development against the need for certainty of legal rules while paying respecting protection constitutional rights. See Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC), para 44-7.

  115. 115.

    Bhe & Others v Magistrate Khayelitsha & Others 2005 (1) SA 580 (CC), para 110-ff.

  116. 116.

    See Legal Resource Centre (2011) ‘The Traditional Courts Bill must start with Women’s Rights’ (available at http://www.lrc.org.za/index.php/papers/images/stories/Newsletters/June_2011_The _LRC_Brief.pdf accessed 27.12.13).

  117. 117.

    See Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC), para 46.

  118. 118.

    Ibid., para 45.

  119. 119.

    Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC), para 47.

  120. 120.

    See Mnisi Weeks (2011), p. 35.

  121. 121.

    See Tongoane & Others v National Minister for Agriculture and Land Affairs& Others 2010 (6) SA 214 (CC), para 133 (c) (i) and (ii).

  122. 122.

    See Institute for Poverty, Land and Agrarian Studies (PLAAS) (2014) ‘Reintroducing the Contentious Traditional Courts Bill’ (available at http://www.plaas.org.za/sites/default/files/publications-pdf/UW%2014.pdf accessed 14.01.14).

  123. 123.

    See generally, Claassens (2013).

  124. 124.

    See Mnisi Weeks and Claassens (2011), p. 823.

  125. 125.

    See Budlender et al. (2011), p. 55.

  126. 126.

    See Claassens (2013), p. 72.

  127. 127.

    Ibid., p. 171.

  128. 128.

    Ibid., p. 170.

  129. 129.

    Id. (emphasis added).

  130. 130.

    Ibid., p. 173.

  131. 131.

    See Curran and Bonthuys (2005), p. 607.

  132. 132.

    See Okoth-Ogendo (2008), p. 99.

  133. 133.

    2009 3 SA 152 (CC).

  134. 134.

    See Budlender et al. (2011).

  135. 135.

    See Mnisi Weeks and Claassens (2011), p. 831.

  136. 136.

    See Curran and Bonthuys (2005), p. 607.

  137. 137.

    See Alliance for Rural Democracy (2012), p. 1.

  138. 138.

    See Van der Westhuizen (2012).

  139. 139.

    See Human and Science Research Council (2006).

  140. 140.

    See Oomen (2005), p. 86; Claassens and Ngubane (2008), pp. 173–174.

  141. 141.

    See Albertyn (2011), p. 598.

  142. 142.

    Ibid., p. 600.

  143. 143.

    See Clarke (2011), p. 2.

References

  • Albertyn, C. (2011). Gender transformation in South African jurisprudence: Poor women and the constitutional court. Stellenbosch Law Review, 3, 591.

    Google Scholar 

  • Alliance for Rural Democracy. (2012). Fact sheet: The traditional courts bill. Available at http://www.lrg.uct.ac.za/usr/lrg/doc/TCB/2012/ARD_factsheet_final.pdf

  • Allott, A. N. (1965). Towards the unification of laws in Africa. The International & Comparative Law Quarterly, 14(2), 366.

    Article  Google Scholar 

  • Bank, L., & Southall, R. (1996). Traditional leaders in South Africa’s new democracy. Journal of Legal Pluralism, 37–38, 407.

    Google Scholar 

  • Bennett, T. W. (1994). The equality clause and customary law. South African Journal of Human Rights, 10, 122.

    Google Scholar 

  • Bennett, T. W. (2004). Customary law in South Africa. Lansdowne, India: Juta & Company Ltd.

    Google Scholar 

  • Bennett, T. (2008). “Official” vs “Living” customary law: Dilemmas of description and recognition. In A. Claassens & B. Cousins (Eds.), Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (pp. 138–153). Cape Town, South Africa: Juta & Company Ltd.

    Google Scholar 

  • Budlender, D., Mgweba, S., Motsepe, K., & Williams, L. (2011). Women, land and customary law. Johannesburg, South Africa: Community Agency for Social Enquiry (CASE).

    Google Scholar 

  • Claassens, A. (2001, October). It’s not easy to challenge a chief: Lessons from Rakgwadi (Research Report No 9). Institute for Poverty, Land and Agrarian Studies (PLAAS).

    Google Scholar 

  • Claassens, A. (2008). Customary law and zones of chiefly sovereignty: The impact of government policy on whose voices prevail in the making and changing of customary law. In A. Claassens & B. Cousins (Eds.), Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (pp. 355–382). Cape Town, South Africa: Juta & Company Ltd.

    Google Scholar 

  • Claassens, A. (2013). Recent changes in women’s land rights and contested customary law in South Africa. Journal of Agrarian Change, 13(1), 71.

    Article  Google Scholar 

  • Claassens, A., & Cousins, B. (Eds.). (2008). Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act. Cape Town, South Africa: Juta & Company Ltd.

    Google Scholar 

  • Claassens, A., & Ngubane, S. (2008). Women, land and power: The impact of the Communal Land Rights Act. In A. Claassens & B. Cousins (Eds.), Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (pp. 154–183). Cape Town, South Africa: Juta & Company Ltd.

    Google Scholar 

  • Clarke, R. (2011). Customary legal empowerment: Towards a more critical Approach. In Traditional justice: Practitioners’ perspectives. International Development Law Organisation Working Papers Series No. 4.

    Google Scholar 

  • Cousins, B. (2005). “Embeddedness” versus titling: African land tenure systems and the potential impacts of the Communal Land Rights Act 11 of 2004. Stellenbosch Law Review, 3, 488.

    Google Scholar 

  • Cousins, B. (2008a). Contextualising the controversies: Dilemmas of communal tenure reform in post-apartheid South Africa. In A. Claassens & B. Cousins (Eds.), Land, power & custom controversies generated by South Africa’s Communal Land Rights Act (pp. 3–31). Cape Town, South Africa: Juta & Company Ltd.

    Google Scholar 

  • Cousins, B. (2008b). Characterising “Communal” tenure: Nested systems and flexible boundaries. In A. Claassens & B. Cousins (Eds.), Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (pp. 109–137). Cape Town, South Africa: Juta & Company Ltd.

    Google Scholar 

  • Cousins, B., & Claassens, A. (2006). More than simply “Socially Embedded”: Recognising the distinctiveness of African Land Rights. Keynote Address at the International Symposium on at the Frontier of Land Issues: Social Embeddedness of Rights and Public Policy held at Montpellier, 17–19 May 2006. Available at http://wwwmokoro.co.uk/files/13/lria/African_land_rights_distinctiveness.pdf (accessed 02.12.13)

  • Curran, E., & Bonthuys, E. (2005, October). Customary law and domestic violence in rural South African communities. Centre for the Study of Violence and Reconciliation. South African Journal on Human Rights, 21, 607.

    Google Scholar 

  • Deininger, K. (2003). Land policies for growth and poverty reduction. World Bank/Oxford University Press.

    Google Scholar 

  • Department of Land Affairs. (1997, April 30). White Paper on South African Land Policy. Available at http://www.ruraldevelopoment.gov.za/phocadownload/White-papers/whitepaperlandreform.pdf

  • Dutton, E. (1923). The Basuto of Basutoland. London: Jonathan Cape.

    Book  Google Scholar 

  • Hartley, W. (2012, September 20). New chief’s bill creates parallel justice system for rural people. Business Day Live. Available at http://www.bdlive.co.za/national/law/2013/09/20/new-chiefs-bill-creates-parallel-justice-system-for-rural-people

  • Human and Science Research Council. (2006). Longitudinal study: The effect of the legislated powers of traditional authorities on rural women in South Africa.

    Google Scholar 

  • Institute for Poverty, Land and Agrarian Studies. (2010). Reconciling living customary law and democratic decentralisation to ensure women’s land rights security. Policy Brief.

    Google Scholar 

  • Jaichand, V. (2013). Finding common ground: Rights arising from land reform in South Africa. In O. Vilhena, U. Baxi, & F. Viljoen (Eds.), Transformative constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa. Available at http://www.pulp.up.ac.za/pdf/2013_12/Chapter21_IBSA.pdf (accessed 01.06.15).

  • Joubert, P. (2012, September 22). Women’s minister whacks chiefs bill. City Press. Available at http://www.citypress.co.za/news/womens-minister-whacks-chiefs-bill-201220922

  • Joubert, J. J. (2014, February 2). Women force rethink on traditional courts bill. Sunday Times.

    Google Scholar 

  • Machethe, C. (2009). The Communal Land Rights Act (CLaRA) baseline study in three South African Provinces: Free State, Mpumalanga and North West. In Land reform in South Africa: Constructive aims and positive outcomes: Reflecting on experiences on the way to 2014 (pp. 131–146). Johannesburg, South Africa: Konrad-Adenauer-Stiftung.

    Google Scholar 

  • Meer, S. (1997). Introduction. In S. Meer (Ed.), Land, women and authority: Perspective from South Africa (pp. 1–14). Cape Town, South Africa: National Land Committee.

    Google Scholar 

  • Mnisi Weeks, S. (2011). Beyond the traditional courts bill: Regulating customary courts in line with living customary law and the constitution. South African Crime Quarterly, 35, 31.

    Google Scholar 

  • Mnisi Weeks, S. (2012, February 20). Traditional leaders. Available at http://www.lrg.uct.ac/za/research/focus/tcb/

  • Mnisi Weeks, S., & Claassens, A. (2011). Tensions between vernacular values that prioritise basic needs and state versions of customary law that contradict them: We love these fields that feed us, but not at the expense of a person. Stellenbosch Law Review, 3, 823.

    Google Scholar 

  • Ntsebeza, L. (1999). Land tenure reform, traditional authorities and rural local government in post-apartheid South Africa (Research Report 3). Institute for Poverty, Land and Agrarian Studies (PLAAS).

    Google Scholar 

  • Ntsebeza, L. (2005). Democracy compromised: Chiefs and the politics of the land in South Africa. Leiden, the Netherlands: Brill.

    Google Scholar 

  • Ntsebeza, L. (2008). Chiefs and the ANC in South Africa: The reconstruction of tradition. In A. Claassens & B. Cousins (Eds.), Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (pp. 238–258). Cape Town, South Africa: Juta & Company Ltd.

    Google Scholar 

  • Okoth-Ogendo, H. W. O. (2008). The nature of land rights under indigenous law in Africa. In A. Claassens & B. Cousins (Eds.), Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (pp. 95–108). Cape Town, South Africa: Juta & Company Ltd.

    Google Scholar 

  • Oomen, B. (2005). Chiefs in South Africa: Law, power and culture in the post-apartheid era. New York: Palgrave.

    Book  Google Scholar 

  • PLAAS. The distribution of land in South Africa: An overview (Fact Check No. 1). Institute for Poverty, Land and Agrarian Studies. Available at http://www.plaas.org.za/sites/default/files/publications-pdf/No1%20Fact%20check%20web.pdf (accessed 01.05.15)

  • PMG Report. Available at http://www.pmg.org.za/report/20090901-department-justice-constitutionaldevelopment-traditional-courts-bill.

  • Polity. (2012, November 29). Controversial traditional courts bill withdrawn. Available at http://www.polity.org.za/article/controversial-traditional-courts-bill-withdrawn-2012-11-29

  • Polity. Official customary law and the disruption of patriarchal power: The case of Msinga. Available at http://www.polity.org.za/article/official-customary-law-and-the-disruption-of-patriarchal-power-the-case-of-msinga-2013-09-26

  • Restitution of Land Rights Act No. 22 of 1994.

    Google Scholar 

  • Shirinda, S. (2012). Traditional courts bill must start with women’s rights. The Star. Available at http://www.mg.co.za/article/2012-06-07-the-bill-must-start-with-womens-rights

  • SAHRC. Submission by the South African Human Rights Commission on the TCB. Available at http://www.sahrcc.org.za/home/21/files/SAHRC%20Submission%20Traditional%20Courts%20Bill%20NCOP%2015%202%2012.pdf

  • Smith, H. (2008). An overview of the Communal Land Rights Act 11 of 2004. In A. Claassens & B. Cousins (Eds.), Land, power and custom: Controversies generated by South Africa’s Communal Land Rights Act (pp. 35–71). Cape Town, South Africa: Juta & Company Ltd.

    Google Scholar 

  • Submission of the Joint-Monitoring Committee on the Status of Women on the Communal Land Rights Act.

    Google Scholar 

  • The Star. (2012, November 7). Bill promotes inequality, injustice. Available at http://www.iol.co.za/the-star/bill-promotes-inequality-injustice-1.1418781#.Uv3haNFDHzA

  • Van Der Merwe, D. (1989). Land tenure in South Africa: A brief history and some reform proposals. Journal of South African Law, 663.

    Google Scholar 

  • Van Der Merwe, G., & Pienaar, J. M. (1997). Land reform in South Africa. In P. Jackson & D. C. Wild (Eds.), The reform of property law (pp. 334–380). Aldershot, England: Ashgate.

    Google Scholar 

  • Van der Walt, A. J. (2009). Property in the margins. Oxford, England: Hart.

    Google Scholar 

  • Van der Westhuizen, C. (2012, March 7). Traditional courts bill throwback to the past. Cape Times.

    Google Scholar 

  • Van Maanen, G. E., & van der Walt, A. J. (1996). Property law on the threshold of the 21st century. Antwerp, Belgium: Maklu Uitgevers.

    Google Scholar 

  • Walker, C. (2008). Landmarked: Land claims and land restitution in South Africa. Athens, Greece: Ohio University Press.

    Google Scholar 

  • World Bank. (1989). Sub-Saharan Africa: From crisis to sustainable growth: A long term perspective. Washington, DC: The World Bank.

    Google Scholar 

  • Yngstrom, I. (2002). Women, wives and land rights in Africa: Situating gender beyond the household in the debates over land policy and changing tenure systems. Oxford Development Studies, 30(1), 21.

    Google Scholar 

Case Law

  • Alexkor Ltd & Another v Richtersveld Community & Others 2004 (5) SA 460 (CC).

    Google Scholar 

  • Bhe & Others v Magistrate Khayelitsha & Others 2005 (1) SA 580 (CC).

    Google Scholar 

  • Doctors for Life International v Speaker of the National Assembly & Others 2006 (6) SA 416.

    Google Scholar 

  • Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Republic of South Africa 1996 (4) SA 744 (CC).

    Google Scholar 

  • Matatiele & Others v President of the Republic of South Africa & Others 2006 (5) SA 47 (CC).

    Google Scholar 

  • Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC)

    Google Scholar 

  • Tongoane & Others v Minister of Agriculture and Land Affairs and Others 2010 (6) SA 214 (CC).

    Google Scholar 

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  1. School of Law, University of the Witwatersrand, Johannesburg, South Africa

    Vinodh Jaichand

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    Alice Diver

  2. School of Law, Northumbria University, Newcastle, United Kingdom

    Jacinta Miller

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Jaichand, V. (2016). Women’s Land Rights and Customary Law Reform in South Africa: Towards a Gendered Perspective. In: Diver, A., Miller, J. (eds) Justiciability of Human Rights Law in Domestic Jurisdictions. Springer, Cham. https://doi.org/10.1007/978-3-319-24016-9_16

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