Saturday, 21 January 2012

Land Tenure Security as it affects Women in South Africa

Security of Tenure implies access to land with protection against forced eviction, the right to enjoy the land including the possibilities of transferring rights and access to mortgage and credit under certain conditions (UN-HABITAT; Mechanisms for Gendering Land Tools, 2006). Land tenure security is such a burning issue in South Africa and Africa as a whole as government are faced with the challenge of restructuring what the colonial powers overruled. In South Africa, it has recently reported on the analysis of tenure reforms. That land tenure is insecure in the former homelands. This is where a third of the South African national population live. The insecurities that arise in land tenure is due to the controversial and conflicts among greedy traditional leader, political parties and other local factions. It is the structure of land reforms that is hampering the government to successfully implement its policies to those community or group of women to eliminate poverty and create
a stable economic base for the future. Women’s rights to land and ownership in particularly Southern Africa, the approaches are based on rights-base approaches and do not effectively address the women’s access to communal land. They are a marginalized group and (mostly those in rural areas) have lack of process in their communities. Various problems includes their increased poverty burden, coping mechanism and their effort to sustain their livelihoods, collective initiatives to access land, gender violence, and other mechanisms through which men resist women’s attempts at independence, and the nature and capacity of the institutional structures found within the traditional communities.

The constitution guarantees: Section 25 (6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure, or to comparable redress . 25 (9) Parliament must enact the legislation referred to in subsection (6) (The constitution of the Republic of South Africa 1996).

These provisions put the Department of Land Affairs under a constitutional obligation to develop a law which sets out the types of vested interest in land which were undermined by discriminatory apartheid laws and a mechanism to convert such interest into legally secure tenure rights. Many women in rural areas are marginalized and do not have full control if any of land because of traditional route of marriages. This implication is on the notion that women get married and leave their parents (land) to leave in their husbands being introduced in the ‘new family’. Mostly rural women are often poor and too illiterate to deal with bureaucratic procedures that are necessary to gain access to title deed, or fight for their rights to land in court. This lack of access to land threatens women’s security and leaves them vulnerable to poverty. The provision on the Communal Land Rights Act of 2004 (CLRA), states out that 4(3) ‘ A women is entitled to the same legally secure tenure rights in or to land and benefits from land as is man, no law, community or other rule, practice or usage discriminate against any person on the ground of the gender of such person’ (Communal Land Right Act, number 11 of 204, Section 4).

Many scholars argue that CLRA is likely to enhance or undermine security of tenure for women and for women and for rural people generally and that tenure reform should be to assert and secure the rights of the people who use and occupy the land, most of whom are women. Regarding section 4(3) of the Act, the interpretation of the article is important to understand were government places women on land tenure security and the protection of their rights in this regard by the CLRA. There seems to be a contradiction on this matter as the focus should be on the entire use of land. The problem stems from the entire process of land allocation by women. The act will give powers to the tribal authorities, were women have little say on the operation of traditional practices. They further makes a critical analysis of the section 4(3) is potentially contradicted not only by section 4(2) , ‘An older right led by married person is despite any law, practices, usage, or registration to the contrary, deemed to be held by all spouses in a marriage n which all which such spouse jointly in undivided shares in respective of matrimonial property regime applicable to such a marriage must on confirmation or conversion in terms of section 18(3), be registered in the names of all such spouses but also by the entire tenure of the Act which focuses not on current use and occupation of land, but on formalizing older rights (traditional practices) into exclusive land tenure rights held by two people. Insofar as the Act discriminates against single women who are not married. The provision of security of tenure in terms of the constitution and ESTA (Extension of Security of Tenure Act, Number 62 of 1997) is meant to be an integral part of the process of addressing the gross inequality in land ownership and the power relations steaming from that inequality. There is need within the current policy programme for definite reforming and to allow room for women to participate within the decision making regarding their rights as it can direct them with education in land tenure security. Security in tenure, in private, communal ownership encourages women to invest in land, adopt sustainable farming practices and be better equipped to take care of other resources (Land Rights for African Development, 2008). It is stated within the land tenure security that sustainable development and poverty alleviation should be central to tenure security. The government policies such do express how they will be implementing these programmes and the period of land reformation seems to be delaying the process of land restitution. The government needs to step up to their promises to secure land tenure for the society and transformation has to be with the time framework stipulated by their programmes, that includes encouraging women to know their rights of tenure.

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