“During apartheid, the African woman was a particularly vulnerable figure in society and she suffered three-fold discrimination based on her race, her class and her gender. Reflecting upon the present, we must ask ourselves whether the African woman truly benefits from the full protection of the Constitution. Moreover, we must establish whether enough has been done to eradicate the discrimination and inequality that so many women face daily.”
These are not my words but extracted from the Constitutional Court judgement handed down on the 30th October 2018, where it declared section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 (“the Act”) constitutionally invalid in the case of Rahube v Rahube and Others 2018 ZACC 42. This section provided for automatic conversion of rights in property, including the deeds of grant, to ownership rights without considering any competing claims. This meant that people who were not holders of deeds of grant were precluded from acquiring ownership, thus indirectly discriminating against women as they were not allowed to hold any certificate or deed of grant as this was only conferred to males as heads of the family.
This is in violation of section 9 of the Constitution, which enshrines equality before the law, a cornerstone of our Constitution. The Constitutional Court held that differentiation between groups has occurred without any rational purpose. The court further held that the Act differentiates between people who were the holders of land tenure rights under apartheid and those who were not, but who occupied property. This is a differentiation between African men, who could be the head of a family and thus the holder of a certificate or deed of grant, and African women who could not hold a certificate or deed of grant.
The Constitutional Court ruled that the order of invalidity be applied retrospectively to the date of the enactment of the interim Constitution, 27 April 1994 to protect the rights of women who have suffered under this legislation. However, the court applied limited retrospectivity in that two groups of people shall be excluded from the effect of retrospectivity. These are third parties who had, in good faith, purchased property which title had been upgraded in terms of section 2(1), and persons who inherited such property in terms of the law of succession.
The Constitutional Court has finally acknowledged that there is a possibility that women do not truly benefit from the protection of the Constitution. The founding values of the Constitution includes human dignity and achievement of equality. The Bill of Rights also provides for the right to human dignity and equality.
During apartheid not all persons were equal and free, and this was clearly demonstrated in South Africa’s apartheid legislation. This discrimination was most keenly felt by African women as they were last in the hierarchy. However, with the enactment of the Constitution, everyone has the opportunity to be afforded protection and equality before the law.
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