It's a man's world no more when it comes to inheritance of the family house

It's a man's world no more when it comes to inheritance of the family house.
It's a man's world no more when it comes to inheritance of the family house.
Image: 123RF/ olegdudko

Just because you are a man it does not mean you may inherit the family home automatically. Unless, of course, there is a last will and testament that stipulates otherwise.

If no will exists, all siblings are equal and competent to inherit regardless of gender.

Basically, boy-child privileges are a thing of the past, besides such privileges only existed due to patriarchy and the distortion of customary law during the era of colonialism.

The right to individual tenure of natives dates back to colonial times. Individual tenure was obstructed by the colonial state which created communal tenure rights instead. Abrogation of land rights continued to thrive during apartheid and shockingly still does even during our democracy.

Simply put, native families were only allowed to hold limited land tenure rights through deeds of grants which could only be significantly held by men.

That means women were explicitly excluded and this became custom.

We grew up knowing that the boy-child was the heir to the family estate, he would control the family home and act as custodian for the family in many respects.

However, conflicts have emerged among families as a result of this preference which is defined as discriminatory in legal terms but understood as custom by many African families.

But perhaps what should bother us most is that for a long time, women who sought fair treatment were ostracised and unheard.

Last month, however, Mantshabelle Mary Rahube won a case in the Constitutional Court against her brother who sought to evict her from their family home that she had been occupying for many years.

He sought to evict her after acquiring ownership as a result the Upgrading of Land Tenure Rights Act which automatically converted deeds of grants into ownership rights.

It is important to note that Rahube's brother only held the deeds of grant on behalf of the family because he was male. She was excluded from holding such a right because she was female.

Fundamentally her brother, who was only meant to act as custodian over the property, instead evicted her at the first available chance.

But the apex court held it was unconstitutional that the act allowed such a conversion of ownership when women were explicitly excluded to holding such rights during apartheid.

It interdicted Rahube's brother from taking further action like selling the house or evicting Rahube.

It was held by the court that section 2(1) of the 1991 Upgrading of Land Tenure Rights Act was constitutionally invalid on the basis that the rights it sought to entrench were discriminatory and found that the legislation "cannot pass constitutional muster", albeit it had good intentions.

The act intended to grant ownership rights to Africans because they were previously excluded from acquiring any property rights under apartheid.

The drafters of the act however spared very little thought for African women.

The act discriminated against women on the basis of race and gender. The court held that "during apartheid, the African woman was a particularly vulnerable figure in society and she suffered threefold discrimination based on her race, her class and gender".

"Reflecting upon the present, we must ask whether an African woman benefits from the protection of the constitution." Despite this judgment, however, there are still many women who face similar challenges.

They may not have access to information and may not have access to the courts or even counsel when such challenges arise which is a real travesty.

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