Contesting customary law in the Eastern Cape: gender, place and land tenure

by | Sep 26, 2019 | ACTA, ACTA 2013

Contesting customary law in the Eastern Cape: gender, place and land tenure

Authors Tara Weinberg

ISSN: 1996-2088
Affiliations: Researcher in the Rural Women’s Action Research Programme at the Centre for Law and Society, University of Cape Town
Source: Acta Juridica, 2013, p. 100 – 117

Abstract

This paper explores how government interventions to restrict African access to land in the ‘Ciskei’ in South Africa between 1930—1960 impacted disproportionately on women. It focuses on events in three districts, Fort Beaufort, Keiskammahoek and Peddie, making use of archival research to show how African people, particularly women, responded to government interventions that progressively rendered them landless. The paper interrogates how Africans’ contestation of customary law and their relationship to the land was intricately tied up with the gendered nature of their family positions, privileges and responsibilities. Since the arenas in which women could voice their issues were limited, men sometimes articulated these issues (albeit in a mediated form) when the interest of a woman who approached them coincided with their own. Male Bunga Councillors appealed to a ‘living’ form of customary law in attempts to win greater rights to land inheritance for women and younger sons. They positioned their children as ‘responsible’ daughters and ‘responsible’ sons. In a context in which the state frequently used the language of ‘African custom’, in distorted ways, to justify its land policies, men and women contested not only the restraints on Africans’ access to land, but also the nature and content of customary law.

Women’s land rights and social change in rural South Africa: the case of Msinga, KwaZulu-Natal

by | Sep 26, 2019 | ACTA, ACTA 2013

Women’s land rights and social change in rural South Africa: the case of Msinga, KwaZulu-Natal

Authors Ben Cousins

ISSN: 1996-2088
Affiliations: DST/NRF Research Chair in Poverty, Land and Agrarian Studies, University of the Western Cape
Source: Acta Juridica, 2013, p. 73 – 99

Abstract

Changing marriage practices and a continuing decline in marriage rates are generating tensions in rural South Africa and prompting innovations in the character of women’s rights to land. Empirical evidence of changing practices in relation to land access and marriage in Msinga, a conservative area in KwaZulu-Natal, is presented. Such processes have been characterised in recent scholarship in terms of ‘living customary law, or ‘living law’ but this concept can obscure the underlying social dynamics that produce discrepancies between rules, practices and emergent social realities. An alternative model with greater explanatory power is Moore’s analytical framework for understanding ‘law as process’, suggesting attention to processes of regularisation and situational adjustment, within a fundamental condition of indeterminacy. This framework is utilised to help make sense of data from Msinga on marriage practices and women’s access to land, and to draw some lessons for policy.

Securing women’s customary rights in land: the fallacy of institutional recognition

by | Sep 26, 2019 | ACTA, ACTA 2013

Securing women’s customary rights in land: the fallacy of institutional recognition

Authors Wilmien Wicomb

ISSN: 1996-2088
Affiliations: Attorney, Constitutional Litigation Unit, Legal Resources Centre
Source: Acta Juridica, 2013, p. 49 – 72

Abstract

The general wisdom of a decade ago that the privatisation of property rights and registration of individual titles on communal land would ensure the protection and promotion of women’s land rights in Africa, has all but successfully been dispelled. As an alternative, the strengthening of customary tenure systems and localised land administration as the panacea to ensuring equitable tenure security on the continent have received a lot of attention. This alternative is apparently facilitated by the move across the continent to afford customary law recognition as a source of law. This paper investigates both the alternative of strengthening customary law institutions in order to strengthen women’s customary tenure and the prior assumption that customary law is now properly recognised by domestic systems on the continent. Drawing on the South African experience that includes explicit constitutional recognition of custom and rigorous engagement from the Constitutional Court, the paper argues that the problem is no longer the recognition of customary law, but the manner in which such recognition occurs. Relying on the theory of complexity to understand empirical examples of women asserting stronger property rights under customary law, the paper attempts to unpack what proper recognition should entail in particular in order for it to be a tool for the protection of the rights of women. Finally, and in relation to the work of Christian Lund on the nature of property rights, it enquires into the potential role of the courts and the legislature in the proper recognition and development of customary law.

Women, marriage and land: findings from a three-site survey

by | Sep 26, 2019 | ACTA, ACTA 2013

Women, marriage and land: findings from a three-site survey

Authors Debbie Budlender

ISSN: 1996-2088
Affiliations: None
Source: Acta Juridica, 2013, p. 28 – 48

Abstract

This article presents findings from a survey of 3 000 rural women conducted by Community Agency for Social Enquiry (CASE) in the ex-homeland areas of Msinga (KwaZulu-Natal), Keiskammahoek (Eastern Cape) and Ramatlabama (North West). The article briefly presents key elements of the methodology and describes the three sites. The main focus of the article is on the findings of the survey, and in particular those that relate most directly to marriage and access to land. While one-off surveys such as this generally present a ‘snapshot’of a particular moment in time, the survey included several questions that attempted to give an indication of change over time. The article describes these questions and presents the relevant findings.

Marriage, land and custom: What’s law got to do with it?

by | Sep 26, 2019 | ACTA, ACTA 2013

Marriage, land and custom: What’s law got to do with it?

Authors Aninka Claassens, Dee Smythe

ISSN: 1996-2088
Affiliations: Chief Researcher and Director of the Rural Women’s Action Research Programme at the Centre for Law and Society, Faculty of Law, University of Cape Town; Associate Professor and Director of the Centre for Law and Society, Faculty of Law, University of Cape Town
Source: Acta Juridica, 2013, p. 1 – 27

Abstract

None

Comparing the waqf and the South African trust

by | Sep 26, 2019 | ACTA, ACTA 2014

Comparing the waqf and the South African trust

Authors Latiefa Albertus

ISSN: 1996-2088
Affiliations: Lecturer in Private Law, University of the Western Cape
Source: Acta Juridica, 2014, p. 268 – 292

Abstract

This article compares the South African trust and the waqf. The article will firstly involve a concise analysis of the theories on the possible predecessors of the use while providing a historical contextualisation of the use and the trust. Secondly, a comparison will be made between the South African trust on the one hand, and the waqf on the other hand, the latter being one of the theories advanced as a possible source of the use. This comparison, it is hoped, will pave the way for further comparative research regarding the waqf as a means of advancing the development of South African trust law.