WOMEN

A focus on land

Phephelaphi Dube: Legal Officer; Centre for Constitutional Rights
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The world recently celebrated the International Day of Rural Women as set by the United Nations. The day seeks to recognise the role of rural women (referring to women residing in former homeland areas that currently fall under traditional authorities in terms of the Traditional Leadership and Governance Framework Act) in enhancing agricultural and rural development, improving food security and eradicating rural poverty. Indications, however, are that South Africa is far from this ideal, says Phephelaphi Dube: Legal Officer; Centre for Constitutional Rights. 

Rural women live in areas falling under traditional authorities, with most of them living on communal land. According to the former Department of Land Affairs some 21.5 million people lived in communal areas as at 2008. Census figures state that 58.9% of individuals living in such areas are female. This places rural women at the forefront of the intersection between the law and traditional practices. Nowhere is this intersection played out more apparently than in the manner in which rural women have access to land rights.
 
Given South Africa’s particular history, this means that women’s access to, and rights to, land are determined by an environment, which is dependent upon factors such as class and geographical location. This means that oftentimes, rural women do not have the same rights as women in urban areas. One cannot generalise the identity of rural women, as they are not a homogenous group, however, there are threads which ring true for most rural women. This includes a lack of access to land rights, as well as limited decision-making powers on issues concerning land matters. 

BBQ spoke to Dube about the burning issues rural women face on a day-to-day basis, the impact of the challenges hampering these women from entering the South African economy and transformation in this space.

What characterises the modern-day rural women’s experience when it comes to land ownership in the agriculture sector?

As many as 69% of women living in rural South Africa are said to be living in poverty. In addition, female-headed households, more so than male-headed households, are often prevented by finances from participating in the Land Redistribution Agricultural Development Programme---this may exclude even more women from benefits of the national land reform programme. Furthermore, with the exception of labour, female-headed households have fewer endowments and achieve lower returns from their livelihood tactics (whether subsistance farming or other rural employment) than male-headed households do. In September 1999, the National Land Committee (NLC) estimated that only 7331 of the 50 152 beneficiary households that participated in the land redistribution programmes were female-headed households. In 2000 the NLC estimated that female-headed households represented only 14% of the households to whom land had been transferred under the Redistribution Programme. The most frequently cited factor that prevents women accessing land under the Redistribution Programme is the fact that the settlement land acquisition grant was paid to household members. This despite the fact that access to land, for many women, continues to be mediated by and is dependent on a spouse, partner or family member.

Tell us more about the role that women, particularly rural women, play in the South African agriculture sector?

According to the Food and Agricultural Organisation (FAO), women make up almost 50% of the agricultural labour force in South Africa. In this context, rural women play a multifaceted role, including the production of agricultural crops, tending animals, processing and preparing food, some are employed in agricultural or other rural enterprises, collecting fuel and water, as well as caring for family and maintaining their homes. Agriculture, in contrast to manufacturing and services, is the most important source of employment for rural women. Importantly, rural women fulfil a fundamental role in all stages of the food cycle, whether clearing land, planting crops, harvesting or selling food.

What are the challenges that women have traditionally faced when it comes to access to land and how far do we have to go attain equality in this regard?

Although land can be acquired in a variety of ways---whether property inheritance, purchase, and transfers from the government in land reform programmes---research has shown that at each of these stages, women face more obstacles than men. This is due to male preference in inheritance practices, male privilege in marriage, inherent gender inequality in the land market or a male bias in state land redistribution programmes where women are at a disadvantage.

Are there any encouraging examples of rural women achieving success in the agriculture sector, with particular emphasis on the acquisition of land?

There are a few examples, but they are too isolated to positively conclude that rural women as a whole, are successful in this area. However, limited research conducted by the Community Agency for Social Enquiry (supported by the United Nations Development Programme and the Canadian International Development Research Centre) on women, and customary law, concludes that while there has been some progress, there are still many challenges facing women in the acquisition of land.

From a community and grassroots empowerment point of view, why is it necessary to encourage land ownership by rural women?

Extensive research conducted by the International Centre for Research on Women has drawn many links between land ownership and empowerment for rural women, such as:

  • Women who own property or otherwise control assets are better positioned to improve their lives and cope should they experience crisis;
  • Women can also use a house or land as collateral for credit during a financial crisis or invest in a small business or other income-generating venture;
  • By owing their home and land, women directly gain from such benefits as use of the land and higher incomes, as well as having a secure place to live;
  • Research has shown that individuals who own land generate much higher rural non-farm earnings from self-employment than people without land;
  • Asset control can also give women greater bargaining power within households and help protect against the risk of domestic violence---research in Kerala, India found that 49% of women with no property reported physical violence compared to only 7% of the women who did own property;
  • Women who are less secure economically and more dependent on men who control property and assets may be vulnerable to HIV infection; and 
  • Many women farm independently but normally gain access to land via their spouses; this means that a husband’s death often means the loss of land, house and tools.

What policies or legislation can be put in place to ensure better access to land when it comes to rural women?

South Africa’s laws and policies governing rural women’s land rights and access to land are largely adequate, but the lack of political will often hampers implementation. A brief survey of policies and legislation reflects a keen awareness of gender equality. For example, the governing party’s own Land Policies, the Reconstruction and Development Programme, the 2011 Green Paper on Land Reform all recognise women’s land rights. These policies express a clear commitment to end discrimination and ensure gender equity in land ownership. This is also true for laws governing access to land and secure tenure, such as the Communal Property Associations Act, which stipulates that Associations must be run on a democratic basis and that women must be fairly represented on the communal property association’s committee. Decisions such as Bhe and Others V the Magistrate, Khayelitsha in which the rule of male primogeniture in African customary law of succession was declared to be at odds with the Constitution, as well as Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority and Others, in which the principle that traditional practices must conform to constitutional democracy was affirmed, further lend greater guidance to the executive and the legislature in the formulation of laws and policies regulating better access to land for rural women.

What are some of the cultural barriers that rural women face when it comes to being eligible for land ownership?

Unmarried sisters are often unable to inherit after their parents die and are evicted from the homes by their married brothers when their brothers assert that sons alone can inherit the family home. Married women are often treated as people without rights in the land and are not consulted on decisions about the land.  Women, particularly single women, struggle to access land as some places only allocate land to men.  Women often do not participate in traditional institutions such as tribal and village council meetings where important decisions about land rights are made. According to the Community Agency for Social Enquiry, tribal courts adjudicating family and land disputes are generally dominated by elderly men, fueling the perception that men are favoured over women. Consequently, women may not receive appropriate assistance in land disputes.

How is South Africa faring when it comes to empowering rural women compared to the rest of the continent---is there anyone we can learn from?

The African Charter on Human and Peoples Rights guarantees without discrimination the right to property and, in addition, obliges states to eliminate every discrimination against women and to protect women’s rights. The Protocol on the Rights of Women in Africa provides for the integration of a gender perspective in all national legislation for equality of rights of the spouses within marriage, including in relation to property, for the right of married women to acquire and freely administer separate property, for equality of property-related rights upon divorce or annulment of marriage, for equality in inheritance rights, and for women’s access to land. As such, at a continental level, the many African states, which have signed and ratified the latter regional laws, commit themselves to the protection and promotion of access to land for rural women. However, in reality, many states are yet to achieve substantive equality. In general, for much of the continent, few rural women hold land. For example, according to the FAO, women hold 11% of agricultural land in Benin, 25% for Congo, 25% in Tanzania, and in Zimbabwe, 3% of agricultural land in the smallholder sector and 10% in the large-scale commercial sector. By contrast, South Africa’s progressive policies and laws, as well as decisions from the courts, which have underscored women’s formal and substantive equality, mean that South Africa has made some relative progress.

Do you have any statistics in terms of female rural land ownerships?

These kind of statistics are as yet unavailable, due to the largely customary nature of land holding which is largely unregistered by deeds offices and as such difficult to ascertain in the absence of large-scale surveys. The Department of Rural Development and Land Reform has no statistics available on women’s access to land in South Africa’s rural areas. The lack of these statistics hampers the government’s ability to respond to rural land ownership by women as absence of data means that policies are developed in a vacuum and cannot be implemented, monitored  and evaluated effectively.

What is government’s responsibility when it comes to ensuring access to land ownership for rural women?

In terms of section 7(2) of the Constitution, the state must respect, protect, and promote the rights in the Bill of Rights. Section 9(1) provides that everyone is equal before the law and everyone has the right to equal protection and benefit of the law. Section 25 of the Constitution protects existing property rights and also creates an imperative for land reform. As such, read together these provisions mean that the government is obliged to ensure equal access to landownership for rural women.

Ameera Daniels

 

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