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Hidden crisis: How legal gaps threaten South African women and children in family homes

Nerishka Singh and Michael Clark

This article was published in News24 on 17 August 2024. Access the original article here. 

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One Tuesday morning Ms Molefe (not her real name) was woken up by strangers in her family home. They told her that they were the new owners of the house and that she, her siblings and their children had to leave – or they would be evicted. 

She was shocked. The house had been in her family for generations. She had been born there and, other than for a brief period during her marriage, this had been her only home. When her marriage ended, she had moved back into her family home with her children. She believed that they were safe there. The house was registered in her father’s name and she and her siblings had intentionally kept it that way after he died to ensure that they all had access to the property. 

She knew that the house wasn’t hers alone. It was a family home. Any family member who needed a place to stay knew they could stay at the house for as long as they needed. The purpose of the property mattered more than the name on the title deed, and everyone seemed to understand that the house was theirs - all of theirs. This arrangement had enabled her siblings, uncles, aunts and even distant cousins to move to the city, find a job, save up and eventually, if they wanted and were able to, move to a place of their own. Now they were at risk of losing the family home.

Ms Molefe’s story isn’t unique. A recent report published by the Socio-Economic Rights Institute of South Africa (SERI) suggests that many families think of their homes as ‘belonging’ to the whole family – a potentially distinct tenure form. The prevalence of eviction applications in Gauteng’s townships shows that a lack of legal recognition of family homes threatens their security. 

Apartheid legacy 

Family homes are a product of racially discriminatory apartheid laws. Under apartheid black people were prohibited from owning land in “white only” areas, but the apartheid government relied on being able to exploit their labour. Consequently, the government allowed black people to obtain “occupational permits” to live in townships on the edge of cities and towns. These permits allowed people to build and live in homes, without owning them, but they could not sell or transfer their homes to family members after their death. This enabled the government to relocate people whenever it wanted. 

Towards the end of apartheid, in the 1980s and 1990s, the government transferred ownership of these homes to the families living in them. The democratic government believed that this would give people security, but it inadvertently gave some family members (usually men) security, while making others (usually women and children) more vulnerable. 

Today, the government is still trying to ensure equal access to land and housing. The recent amendment of the Upgrading of Land Tenure Rights Act (1991) in response to a Constitutional Court judgment has made strides in ensuring that the process of converting these permits is more gender responsive. But many family home disputes still disproportionately threaten the rights of women and children. 

Navigating two property systems 

Family homes lie at the intersection of two diametrically opposed property systems. The South African legal framework regulating private ownership has its roots in the common law – which prioritises individual and exclusive ownership. But the use and role of family homes is based on African custom – which prioritises the needs of a family or community over the needs of any one individual. 

Many people, like Ms Molefe, must navigate both systems to secure their access to their homes. For women, who often have less bargaining power than men in both systems, securing housing and land is complex.

Lack of legal recognition is being exploited

Family homes are more than the bricks and mortar used to construct a house – they’re central to people’s sense of identity, a place to connect with their ancestors, and a safe space for family members that have fallen on hard times. Despite this, the family home is not legally recognised. This means that there is a gap between how people live in practice – which is designed around family, community and need – and what the law protects – individual ownership of the person whose name is on the title deed. 

This gap leaves control of an entire family’s tenure security in the hands of one individual (often a male relative). The occupants of the home (who are usually women and children) are often most vulnerable when the original title deed holder dies, because opportunistic family members use the process of reporting the death to claim legal control of the home. 

This is what happened to Ms Molefe. Her brother claimed that he was the only living relative of her late father and had himself appointed as the executor of their father’s estate. Once he had the powers of an executor, he could sell the property without telling the rest of his family. This is usually when the new owners demand that the occupants leave, and the occupants (usually women and children) find themselves facing eviction, the loss of their only home and potential homelessness. 

How to protect women like Ms Molefe 

Women across the country are using different strategies to protect themselves from losing access to their homes, which hold significant social, cultural and economic value. In rural areas, women are using a mix of arguments about non-discrimination (the right to equality) and custom (they are fulfilling the role of providing for a family – without men) to claim access to land. Meanwhile in urban areas, some women are spray-painting warnings on the walls of their homeswarning potential buyers that “This is a family home!” and “This house is not for sale!”

But as long as the family home lacks legal recognition, women and children will remain vulnerable. As Thulani Nkosi, a senior attorney quoted in the SERI report, explains: “The family home is real, it exists. The best way to deal with it is to legally recognise and protect it.”