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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.”

On 16 August 2024, the twelfth anniversary of the Marikana massacre, the Daily Maverick published an op-ed written by SERI's Justin Winchester and Grace Gomba entitled, 'this Women’s Month, the state must honour the plight of the women of Marikana'. The op-ed juxtaposes the state's commemoration of the historic women's movement in August, with its continued denial of justice to the women of Marikana.

The authors write, "Each year on 9 August, the South African government commemorates Women’s Day, honouring the Women’s March of 1956. Last week’s National Women’s Day was no different. In the same month, for nearly 12 years, we have marked the anniversary of the Marikana massacre that to this day significantly affects the women and children of the deceased and injured mineworkers."

Winchester and Gomba argue that,

"This year, as the state commemorates the 68th anniversary of the Women’s March and celebrates Women’s Month this August, it should do right by the women who live their lives as if 1956, and 1994, meant nothing.

The state must honour the plight of the women of Marikana by issuing an apology, taking accountability for the disruption and loss it has caused and expediting the finalisation of all outstanding compensatory claims."

>> Read the full op-ed here.

On 14 August 2024, the Mail and Guardian published an op-ed co-authored by SERI's Thato Masiangoako and Justin Winchester entitled, 'The state still withholding justice for victims of the Marikana massacre'. 

The article discusses Thobile Mpumza's death and the state's denial of justice to the Mpumza family as an example of the various ways the South African government has failed the victims of the Marikana massacre, 12 years on. The government has yet to apologise to the victims' families and has inadequately addressed their claims for reparations. Despite settling some loss of support claims, the state has refused to reach an agreement on key claims, such as compensation for loss of support and a public apology. The authors calls for the state to expedite reparations and prosecution to bring closure to the affected families.

The authors concludes by urging the state to take responsibility and ensure justice is served '[w]ith the 12th anniversary of the massacre we urge the state to do all that it can to bring closure to the families. The state needs to apologise to the families of victims of the massacre and must take steps to expedite finalising reparations. The justice department should prioritise channelling the necessary resources to the National Prosecuting Authority and the courts to expedite the prosecution and trial of criminal cases to bring truth, justice and closure for the victims and the country'. 

>> Read the full article here. 

On Saturday, 10 August 2024, the Socio-Economic Rights Institute of South Africa (SERI), together with the Forge will commemorate the 12^th anniversary of the Marikana massacre of 2012 with an event entitled "Marikana: 12 years of disruption, loss and denial.” This commemorative event brings together a panel discussion, music, and poetry to mourn, remember & revive the call for #JusticeForMarikana.

Details for the event are as follows:

Date: Saturday, 10 August 2024

Time: 13:00

Venue: The Forge, Ground Floor, 87 De Korte St, Braamfontein, Johannesburg

The panel includes Prof. Julian Brown, Associate Professor in Political Studies at the University of the Witwatersrand and author of Marikana: A people’s history; Koketso Moeti, Activist and Founding Executive Director of Amandla.mobi; and Asenati Tukela, SERI attorney leading the case on behalf of the families.

The event will also include performances by Yonela Mnana, a jazz scholar, recording singer and jazz pianist who teaches and composes; Iphupho l'ka Biko, a Johannesburg-based Pan-Africanist band; as well as Makhafula VIlakazi, a poet whose work depicts township life and explores issues affecting his community.

To RSVP, email This email address is being protected from spambots. You need JavaScript enabled to view it..