Issued by African National Congress - Parliament
12 February 2004
Madame Speaker
Deputy Minister
Honourable Members
Comrades and Friends
The ANC slogan "Mayibuye I Africa" was and is precisely a demand for the return of the land of Africa to its indigenous inhabitants. The ANC recognises that other oppressed people deprived of land live in South Africa. The white people who have made South Africa their home and are historically part of South African population and as such are entitled to land… therefore the land shall be shared amongst those who work it, as stipulated in the people's document - the Freedom Charter.
On Freedom Day 27 April 2003, the president in his address said: "Since 1994 we have entered into a social contract as South Africans, that central to the realisation of our strategic goal is the eradication of poverty and the defeat of under-development in every corner of our country".
In 1997, approximately 32% of South Africa's population lived in the former homeland areas. A breakdown of this figure indicated that 63% have permission to occupy the land where they live and 26,6% lack permission to occupy, and the remaining 9,6% are uncertain whether they have permission or not.
Tenure reform in SA is mandated by section 25 (5 & 6) of the constitution. Tenure reform is seen as comprising of two main areas of focus, i.e. security of tenure for people living on farms and improving security of tenure for those communal areas, largely the former TBVC areas. One of the objectives of the Bill is to grant land tenure rights, individually or communally to approximately 2,4 million rural households which are largely concentrated in the former homelands. This land is currently owned by the state.
Gender - Women's Rights
Women and in particular black women have been severely marginalized with regards to access to land. Customary laws denied women the right to be allocated land in their personal capacity. Women's tenure was linked to their status in relation to male members of the family as wives, mothers, daughters and sisters. Married women who lost their husbands stood the risk of losing what belonged to their husbands, especially if she did not have male off-springs. Girls could not inherit a homestead when both their parents died.
A greedy brother in law (father's brother) grabs all that belonged to his brother. If the brother's wife is still alive he places her and her children under himself. If he so wishes, he takes his brother's wife as his additional wife. He then uses his late brother's possessions to support his own family and that of his brother. Literally inheriting his sister in law as if she is a property and a perpetual minor.
The Bill before us changes these old order rights and ushers in new order rights. In terms of the new order rights the wife is a co-owner with her husband of whatever land that has been allocated to them. She has equal rights as her husband and enjoys a legal security of tenure. Communal land and new order rights are capable of being and must be registered in the name of the community or person including a woman entitled to such land or right in terms of this Act.
Old Order Rights
In the old system through customary law and practices the land was traditional reserved for men, women were excluded from owning land through the Permission to Occupy system (PTO). It is these PTOs that are referred to in the Bill as old order rights that would be transferred to new order rights. The concern raised on the issue during public hearings was that since women were excluded from owning PTOs they are discriminated against to get new order rights.
This Bill does not leave the poor and vulnerable community members including women unprotected. On the contrary, it provides a number of safeguards aimed at minimising some of the risks and problems identified by the organs of civil society, land activist and so-called respected academics. The reported perceptions that the Bill maintains and even exaggerates the second-class treatment of women have no foundation at all when examined and analysed firstly against section 4 (1).
The importance of the statutory provision is that it gives effect to a woman's constitutional entitlement to security of tenure. Secondly, the criticism to the effect that the Bill confers second class status to woman is baseless when section 4 is read together with sections 14 (2) (g), 18 (1) (e), 4 (b), 22 (4) and (4) and 26 (2) (d) (iv) and (3) (b) of the Bill.
Thirdly, the Bill makes it very clearly in terms of section 4 (2) that an old order right derived from or recognised by old order law including customary law and "… held by a married person is despite any law practice, usage or registration to the contrary, deemed to be held by all spouses in a marriage in which such a person is a spouse, jointly in undivided shares irrespective of the matrimonial property regime applicable to such marriages and must on confirmation or conversion in terms of section 18 (3), be registered in the names of all such spouses.
Fourthly, the Bill also provides for the entitlement for a woman in their own right irrespective of her marital status to the same land tenure rights or rights in land or interests in land as men. (What all this means is that women would be in their capacity as women either married or single) This would put to an end discrimination faced by women in communal areas where they were treated as minors who could not hold titles on their own. Women for the first time will be able to use their title deeds to secure bank loans to assist them to farm or develop the land. This will eradicate poverty and ensure the economic emancipation of women. As women are the majority in communal areas and many heading their households, having new order rights would be of benefit to the whole of the community.
New Order Rights
The new order rights empowers women including single women, female headed-households to own land in their own right as part of the emancipation of women.
Equality
There is no doubt that the ANC government has made great strides in achieving a legal framework where the rights of women and men are equally guaranteed. The Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) of which South Africa is a signatory, recognises women's land rights. Article 14 of CEDAW obliges state parties to take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on the basis of equality of men and women, that they participate in and benefit from rural development and in particular… ensure to such women the right: (a) To obtain all types of training and education, formal and non- formal including that relating to functional literacy.
(b) To have access to agriculture credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes.
Current Situation
In some traditional structures women's representation are at present being addressed. Some existing structures like the Royal Bafokeng, has ± 40% women representation in decision-making. For those traditional leaders we say keep it up and do better in order for you to be emulated by others. The overall female farmer of the year for 2003, Tendani Sinoamadi took over farming at the Hillcrescent Estate, Levubu after the death of her husband in 2000. She created work for eleven other people and hires temporary labour during planting, harvesting or debushing. This example of a female farmer should inspire other women to do likewise. The Land Bank Amendment Act 21 of 1998 gives women access to financial assistance from the bank. The Land Act 19 of 1998 makes reference to women and notes that special consideration should be given to the rights of certain vulnerable groups, which include female-headed households. Land is an important source of capital used in economic activity and a factor of production.
In Conclusion Madame Speaker, we in the ANC can proudly say, truly the tide has turned, in the mere space of ten years the government has brought changes that have completely confounded both friend and foe.