Land, Violence and Womxn’s Bodies: an overview of implications of land reform and customary law on the rights of women in South Africa

abstract

This focus on Land, Violence and Womxn’s bodies seeks to re-centre the debate on land as it relates to womxn’s bodies. It highlights the dynamics engendered by womxn’s struggles for land, it explores the interface between womxn’s rights and customary practices and demonstrates how womxn’s bodies, like land, have been shamed and celebrated. This issue commemorates (un)celebrated womxn who continue to fight for their rights to land. It incorporates themes on gender discrimination and land allocation, and it problematises the extent to which land reform and other interventions have attempted to address gender inequalities which relate to the rights of womxn to communal and commercial land.

keywords:

• Gender
• inequality
• land
• communal land
• land redistribution
• womxn’s bodies

Introduction

The rights of womxn, especially rural womxn and their continuing fight for their rights to land is the primary concern of this issue on land, violence and womxn’s bodies.¹ It also explores the interface between rights and customary practices. The advent of democracy in South Africa in 1994 introduced a constitutional dispensation to facilitate democracy and to actuate a better life for South Africans. The Constitution is the supreme law of the land, hence all laws including customary law have to reflect its values, ethos and be in alignment with its intentions (Songca 2018). The Constitution intends to better the lives of its citizens by introducing a new moral code for its people (Songca, 2018). Section 25 of the Constitution, for instance, defines and requires redistribution of land, restitution and security of tenure.

In addition, the Constitution problematises dominant legal systems such as the common law and recognises African customary law as one of the sources of South African law (sections 211 and 212). Nevertheless, the ‘official’ customary law inherited from colonialism and apartheid is at odds with the values and transformative agenda of the Constitution and nullifies human rights especially those of womxn (Budlender et al, 2011). To date, womxn still wrestle with the effects of customary law especially in relation to land ownership and there is little to show in terms of real transformation of land as discussed elsewhere in this issue.

Womxn are repeatedly associated with or deemed as land. Land is perceived of as feminine in both conception and description and this association can also be traced to Latin etymology, with terra firma translating to firm earth or solid ground. Latin, a language reliant on grammatical gender, thereby characterises terra firma as feminine. Currently, the association of womxn and land has metamorphosed and created a perception that womxn and womxn’s bodies are analogous to land. Viewed in this manner, internal agency or external pressure results in the ownership, re-shaping, reforming and tending of womxn's bodies like land. In South Africa, crimes against womxn/girls are evident and manifest themselves in social discourses and in popular culture and are especially evident in crimes of a sexual nature. Coupled with racialisation of gender and sexuality in contemporary South Africa, the problem transmutes to something larger than mere transitional tension.

Womxn’s struggles for land and their considerable contribution to the liberation struggle wherein they fought for land are largely unacknowledged. Womxn, notably those involved in liberation struggles are often associated or recognised through male lineage in their struggles for land. In most instances, either female participation in the struggle for land is rendered invisible, or their efforts are considered secondary in comparison to their male counterparts. Regardless, the disparity between feminine/masculine actors is all too clear in recent history. A striking example of a womxn who was erased from history emerges in the scholarship of Maureen Tong around the person of Nokutula Mdima Dube and informs this discussion of her contribution (http://www.cihablog.com/violence-land-violence-womens-bodies-evoking-john-langalibalele-dubes-voice-contemporary-debates/). The year 2017 marked the centenary of her death on 25 January 1917 at the age of 44. The system of patriarchy, however, led to Nokutela Mdima Dube’s significant contribution to the liberation struggle in South Africa airbrushed from history. Nokutela Mdima Dube was an equal to other struggle figures. Yet, numerous achievements are attributed to John Langalibalele Dube alone. John Langalibalele Dube, the story goes, founded the South African Native National Congress (SANNC) on 8 January 1912. The SANNC was later renamed the African National Congress (ANC), the oldest liberation movement in Africa. John Dube is also widely recognized as the founder of the Zulu Industrial Improvement Company in 1910 and the Ohlange Institute. Nokutela Mdima Dube, John Dube’s first wife, is mentioned neither in relation to the formation of the SAANC, nor the establishment of the Zulu Industrial Company, nor the Ohlange Institute. Moreover, although she played a significant role in the movement, she was denied membership of the SAANC - for she was a womxn. Presumably, the reason that Nokutela Mdima Dube remained unacknowledged for almost a century is her childlessness. The assumption that womxn should bear children before they can be recognized as ‘complete’ resulted in Reverend John Dube being forgiven for bearing a child with another womxn while married, despite the fact that he was an ordained church minister who eschewed the practices of his ‘heathen’ fellow Africans who were non-converts to Christianity. Patriarchal attitudes and values that manifested themselves as religious beliefs legitimised Reverend Dube’s behaviour while his wife was marginalised for leaving him because of his conduct. The discriminatory and uneven application of these traditional cultural practices perpetuate the inequalities between men and womxn.

The post-apartheid South African state is implementing land reform as one of its central socio-economic reform programmes to address historical injustices at this point in history. The South African government’s policies and legislation propose a declared commitment to gender equality. In relation to the issue of land access, the trajectory of transformative land policies is traceable to South Africa’s transitional period in 1992. In this regard, the African National Congress land policy document makes provision for the development of procedures to ensure womxn’s equal access to land and their participation in policy formulation and decision-making (Weidman, 2006). In addition, the African National Congress Reconstruction and Development Programme of 1994 (section 2.4.11) extends womxn’s rights to land and includes womxn in the land distribution programmes. The programme proscribes laws and practices that discriminate against womxn’s access to land and makes provision for the review of such policies in line with national policies. In 1996 the Green Paper on South Africa’s land reform committed to ending land discrimination and undertook to promote gender equity in land ownership.

These policies found expression in various South Africa’s statutes and policies after the advent of participatory democracy. For instance, the Constitution of the Republic of South Africa of 1996 strikes a balance between protecting property rights and insulating land reform from constitutional attack by including section 25 in the Bill of Rights and setting out the framework for the implementation of land reform. Section 25 identifies the pillars of land reform as restitution, redistribution, tenure reform and rural development. Unfortunately, the rate of delivery on land reform is far from satisfactory: less than 10% of land was delivered by March 2017 of the proposed target of delivering 30% of communal land by 2014. Moreover, and most significant to this issue, the land reform programme has not significantly altered gender imbalances in land ownership.

The year 2016 marked 20 years since the enactment of the Land Reform (Labour Tenants) Act 3 of 1996, which, together with the Extension of Security of Tenure Reform 62 of 1997, addresses the rights of individuals and communities living on commercial farms. Section 25(8) allows for tenure reform in favour of communities living on communal land. The purpose of the Communal Land Rights Act 11 of 2004 (CLARA) was to give effect to section 25(6) of the Constitution. The latter mandates Parliament to enact legislation to provide security of tenure to communities living on communal land. In Tongoane and others v National Minister for Agriculture and Land Affairs (2010), Communities of Kalfontein and Daxie (in Mpumalanga), Makuleke (Limpopo) and Makgobistad (North West) were affected by the provisions of the Communal Land Rights Act. The Act’s primary goal was to give secure land tenure rights to people and communities who reside and occupy land in areas previously reserved for African people, namely in the former homelands. Most of this land is registered in the name of the state or is held in trust for communities by the Minister of Rural Development and Land Reform or by the Ingonyama Trust in the case of KwaZulu-Natal. The applicants (the four communities) sought an order declaring all the provisions of CLARA or, alternatively some of its provisions, unconstitutional and thereby invalid. The Constitutional Court declared CLARA in its entirety unconstitutional because its adoption was not in terms of the procedures prescribed in the Constitution. In addition, the court held that the wide-ranging powers given to traditional councils, including control over the occupation, use and administration of communal land, undermined the communities’ right to land and tenure of security. The implication of the judgement is that there is no legislation that provides secure land tenure for people in communal areas currently.

Approximately 17 million South Africans live on communal land that is under the authority of traditional leaders. Yet the role of traditional leaders in relation to managing and/or holding land on behalf of rural communities remains one of the unresolved issues of post-apartheid South Africa. The Communal Properties Association Act 28 of 1996 enables communities to form juristic persons called Communal Property Associations (CPAs) to hold or manage property, often in the form of land subject to the land reform programme. This is at odds with the view that traditional leaders hold or manage land on behalf of communities living on land under the jurisdiction of traditional leaders, thereby leading to tensions between CPAs and traditional leaders. The Constitutional Court case of Bakgatla-Ba-Kgafela (2015) concerned the Bakgatla-Ba-Kgafela Communal Property Association. The Constitutional Court had to decide whether the Communal Property Association Act 1996 (CPA Act) allowed the Bakgatla-Ba-Kgafela to continue to exist and hold land. In terms of the Act, the community had to create a legal entity to receive ownership of the land on behalf of the community. In 2005, the community voted in favour of the creation of a Communal Property Association (CPA) to hold land. Therefore, they elected a committee to run the CPA and adopted a draft constitution. The community then lodged an application to have the CPA registered. The CPA struggled for many years to register permanently due to serious administrative failures by the Department of Rural Development and Land Reform and the ongoing resistance to the establishment of the CPA by the traditional council in the area. Members of the community approached the court to have its legal status confirmed.

The Constitutional Court confirmed the aim of the CPA Act to form communal property associations through which they could acquire and possess land that belongs indivisibly to the entire community. In this regard, the court observed that the Act seeks to transform the customary law and extend the fruits of democracy to authorities that are still subject to customary law. Resultantly, the Constitutional Court asserted that the understanding and interpretation of the provisions of the Act must reflect these values. In addition, the court was of the view that the issue under consideration was about access to and control over land. It held that the Bakgatla-Ba-Kgafela Tribal Communal Association had the right to take ownership of the land, thus confirming communities’ rights to choose their own land ownership arrangements. The Constitutional Court’s unanimous judgment support of democratic control of land in traditional areas established an important precedent in the approach to community rights in areas controlled by traditional leaders.

The Traditional Courts Bill has faced constitutional challenges on the basis that it entrenches colonial land demarcations and unequal gender relations.

The various policies and statutes discussed herein underpin government’s support for gender equality and promotion of womxn’s rights in general including their rights and entitlements to land, both urban and rural. Nevertheless, womxn’s realisation and enjoyment of their rights are uneven and tempered by factors unrelated to land. Some researchers (e.g. Weidman, 2006; Walker, 2011) argue that land reform interventions in South Africa have not served the interests of womxn adequately. They argue that the impact of factors such as patriarchy are not considered although they perpetuate the subjugation of womxn especially in rural areas.

Land reforms and the lived experiences of womxn in South Africa

Social factors such as domestic violence, cultural patriarchal patterns of land allocation and political factors compound gender inequities in terms of access and ownership of land by womxn (Walker, 2005). Domestic violence is one of the factors that perpetuates gender inequalities and subordination of womxn. Many womxn continue to live in abusive relationships because they are economically dependent on their husbands or partners and many retain access to land through their husbands or male relatives (Weidman, 2006).

A further impediment exists in the way womxn are treated as though a homogenous group and in this way various policies and statutes obliterate their individual needs, characteristics and particularities. Many of these ‘genderless’ statutes use categories such as households, families and communities. Consequently, impacts of cultural traditions and customs in rural and urban areas and practices regulating land access and ownership that tend to benefit men continue unchallenged (Weidman, 2006). Men continue to dominate decision-making structures, thereby excluding womxn’s voices and their needs. Cultural and social practices that are discriminatory result in gender inequities in land ownership and access to land by womxn. Weidman (2006) argues that tenure systems need to adapt to accommodate the changing needs and position of womxn. Patriarchal attitudes and conservative leadership undermine womxn’s participation rights in land reform processes and/or debates (Walker, 2011).

At a political level, tensions engendered by conflicting interests between the government’s commitment to gender equality and its reluctance to alienate or re-visit the powers of traditional authorities continue to undermine the rights of womxn and their access to land in some communal systems and/or rural areas (Weidman, 2006). In some rural areas, the mediation of womxn’s interests or claims to land is through their male relatives in communal tenure systems or through heads of households who are mostly male. Although communal systems differ, most womxn, especially married womxn, do not qualify to hold land independently from men (Weidman, 2006).

Overview of the issue

This issue seeks to re-centre the debate on land as it relates to womxn’s bodies. It highlights the tensions between womxn and land and demonstrates how womxn’s bodies, like land, have been shamed and at times celebrated. Furthermore, the experiences of womxn in relation to their rights to land are analysed, highlighting the marginalisation of womxn from decision-making in community-based structures despite the existence of liberal policies and statutes on land reform in South Africa.

In this issue, the papers are organised around three main themes. The first theme explores feminist theoretical perspectives on land issues and womxn’s struggles in relation to their rights to land. First, Rebecca Helman’s contribution draws on Redi Thlabi’s construction of rape in her book entitled ‘The remarkable story of Fezekile Ntsukaa Kuzwayo’. Helman interrogates the notion of (un)rapeability and situates it against the backdrop of colonisation of land as well as the intersecting racialised and gendered formations of coloniality. She argues that the gendered and racialised narratives and discourses around sexual violence have created the notion that some womxn are ‘unrapable’ and thus unharmed by acts of sexual violence committed against them.

Fathima Ahmed uses a feminist approach to highlight the tensions between indigenous communalism and capitalism. Adopting a counter-hegemonic stance, Ahmed interrogates economic globalisation through the lens of indigenous feminism and thus interrogates gender as a site of violence through the land body nexus. She argues that violence on African indigenous womxn’s bodies is a deliberate and significant component of capitalist systems. In addition, she posits that women and ecology act as both a response and a living alternative to globalisation, found in ways womxn produce food, protect natural resources and take care of families and communities.

Sarah Flicker explores the different ways in which environmental and reproductive justice movements intersect to highlight the social and biological impact of extractive industries on indigenous communities. Thus, the study traces the nexus between violence and the land, on one hand, and violence on the body on the other, especially amongst indigenous womxn in Canada. The researchers employ participatory visual methodologies, specifically cellphilm-making as a pedagogical strategy to reflect on these issues. Although limitations are noted, the methodology is, nevertheless, regarded as an effective and innovative way of engaging these issues. It encourages participants to reflect on their answers and to think of the connections between land, body and violence.

Ayub Sheik concludes the first theme by challenging stereotypical narratives and African folklore that represent womxn as passive, subservient and tricksters. Drawing on resources of narratology, the paper demonstrates how selected African traditional narratives embrace womxn and respect their role as custodians and preservers of culture, family values and disseminators of oral traditions. The author argues that storytelling and folklore demonstrate the role womxn play in facilitating story-telling. Through this study the author seeks to illustrate how the wisdom of folklore, myth and fantasy can propel social change and portray womxn as powerful, albeit compassionate, human beings.

The second theme gives expression to the voices and lived experiences of womxn in their fight for equal access to land rights and entitlements. Rejoice Mazvirevesa and Kezia Batisai provide a comprehensive analysis of the lived experiences of womxn in post-apartheid South Africa and post-colonial Zimbabwe. Relying on research findings in both countries, the authors show how current discourses on womxn’s participation and contributions to the liberation struggle and the violence they suffered on their bodies during the fight for land are demeaned. The authors posit that the inability of womxn to exercise their own agency in relation to their contributions to the liberation struggles and to narrate their stories from their own lived experiences trivialises their contributions and renders their bodies invisible in the land they fought so hard for.

Relying on the ethnographic interviews and observation, Esther Makhetha and Tim Hart establish how womxn farmers in the Limpopo Province continue to experience systematic gender violence and a lack of access to land by critically evaluating land distribution and the challenges it presents to womxn. They explore how womxn farmers negotiate access to land through their own agency and resistance on a daily basis by analysing their narratives and experiences in their quest to access and use land for farming. The authors outline recommendations about how the government can improve its focus on women farmers and come to grips with gender mainstreaming and needs.

Mercia Andrews, Nokwanda Sihlali, Tshelofelo Sepotokele and Kedibone Chembe draw on the use of narratives (life stories) and testimonies from civil rights organisations and female land activists to highlight how patriarchal, political and the legislative framework all conspire to undermine womxn’s rights and entitlements to land. First, Mercia Andrews explores the phenomena of forced removals. The author interrogates the uprooting of farm dwellers and the impact of these removals on womxn. Drawing on narratives, interviews and conversations with female farm dwellers in four South African provinces, the findings from these interviews reveal the ineffectiveness of legal interventions and policies and underscore how structural inequalities perpetuate the vulnerability of womxn and children.

Second, Nokwandi Sihlali’s reflection seeks first to debunk the invincibility of womxn in the struggle for land after the advent of democracy. She does so by highlighting some of the significant changes driven by womxn that resulted in them securing various rights for womxn in South African courts. In addition, Sihlali documents the lived experiences of womxn living under the administration of the Ingonyama Trust and the Ingonyama Trust Board. The narratives and interviews reveal how residents were compelled to conclude lease agreements and pay rent to the Trust in order to continue living on the said land. This resulted in residents surrendering their Permission to Occupy Certificates in exchange for residential leases thereby evacuating their customary ownership to the land. This undermines the rights of womxn to land because they are the ones most affected and, once they relinquish their Permission to Occupy Certificates, they become landless because of their inability to afford the prohibitive rentals.

The discussion relating to the Ngonyama Trust continues in the dialogue between Kedibone Chembe and Sizane Ngubane, co-founder of the Rural Womxn’s Movement in Kwa-Zulu Natal. Mama Ngubane draws on the experiences of womxn who live on land that falls under the administration of the Ingonyama Trust. The interview reveals competing and unaligned interests between the Ingonyama Trust and the expectations of womxn in Kwa-Zulu Natal. Although patriarchy and customary practices continue to marginalise womxn, advocacy work of womxn like Mama Ngubane and non-governmental organisations bear testimony to the effectiveness of advocacy programs both nationally and internationally as catalysts for political and social change.

The third theme interrogates the effectiveness of policies and legislation in empowering womxn’s claims and entitlements to land. First, Tsholefelo Sepotekele’s interview with Aninka Claassens assesses the role of womxn in leading the struggle against the removal of African landowners from identified freehold land around South Africa into land adjacent to the former homelands. Research findings show an increase in the number of single womxn acquiring land post 1994. Consequently, the Rural Womxn Action Research Group (RWAR) in collaboration with the Community Agency for Social Enquiry (CASE) conducted a survey of three different rural areas in Kwa-Zulu Natal, Northwest and former Ciskei. The survey showed an increase in womxn who had acquired land in their own right rather than through their husbands or their fathers. In addition, Claassens highlighted the tensions between the Constitutional Court decisions and legislation in relation to customary law. Whereas the Constitutional Court adopts a transformative approach in interpreting customary law, the legislature continues to enact draconian traditional leadership laws, which negatively affect the balance of power within which womxn struggle for change.

On her part, Nolundi Luwayo argues for the inclusion and the self-determination of black womxn living on communal land in the rural communities of South Africa’s former homelands. She asserts that security land rights of rural womxn require an understanding of land as an expression of status. Therefore, the womxn themselves must define legislative interventions that seek to provide security to womxn and stronger sanctions imposed on land administration structures that fail to meet minimum equality provisions stipulated under the law.

Closing the issue, Tim Hart, Margaret Chandia and Peter Jacobs focus on the emerging patterns in gender ownership of farmland made available through the farmland distribution programmes. Drawing on a study conducted by the Human Sciences Research Council in 2012, they observe that womxn have not benefitted from land reform programs as much as they should have. Therefore, they argue for future land reform policies that do away with current gender disparities and advocate for gender-sensitive approaches and policies to land distribution.

The contributions in this focus interrogate the (in)effectiveness of the land reform project in South Africa. While these contributions tend to focus on rural land, women in urban areas face similar challenges. South Africa has progressive laws that promote and legitimise issues of gender equality in land reform. However, the contributions magnify the disparities between the values enshrined in these statutes and the lived experiences of women living in communal land and/or in rural areas.

ORCID

Rushiella Songca http://orcid.org/0000-0002-2738-6615

Additional information

Notes on contributors

Rushiella Songca

Rushiella Songca is an Associate Professor at the University of South Africa’s College of Graduate Studies. Her research focuses on children’s rights from multi-disciplinary perspectives. She has extensive experience in teaching and research in the areas of children’s rights. Email:[email protected].

Notes

1. The spelling of womxn is used as a term that is more inclusive and that draws attention to the prejudice, discrimination and institutional barriers womxn have consistently faced. It intends to indicate that womxn are not an extension of men and to include trans-women and women.