Women’s Land Rights and Customary Law Reform in South Africa: Towards a Gendered Perspective

2015 ◽  
pp. 389-422
Author(s):  
Vinodh Jaichand
Keyword(s):  
South Africa ◽  
Land Rights ◽  
Customary Law ◽  
Law Reform

Customary Law and Communal Property in South Africa

2018 ◽  
pp. 127-151
Author(s):  
Juanita M. Pienaar
Keyword(s):  
South Africa ◽  
Land Reform ◽  
Land Rights ◽  
Customary Law ◽  
Communal Property ◽  
Challenges And Opportunities ◽  
Constitutional Right ◽  
Communal Areas ◽  
Traditional Authorities ◽  
Recent Policy

In the geographical areas forming the focus of this contribution, the traditional communal areas in former Bantustan and homeland areas in South Africa, communal ownership flows from the application of customary law, linked to the constitutional right to culture. Living customary law, embedded in communities, entails a dynamic system of land rights which are negotiated in line with particular needs. Recent policy and legislative developments, however, seem to bolster rights of traditional authorities, thereby impacting on land rights and effectively negating spontaneous negotiation. Conceptual clarification in this contribution embodies the complexity linked to communal property, specifically land, in light of the aftermath of apartheid, the commencement of an all-encompassing land reform programme and the operation of a dual legal system comprising customary law and Western-style legal paradigms. The challenges and opportunities for law reform are explored in this context of inter-connectedness of customary law and communal property.

scholarly journals An Equal Right to Inherit? Women’s Land Rights, Customary Law and Constitutional Reform in Tanzania

2017 ◽  
Vol 26 (3) ◽  
pp. 291-310 ◽  
Author(s):  
Helen Dancer
Keyword(s):  
Holistic Approach ◽  
Land Rights ◽  
Customary Law ◽  
Law Reform ◽  
Test Case ◽  
Constitutional Rights ◽  
Inheritance Law ◽  
United Republic Of Tanzania ◽  
Kinship Relations ◽  
Equal Right

This article explores contemporary contestations surrounding women’s inheritance of land in Africa. Legal activism has gained momentum, both in agendas for law reform and in test case litigation, which reached the United Nations Committee on the Elimination of Discrimination against Women in ES and SC v. United Republic of Tanzania. Comparing the approach of Tanzania to that of its neighbours, Uganda, Kenya and Rwanda, this article explores patterns of resistance and omission towards enshrining an equal right to inherit in land and succession laws. It identifies two main reasons: neoliberal drivers for land law reform of the 1990s and sociopolitical sensitivity surrounding inheritance of land. It argues that a progressive approach to constitutional and law reform on women’s land rights requires understanding of the realities of claims to family land based on kinship relations. It calls for a holistic approach to land, marriage and inheritance law reform underpinned with constitutional rights to equality and progressive interpretations of living customary law.

Legislative Recognition of Muslim Marriages in South Africa

2004 ◽  
Vol 32 (2) ◽  
pp. 271-282 ◽  
Author(s):  
Rashida Manjoo
Keyword(s):  
South Africa ◽  
Customary Law ◽  
Law Reform ◽  
Negative Consequences ◽  
The Law ◽  
Personal Law ◽  
Secular State

Both theoretically and constitutionally, South Africa is a secular state with many religious and non-religious groupings co-existing with each other. The reality is that there is widespread observance of both religious and customary law — despite a lack of or limited recognition thereof under the apartheid government. The non-recognition of other forms of law in South Africa has had negative consequences and the remedial efforts of the present government is visible both in the area of customary law and also Muslim Personal Law, hereinafter referred to as MPL. This paper will confine itself to discussing the law reform efforts in respect of the recognition of Muslim marriages.

Religion, custom and gender: marital law reform in South Africa

2013 ◽  
Vol 9 (3) ◽  
pp. 386-410
Author(s):  
Catherine Albertyn
Keyword(s):  
South Africa ◽  
Customary Law ◽  
Law Reform ◽  
Private Regulation ◽  
Religious Law ◽  
Private Power ◽  
Legal Outcomes ◽  
And Gender ◽  
Legal Processes

AbstractThis article analyses the legal processes of recognising customary and religious (Muslim) marriages in South Africa's constitutional democracy. It argues that the best interpretation of the Constitution requires laws that address cross-cutting issues of recognition and redistribution relating to religion/culture and gender, and that the best way to achieve this is through a ‘pluralistic solidarity’ that enables dialogue on how to secure cultural and religious recognition without undermining the rights of women. It examines how the different processes of cultural/religious law reform in South Africa have become sites of struggle over the meaning of collective and individual identity, public/private power, citizenship and rights, and gender and democracy, and how particular sociopolitical conditions, ideological struggles and overarching conflicts and interests have shaped each process of law reform. Thus it distinguishes between the ideal and the possible, the normative and the strategic, in law reform. It notes the conditions under which the incomplete process of recognition of Muslim marriage law has seen a greater deference to religious norms and private regulation than customary law reform, which saw a greater institutionalisation of gender equality norms. The article concludes by emphasising the open-ended nature of legal processes, the possibilities of using courts to challenge ongoing inequalities in religion and custom, and the ever-present role of politics in legal outcomes.

scholarly journals Recent Developments Regarding South African Common and Customary Law of Succession

2017 ◽  
Vol 10 (1) ◽  
pp. 106
Author(s):  
MC Schoeman Malan
Keyword(s):  
South Africa ◽  
South African ◽  
Case Law ◽  
Customary Law ◽  
Law Reform ◽  
Bill Of Rights ◽  
Constitutional Development ◽  
Recent Developments ◽  
Law Of Succession ◽  
Made In

This article will concentrate on the development in the common law of succession and administration of estates versus the customary law of succession and inheritance as well as the winding up of estates pursuant to constitutional tendencies, case law, and statutory reform over the last ten years. The principles of customary law of succession and inheritance have become a contentious issue since the commencement of the Constitution and Bill of Rights which provide for a human rights dispensation in South Africa. As a pluralistic legal system was retained, the inevitable conflict between the principles of customary law of succession and the Constitution soon came to the fore. Although the South African Law Reform Commission reported on this issue and submitted their recommendations to the Minister of Justice and Constitutional Development, the report was never formally published. Aspects of intestate succession and the administration of estates of deceased blacks were challenged in court on constitutional grounds. This eventually lead to a number of principles of customary law being declared unconstitutional, and consequently invalid, by the Courts who had no choice but to provide relief until such time as the legislature enacted a lasting solution. As far as the intestate succession is concerned, the Intestate Succession Act 81 of 1987 was extended to all persons in South Africa, including those adhering to a system of customary law. No distinction will, for purposes of succession, be made in future between legitimate and illegitimate children, between a first born son and other siblings or between men and women. Notwithstanding several court judgments in this regard, the Intestate Succession Act has not been amended by the Legislature as yet. As far as the historical discrepancy in the winding up and administration of estates is concerned, all estates, including intestate estates of black persons that have to devolve under customary law, in the future will be administered by the Master. Magistrates no longer will be responsible for supervising and administering customary estates.

scholarly journals RIGHTS OWNERSHIP TO CERTIFIED LAND CONFRONTED WITH THE CUSTOMARY LAW IN THE LEGAL SYSTEM IN INDONESIA

2018 ◽  
Author(s):  
Saim Aksnudin
Keyword(s):  
National Development ◽  
Land Rights ◽  
The State ◽  
Customary Law ◽  
Legal Certainty ◽  
The Status ◽  
Need For Support ◽  
The Law ◽  
The Right ◽  
Ownership Of Land

In the national development the role of land for the fulfillment of various purposes will increase, either as a place to live or for business activities. In relation to that will also increase the need for support in the form of guarantee of legal certainty in the field of land. The result of the research is the conception of the state of Indonesia is a state law, which contains the meaning in the administration of government and the state based on the law, the protection of the law is a universal concept of the rule of law. The legal certainty on land rights as intended by the UUPA encompasses three things, namely the certainty of the object of land rights, certainty on the subject of land rights and certainty about the status of landrights. Legal conception of land title certificate is a proof that issued by authorized legal institution, containing juridical data and physical data which isused as evidence of ownership of land rights in order to provide assurance of legal certainty and certainty of rights to a plot of land owned or possessed by a person or legal entity. With the certificate of rights, it is expected that the juridical can guarantee the legal certainty and the right by the state for the holder of the right to the land. This country's guarantee is granted to the owner or the holder of the certificate may be granted because the land is already registered in the state land administration system.

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