In a victory for African women, the Constitutional Court has confirmed a High Court order declaring a section of the Upgrading of Land Tenure Rights Act (the "Upgrade Act") unconstitutional. The law indirectly prevented many women from becoming property owners.

This was as a result of apartheid era legislation which didn't recognise African women as holders of property rights. The law recognised African men as holders of these rights, which were converted into formal ownership rights by the act in the 1990s.

In a unanimous judgment written by Acting Judge Patricia Goliath, the court said the case was about an applicant who "seeks to vindicate her right to access to housing – a right which is intrinsically linked to her dignity," by challenging a piece of legislation which she said prevented many African women from owning property.

The issue dates back to the 1980s, when Hendsrine Rahube was nominated by his family to be the holder of a certificate of occupation of the family home. His sister, Matshabelle Rahube, her children and grandchildren had lived in the home since the 1970s. In 1988, Hendsrine was offered a deed of grant under a proclamation, under what would later become the Black Administration Act, even though he did not live there.

In 1991, the Upgrading Act was enacted, but it only came into effect in the former Bophuthatswana republic, now part of the North West, in 1998. The act automatically converted property rights like deeds of grant into ownership rights.

Hendsrine became the lawful owner of the home which his sister had lived in for over 20  years.

Proclamation 'racist, sexist'

This was news to Matshabelle, who became aware of this ownership arrangement when her brother tried to evict her in August 2009. Matshabelle challenged the constitutionality of the Upgrades Act in the High Court in Pretoria and won. That court held that a section of the act automatically converted land tenure rights into ownership without providing parties affected by this an opportunity to make competing claims.

"This exclusion was inherently gendered because, in terms of the proclamation (which resulted in Hendsrine being granted a deed of grant), women could not be the head of a family, and thus, could not have a certificate or deed of grant registered in their name," the Constitutional Court remarked on Tuesday.

The High Court also said that the proclamation was racist and sexist, and ruled that the Upgrading Act therefore recognised rights that had been granted unfairly. Worse, the act made these rights permanent in terms of granting ownership of property to men, without any review mechanism, the court found. Section 2(1) of the act was declared unconstitutional by the High Court on September 26, 2017.

In Tuesday's judgment, Goliath wrote that the historical context during which a particular provision of law was in force has been used by the court to interpret its validity on previous occasions.

"African women under apartheid were systematically disenfranchised in a number of ways. It is important to recognise that the pervasive effects of patriarchy meant that women were often excluded even from seemingly gender-neutral spaces. The perception of women as the lesser gender was, and may still be, a widely held societal view that meant that even where legislation did not demand the subjugation of women, the practices of officials and family members were still tainted by a bias towards men," wrote Goliath.

She said this was specifically true in spheres of life typically seen as masculine, such as property ownership and legal affairs.

Ruling to apply retrospectively

Goliath wrote that under apartheid, African women were essentially considered permanent minors, often forced to look after other people's children as domestic workers, and were dependent on the male heads of their households because they could not own property.

"Twenty-four years into democracy, a piece of legislation that reifies the factual position created by a racist and sexist apartheid act cannot pass constitutional muster," the Bench agreed. The court warned Parliament to "be aware of the omnipresence of patriarchy which will otherwise undermine even the noblest of legislative endeavours".

The court ruled that the section of the Upgrading Act in question "fails to reach the lowest threshold of constitutional validity", and gave Parliament 18 months to rectify it.

The ruling will apply retrospectively, except where ownership of property was confirmed by the act through "finalised sales to third parties acting in good faith; inheritance by third parties in terms of finalised estates; and the upgrade to ownership of a land tenure right prior to the date of this order by a woman acting in good faith".

Matshabelle was represented by Lawyers for Human Rights.