Since the end of apartheid, land reforms have been one way of righting the wrongs to which the black South African majority was previously subjected. But many black women have little or no opportunity to own land, due to the customary laws that still govern ownership rights in rural South Africa. This is explored in a new thesis from the University of Gothenburg, Sweden.
Annika Rudman has studied the relationship between legislation, customary law and opportunities for development in relation to black women's ownership rights and the land reforms implemented in South Africa since 1994.
"The values that govern South Africa's land reforms concern the right to equality between men and women and a prohibition on racial discrimination, but at the same time these have to be balanced against local customary law and the traditional forms of leadership associated with this. Therefore, each reform must take into account the fact that conflicts can arise between the different value systems," says Annika, who is a PhD student in the field of peace and development research at the University of Gothenburg.
Equality and pluralism
The change process currently under way in South Africa is taking place within the new official legal framework, which emphasises equality and pluralism.
"Taking as my starting point the new constitution, which came into force in 1997, I have examined the function and status of customary law in South African land reform, and have attempted to highlight the legal problems many black South African women have to deal with when they try to gain access to land through the new system," says Annika.
In her thesis she points out the dangers of building new ownership structures around the often patriarchal customary law structures.
"Traditional leadership in South Africa has a prominent role to play in the struggle to increase respect for equality between men and women, particularly in rural areas," says Annika.
The study therefore recommends that national guidelines be introduced for how the traditional leadership in South Africa can approach and implement equality in relation to the principles of customary law that govern land ownership in many of South Africa's various cultural groups.
"These recommendations are based on the idea, launched by the South African Constitutional Court, that it is the traditional leadership that should be the driving force in the issue of developing customary law in line with the requirements for equality that are set out in the constitution," says Annika.
In addition to the legal analysis, the thesis puts South Africa's land reforms in a development context, and studies the possibility that by protecting women's rights, it will help to reduce the growing poverty among women in South Africa, which has in recent years been worsened by the spread of HIV/Aids. The material for the thesis was collected during three years of fieldwork in various parts of South Africa.