Upgraded Land Tenure Rights Bill in current form stalls in Western Cape legislature

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  • The Western Cape government's committee on agriculture has decided not to support the amended Upgrading of Land Tenure Rights Amendment Bill because, in its current form, it might not survive a court challenge.  
  • A majority on the committee found it had not been sufficiently advertised for public comment and did not cover customary and tribal land.
  • The "Ultra Bill" had been challenged by a North West women who was infuriated to find she was being evicted because of an old apartheid law that only recognised men as heads of households regarding right to tenure. 

A majority on the Western Cape government's standing committee on agriculture, environmental affairs and development planning decided not to concur with the amended Upgrading of Land Tenure Rights Amendment Bill.  

Most of the committee members found that in its current form it will not hold up to a court challenge. 

This because it was apparently not sufficiently advertised for public comment by Parliament, and did not cover customary and tribal land. 

The amendment was ordered by the Constitutional Court because the previous version was found to discriminate against African women who had had no official say in land tenure rights and in whose name a title deed could be registered when tenure was converted to ownership.

The case was heard in court after Matshabelle Mary Rahube put her foot down when she was told she was being evicted from her home in Bophuthatswana, a territory in North West previously administered by a quasi-government set up by the apartheid regime.

READ | Parliament hears the pros and cons of land expropriation without compensation

According to the Constitutional Court judgment, she brought the application in the interests of other women who have been deprived of title to their homes just because they were women. This was because of apartheid laws and Section 2(1) of the "Upgrading Act". 

Rahuba had lived in a house in North West with extended family for years, leaving briefly for a short-lived marriage and then returning.

Her grandmother was considered the owner of her house even though she did not have a title deed because she too probably could not get one because she was a woman. 

Rahube's brothers and an uncle moved out between the 1980s and 2000. After her grandmother died, Rahube's brother, Hendsrine, was nominated by the family to be the holder of a "Certificate of Occupation", and because of this was issued a "Deed of Grant" in 1988. 

This in terms of Proclamation R293 of the Native Administration Act, later renamed the Black Administration Act.

The "Upgrading Act" was enacted in 1991 and automatically converted the occupation and deed rights into ownership rights, but it was only for men. Other claimants to the property did not automatically have a say in this.

In 2009, her brother started eviction proceedings against her and the rest of her family living there, and she would not have it.

Rahube decided to challenge the property having been registered in his name just because he is a man. She also challenged the law that other people who felt they had rights to the property were not automatically granted the right to make submissions. 

The Constitutional Court ordered that Parliament had to amend the Upgrading of Land Tenure Rights Act after finding it discriminated against the rights of women to own property, and other people who had interests in the property did not automatically have a say over who it was registered to.

READ | SAHRC report finds Gauteng's informal settlement projects need more monitoring

The National Assembly passed the Upgrading of Land Tenure Rights Amendment Bill in December 2020 and it was sent to the National Council of Provinces for concurrence.  

This case not only verified apartheid laws only recognised African men as the head of a household and only they could get these Certificates of Occupation and Deeds of Grant in their name, but it also confirmed African women were excluded from having land tenure rights. 

However, a majority of members of the Western Cape legislature's committee on agriculture on Wednesday said the processes regarding the amendment passed by Parliament and referred to it for concurrence, might render even the new version unlawful.

They stated it had not been published for comment before being submitted to Parliament and this might render it unconstitutional.   

The committee also felt in its current form, there needed to be an option other than having to go to court if somebody was aggrieved, because not everybody had the means to go to court. It also did not take into account people who live on tribal or customary land.

The Western Cape's agriculture committee also heard there was no comment from members of the public on the bill to the Western Cape legislature. 

ANC MPL Pat Marran was in the minority in his support for the bill in its current form. 

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