ULTRA – The CC once again confirms the importance of women’s rights in Rahube v Rahube and Others [2018] ZACC 42

This case involves the apartheid era, where not only rights of black people were oppressed but also rights of women. In this case, an entire family lived together in a property – that is, the applicant, her grandmother, uncle, three brothers (including the first respondent) and two children.

September 28, 2022

After the grandmother died, one of the brothers (the respondent) was chosen by the family to be the holder of the certificate of occupation in respect of the house. In 1988, by virtue of his earlier nomination, the first respondent was issued a deed of grant. The deed of grant was issued in terms of Proclamation R2937, which was promulgated in terms of the Native Administration Act that was later renamed the Black Administration Act.

The Upgrading of Land Tenure Rights Act 112 of 1991 (ULTRA) automatically converted rights in property, such as deeds of grant, to ownership rights. This meant that the first respondent, as the holder of the deed of grant, automatically became the owner of the property in terms of section 2(1) of ULTRA.

The issue in this case is that formal titles in land could only be given to heads of families and during that era only men could be heads of families. Women fell under the control of Family Heads (men). This was a clear discrimination based on gender and sex. The High Court confirmed that the purpose of ULTRA was to provide for the conversion into full ownership of more tenuous land rights which had been granted during the apartheid era to Africans. ULTRA was part of a scheme of legislation that was enacted to address the injustices caused by the colonial and apartheid regimes.

The problem of the Act is that it excludes African women. In upgrading titles in land, the Act re-enforced the position created by the apartheid laws, specifically the Black Administrative Act which oppressed rights of women. Under section 2(1) of ULTRA, their vulnerability was worsened as they did not have the opportunity to register their interest in a property before the title was automatically upgraded in favour of the male family head.

The Constitutional Court’s automatic upgrading of land tenure rights amounts to indirect differentiation by the state between men who could hold these titles and women who could not. The respondent, having been automatically upgraded as the owner of the house, tried to sell the property and the applicant challenged section 2(1) of ULTRA.

The High Court indicated that section 2(1) violates section 9 of the Constitution. It discriminates against women based on sex and gender. The Constitutional Court confirmed this and interdicted the respondent against selling the property and ordered Parliament to rectify the Act within 24 months.

Subsequent to this, section 2 of ULTRA has been amended to make provision for a new procedure for the upgrading of tenure rights. Application must now be made to the Minister for the conversion of land tenure rights into ownership in respect of a formalised township which was registered and opened on or after the commencement of the ULTRA.

In anticipation of the date of coming into operation of the amended section 2, there are no directives from the Chief Registrar of Deeds yet on how to deal with the amendments. It is, however, clear that there is no longer a procedure for the automatic conversion of tenure rights into ownership.

Written by Wessel de Kock

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