Breaking ground: women still need to fight for equal property rights

Fatima Gattoo

Director of Real Estate Law at leading law firm Cliffe Dekker Hofmeyr (CDH), Fatima Gattoo, lays the foundation for the discussion we should be having around women and property.

Our Constitution promises the right to equal protection and economic opportunity. Yet, despite these formal assurances, the reality remains that women face significant barriers to owning, inheriting, and controlling land or property.

The 2023 Land Audit revealed stark disparities in land ownership. It revealed that women only own 13% of farms and agricultural land, compared to 71% owned by men. Similarly, it also revealed that only 17% of erven are owned by women as opposed to 46% owned by men. The hard truth is that traditional ownership is disproportionately skewed in favour of men.

If we dig deeper into the ramifications of this inequity, we’ll find that it not only affects women but also has profound implications for their families, limiting their economic stability and opportunities for generational wealth. The data underscores the persistent challenges in achieving true equality in property rights, which is essential for the well-being and empowerment of women and their families.

Understanding our obstacles
The challenges women encounter are multifaceted, including insufficient government capacity to enforce gender equality; cultural and social norms that curtail women's influence in communal decision-making; and inheritance systems favouring male succession. But it doesn’t end there. The restoration of communal land to communities has also failed to substantially improve women's land rights.

Compounding these issues is the affordability gap driven by disparities in earnings between men and women. Addressing these challenges are crucial for advancing gender equality in property rights and promoting the economic empowerment of women and their families.

The importance of gender equitable property ownership
Equitable property ownership empowers women, enabling them to contribute more significantly to their households and communities. Addressing gender disparities in property rights can help rectify historical injustices rooted in colonial and apartheid-era laws.

South Africa’s pluralistic legal system, which includes statutory and customary laws, often places women at a disadvantage. But we know that reforms that enhance women’s property rights are essential for promoting social justice and equality. So why is there still such a big disparity?

We can’t argue with the facts. Secure access to land and property for women is linked to improved agricultural productivity and food security, as women often play key roles in farming and food production in rural areas. This would foster economic resilience and contribute to the sustainable development of communities over time.

The problem is, that it’s not enough to want to change the status quo, we have to understand the laws that drive it and how they need to change.

It begins with legislation
The legislative framework in South Africa addresses gender equity in property ownership and development in several ways:
• Section 9 of the Constitution prohibits discrimination on various grounds, including gender. This foundational principle ensures that all laws and regulations related to property ownership and development must promote gender equity.
• Although section 25 of the Constitution does not explicitly mention gender, its inclusive approach to property rights and land reform can benefit women, especially those historically disadvantaged.
• The Restitution of Land Rights Act facilitates the inclusion of women in land restitution process.
• The Communal Property Associations Act, specifically sections 8 and 9, support the participation of women in communal property management.
• Section 6 of the Extension of Security and Tenure Act and section 3 of the Land Reform Act provide security of tenure and land acquisition rights to vulnerable groups, including women.

However, the National Building Regulations and Building Standards Act and the Spatial Planning and Land Use Management Act do not specifically address gender issues. This kind of oversight can lead to women’s needs being overlooked in urban planning and development projects.

How do we move forward?
My vision for gender equity in property ownership is rooted in achieving equal rights and opportunities for South African women. We need to dismantle historical barriers that have marginalised women from owning property and participate fully in the development processes.

Through the introduction of legal reforms, inclusive policies, and target support, the goal of empowering women economically through access to property ownership can be realised. Given the right mix of education and capacity-building initiatives, we can enable women to contribute effectively to property management and urban development, growing more inclusive and sustainable communities.

By fostering gender-sensitive approaches, we can create a future where women are empowered as equal stakeholders in the country’s property landscape, driving social progress and economic prosperity over the next decade.

Laying the foundation of female property owners
Improving the ability of women to own or develop property requires access to bank facilities in South Africa. Women who stay in rural areas tend to lack access to mainstream banking facilities, so alternative finance models and development finance mechanisms must be supported and encouraged.

Additionally, addressing the role of societal norms that dictate women’s behaviour is crucial to overcoming the systemic exclusion they face. For women’s status in the economy to be truly transformed, a national discussion around the various gender stereotypes and practices is a necessity. This will help to dismantle the barriers that hinder women’s economic participation and promote a more inclusive and equitable society through the rule of law.