Facing destitution when her marriage broke down, 72-year-old Agnes Sithole went to court to challenge a sexist law – and won not only a share of her husband’s property but a legal victory that will protect some 400,000 other black South African women.
Under South African law, married couples own all their assets jointly and both must consent to major transactions.
But for black women married prior to 1988, the husband owned all matrimonial assets and could sell them without consulting his wife – until Sithole’s landmark High Court win this month which overturned the discriminatory law.
“This is a major judgment for South African women,” said Aninka Claassens, a land rights expert at the University of Cape Town, responding to the ruling against sections of the Matrimonial Property Act of 1984 and amendments made in 1988.
“If you haven’t got property rights as a woman, you are more vulnerable to stay in an abusive marriage. This case changes these rights,” she told the Thomson Reuters Foundation.
Across South Africa, a quarter century after racial segregation and white minority rule under apartheid officially ended through a negotiated settlement, land and property ownership remain sensitive topics.
Sithole’s legal victory in the eastern city of Durban could help an estimated 400,000 women by giving them more economic freedom, said the Legal Resources Centre (LRC), a human rights organisation that helped Sithole take her case to court.
Black women in rural South Africa face a “double whammy” said Claassens, as both apartheid and customary laws – where land is handed down from father to son – have deprived them of property rights.
Traditionally, women are regarded as inferior to men in Sithole’s KwaZulu-Natal province, said women’s land rights activist Sizani Ngubane, who has campaigned against evictions and abuse of women in rural areas for more than 40 years.
Male-dominated tribal authorities hold great sway over rural communities, with the Zulu King Goodwill Zwelithini controlling 2.8 million hectares of land, an area the size of Belgium, under an entity called the Ingonyama Trust.
Ngubane, nominated as one of three finalists in the 2020 Martin Ennals Award, a prestigious human rights prize, said this month’s Durban court ruling was significant.
“This will make a difference in terms of women’s land and property inheritance,” said Ngubane, 74, who has faced death threats for her activism. “Women can take decisions if they own property. They can have equality.”
Ngubane has gone to court to challenge the Ingonyama Trust, which she said only leases land under its control to men, with widows being evicted from their homes when their husbands die.
Despite the legal victory, women’s rights experts were wary of celebrating too soon.
“The symbolism of this judgment is important … hopefully, if enough women know about it they can begin asserting their rights,” said Claassens.
“But unfortunately, since (the introduction of democracy in) 1994 we have seen the space for change continue to be undermined by new patriarchal laws,” Claassens said, highlighting legislation that has bolstered the power of traditional leaders.
The LRC plans to hold workshops in rural areas to educate women, chiefs and the courts about the ruling.
“This will require a lot of hard work and buy-in from other non-profits to show women how they can benefit from this legal change,” said Sharita Samuel, an LRC attorney who worked on Sithole’s case.
For Ngubane, such grassroots work is critical in improving the lives of rural South African women.
“We know the courts can protect women,” she said.
“The biggest challenge for us is changing attitudes of men on the ground who believe that women are children. We are so much more than that.”
Written by: Kim Harrisberg