Report urges legal recognition of family homes to protect women and children

A recent study has shown that two out of every three deceased estates in South Africa are never reported, leading to family disputes that often leave women and children vulnerable to losing their homes.

“As the primary occupants — and caretakers — of family homes, women and children are disproportionately at risk of losing their tenure security or being rendered homeless in evictions,” reads the report, which was released on Tuesday. 

Titled A Gendered Analysis of Family Homes in South Africa, the report was anchored by the Socio-Economic Rights Institute of South Africa (Seri) and written by legal researcher Michael Clark with assistance from the Seri Women’s Spaces team. 

Women’s Spaces is a project executed by Rooftops Canada-Abri International with the financial support of the Canadian government provided through Global Affairs Canada.

“This report is a means of knowledge sharing across various regions such as Angola, Kenya and Uganda to bring awareness to socio-economic issues around the world and to fill that research gap,” said the coordinator of the Women’s Spaces project at Seri, Nerishka Singh.

The idea of a family home in South Africa involves extended family members, not just the immediate family. This complicates matters when a family member dies and their estate (property and assets) needs to be managed.

Nkosinathi Sithole, a senior attorney at Seri, said many disputes come to light only when they reach the litigation stage, often as eviction cases. 

But most disputes never make it to court. Almost two-thirds of deceased estates are never reported, which means many of the disputes remain hidden from the formal system that handles such matters.

All of the legal experts interviewed believed that the number of disputes over family homes taken to the courts is increasing. As senior attorney Thulani Nkosi said: “I think these cases have always been there, especially in Soweto. But more of them are finding their way through the court system nowadays. The problem is endemic.”

A major issue is poor investigations by officials when managing deceased estates. The Master’s Office, which oversees this process, gives a Letter of Authority to a family member, allowing them to distribute the deceased’s assets without court supervision.

According to the report, many family disputes involve arguments over who should get the letter. In some cases, the letter is misused to claim ownership of the family home.

The Master’s Office has limited powers to investigate and often accepts the first family member who approaches the office, at their word. This leads to disputes and potentially unfair decisions being made. 

The concept of a family home is influenced by both traditional customs and the country’s history under apartheid. During apartheid, women were not allowed to own property, especially in townships, with custodianship going to men. This still affects property rights today, often leaving women without legal recognition — deeds of grant or certificates — of their homes.

“Because of this, we have a gendered element that comes into play in obtaining family homes — the overall effect was that women, who had often occupied, used and improved family homes, were stripped of their rights to these homes,” said Clark. 

A social worker who attended the launch of the report in Johannesburg said that because family homes carry ancestral importance “women are often evicted so that the home can be passed on through the male bloodline”, which leaves many women and children vulnerable to homelessness. 

According to the report, a family home is a unique form of possession that consists of a mixture of private ownership and customary law ideas of ownership, in terms of which family members have rights to use, occupy and access the house. It is a form of urban custom.

The Constitution recognises that customary law is equal in status to the common law, which means family homes should already have legal recognition as a customary form of tenure.

“Given that family homes are not a legally recognised form of tenure, it is difficult to determine the exact prevalence of people who subscribe to or live according to notions of a family home,” the report states. 

The report recommends that the concept of a family home deserves legal recognition and protection as a customary form of possession. 

Another proposed intervention is to amend the system of land administration, including the registration of title through the Deeds Registries Office, to enable families to obtain strong rights over family homes.

It further advises the amendment procedure of the administration of deceased estates and transfer of ownership. 

The Deeds Registries Amendment Bill, which seeks to, among other things, amend the Deeds Registries Act of 1937, has been approved by parliament and is awaiting the final signature from President Cyril Ramaphosa. 

The amendments aim to streamline certain administrative provisions to provide for the recording of land tenure rights; regulate the powers of the minister and the Deeds Regulation Board and extend the application of waivers of preference; and introduce further punitive measures for deviant conduct.

“We understand the prevalence of family homes because of the disputes that arise within our country so these amendments might not fix every dispute but can pave the way,” Clark said.