Anthony Diala is Professor of African legal pluralism and Director, Centre for Legal Integration in Africa, University of the Western Cape. | Supplied
ANTHONY DIALA
A recent ruling by the Johannesburg High Court in South Africa has put the definition and control of the “family house” under African customary law under the spotlight. The ruling touches on sensitive issues of cultural heritage, statutory laws of property, and South Africa’s history of racial discrimination.
It highlights the tension between customary norms, which underlie the idea of a communal family house, and the common law, which restricts ownership to the individual whose name appears in a title deed. The notion of a family house is not provided for in South African law. And prior to this ruling, it was unclear how control in this type of property should be exercised by extended family members.
The ruling concerns a property in Soweto, Johannesburg. In 2016, Sylvia Dhlamini obtained an eviction order against Nomthandazo Dhlamini and other family members. They then challenged this order. The respondent, Sylvia, claimed to have exclusively inherited the house from her deceased father and uncle of the first applicant, Nomthandazo. Nomthandazo and other family members claimed it is a family house. They defined it as any house used and informally transmitted through family members rather than through an individual. They claimed that Sylvia’s father was merely a custodian of the house where members had resided since the 1960s.
On October 30, 2024, the court ruled that the property “constitutes a family house as envisaged by the customary laws of… South Africa”. It directed the registrar of deeds to transfer the title “in the name of Nomthandazo Dhlamini as custodian of the family house, with a caveat that it is a family house”. This caveat restricts any unilateral attempt to sell the property or evict its family occupants.
I have researched family property under African customary law, so I know the importance of a family house for traditional ceremonies such as marriage, child naming and coming of age. Also, it is a refuge for family members who fall on hard times.
The ruling sets a precedent for the status of African customary law in South Africa. But, based on recent research, I believe that legislative recognition of a family house is needed if customary law is to be taken seriously as a source of law in its own terms rather than through the lens of the common law.
Legislative recognition, however, requires sensitivity to the complexities of African customary laws.
Troubled history of recognition
Customary law was marginalised by the imposition of European laws under colonial rule. Then, under apartheid, property ownership by black Africans suffered from policies of dispossession. The Natives Land Act of 1913 gave Africans control over less than 10% of the land in South Africa, leaving over 90% under white control. From 1948, apartheid racial segregation created the homeland system, which drove black people away from economically viable lands and sequestered them along ethnic lines, sometimes in “townships”.
From 1988, new laws enabled black Africans to obtain ownership of houses through registered titles. But it had unintended consequences: only one name (of a family member) could appear on title deeds.
Legal titles ignored the communal, welfare-oriented character of the family house. Unsurprisingly, some titleholders began to claim sole ownership of family houses in townships. Since the Deeds Registration Act does not recognise a family house, many people become homeless when titleholders evict them or sell the family house.
The situation changed after apartheid ended. Section 211 of the current Constitution, which became law in 1996, requires the courts to: “apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law”.
Despite the constitutional mandate to apply customary law, it took several decades for judges to recognise the family house under customary law.
In 2022, the Pretoria high court stated: “There simply is no category of ‘family house’ in the Deeds Registries Act. Customary law is still subordinate to common law, despite the various rulings of the Constitutional Court to recognise it.”
Pertinent questions
Legislative recognition of a family home requires sensitivity to African customary laws.
Firstly, many traditional communities consider the family house a sacred site in terms of traditional beliefs.
In precolonial times, Africans revered ancestors, lived in communal settings, and produced wealth as a group. They entrusted family leadership to the oldest male. He performed rituals in the family house as mediator between the spiritual and material worlds.
The question is: how should these notions determine control of the family house in modern times?
Secondly, legislative protection is needed because in 2018 the high court interpreted a “family house rights agreement” as a personal arrangement without binding force. The court reasoned that a property could have been bought by an individual rather than a collective. If someone bought a house with their individual income and allowed family members to live there, the occupants could later claim the property was a family house.
So, is a family house identified by how it is purchased or how it is used? Given the blurred lines between rural and urban living, can there be more than one family house?
Thirdly, the Dhlamini property was registered in the name of a woman who sought to evict other family members. This contradicts patriarchal views of control over family houses. The ruling implies that the titleholder of a family house is merely a custodian. This is a thorny issue in matrimonial property division during divorce. Since some communities attach spiritual roles to the family house, they exclude it from matrimonial property. This exclusion could prejudice women who contributed to the improvement of the family house.
The Dhlamini ruling underscores the precarious legal rights of South Africans to their family homes where the law doesn’t recognise communal rights. A “family house rights agreement” to accompany title registrations is insufficient.
In any case, judges face a number of questions: to what extent do ancestral beliefs influence the definition of a family house? How does customary law accommodate title to a family house where the title is conferred through a written will? How should a family house be treated if a divorcing woman spent money to maintain the house?
As an emotive cultural symbol, the family house occupies a unique place in South Africa’s legacy of land dispossession, which influences its socio-economic development. Now that it has obtained judicial recognition, it requires legislative protection to build a more just and equitable South Africa.
Diala is Professor of African legal pluralism and Director, Centre for Legal Integration in Africa, University of the Western Cape.
This article was first published in The Conversation.
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