Die landelike swart vrou se reg op grondbeheer
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In almost all legal systems gender has a significant influence on a person's status, rights and obligations. In the African customary law gender also plays an important and differentiating role in the status, rights and obligations of individuals. More specific, for purposes of this study, rural black women's access to and control over land are restricted by gender. Land control in the African customary law is usually characterised by communal land tenure. Although this form of land tenure is in theory beneficial to all members of a particular community, the detrimental effect of social assumptions, set gender roles, perpetual minority of women and the former succession principle of male primogeniture, often caused that women were discriminated against within a communal land tenure context. A woman's access to and use of land is often subject to a relationship with a man (tribal head, tribal council, father, husband, son, brother or uncle). Not only do black rural women have to endure the discriminating effects of their own culture and tradition as a result of their gender, the pre-1994 South African law also restricted their access to secure land tenure by racial discrimination. The position of women in general has dramatically improved since the implementation of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Legislation and a subsequent land reform policy were enacted in accordance with section 25 of the Constitution, which makes it potentially possible for women to obtain rights in property. Such legislation include the Communal Property Associations Act 28 of 1996, which provides for fair and inclusive decision-making processes, equality of membership, democratic processes, fair access to property and accountability and transparency within a communal property association. The Communal Land Rights Act 11 of 2004 explicitly states in section 4(3) that a woman is entitled to the same legally secure tenure, rights in or to land and benefits from land as a man, and no law, community or other rule, practice or usage may discriminate against any person on the ground of the gender of such person. In this study the effect of the gender specific provisions in the Communal Property Associations Act 28 of 1996 and the Communal Land Rights Act 11 of 2004 will be evaluated with reference to case studies, to determine whether the state's theoretical commitment to gender equality within the land reform policy has been realised in the case of communal land and the improvement of the position of black rural women's access to land.
- Law