Background
During the 1970’s to early 1990’s the City of Cape Town’s (City) Housing Policy (the Policy) awarded houses to married couples jointly, but where the couple was unmarried (or the marriage was not legally recognised) the house was awarded to the male partner as the breadwinner of the family. This means that women married in terms of Muslim rites, whose marriages are not legally recognised, hold tenure through their husbands. Many women have contributed to the property not only by maintaining and keeping it but also have in many instances contributed to the payments of the installments over the purchase price of the property or by paying the rates, taxes and electricity.
The Women's Legal Centre (WLC) brought this discrepancy to the attention of the City and the Policy was amended in accordance with the Constitution which vests all South Africans with the right to equality and prohibits unfair discrimination on the basis sex, gender and religion.
The current Policy does not have retrospective effect, and so women who were excluded from applying for the purchase of property whilst the previous Policy was in operation, currently still suffer unfair discrimination in terms of the previous Policy. On the basis that the male spouse or partner is the signatory or a party to the agreement of sale with the City, only he has rights and obligations in terms of the agreement.
Despite their contributions, women have no entitlement to ownership of the property and ultimately do not have security of tenure. As a result their spouses or partners can evict them from the property once ownership has been transferred to them. Transfers of ownership take place only once the entire or most of the purchase price has been paid to the City. Many women have been evicted from these properties by their spouses or ex-spouses and often have no where else to reside or end up living in undesirable or unhealthy living conditions with their children. This problem is exacerbated by the state’s lack of available housing or shelter.
The case
A woman married in accordance with Muslim rites for 15 years has resided on the property situated in Belhar for the last 18 years and has contributed towards the payment of rates, water, electricity and rental.
Her marriage ended in 1998 when she obtained a fasaq (divorce). She and her 4 children were left residing in a house that would be registered in her husband’s name once it was paid off. The City was bound by its previous Policy and contractual obligations so therefore the property could not be registered into her name as a co- purchaser.
In consideration of the number of women that are being unfairly discriminated against in terms of the City’s practice to transfer immovable property into the names of the male spouse in pursuance of the previous Policy, the WLC, funded by Heinrich Boell Stiftung, challenged this in the Western Cape High Court.
The WLC approached the court on her behalf, and obtained an order that she be awarded 50 percent ownership of the immovable property.
The impact
This judgment has set a precedent for all women in the client’s position to the extent that women can now claim ownership over property which gives them security of tenure. At present the Centre awaits full written reasons for the judgment from Acting Judge Fortuin, the presiding officer who granted the order. Once in receipt of the reasons the WLC will engage with the City and other interested parties such as the National Department of Human Settlement to establish a process to assist other women who suffer the consequences of the intersection between the non recognition of Muslim marriages and the discriminatory housing policies of the past.
About the partner: The Women’s Legal Centre (WLC) is an independently funded non-profit law centre based in Cape Town, South Africa. Its core function is to advance women’s human rights, specifically black, socio-economically and politically disadvantaged women, through strategic litigation, training and legal advocacy. The WLC works in the areas of gender based violence, labour law, land law, relationship rights and reproductive and health related rights. The WLC also provides a free daily legal advice service to women as a tool to facilitating women’s access to justice.