By Vivian Warby
For generations women struggled for the right to own property, but this is changing.
Today, women own – either on their own or in partnership with other men or women – more than half of the residential property stock registered in South Africa, according to recent stats from Lightstone.
These changing ownership patterns reflect the growing participation of women in the economy and Lightstone data suggests that women-only buyers are edging towards buying more expensive properties.
By the end of last month – July 2022, women accounted for, individually or in partnership, 57% (3 896 595) of the total volume of properties in the market (6 868 778), while this accounted for 54% (R3 440b) of the total value (R6 414b) of residential properties registered at the Deeds Office.
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And the percentage of properties purchased by women-only is steadily increasing, from 16% in 2018 to 21% in 2021 with the number up another percent for the seven months to end July 2022, according to Lightstone.
These changes are thanks in part to the work done to break down a number of archaic laws that sought to keep women out of property.
It’s no secret that access to land and property is essential in securing financial freedom for women, as well as giving them individual agency and autonomy, says the Legal Resources Centre (LRC), which has in the past brought three cases to court to secure the rights of disadvantaged women.
“The potential of women to own and control land fosters their power of self-determination; eliminates dependence; and enables them to participate meaningfully in decision-making structures,” says the LRC.
Esteani Marx, from Lightstone, agrees. “One of the most noteworthy aspects of liberation that celebrates female empowerment is that women can own assets – independently.
“The average price women are buying their homes for is just shy of R800 000 – the highest it’s been in the last five years,” says Marx.
“Another positive finding from our data is the slight average increase in properties owned by single females within the R1.5 million and up price bracket – especially in a depressed economic environment.”
Another big positive is the growth in single females buying property in the Eastern Cape, which is “encouraging”.
Prior to the Covid-19 pandemic and the subsequent economic downturn, there was an increase in the number of young, black women driving the property market, says Gugu Sithole-Ngobese, founder of Women in Planning SA (Wipsa).
Female property ownership – or lack thereof – has always been an issue, she says.
In the past a slew of laws and customs hindered women from making strides in the property world and prevented them from owning or inheriting land – laws and customs which sought to give women the status of children.
The LRC agrees that legal systems have “often been biased against women, ensuring that their access to property was impeded”.
The LRC reiterates: “Land ownership and property rights are integrally connected to the power of self-determination and this is particularly important for a class of persons historically oppressed by society and the law – elderly black women.”
A short while ago, a landmark ruling in the Durban High Court saw Agnes Sithole, then 72, who had spent almost 50 years married, raising four children and supporting her husband’s business and growing her own, score a victory providing her with a share of her husband’s estate.
It also sought to protect about 400 000 black elderly women in South Africa whose rights were also affected by the discriminatory law, dating back to the apartheid era, under which black women married before 1988 were denied ownership of family property as all matrimonial assets belonged to the husband.
The LRC represented Sithole and the Commission for Gender Equality in the case.
Sithole’s case is well known now, and will go down in the history books as a pivotal moment in women’s rights to land and property ownership.
The judgment unpacks “societal dynamics such as patriarchy, gender stereotyping and inflexible application of oppressive cultural practices which perpetuates intersectional discriminatory consequences for black women”, says the LRC.
Facing impoverishment and possible homelessness when her marriage ended, Sithole challenged the discriminatory law. The new ruling stipulates that all such marriages are to be declared in community of property, a marital property law that treats the property of either spouse as joint property regardless of who paid for it.
Sithole’s case plus others, including that of Elizabeth Gumede and Thokozani Maphumulo, also fought by the LRC, “illustrate the persistence of patriarchy, the vulnerability of women during and upon termination of a customary marriage and the shortcomings of legislation enacted to protect such women”.
“The court cases and the Recognition of Customary Marriages Amendment (RCMA) Act 1 of 2021 recently passed by Parliament reverses this discrimination.”
Now there are plans to amend the act to further regulate the proprietary consequences of customary marriages entered into before the act came into effect.
“The affected women belong to a generation of black women who were born, raised and married under apartheid – during a time when laws actively prevented their access to freedom of movement, education, and the right to hold property.”
Prior to Sithole there have been other wins for women - one of the most impactful reform being the General Law Fourth Amendment (1993), which for the first time repealed the husband’s marital power over the person and property of his wife, allowing a majority of women to be head of household and to get a job, sign a legally binding contract, register a business, and open a bank account without the permission of their husbands. It also granted them the same rights to immovable property as men.
Sithole’s judgment is a step in the right direction to “fully abolish marital power”.
Even before Sithole’s case, South African women – particularly single women –had started to rival single men in homeownership.
Women are also emerging as the primary home loan applicant in many instances because they often are the higher earner in the household.
Statistics show the number of women purchasing homes in their own right is increasing at a faster rate than men, so now more single women own properties than single men.
However, women still need to be armed with the tools to build wealth and obtain appreciating assets, such as property, says Sithole-Ngobese.
SIDEBAR
Elizabeth Gumede case:
In 2008, the LRC represented Ms Gumede in the case Elizabeth Gumede v President of RSA. The Gumedes were married in 1968 and therefore their marriage was governed by customary law regulated by apartheid-era legislation – the KwaZulu Act and Natal Code which stipulated that a husband is the owner of all family property. When Mr Gumede brought divorce proceedings against Ms Gumede, the LRC challenged the constitutionality of Section 7 of the RCMA, which would have left Ms Gumede vulnerable and homeless in her old age. The Constitutional Court confirmed that Section 7(1) of the RCMA is inconsistent with the Constitution and invalid to the extent that its provisions related to monogamous customary marriages.
Thokozani Maphumulo case:
In 2017, the LRC represented Ms Maphumulo, the intervening applicant in the Ramuhovhi v President of RSA case. Ms Maphumulo was the second wife in a pre-RCMA polygamous customary marriage and faced eviction from her home upon her husband’s death. The Constitutional Court declared Section 7(1) of the RCMA invalid with the Constitution insofar as it applied to polygamous customary marriages but gave parliament an opportunity to correct the defect within 24 months.
On March 2, last year, the RCMA Amendment Bill was passed by Parliament to give effect to the Gumede and Ramuhovhi orders.
The amendment will ensure that the default position for all customary marriages will be in community of property, unless stipulated otherwise in an antenuptial contract. The Bill also ensures that spouses in more than one customary marriage have joint and equal ownership rights and rights of management and control over marital property. These provisions would not invalidate the winding up of a deceased estate that was finalised or the transfer of marital property where the person receiving transfer was not aware that the marital property was subject to a legal challenge.
Sithole’s case:
Finally, the Sithole case (see main story) challenged Section 21(2)(a) of the Matrimonial Property Act on the basis that it maintained and perpetuated the discrimination created by Section 22(6) of the Black Administration Act, which deemed marriages between black couples to be automatically out of community of property. This was different to the position of other racial groups, whose marriages were automatically converted to being in community of property by the Matrimonial Property Act.