
A recent ruling from the Johannesburg High Court in South Africa has brought attention to the notion and governance of the “family house” according to African customary law. This decision highlights important issues concerning cultural heritage, formal property legislation, and South Africa’s deep-rooted challenges with racial inequality.
It emphasizes the tension between customary norms that advocate for the idea of a communal family property and the common law that restricts ownership to the individual listed on a title deed.
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The family house concept lacks explicit recognition in South African law. Before this adjudication, it was unclear how extended family members should assert their rights regarding such properties.
This case revolves around a home in Soweto, Johannesburg. In 2016, Sylvia Dhlamini obtained an eviction order against Nomthandazo Dhlamini and additional relatives, who subsequently contested the ruling. Sylvia claimed that she was the only inheritor of the residence, inherited from her late father and uncle of Nomthandazo.
On the other hand, Nomthandazo and certain family members argued that the property is a family house, understood as a dwelling that has been used and informally passed among family members, rather than being under an individual’s ownership. They asserted that Sylvia’s father had merely served as a caretaker of the house, which had housed relatives since the 1960s.
On October 30, 2024, the court decreed that the property “constitutes a family house as envisioned by the customary laws of … South Africa.”
The court instructed the registrar of deeds to record the title “in the name of Nomthandazo Dhlamini as custodian of the family house, including a caveat that it is a family house.” This caveat prevents any unilateral actions to sell the property or remove its family occupants.
I have conducted research on family property within the framework of African customary law, recognizing the vital role that a family house plays in traditional celebrations such as weddings, naming ceremonies, and rites of passage. Additionally, it serves as a refuge for family members facing difficulties.
This ruling sets a precedent for the formal acknowledgment of African customary law in South Africa. However, based on recent research, I argue that a formal recognition of a family house is crucial if customary law is to be upheld as a genuine legal authority in its own right, rather than merely through the lens of common law.
Moreover, legislative recognition must take into account the intricacies present in African customary laws.
Historical Challenges of Recognition
Customary law was marginalized by the introduction of European legal systems during colonial times.
During apartheid, property ownership among black Africans was significantly affected by dispossession policies. The Natives Land Act of 1913 allocated less than 10% of South Africa’s land to Africans, with the majority remaining in white ownership. After 1948, apartheid’s racial segregation established the homeland system, forcibly relocating black individuals from economically viable regions and segregating them by ethnicity, frequently confining them to “townships.”
Beginning in 1988, new legislation allowed black Africans to acquire ownership of properties through registered titles. However, this resulted in unintended complexities, as only one individual’s name (typically a family member) could be listed on title deeds.
Such legal titles disregarded the collective, community-focused essence of the family house. It is not uncommon for titleholders to begin asserting sole ownership over family homes in townships. Given that the Deeds Registration Act does not recognize a family house, many individuals find themselves homeless when titleholders decide to evict them or sell the property.
Post-apartheid developments began to emerge. Section 211 of the current constitution, enacted in 1996, obligates courts to
apply customary law when applicable, subject to the Constitution and any specific legislation addressing customary law.
Even with the constitutional directive to apply customary law, it took many years for judges to formally recognize the family house within customary law.
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In 2022, the Pretoria high court stated:
There is currently no classification of ‘family house’ in the Deeds Registries Act. Customary law continues to be subordinate to common law despite various rulings from the Constitutional Court recognizing it.
Key Questions
Gaining legislative recognition for a family home requires careful consideration of African customary laws.
Initially, many traditional communities perceive the family house as a sacred space rooted in traditional values.
In precolonial societies, Africans revered their ancestors, lived in communal settings, and generated wealth together. Family leadership often fell to the eldest male, who performed rituals within the family house, bridging the spiritual and material worlds.
This leads to the question: how should these beliefs inform the management of the family house in modern society?
Secondly, legislative protections are vital, as in 2018, the high court interpreted a “family house rights agreement” as a personal arrangement without legal enforceability. The reasoning was that a property could belong to an individual rather than a collective. If someone buys a home using personal income and allows family members to live there, those occupants might later claim it as a family house.
Thus, is a family house defined by how it was obtained or by its actual use? Considering the ambiguous boundaries between urban and rural living, can there be numerous family houses?
Thirdly, the Dhlamini property was registered in the name of a woman seeking to evict other relatives. This stands in contrast to traditional patriarchal assumptions regarding control over family homes. The ruling indicates that the titleholder of a family house is essentially a caretaker. This raises a complicated issue in dividing matrimonial property during a divorce, as some communities consider the family house distinct from matrimonial assets, potentially disadvantaging women who have contributed to improving the house.
The Dhlamini ruling underscores the precarious legal positions of South Africans concerning their family homes, particularly where communal rights lack recognition. A “family house rights agreement” accompanying title registrations does not offer a comprehensive solution.
Judges face numerous inquiries: To what degree do ancestral beliefs inform the definition of a family house? How does customary law delineate ownership of a family house when the title is bequeathed through a written will? How should a family house be regarded if a woman undergoing a divorce has financially contributed to its maintenance?
As a culturally significant symbol, the family house holds a unique place in South Africa’s ongoing narrative of land dispossession, fundamentally influencing its socio-economic trajectory. Now that it has achieved judicial acknowledgment, it requires legislative support to promote a more just and equitable society.
Anthony Diala is a professor of African legal pluralism and the director of the Centre for Legal Integration in Africa at University of the Western Cape.
This article is republished from The Conversation under a Creative Commons license. Read the original article.