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n Acta Juridica - Women, customary law and discrimination : the impact of the Communal Land Rights Act
This article discusses the possible impact of the Communal Land Rights Act (CLRA or the Act) on the land rights of rural women in South Africa. It asks whether the Act is likely to enhance or undermine tenure security, not only for women, but also for rural people in general. In the context of declining rates of marriage it focuses particularly on the problems facing single women. It examines two inter-related issues: The first is the content and substance of land rights, including the question of where rights vest. The second relates to power over land, in particular control over the allocation and management of land rights.
It begins with an account of the parliamentary process and the last minute changes to the CLRA. The Communal Land Rights Bill (CLRB) was opposed by all sectors of civil society apart from traditional leaders. The most vehement opposition came from rural women and women's organisations, who argued that the Bill undermined the principle of equality in favour of an alliance with traditional leaders. Traditional leaders on the other hand welcomed the Act as a triumph of tradition and African custom.
The Constitution guarantees the right to equality and also recognises customary law and the institution of traditional leadership. During the constitutional negotiations there was a battle between women's representatives and traditional leaders about which should take precedence - equality or custom. Traditional leaders argued that the constitution would not be successful if it relied on 'foreign concepts and institutions'. Equality won: but the inherent tension between the different provisions has meant that a clash has long been anticipated. Some have seen the Act as manifesting that anticipated clash.
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