A recent ruling by the Johannesburg High Court in South Africa has shed light on the concept and governance of the “family house” under African customary law. This decision has brought attention to important issues related to cultural heritage, formal property regulations, and South Africa’s persistent challenges with racial inequality.
The ruling highlights the tension between customary practices that advocate for the idea of a communal family home and common law, which typically restricts ownership to the individual listed on a title deed.
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In South African law, the notion of a family house is not directly recognized. Before this ruling, it was unclear how extended family members should navigate their interests in such properties.
The case centers on a property in Soweto, Johannesburg. In 2016, Sylvia Dhlamini obtained an eviction order against Nomthandazo Dhlamini and other family members, who later challenged the order. Sylvia claimed she was the sole heir to the house, inherited from her deceased father and uncle, Nomthandazo’s relatives.
On the other hand, Nomthandazo and some family members argued that the house is a family home, seen as a residence used and informally transferred among family members rather than individually owned. They asserted that Sylvia’s father had merely served as the caretaker of a house inhabited by relatives since the 1960s.
On October 30, 2024, the court determined that the property “constitutes a family house as outlined 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, along with a caveat noting that it is a family house.” This caveat restricts any unilateral decisions regarding the sale of the property or eviction of its family occupants.
I have conducted research on family property within the framework of African customary law, recognizing the pivotal role that a family house plays in cultural celebrations such as weddings, naming ceremonies, and rites of passage. Moreover, it serves as a refuge for family members facing hardships.
This ruling sets a precedent for the acknowledgment of African customary law in South Africa. Yet, based on recent research, I argue that formal recognition of a family house is critical if customary law is to be regarded as a valid legal source in its own right, rather than merely being evaluated through the lens of common law.
Nonetheless, legislative recognition must take into account the complexities inherent in African customary laws.
Historical Challenges of Recognition
Customary law was marginalized due to the imposition of European legal systems during colonial times.
During apartheid, property ownership for black Africans was detrimentally affected by dispossession policies. The Natives Land Act of 1913 granted less than 10% of South Africa’s land to Africans, leaving over 90% under white ownership. After 1948, apartheid’s racial segregation established the homeland system, which forcibly displaced black individuals from economically viable areas and segregated them by ethnicity, often restricting them to “townships.”
Beginning in 1988, new legislation allowed black Africans to acquire property ownership through registered titles. However, this resulted in unintended consequences as only one person (typically a family member) could be named on title deeds.
This legal framework overlooked the collective, communal nature of the family home. Consequently, it was not surprising that some titleholders began to claim sole ownership over family homes in townships. As the Deeds Registration Act does not recognize family houses, many individuals find themselves homeless when titleholders choose to evict them or sell the property.
After apartheid, changes began to emerge. Section 211 of the current constitution, enacted in 1996, obliges the courts to
apply customary law when applicable, subject to the Constitution and any specific legislation that pertains to customary law.
Even with this constitutional directive to apply customary law, it took many years for judges to formally recognize the family house under customary law.
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In 2022, the Pretoria High Court stated:
There simply is no category of ‘family house’ in the Deeds Registries Act. Customary law remains subordinate to common law, despite various rulings from the Constitutional Court acknowledging it.
Key Questions
Obtaining legislative recognition for a family home requires careful consideration of African customary laws.
Firstly, many traditional communities regard the family house as a sacred place rooted in traditional beliefs.
In pre-colonial societies, Africans honored their ancestors, lived collectively, and generated wealth together. Family leadership was often assigned to the eldest male, who would perform rituals in the family house to connect the spiritual and material worlds.
This raises the question: how should these beliefs shape the governance of the family house in modern society?
Secondly, legislative protections are crucial since in 2018, the High Court interpreted a “family house rights agreement” as an individual arrangement without legal standing. The reasoning was that a property might rightfully belong to an individual rather than a collective. If someone buys a house using personal funds and allows family members to live there, those residents may later claim that the property is a family house.
Therefore, is a family house defined by its acquisition method or its functional use? Given the ambiguous boundaries between urban and rural living, is it possible to have multiple family houses?
Thirdly, the Dhlamini property was registered in the name of a woman attempting to evict other family members, which contradicts traditional patriarchal perceptions of authority over family homes. The ruling indicates that the titleholder of a family house serves merely as a caretaker. This creates a complex issue regarding the division of matrimonial property during a divorce, as some communities perceive the family house as distinct from matrimonial assets, potentially disadvantaging women who have contributed to its improvement.
The Dhlamini decision underscores the precarious legal situation of South Africans concerning their family homes, particularly where communal rights are unacknowledged. A “family house rights agreement” accompanying title registrations does not suffice to resolve this issue.
Judges face various inquiries: How significantly do ancestral beliefs inform the understanding of a family house? How does customary law address ownership of a family house when the title is conveyed through a written will? How should a family house be perceived if a woman contributing to its maintenance is going through a divorce?
As a culturally significant emblem, the family house plays a vital role in South Africa’s ongoing story of land dispossession, greatly influencing its socio-economic trajectory. Now that it has received 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.
