Land Tenure, Housing Rights and Gender

community of property can now register property in their own names. In Lesotho, theMarried Persons Equality Bill has been pending enactment since 2000.Joint ownership of marital propertyJoint ownership by married couples is not common. In Zambia, for instance, only 12percent of housing units transferred were held in joint ownership of couples. 57 InZimbabwe, 98 percent of the resettlement area permits of farming and grazing land areheld by husbands and only 2 percent by wives – and women married under customarylaw cannot hold property jointly with their husbands. On the dissolution of a marriagethere are some difficulties in the settlement of property due to the kind of laws inoperation. In Malawi there is a provision for jointly held property, but not for commonproperty. There seems to be a problem in calculating the women’s contribution tocommon property because most women’s contribution is in reproductive labour, which isnot quantified.9.3 Inheritance rightsMost of Southern Africa has a dual legal system, meaning property rights are governedby two systems of law. Consequently the rules of inheritance are derived from bothsystems.Under customary lawUnder the customary law system, inheritance is, with a few exceptions, determined byrules of male primogeniture 58 . This means the oldest son of the senior wife (in cases ofpolygamy) is the heir. Ultimately the heir is always a male relative, never a female.Male preference is effected whether under matrilineal or patrilineal principles. So whileunder matrilineal societies the female line is used to inherit, (most of the region ismatrilineal) property normally passes to the nearest matrilineal male, usually a nephew ofthe deceased person and not necessarily the sons. In patrilineal societies it goes to thesons. The daughters therefore do not inherit in their own right and can only be assignedland to use by the inheriting male (who may be their cousin, brother or uncle). In mostsocieties, the order of priority is thus always male, with male descendents, ascendants,siblings, collateral males, then only widows and daughters. Women are at the end of theinheritance list and are therefore unlikely to inherit.Patrilocal marriages, where the woman moves to the husband’s homestead, also oftenmake the widow vulnerable to expulsion from the matrimonial home. In cases ofmatrilocal marriage, women inherit their mother’s property, but the heir to a deceasedfather’s estate is a maternal male. In Islamic communities, for example in Mozambique,daughters are entitled to a quarter of the estate according to Islamic law. This does notalways happen however as customary laws distort this practice.57 Zambia Daily Mail, July 5 2004, p758 The South African Constitutional Court in the case of Bhe V Magistrate, Khayelitsha and others, CCT49/03 (2005 (1) BCLR 1(CC)) has however ruled against this practice.34