A piece of legislation in the Upgrading of Land Tenure Rights Act used in the allocation of housing during the apartheid era was ruled unconstitutional in the High Court in Pretoria on Tuesday.

Judge Jody Kollapen declared section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 constitutionally invalid.

This as it automatically converted holders of land tenure rights into owners of property without providing the occupants and affected parties lacking ownership rights notice or the opportunity to make submissions to an appropriately established forum, prior to the conversion of the land tenure rights into ownership.

Mantshabelle Mary Rahube, 69, brought forward the application, which was opposed by the minister of rural development and land reform, after facing eviction by her brother from the family home, in which she has lived for more than 37 years.

Kollapen explained that Rahube was excluded from any claim to ownership of the property based on her gender, which amounted to gender discrimination.

Ruhube said she was the current head of the household and had been responsible for the expenses related to the upkeep and maintenance of the property for many years.

Rahube's brother claimed ownership of the property under the initial grants of land tenure rights under the certificate of occupation and deed of grant issued under the Proclamation R293 of 1962 in terms of the Black Administration Act 38 of 1927.

"The proclamation as a whole is characterised by language and an ideological underlining correctly described as racist and sexist," said Kollapen.

Act suspended for 18 months

Lawyers for Human Rights (LHR), which represented Rahube, said under the apartheid government the property rights of women, particularly in townships, were placed in the custody of men.

Women could not obtain deeds of grant or certificates in their own names.

"LHR argued that the current manner in which the various forms of tenure are being upgraded and converted into ownership, particularly under the Upgrading of Tenure Rights Act, makes no provision for the investigation or inquiry into whom the actual occupants of the house are," said LHR in a statement.

"Further, this process continues to enforce the effects of gender discriminatory apartheid legislation and denies the women an opportunity to make representations concerning their rights to property."

Judge Kollapen declared the section of the act unconstitutional and suspended it for a period of 18 months to allow Parliament the opportunity to introduce a constitutionally permissible procedure for the determination of right of ownership and occupation of land to remedy the constitutional invalidity of the provisions of section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991.

"We welcome the judgment handed down by the Honourable Acting Justice Kollapen as it has taken great strides in ensuring the property rights of women are protected," said LHR.