Law Reports

Solarie

Media Release Summary - per Woman's Legal Centre
While the City of Cape Town's housing policy no longer excludes Muslim women on paper, in practice the previous discriminatory housing policy has continued to be implemented. The Cape High Court has ruled this practice as unconstitutional, and ruled that Muslim women should be entitled to joint ownership of properties applied for in terms of the Policy and awarded by the City solely to their male spouse or partner.

The City's current Housing Policy no longer excludes Muslim women from applying for the purchase of immovable property, as the Policy was amended to bring it in line with the Constitution, which vests all South Africans with the right to equality and prohibits unfair discrimination on the basis of, amongst other things, sex, gender and religion. Although the old Policy is no longer in place, it is important to emphasise that it is still, in effect, being implemented by the City.

This is done when the City passes transfer of properties to the male spouse or partner in terms of agreements entered into pursuant to the Policy, solely with the male spouse or partner, to the exclusion of the female spouse or partner (or ex-spouse or partner, as the case may be). In light of the number of women that have been unfairly discriminated against in terms of the City's Policy, and its effective ongoing implementation, the Women's Legal Centre launched an application in the Cape High Court on behalf of one of its clients. It asked the Court to order that 50 percent ownership of the property (which had been allocated solely to the client's ex-husband in terms of the Policy) be transferred to the Applicant due to the fact that she had been prohibited from purchasing the property jointly with her ex-husband because of the Policy, which unfairly discriminated against her and has adversely affected her right to access to housing and security of tenure. Judge Fortuin ruled that the Policy is inconsistent with the Constitution as it unfairly discriminated against women and limited women's ownership of property and constitutional right to access to land, in that it created additional criteria for the Applicant (as a woman) to become a property owner, rendered the Applicant vulnerable to eviction and failed to safeguard her right to security of tenure.

The Judge also found that the agreement, insofar as it gave the Applicant's ex-husband the sole right to ownership of the property, is contrary to the values enshrined in the Constitution, and accordingly unenforceable. Consequently, the court interdicted the City from transferring the property solely into the name of the Applicant's ex-husband, and ordered that the property be transferred to the Applicant and her ex-husband, in equal shares. The judgment sets an important precedent for other women in the Applicant's position, who should be entitled to joint ownership of properties applied for in terms of the Policy and awarded by the City solely to their male spouse or partner. Cherith Sanger of the Women's Legal Centre says: "This finding constitutes a big development for women in that it gives effect to women's constitutional rights to housing. Many women have been unfairly discriminated against because of the City's previous Housing Policy to the extent that they have been disempowered and unable to live in their own homes peacefully and without a sense of security. We have a progressive Constitution that seeks to advance women's rights but we still find that so many women are suffering unfair discrimination due to policies and laws that were implemented before the coming into operation of the Constitution. It is on this basis that the Centre needs to litigate to enforce women's rights."

Background to case and Court decision
During the 1970's to early 1990's the City of Cape Town's Housing Policy ("the Policy"), in terms of which the City allocated state assisted housing, only permitted certain individuals to apply for the purchase of immovable property. The Policy provided that only married men, a single parent with dependants who reside with him or her permanently or a married female who is the breadwinner of the family and has dependants residing with her permanently, could apply for the purchase of immovable property. The Policy thus only permitted women married in terms of civil law marriages who were the breadwinners of their family and who had their children residing with them permanently, and single women who were the custodians of their children, to apply to purchase immovable property.

Accordingly, the Policy had the effect of excluding women married in terms of Muslim Rites from applying for the purchase of immovable property as they were (and still are) considered to be unmarried on the basis that religious marriages are not legally recognised in South Africa. Furthermore, the reality is that most Muslim women are not the breadwinners in their families as they are the spouse who conventionally fulfill the role of caregiver and attend to cooking and maintaining the home, which enables the male spouse or partner to work and provide for the family financially. In addition, if the male spouse or partner resides with the female spouse or partner, she will not qualify as a "single" parent for purposes of the Policy.

Men, on the other hand, are not required to be the "breadwinner" of the family in order to acquire ownership of a home in terms of the Policy. The City's Policy has impacted adversely on many Muslim women who were prohibited from jointly entering into agreements for, and owning, immovable property with their husbands or partners, or from applying for the purchase of the property in their own names. Due to the fact that the male spouse or partner is the sole party to the agreement of sale with the City, only he has rights and obligations in terms of the agreement. Many women have been instrumental in obtaining and maintaining the property, indirectly or directly, by contributing to the payment of the installments over the purchase price of the property or by paying the rates, taxes and electricity. Despite these contributions, women have no entitlement to ownership of the property and ultimately do not exercise security of tenure. In the event of a spouse or partner to a Muslim marriage obtaining a talaq (divorce) or fasaq, the female spouse or partner does not have any right to share in ownership of the property and does not have any entitlement to the proceeds of the sale of the property in terms of Muslim Personal Law.

All the assets and liabilities of the spouses acquired prior to the conclusion, or during the subsistence, of the marriage, remain part of each spouse's separate estate. There is no joint estate. This is not in women's interests, as their "in kind" contributions to the marriage are not taken into account and they often leave the marriage with no assets because all the assets are owned by their ex-spouse or partner or are registered in their ex-spouse or partner's name. As a consequence of the Policy, and in the event of the spouses divorcing and in instances where the male spouse or partner wants to retain ownership of the property, they have in many circumstances either successfully evicted the female spouse or partner from the property, have instituted legal proceedings to evict her from the property or continuously threaten to do so. In relation to evictions, women are often unaware of their housing and eviction rights and often vacate the property on threat of eviction by their ex-spouses or partners or do not oppose the eviction proceedings at all. In many cases, women do not have alternative shelter for themselves or their children and end up destitute or living in unhealthy and undesirable living conditions.
Contact:Cherith SangerWomen's Legal Centre [email protected] 424 5660071 608 3357

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