Draft deeds bill fails to address the township family house crisis

Since there is no legal category of a ‘family home’ available within the deeds system, families in townships across South Africa must defend their homes without the benefit of the law.

David Dickinson is an attorney with Lawyers for Human Rights’ Land, Housing and Property Programme and emeritus professor of sociology at Wits University.

Conflicts over ‘family houses’ in townships have reached epidemic proportions as the gap grows between African customary norms of social tenure brought into urban areas and a rigid, unaffordable deeds registration and conveyancing system.

In 2022, Judge du Plessis summed up this lacuna in the high court Shomang case by addressing the problem of family house disputes. “The [deeds] ownership model is an inflexible system that does not allow for alternative models of holding land, especially not the social tenures that operate outside this formal system.”

It is difficult to conclude other than the officials drafting this bill exist in a parallel world to that of millions of South Africans for whom the current title deed system isn’t working.

Many family house disputes brought to advice centres and to the courts are complex. They are also often heartbreaking; siblings fighting for possession of a house, one selling the property over the heads of other family members who are then evicted as unlawful occupiers. The key reasons for these disputes, putting aside want and greed, are the absence of appropriate forms of property title, and the monopoly that conveyancing lawyers have over transfer and which this draft legislation, if eventually enacted, will entrench further.

To understand this problem, we must recognise that traditional African norms of succession mean that the family head holds stewardship, not ownership, of family assets. Such properties are, in effect, collectively owned and the head of the household is, for better or worse, its steward. Ironically, apartheid reinforced this African form of collective ownership in the urban areas of South Africa with the permit system. Africans could not own property, rather the head of the household and family members under him (as it was recorded) were listed on the permit. All had the right to live on the property.

Family houses act as a social security net: family members in need – and in South Africa that means legions of people – have the right to live there. It is also the place where family rituals are performed. That the family home is part of living customary law is illustrated by how some RDP houses are now becoming family homes in the understanding of occupant