Lawyers for Human Rights (LHR) has launched two new applications, one in the Gauteng High Court, Johannesburg and another in the Pretoria Division, for legal recognition of the custom of the “family house” as part of our South African customary law.
It is common in South Africa that families have what they regard as a “family house”. This house is regarded as belonging to the family, and members of the family can move in and out of the family house based on their personal circumstances.
However, because the current law does not recognise the concept of a “family house,” most people find themselves homeless as the registered owner of the house ends up evicting fellow family members or selling the house while people are in it.
LHR said it has seen a number of these cases over the years and how vulnerable people including women and children are mostly affected. It is for this reason that the organisaton decided to launch these cases.
“It is very sad and heart-breaking to be evicted from your home, the only place you know and have ties to. It is even worse when this is done by a family member,” said Nomthandazo Dhlamini, the applicant in one of the matters.
In her application she is asking the court to declare that the family property in Soweto constitutes “a family home.” She asked that the property be transferred into her name as custodian of the family home.
The court will also be asked to interdict a family member, in whose name the property is registered, from evicting her and the other family members who live in the house.
Dhlamini said in an affidavit the property came into the possession of the Dhlamini family in the 1960s. Due to apartheid laws at the time, they were not allowed to buy the property in urban areas.
In 1981, the Dhlamini family was issued with a residential permit.
This was done in terms of the regulations governing the control and supervision of an urban ‘bantu’ residential area government notice.
Various members of the family had meanwhile passed away, with their children and grandchildren having moved in and out of the property. But it was always occupied by some of the Dhlamini family members.
In 2014, Sylvia Dhlamini issued a summons against Nomthandazo Dhlamini and other family members who were living in the house, to have them evicted.
Dhlamini said it was only then that they came to know that the property was in 2000 transferred into the name of Sylvia Dhlamini.
They were evicted in 2016 as per an order of the lower court, but Nomthandazo Dhlamini and her other family members living in the house decided to challenge the order.
Sylvia Dhlamini meanwhile disputed that the house is classified as a “family home” and said her late father gave the property to her, thus she has sole ownership.
Nomthandazo Dhlamini said she was told that the notion of “family houses” is recognised by our courts, as it constitutes a compromise between the common law position and the complex urban customary law ownership pattern that is a legacy of apartheid laws.
From this, she said, one can define a family home as a house that is held and informally transmitted through the family, as opposed through individuals. These family members include males and females, past, present and future - related in most cases through the male line of descent.
While the property passes through a patrilineage, both sons and daughters inherit patrilineage family membership.
She said as a consequence, kin members’ ability to alienate a property deemed a family home is limited by their obligation to hold the home as a custodian.
According to her, the concept of a family home recognises the existence of multiple interests in a property - not of ownership, but of use and enjoyment as and when necessary.
Pretoria News