A recent ruling from the Johannesburg High Court in South Africa has highlighted the governance and meaning of the “family house” under African customary law, bringing it into the spotlight. This decision addresses sensitive topics surrounding cultural heritage, established property laws, and South Africa’s historical challenges regarding racial inequality.

The ruling emphasizes the tension between customary customs that advocate for the idea of a communal family house and the common law that restricts ownership to the individual named on a title deed.

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The family house concept is not explicitly defined within South African law. Before this ruling, there was uncertainty about how extended family members should handle their stakes in such properties.

The case in question concerns a property situated in Soweto, Johannesburg. In 2016, Sylvia Dhlamini obtained an eviction order against Nomthandazo Dhlamini and other relatives, who later contested the order. Sylvia claimed to be the sole heir of the property from her deceased father and uncle of Nomthandazo.

On the other hand, Nomthandazo and certain family members argued that the house represents a family house, understood as a residence used and informally passed down among family members, rather than one owned by a single individual. They asserted that Sylvia’s father served merely as a caretaker of a house that had been occupied by relatives since the 1960s.

On October 30, 2024, the court determined that the property “constitutes a family house as envisioned by the customary laws of … South Africa.”

The ruling instructed the registrar of deeds to register the title “in the name of Nomthandazo Dhlamini as custodian of the family house,” including a notice stipulating that it is a family house. This notice prevents any unilateral decision to sell the property or evict its family residents.

I have conducted research on family property within the context of African customary law, recognizing the significant role that a family house plays in traditional events such as weddings, naming ceremonies, and initiations. It also serves as a refuge for family members facing difficulties.

This ruling paves the way for recognizing African customary law in South Africa. However, according to recent research, I argue that formal acknowledgment of a family house is crucial for ensuring that customary law is respected as a valid legal authority in its own right, rather than simply viewed through the lens of common law.

Still, any legislative recognition must account for the complexities inherent in African customary laws.

Historical Challenges of Recognition

Customary law was marginalized due to the imposition of European legal systems during the colonial era.

Under apartheid, property ownership among black Africans was considerably affected by dispossession policies. The Natives Land Act of 1913 designated less than 10% of South Africa’s land to Africans, while over 90% remained under white ownership. Following 1948, apartheid’s racial segregation implemented the homeland system, which forcibly relocated black individuals from economically viable areas and divided them by ethnicity, often restricting them to “townships.”

Starting in 1988, new legislation enabled black Africans to gain ownership of properties through registered titles. However, this resulted in unintended consequences because only one individual (that of a family member) could be named on title deeds.

Such legal titles ignored the collective, community-oriented nature of the family house. Consequently, it was foreseeable that some titleholders began to enforce sole ownership over family homes in townships. Since the Deeds Registration Act does not recognize a family house, many individuals face homelessness when titleholders evict them or sell the property.

Post-apartheid changes began to take shape. Section 211 of the current constitution, enacted in 1996, requires the courts to

apply customary law when relevant, within the framework of the Constitution and any specific legislation concerning customary law.

Despite the constitutional mandate to apply customary law, it took years for judges to formally recognize the family house under customary law.

In 2022, the Pretoria high court ruled:

There simply is no category of ‘family house’ in the Deeds Registries Act. Customary law remains subordinate to common law, despite numerous rulings from the Constitutional Court acknowledging it.

Key Questions

Securing legislative recognition for a family home requires careful consideration of African customary laws.

First, many traditional communities regard the family house as a sacred space rooted in traditional beliefs.

In pre-colonial societies, Africans honored their ancestors, lived communally, and generated wealth together. Leadership within families was typically vested in the eldest male, who conducted rituals within the family house as a bridge between the spiritual and material realms.

This leads to the question: how should these beliefs shape the governance of the family house in modern society?

Secondly, legislative protections are vital because in 2018, the high court interpreted a “family house rights agreement” as an individual arrangement without legal enforceability. The reasoning was that a property could potentially belong to one person rather than a collective. If someone buys a house with personal funds and allows family members to live there, those residents may later claim the property is a family house.

Thus, is a family house defined by its method of acquisition or by its actual use? Given the ambiguous boundaries between urban and rural living, could there be multiple family houses?

Thirdly, the Dhlamini property was registered in the name of a woman trying to evict other family members. This contradicts traditional patriarchal beliefs about authority over family houses. The ruling implies that the titleholder of a family house is merely a steward. This complicates matters regarding the division of matrimonial property during divorce, as some communities view the family house as distinct from marital assets, potentially disadvantaging women who have invested in the house’s maintenance.

The Dhlamini ruling underscores the precarious legal standing of South Africans regarding their family homes, particularly where communal rights lack recognition. A “family house rights agreement” accompanying title registrations fails to resolve the problem.

Judges must grapple with several questions: How significantly do ancestral beliefs shape the definition of a family house? How does customary law handle ownership of a family house when the title is granted via a written will? How should a family house be viewed if a woman undergoing a divorce financially contributed to its upkeep?

As a culturally important symbol, the family house plays a unique role in South Africa’s ongoing narrative of land dispossession, significantly influencing its socio-economic landscape. Now that it has achieved judicial recognition, it requires legislative support to promote a fairer and more equitable society.

Anthony Diala is a professor of African legal pluralism and the director of the Centre for Legal Integration in Africa at University of the Western Cape.

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