Draft deeds bill fails to address the township family house crisis

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.”

This should have been a call to action. The Chief Registrar of Deeds recently circulated a draft of the proposed Land Rights Registration Bill for comment. Does this address the problem? Despite a new title, it is little more than the Deeds Registries Act of 1937 spruced up, combined with the Electronic Deeds Registration Systems Act of 2019. And if this was not disappointing enough, it takes a step backwards from the previous circulated version which at least noted Shomang and included a definition of a family house.

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 occupants, irrespective of who holds the title deed.

With the end of apartheid, the conversion and upgrading Acts transferred ownership, at minimal costs, to occupants. Yet, there wasn’t, and still isn’t, a legal category of ‘family home’ available within the deeds system. Rather, families had to choose one person, or married couple, for the title deed – the legal owner. Attempts were made to mediate this, with family house agreements specifying that the house belonged to all those listed on the permit, but this is a personal right between signatories, not enforceable as a right of ownership against the title deed holder. The same applies to RDP houses now considered to be family houses.

There is a raft of problems within the township housing stock. Two are prominent.

The first arises should the title deed holder exercise their legal right to evict other family members from the house and/or to sell the house to a third party. When this happens, family members must defend their homes without the benefit of the law. The first line of defence is to paint on the house walls: “This House Is Not for Sale! Buy at Own Risk!” The risk is that any new owner will have to evict the occupants and, quite possibly, the community will then put them back into the house anyway. These protracted and bitter family wars are destructive not only of family peace but also social cohesion.

The second problem arises when the title deed owner dies. The title should now be transferred to a new owner. However, even if there is agreement within the family, and there may well not be, the cost of winding up the estate and of transferring title deed is often prohibitive. Much depends on the value of the house, which often comprises the entire estate. For many township residents, estate probate and conveyancing costs are unlikely to be much under R30,000. The bulk of this is legal fees. The obstacle to complying with these processes is that the deceased’s heirs, almost inevitably family members, occupy the house which typically is valued in the (low) hundreds of thousands of rands, but have little or no cash liquidity. Many depend on social grants, stipends or minimum wage employment, their only savings a monthly funeral policy premium. There isn’t the money to pay lawyers to wind up estates and transfer property.

The result is cadastral voids in the deeds system; houses registered in the names of dead people, with implications for rates collection and by-law enforcement as well as making any future rights registration increasingly intractable.

As Judge du Plessis put it in the Shomang case: “[W]hat is needed is a fragmentation of land rights, not by abolishing ownership but by developing a more comprehensive range of rights, such as a property right in a family home…”

To which we can add that transferring such additional forms of property rights must be affordable, if they are to be of practical assistance. There is an urgent need to create a legal category of family home and an affordable property transfer system.

To achieve this, there needs to be some out-of-the-box thinking and decisive reform. Regrettably, this is conspicuously absent in the Deeds Office’s latest draft bill. Instead, it appears content to rearrange the office furniture and squander an opportunity to tackle a social problem that the system it manages is perpetuating. DM