Are black and white South Africans equal before the law? More than a quarter of a century into the democratic order you would think that the answer is a simple yes. But things are much more complicated than that.
Say, for instance, a person who owns a house in the suburbs dies intestate. Who inherits the house? The answer is straightforward: the spouse, or, if he/she is dead, her/his children.
But what if the house in question is not in a suburb but in a township, and what if it is one of those homes rented to families during the apartheid era and transferred into private ownership in the 1990s? Who gets the house then?
This is the question asked by Maxim Bolt, one of the finest anthropologists writing about SA today, in an article recently published in the journal African Affairs. Those who want to know to whom their house belongs, Bolt tells us, have to take a Kafkaesque journey back into apartheid SA.
Bolt begins by pointing out that ordinary people frequently dispute who should rightfully own such houses. On the one hand there is the law, which says the house is owned by an individual and should pass to her next of kin. But there is also a powerful customary claim that the house does not belong to an individual at all, but to a lineage. Its rightful owners are the members of a family, dead, living and yet to be born.
This dispute plays out in practice when, for instance, a man dies and his wife claims his house as his next of kin while his siblings claim it as the living representatives of the family to whom the house rightly belongs. Who gets the house?
The Constitutional Court has ostensibly decided this question. In 2005 a majority of the court ruled that all South Africans be brought into existing succession law. A lingering doubt remained in the form of a dissent penned by justice Sandile Ngcobo, who worried that the majority’s judgment threatened the role houses play in securing a family’s place in the world and argued that the law recognise the notion of the collective home. Ngcobo’s doubts notwithstanding, the majority’s decision became law.
But how much does the Constitutional Court’s decision really count? Out in the world these disputes are decided in the Office of the Master of the High Court. Bolt spent hundreds of hours in the Johannesburg office, observing case after case. It is horribly overcrowded, he tells us, responsible for processing more than 32,000 cases a year. More striking than its chaos, though, is the sense that in its chambers one is stepping back into the past.
In the family section of the Johannesburg Magistrate’s Court, Bolt writes, the wooden divides between the white and black galleries have never been taken down. In this racialised space “families fight out their disputes going as far back as the 1970s, armed with Black Administration Act paperwork. A dedicated magistrate picks over 40-year-old permits to reside and issues subpoenas to determine what happened. Calling on disputed kin in open court, he pieces together generations of non-transfer, as people avoided what was effectively the old apartheid system transported into the post-1994 era.”
Those who take their disputes to the court find that they have wandered into another world. The past and present have been so thoroughly scrambled that one no longer knows which is which. One is at once a citizen in a democratic country and a black denizen in apartheid SA.
What has also been scrambled is the question of to whom one’s house belongs. For despite the Constitutional Court’s seemingly clear judgment, taking the dispute to the Master’s Office is like walking into a casino. One watches the wheel spin and prays.
Deep into the democratic era, Bolt points out, SA has still not found a way to adequately incorporate citizens into vital aspects of its legal order. If you are black and have a township house, whether it is yours and who will get it when you die are questions that lie in a fog.
• Steinberg teaches African Studies at Yale University.
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