Doctoral Degrees (Private Law)

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Browsing Doctoral Degrees (Private Law) by browse.metadata.advisor "Pienaar, Juanita M."

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    Widows, land, property and inheritance rights : an analysis of affirmative action proposals in Botswana's 2015 Land Policy, with a legal comparative dimension
    (Stellenbosch : Stellenbosch University, 2021-03) Raseroka, Refilwe Seodi; Pienaar, Juanita M.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: Denying women, irrespective of their marital status, the right to access and/or inherit land and property through patriarchal customs that support eviction and inheritance grabbing is inimical to the promotion of gender equality, human dignity and Botho/Ubuntu. The denial of property and inheritance rights of widows through amongst other, property grabbing, has been identified as a major problem in Botswana’s 2015 Land Policy, to be resolved by way of affirmative action. In this light this study, the first of its kind in Botswana, undertakes a holistic review and comparative examination of the affirmative action proposals contained in the 2015 Land Policy, with South Africa’s land reform experience as a backdrop. In doing so, the study exposes a complex layering of customary law and patriarchal practices, legislative gaps and constitutional provisions that result in privileging customary law against complaints of discrimination. Combined, the above have major implications for marriage and widowhood, succession and inheritance rights, gender equality, human dignity and the application of Botho/Ubuntu values. Where women are concerned, land, property rights and access to housing, are inevitably negatively affected. Given that the affirmative action proposals apply to widows only, and not to women generally, the constitutionality of said affirmative action proposals is thus further questionable. In light of the complexity involved, the study suggests a spectrum of recommendations, including better or optimal use of existing remedies, as well as urgent policy implementation and the amendment of existing and the promulgation of new legislation on intestate succession, gender equality and human dignity. The amendment of critical constitutional provisions, as well as a general constitutional review are also suggested. The study underlines that more than affirmative action is needed to promote and protect women’s land and property rights generally. Critically, the right to human dignity is underpinned by Botho/Ubuntu values expressed in the adage ‘umuntu ngumuntu ngabantu’ that is, ‘I am because you are' – a value that applies equally to men and women. On this basis human dignity and equality, irrespective of gender or social class, should be actively promoted and all obstacles preventing the equal enjoyment of land and property have to be identified and addressed accordingly. It is in this context that the study has an important role to play.