A recent ruling by the Johannesburg high court in South Africa has put the definition and control of the “family house” under African customary law under the spotlight. The ruling touches on sensitive issues of cultural heritage, statutory laws of property, and South Africa’s history of racial discrimination.
It highlights the tension between customary norms, which underlie the idea of a communal family house, and the common law, which restricts ownership to the individual whose name appears in a title deed. The notion of a family house is not provided for in South African law. And prior to this ruling, it was unclear how control in this type of property should be exercised by extended family members.
The ruling concerns a property in Soweto, Johannesburg. In 2016, Sylvia Dhlamini obtained an eviction order against Nomthandazo Dhlamini and other family members. They then challenged this order. The respondent, Sylvia, claimed to have exclusively inherited the house from her deceased father and uncle of the first applicant, Nomthandazo. Nomthandazo and other family members claimed it is a family house. They defined it as any house used and informally transmitted through family members rather than through an individual. They claimed that Sylvia’s father was merely a custodian of the house where members had resided since the 1960s.
