Johannesburg, South Africa – For more than a decade, Johanna Motlhamme has been fighting to get her family home back after it was sold under her nose, leaving her and her four children without their rightful inheritance.

The 74-year-old’s plight has its roots in racist laws that banned blacks from owning land in apartheid South Africa, housing activists say. That plight was inadvertently exacerbated at the dawn of democracy, when laws designed to address racial injustices instead created gender barriers.

“Thirty years after the end of apartheid, hundreds of thousands of black families in South Africa’s townships face the same insecurity of tenure and homelessness as they fight bitterly for ownership, occupation, control and access rights to so-called ‘family homes,'” the legal rights group Socio-Economic Rights Institute (SERI) said in a recent report (PDF).

Motlhamme’s story goes back to 1977, when the then 27-year-old married her husband under community of property, which meant that the spouses divided everything equally.

They moved into a small two-bedroom house in Soweto, a sprawling township southwest of Johannesburg, where Motlhamme lived until her divorce in 1991.

At that time, blacks in the cities could only sign long-term leases for their houses because the law was aimed at keeping the majority of the country’s population landless.

When apartheid was defeated in 1994, according to SERI, the government had already passed a new law, the Upgrading of Land Tenure Rights Act 112 of 1991. The aim was to “provide a more secure form of land tenure to Africans whose land rights were precarious under the apartheid regime”.

The law strengthened the property rights of black long-term tenants and finally allowed them to own their homes. But there was a caveat. “Under the legal provision, only a man who was considered the head of the family could hold the (property) permit,” SERI said.

According to housing activists, the decision is based on “patriarchal inheritance norms” and the new law effectively excludes wives, sisters, mothers and daughters from inheritance rights.

Although Motlhamme owned 50 percent of her township home under the divorce agreement, there was no way in the Upgrading Act to take this into account. When her ex-husband registered the house in 2000, sole ownership passed to him.

Three years later, he remarried and his new wife moved in. Motlhamme, who had not lived in the house since the divorce, failed to discuss ownership with him before he died in 2013. Then everything changed.

“My three siblings and I were kicked out when our father died. His second wife later sold the house,” Motlhamme’s eldest son Elliot Maimane, 50, told Al Jazeera.

“The first time it happened, there was an uproar.”

Due to property law, Motlhamme did not have a title deed, nor was she listed as the owner on the land permit, so the family could not prevent the sale.

“(Motlhamme) was excluded from exercising the employment rights under the permit because of her gender,” the court documents filed by SERI say.

The legal group helping Motlhamme fight for her home in court in Johannesburg believes the passage of the Upgrading Act has “perpetuated discrimination”.

Putting women outside the law

In 2018, the South African Constitutional Court reached a similar conclusion when deciding another case concerning the insecure land rights of women in the townships.

The court declared Section 2 Paragraph 1 of the Modernization Act, which concerns gender and inheritance of property, to be “unconstitutional” and “without governmental purpose.”

The court found that when the law came into force in 1991, it was presumed that a man was the head of a household and therefore had a right to property – a violation of women’s rights – and ordered an amendment to the law.

The court also ordered Parliament to establish a decision-making process under which affected women or people already living in a house could make submissions even if their names were not on the building permit or land registry entry.

That is why, on the eve of the general elections in May, the government officially passed the Upgrading of Land Rights Tenure Amendment Act of 2021, which is set to come into force a week after the elections. But those who have lost their homes still have a long road to justice ahead of them.

In Johannesburg, social services continue to be overwhelmed by people struggling with housing problems.

Busisiwe Nkala-Dlamini, head of the School of Human Community Development at the University of the Witwatersrand, which provides free social work and therapeutic services in the town, said most clients come to the school because of housing disputes in the townships.

Such disputes are “very common” and usually involve “women facing eviction” and lengthy legal disputes, she said.

Nkala-Dlamini often refers her clients to the university’s legal services for further assistance.

“Women’s property rights are not adequately recognized by the state, neither for single nor married women in family households,” says Nerishka Singh, gender specialist and legal researcher at the SERI project “Women’s Spaces”.

“Customary law places women outside the law” and “many people in the townships are often surprised when they receive an eviction notice from a family member asking them to vacate the house they have lived in all their lives,” she added.

“Not for sale”

For 39-year-old Lebo Baloyi, the loss of her parents’ home over a decade ago was also completely unexpected.

The property – a government-provided two-bedroom house in Soweto – was previously registered to her father.

Baloyi had expected to inherit the house from her mother, who was supposed to own it jointly with him.

“My husband Paul and I had even started renovating the house. We had added back rooms where we lived when we lived with my mother,” she told Al Jazeera.

But when her mother died in 2009, “my half-sister moved into the house and later we argued” about who should legally inherit the property, she said.

After a series of seemingly endless court cases, Baloyi decided to retire. “I decided to leave rather than argue with my sister,” she added. She now lives about 20 kilometers away in the Johannesburg suburb of Melville.

Motlhamme’s son Maimane lamented the change in the law decades ago. He believes that although it gave black people more rights, it still caused many problems in families and communities.

“When the law changed, people started having problems with title deeds,” he said.

“If you walk around Soweto, you see houses that have ‘Not for Sale’ written on them because of the title deeds. The system has created the era we live in today, where family members fight over a house.”

There are “quite a number of people in Soweto who have the same problem,” he added.

SERI’s August report, “A Gender Analysis of Family Homes in South Africa,” highlighted cases where customary law inheritance conflicts with the right to equality.

“Women and children are disproportionately at risk of losing their property rights or becoming homeless through evictions,” the report says.

The Upgrading Act essentially “subjected black families to a ‘primitive version of traditional succession,’ in which black succession was largely determined by a ‘blanket rule of male primogeniture,'” it said.

The result was a system that “strengthened and reinforced men’s rights in relation to the family home, largely to the detriment of women,” the report said.

“We want our parents’ house”

The Land Rights Restitution Act of 1994, which provided for the establishment of a Land Commission to adjudicate land claims, was the government’s main policy instrument for land redistribution.

In a government newsletter, the newly separated Ministry of Agriculture and the Ministry of Land Reform and Rural Development reported that 3.8 million hectares (9.4 million acres) of land had been returned to beneficiaries between 1998 and 2024.

Mzwanele Nyontso, Minister of Land Reform and Rural Development, announced in a recent budget speech that the government had processed 83,205 land claims, benefiting more than two million people.

According to the minister, the department has spent 58 billion rand ($3.2 billion) on land transfers, financial compensation and grants, affecting more than 465,000 households.

However, human rights groups such as the civil organisation Lamosa (Land Access Movement of South Africa) had previously sued the Land Commission for delays in processing land claims.

The government is confronted with historic restitution demands from marginalized groups displaced decades ago and now also faces gender-based land claims in the townships.

According to Carlize Knoesen, the chief land registry officer in the Ministry of Land Reform and Rural Development, the bill amending the Land Registry, which now has to be signed by the President, will solve the current problems.

The bill, which would create an online system for recording deeds, would help people “who simply want to have their property rights recorded somewhere before they die,” she said.

“We already have transformative policies, but it takes time,” Knoesen added, stressing that in South Africa it takes an average of five years for a bill to become law.

Al Jazeera contacted the City of Johannesburg and Gauteng Province Department of Human Settlements for comment on the challenges, but there was no response.

While the government and the courts are still deliberating, the families who have lost their homes are discouraged and increasingly impatient.

Maimane wants the court to resolve the issue of Motlhamme’s ownership of the family home as soon as possible.

“The system was not fair, it was one-sided. It gave all the powers to my father and excluded my mother,” he said. “If it had been equal, it would not have happened like this.”

As for his mother, Mainmane says: “She wants her children to live in the house and for the house to be returned to its rightful owner.”

“We just want everything to go back to normal. We want our parents’ house back.”