Recognising the family house: a problem of urban custom in South Africa

In South Africa, popular notions of the township family house derive from an interplay of customary norms and the racialised history of administration and urban government – particularly exclusion from urban property rights. They also represent an insistence on the materialisation of kinship through fixed property, and on the home as transcending individual ownership or market asset. Focusing on the metropolitan area of South Gauteng, this paper argues that township family houses require understanding and recognising in terms of urban customary rules, and addressing in the context of competing rights, custom, and the place of the law in formalising these. Urban custom, too often neglected in scholarship, warrants constitutional recognition. The paper contends that there is, in fact, acknowledgment in state administration and judicial decisions of the customary force of the family house, as collective and cross-generational. Yet this is always through practical norms rather than official ones, as sympathetic state representatives navigate the lack of legislation that would enable formal recognition. In our concluding discussion, we reflect on a constitutional basis for recognising the family house, noting that even issues of constitutional compliance are better attended to within the law rather than in its gaps.