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[2012] ZASCA 84
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Hattingh and Others v Juta (440/2011) [2012] ZASCA 84; 2012 (5) SA 237 (SCA); [2012] 3 All SA 399 (SCA) (30 May 2012)
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THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No:
440/2011
Reportable
In
the matter between:
MICHAEL HATTINGH
….........................................................................
First
Appellant
EDWINA JUNITA HATTINGH
…........................................................
Second
Appellant
PIETER HATTINGH
…...........................................................................
Third
Appellant
and
LAURENCE EDWARD JUTA
…..................................................................
Respondent
Neutral
citation:
Hattingh v Juta
(440/2011)
[2012] ZASCA 84
(30
May 2012)
Coram:
Navsa, Nugent and Leach JJA
Heard:
18 May 2012
Delivered:
30 May 2012
Summary: Family’s cultural rights under s
6(2)(
d
) of ESTA – what constitutes – section
envisages rights of an associative nature.
___________________________________________________________________
O R D E R
___________________________________________________________________
On appeal from:
Land Claims Court, held at Cape
Town (Meer J and Gildenhuys J):
1. The appeal is dismissed.
2. The dates 12 May 2011 and 13 May 2011 in paras 1 and
2 of the order of the court a quo are amended to read 31 August 2012
and
1 September 2012, respectively.
3. There will be no order as to the costs of this
appeal.
___________________________________________________________________
J U D G M E N T
__________________________________________________________________
LEACH JA (NAVSA AND NUGENT JJA CONCURRING)
:
[1] The issue in this appeal is whether the appellants
were correctly evicted from a worker’s house on a smallholding
known
as Fijnbosch farm in the district of Stellenbosch (‘the
farm’) that is owned by the respondent.
1
The appellants have since December 2002 resided in the
house together with the mother of the first and third appellants. On
10 May
2010 the Stellenbosch Magistrate’s Court dismissed an
application brought by the respondent to evict the appellants from
the house. The respondent thereafter successfully appealed to the
Land Claims Court which, on 30 March 2011, set aside the magistrate’s
order and substituted an order directing the appellants to vacate by
20 May 2011. With leave of the Land Claims Court, the appellants
now
appeal to this court against that order.
[2] The first and third appellants are brothers, the
sons of Mrs
Magrieta Hattingh, a woman in her
mid-sixties. The second appellant is the first appellant’s
wife. At the time of the institution
of the eviction proceedings in
the magistrate’s court, the first and second appellant’s
were both 29 years of age,
while the third appellant was 37 years
old. The first and second appellants have either two or three minor
children (the papers
are contradictory) who also live with them.
[3] The respondent purchased the farm in 2002. At that
time Mrs Hattingh was working for him as a domestic servant in his
home in
Stellenbosch, having been employed in this capacity since
approximately 1994. After taking occupation of the farm, the
respondent
built himself a residence there, which was only completed
in December 2003. However there was a worker’s house on the
farm
which the respondent agreed to allow Mrs Hattingh and her
husband to use, and they moved in during December 2002. Although Mrs
Hattingh only resumed full time employment with the respondent once
his house had been completed, she continued to receive her full
salary. The respondent also employed her husband as a gardener for a
period.
[4] Mrs Hattingh continued in the respondent’s
employ until the end of 2005. The respondent avers that he ended her
employment
at that time as her health had deteriorated and she was
unable to work. The appellants deny this, and allege that the
termination
of her employment occurred without any valid reason. It
is unnecessary to determine this dispute for purposes of the present
enquiry
as it is common cause that, after her employment came to an
end, the respondent allowed her to continue living in the worker’s
house with her husband who was in poor health until he died from lung
cancer in 2006. She continues to reside in the worker’s
house
to this day, not as an entitlement flowing from her employment with
the respondent but solely due to his generosity and consent.
[5] I turn to consider the position of the appellants.
At the time the respondent purchased the farm, the appellants were
living
on another farm in the district owned by a Mr Nico Mostert.
How long this had been the case and under what circumstances they
came
to be living there, is not disclosed in the affidavits. It is
not clear whether Mrs Hattingh and her husband were living with them,
although that may well have been the case. It is also not clear
whether the appellants moved onto the respondent’s farm at
the
same time as Mrs Hattingh or shortly thereafter, although that is
neither here nor there for present purposes. What is clear
is that in
December 2002, the same month in which Mrs Hattingh moved to the
farm, they did so too and have remained residing there
ever since.
[6] According to the respondent, he allowed the
appellants to move onto the farm on condition that they remained
there for no longer
than three months. This the appellants deny.
While it is common cause that the second appellant worked for the
respondent for a
period, there is a dispute as to whether he had also
employed the first and third appellants at any time. They allege that
he did,
but he denies this. Again it is unnecessary to resolve this
dispute. What is common cause is that when the eviction application
was launched all three appellants were working for different
employers in Stellenbosch.
[7] It is also common cause that when Mrs Hattingh moved
onto the farm her third son, Ricardo, was at school at Graaff–Reinet.
During his school holidays he returned home from time to time and
lived on the farm with his parents. After leaving school Ricardo
returned to Stellenbosch where he was able to find both work and
accommodation in the town. However, when he changed jobs and took
up
work with an employer who did not provide accommodation, he too went
to live with Mrs Hattingh and the appellants in the worker’s
house on the respondent’s farm. It must immediately be recorded
that the respondent does not seek to have Ricardo evicted
and, as
counsel for the respondent confirmed from the bar, is happy to allow
him to reside with his mother.
[8] The worker’s house on the farm where the
appellants live consists of two interlinked units which were altered
when they
moved onto the farm to become effectively a single house.
Since September 2006 the respondent has employed a Mr Gert Willemse
as
a general labourer and is of a mind to restore the house to its
original condition of two living units with the intention to
accommodate
Mr Willemse in the one and Mrs Hattingh and Ricardo in
the other. It was for this reason that he sought to evict the
appellants.
[9] In seeking to avoid eviction the appellants do not
purport to rely upon any rights that they themselves hold under the
Extension
of Security of Tenure Act 62 of 1997 (‘ESTA’).
Instead they contend that they are entitled to remain on the property
by virtue of Mrs Hattingh who is an ‘occupier’ under
ESTA, being entitled to exercise her rights as such under s 6(2)(
d
)
thereof which provides:
‘
Without
prejudice to the generality of the provisions of section 5 and
subsection (1), and balanced with the rights of the owner
or person
in charge, an occupier shall have the right ─
. . .
(d) to family life in accordance
with the culture of that family . . .’
2
[10] It is the meaning of the phrase ‘family life
in accordance with the culture of that family’ that lies at the
heart
of the dispute between the parties. In considering the issue,
the court a quo took into account s 8(5) of ESTA which extends a
right of residence to only a spouse or dependant of an occupier who
dies, and commented that restricting family members only to
those
persons is an equitable formulation ‘[f]or were it otherwise,
landowners would have the onus and intolerable burden
of housing
adult members or occupiers’ extended families indefinitely’.
It therefore concluded that while in a specific
situation a wider
interpretation, which would permit other family members to reside
with an occupier, could be accorded under the
right to family life
protected by s 6(2)(
d
),
in such a case evidence in support of a wider interpretation would be
necessary. It then proceeded to then rule against the appellants
on
the basis that they had failed to prove that family life as envisaged
by their culture entitled them to reside with Mrs Hattingh,
and that
they were therefore not protected from eviction.
[11] The appellants did not seek to impugn the approach
that it was incumbent upon them to prove the cultural basis under s
6(2)(
d
), upon which
they rely to avoid eviction from the respondent’s farm, and it
is thus unnecessary to decide whether the court
a quo’s
reasoning in this regard was correct. However I certainly think that
it would hardly require evidence to prove that
a wife and minor
dependants were family of an occupier, and a nuclear family of that
nature would surely be regarded as a ‘family’
as
envisaged by s 6(2)(
d
).
But that is not the issue in the present case; it is whether the
extended Hattingh family reside together in accordance with
its
culture.
[12] In arguing this to be the case, counsel for the
appellants submitted that the concept of ‘culture’ as
envisaged
in s 6(2)(
d
) should be broadly interpreted and was
in no way limited to considerations of race, ethnicity, religion,
language and community.
Rather he submitted that each family had to
be considered individually to determine its culture, being the way in
which it lived,
and that although this might well be influenced by
race, ethnicity, language, religion and the values and practices of
the local
community, such factors would not be determinative.
[13] Essentially the appellant’s argument was that
‘culture’ as envisaged by s 6 was not a matter of
association
─ rather it is a reflection of the ethos of the
family itself and the way in which it lived ─ and is, as
counsel for
the appellant put it, ‘family sensitive’.
Thus, so it was argued, the history of the appellants showed that
they were
members of a caring family who looked after and supported
each other; who had lived together sharing the same accommodation for
years; and who had been prepared to share their home with members of
their extended family when the need arose, as it had when
Ricardo
changed employment and needed somewhere to live. These were their
shared values which evidenced their culture. And as they
lived
together as part of that family culture, their continued residence on
the farm was protected by s 6.
[14] In construing s 6, the importance of family and
family life must be borne in mind. South Africa has ratified the
International
Covenant on Civil and Political Rights, art 23(1) of
which recognises that the family ‘is the natural and
fundamental unit
of society’ entitled to protection by society
and the state. Article 18 of the African Charter on Human and
People’s
Rights contains a similar provision, and in art 8 of
the European Convention on Human Rights and Fundamental Freedoms
provision
is made for the recognition and protection of a person’s
‘right to respect for his private and family life, his home
and
his correspondence’. In
Huang v
Secretary of State for the Home Department
3
Lord Bingham, dealing with the core value of this latter
article in an immigration context, commented:
4
‘
Human
beings are social animals. They depend on others. Their family, or
extended family, is the group on which many people most
heavily
depend, socially, emotionally and often financially.’
[15] In the
Certification of the
Constitution of the Republic of South Africa
case
5
the Constitutional Court, after recording that a survey
of various national constitutions throughout the world shows that
there
to be no universal acceptance of a right to family life as
fundamental in the sense that it required express constitutional
protection,
went on to observe:
6
‘
The
absence of marriage and family rights in many African and Asian
countries reflects the multi-cultural and multi-faith character
of
such societies. Families are constituted, function and are dissolved
in such a variety of ways, and the possible outcomes of
constitutionalising family rights are so uncertain, that
constitution-makers appear frequently to prefer not to regard the
right
. . . to pursue family life as a fundamental right that is
appropriate for definition in constitutionalised terms. They thereby
avoid disagreements over whether the family to be protected is a
nuclear family or an extended family, . . . These are seen as
questions that relate to the history, culture and special
circumstances of each society, permitting no universal solutions.’
[16] Although the Constitutional Court found it
unnecessary to constitutionally entrench the right to family life,
which it felt
was adequately protected by other provisions, it has
subsequently recognised it as being a concomitant of the right to
human dignity
entrenched in s 10 of the Constitution: see eg the
judgment in
Dawood & another v Minister of
Home Affairs & others.
7
[17] Although the word ‘family’ is incapable
of having a precise legal connotation or definition, it is apparent
from
what I have said that a right to family life is inherent in the
fundamental right to human dignity enshrined in the Constitution.
And, as enjoined by decisions such as
Bato
Star Fishing,
8
it is the Constitution which provides the backdrop when
seeking to interpret sections such as s 6(2)(
d
).
[18] In considering the concepts of family life and
culture through the prism of the Constitution, the decision in
Pillay,
9
a case to which we were most surprisingly not referred
to by the parties, is instructive. In that matter the Constitutional
Court
was called on to deal with the issue of discrimination under s
6 of the so-called Equality Act
10
in order to consider whether a learner of Hindu descent
had been discriminated against by not being permitted to wear a
nose-stud
to school. That section reiterates the prohibition in ss
9(3) and 9(4) of the Constitution against unfair discrimination on a
number
of grounds, including culture. In this context the court were
unanimous that the concept of ‘culture’ resisted any
precise definition but in both the majority judgment of Langa CJ
(with whom the other members of the court, save for O’Regan
J
concurred) as well as O’Regan J’s partial dissent, it was
concluded that culture was an inherently associative practice
and
that, while differing from religion, cultural practices are often
influenced by religious practices. But, as Langa CJ observed,
‘culture generally relates to traditions and beliefs developed
by a community’.
11
The learned Chief Justice went on further to hold:
‘
. . .
cultural
convictions or practices may be as strongly held and as important to
those who hold them as religious beliefs are to those
more inclined
to find meaning in a higher power than in a community of people. The
notion that “we are not islands unto ourselves”
is
central to the understanding of the individual in African thought. It
is often expressed in the phrase
umuntu
ngumuntu ngabantu
which
emphasises “communality and the interdependence of the members
of a community” and that every individual is an
extension of
others. According to Gyekye, “an individual human person cannot
develop and achieve the fullness of his/her
potential without the
concrete act of relating to other individual persons”.
This thinking emphasises the importance
of community to individual
identity and hence to human dignity. Dignity and identity are
inseparably linked as one's sense of self-worth
is defined by one's
identity. Cultural identity is one of the most important parts of a
person's identity precisely because it
flows from belonging to a
community and not from personal choice or achievement. And belonging
involves more than simple association;
it includes participation and
expression of the community's practices and traditions.’
(F
ootnotes
omitted
).
[19] In her judgment O’Regan J stated that a
cultural practice is ‘about a practice pursued by individuals
as part of
a community’.
12
Indeed, as appears from her judgment, she was concerned
that the approach of the majority judgment did not sufficiently
acknowledge
the associative nature of cultural practices and that the
right to cultural life is a right to be practiced, not primarily as a
sincere but personal belief, but as a member of the community. She
then went on to state:
13
‘
Nevertheless,
the need to investigate whether a particular property asserted
practice is shared within the broader community, or
portion of it and
therefore understood as a cultural practice rather than a personal
habit or preference, is central to determining
whether a cultural
claim has been established,’
and that:
14
‘
My
understanding of how our Constitution requires us to approach the
rights to culture, therefore, emphasises four things:
cultural
rights are associative practices
,
which are protected because of the meaning that shared practices give
to individuals and
to
succeed in a claim relating to a cultural practice a litigant
will need to establish its associative quality
;
an approach to cultural rights in our Constitution must be based on
the value of human dignity which means that we value cultural
practices because they afford individuals the possibility and choice
to live a meaningful life; cultural rights are protected
in our
Constitution in the light of a clear constitutional purpose to
establish unity and solidarity amongst all who live in our
diverse
society . . .’
(Emphasis
added).
[20] As is apparent from both judgments in
Pillay
,
a person’s culture as envisaged by the Constitution is clearly
not a matter of such person’s individual practice but
a matter
of association and practices pursued by a number of persons as part
of a community. As O’Regan J concluded, the
‘anthropological
conception of culture which refers to the way of life of a particular
community’ is the concept of
culture referred to in ss 30 and
31 of the Constitution, and that the rights in those sections are
‘associative rights exercised
by individual human beings’
which ‘bolster the existence of cultural, religious and
linguistic groups so long as individuals
remain committed to living
their lives in that form of association’.
15
And while the majority judgment may have placed less
emphasis on the associative nature of cultural practices, in a
comment particularly
damaging to the appellants’ contention
Langa CJ, warned that ‘
if
too wide a meaning is given to culture “the category
becomes so broad as to be rather useless for understanding
differences
among identity groups”'.
16
[21] The right to a family life in accordance with the
family’s ‘culture’ in s 6 of ESTA is clearly a
reflection
of the fundamental rights set out in ss 30 and 31 of the
Constitution, namely, that every person has the right ‘to
participate
in the cultural life of their choice’ and to ‘enjoy
their culture’ with other members of a cultural, religious
or
linguistic community.
17
Bearing that in mind, the finding in
Pillay
that cultural rights protected by the Constitution are
clearly associative in nature is fatal to the appellant’s
argument
that culture as envisaged in s 6(2)(
d
)
of ESTA was non-associative and fell to be determined solely by the
manner in which Mrs Hattingh and her extended family lived
their
lives. As the court a quo correctly found, the appellants did not
seek to establish a cultural practice of association as
envisaged by
the Constitution to show that they that they and Mrs Hattingh were
enjoying
family life in accordance with the
culture of their family. Indeed counsel for the appellants conceded
that in the event of this
court finding that culture was a matter of
association shared by at least a portion of the community, the appeal
must fail.
[22] In the order of the court a quo, the appellants
were given until 12 May 2011 to vacate the premises and, in the event
that
they failed to do so, the sheriff, with effect from the
following day, was authorised to take the necessary steps to evict
them.
That order has been overtaken by events and, even though the
appeal must fail, it is necessary to amend its terms to afford the
appellants the adequate opportunity to arrange other accommodation.
The parties were agreed that it would be fair to allow the
appellants
a period of some three months to do so. As this judgment will be
delivered before the end of May 2012, this can be achieved
by
amending the dates in the order to 31 August 2012 and 1 September
2012, respectively.
[23] Finally, dealing with the question of costs, the
respondent who has at all times behaved with the utmost consideration
towards
Mrs Hattingh and her extended family, did not seek a costs
order against the appellants. For this he is to be commended.
[24] In the result the following order is made:
1. The appeal is dismissed.
2. The dates 12 May 2011 and 13 May 2011 in paras 1 and
2 of the order of the court a quo are amended to read 31 August 2012
and
1 September 2012, respectively.
3. There will be no order as to the costs of this
appeal.
.
______________________
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant 1
st
and 3
rd
: A C
Dodson SC
Instructed by:
University of Stellenbosch Law Clinic
Stellenbosch
Honey Attorneys, Bloemfontein
For Respondent: L F Wilken
Instructed by:
Bouwer Potgieter Inc, Strand
Symington & De Kok Attorneys, Bloemfontein
1
M
ore
fully described as ‘Portion 9 (a portion of portion 2) of the
farm Mendoza No 512, in the Municipality and Division
Stellenbosch,
Province Western Cape in extent: 1,4286 hectares’.
2
There
is a proviso to the subsection which is of no relevance to the
present debate.
3
Huang
v Secretary of State for the Home Department
[2007]
2 AC 167
(HL);
[2007] UKHL 11.
4
At
para 18.
5
Ex
parte Chairperson of the Constitutional Assembly: In re
certification of the Constitution of the Republic of South Africa
[1996] ZACC 26
;
1996
1996 (4) SA
744
(CC).
6
At
para 99.
7
Dawood
& another v Minister of Home Affairs & others
;
Shalabi & another v Minister of Home
Affairs & others
;
Thomas
& another v Minister of Home Affairs & others
[2000] ZACC 8
;
2000
(3) SA 936
(CC) at paras 28-37.
8
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 90.
See further
Department of Land Affairs
v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007
(6) SA 199
(CC) para 53.
9
MEC
for Education, KwaZulu-Natal & others v Pillay
2008 (1) SA
474 (CC).
10
Promotion
of Equality and Prevention of Unfair Discrimination Act 4 of 2000
.
11
Para
47.
12
Para
147.
13
Para
154.
14
Para
157.
15
Para
150.
16
The
quotation used by the learned Chief Justice is from Gutmann
Identity
in Democracy
(Princeton University Press 2003) at 38.
17
The
sections read as follows:
‘
30. Language and culture.
─
Everyone has the right
to use the language and to participate in the cultural life of their
choice, but no one exercising these
rights may do so in a manner
inconsistent with any provision of the Bill of Rights.
31.
Cultural, religious and linguistic communities. ─
(1) Persons belonging to a cultural, religious or
linguistic community may not be denied the right, with other members
of that
community ─
(
a
)
to enjoy their culture, practise their religion and use their
language; and
(
b
)
to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.
(2)
The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.’