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[2018] ZASCA 183
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Oranje and Others v Rouxlandia Investments (Pty) Ltd (915/2017; 86/2018) [2018] ZASCA 183; 2019 (3) SA 108 (SCA) (7 December 2018)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 915/2017 & 86/2018
In
the matter between:
JAN JOHANNES
ORANJE FIRST
APPELLANT
ZILNA
ORANJE SECOND
APPELLANT
WARREN
ORANJE THIRD
APPELLANT
ENVER
ORANJE FOURTH
APPELLANT
and
ROUXLANDIA
INVESTMENTS (PTY)
LTD RESPONDENT
Neutral
citation:
Oranje & others v Rouxlandia Investments (Pty)
Ltd
(915/2017) & 86/2018
[2018] ZASCA 183
(7 December 2018)
Coram:
Maya P, Swain, Mathopo JJA and Carelse and Nicholls AJJA
Heard:
21 November 2018
Delivered:
7 December 2018
Summary
:
Extension of Security of Tenure Act 62 of 1997 (ESTA) –
relocation of long – term occupier on land – suitable
alternative accommodation provided – rights in terms of ss 5(
a
)
and (
d
) read with s 6(2)
(a)
not affected –
relocation not impacting on human dignity – relocation ordered.
ORDER
On
appeal from:
the Land Claims Court, Cape Town (Meer AJP sitting
as court of first instance):
The
appeal is dismissed.
JUDGMENT
Nicholls
AJA (Maya P, Swain, Mathopo JJA and Carelse AJA concurring):
[1]
This appeal deals with the respective rights of the parties when a
farm owner wishes to relocate a worker from one dwelling
to another,
on the same farm. Aligned to this is whether the Extension of
Security of Tenure Act 62 of 1997 (ESTA) finds application
in such
circumstances.
[2]
Mr Jan Johannes Oranje is a 51-year old farm worker and the first
appellant herein. He, together with his wife, the second appellant,
and his two adult children, the third and fourth appellants, reside
on the farm Kaaimansgaat, which is owned by Rouxlandia Investments
(Pty) Ltd (Rouxlandia), the respondent. Mr Oranje’s father
worked on the farm during his lifetime and Mr Oranje was born
there.
He has lived on the farm most of his life.
[3]
In 2000, Mr Oranje started working fulltime on the farm as a general
labourer. So did his wife. The Oranje family had the use
of a house
on the farm as part of Mr Oranje’s contract of employment. Soon
thereafter, in 2001, Mr Oranje suffered serious
injuries while
driving a tractor in the course and scope of his employment. There is
a dispute as to whether Mr Oranje’s
negligence was the cause of
the accident but nothing turns on this. It is common cause that he
continued working on the farm until
he was declared medically unfit
thirteen years later. Mrs Oranje was herself medically boarded in
2007. Although she no longer
worked there, she and the family
continued residing on the farm with Mr Oranje.
[4]
The farm
has 102 workers’ houses, of which 6 were upgraded to managers’
houses in 2013. On 16 December 2013, Mr Oranje
entered into a housing
agreement with Rouxlandia in terms of which he and his family became
entitled to occupy a manager’s
house. It was a specific term of
the housing agreement that the house was allocated only to management
members and if the primary
occupant no longer occupied a management
position, the housing agreement would be terminated on 30 days’
notice. Mr Oranje’s
continued occupation of the house was
conditional upon him remaining permanently employed as a manager on
the farm.
[1]
[5]
Approximately six months after taking occupation of the farm
manager’s house, in June 2014, Mr Oranje was declared medically
unfit for work and his employment on the farm came to an end. He did
not move out of the house. More than a year later, on 1 September
2015, Rouxlandia’s management team convened a meeting with Mr
Oranje to discuss his continued residence in the house.
[6]
At the meeting, Mr Oranje was informed that he and his family should
move from their managers’ house to a smaller house
on the farm.
He refused to do so. The following day, on 2 September 2013, it was
recorded in a letter sent to him that he had been
offered alternative
accommodation but had refused to participate in the meeting. He was
given 30 days’ written notice to
vacate the manager’s
house in which he was residing.
[7]
In May 2016, Rouxlandia launched an application in the Land Claim’s
Court (LCC) seeking an order to have Mr Oranje and
his family
relocated from the managers’ house to a smaller house on the
same farm. On 28 March 2017, the court a quo (Meer
AJP) granted
Rouxlandia’s order for relocation. Leave to appeal to this
court was granted on limited grounds, namely whether
the alternative
accommodation was suitable and whether Mrs Oranje should have been
joined as respondent with separate substantive
grounds alleged for
her relocation.
[8]
The appellants then brought an application before this court that the
grounds on which leave to appeal was sought be amplified
to include
three further grounds of appeal. These were: (1) whether the
requirements for a final interdict had been met; (2) that
Rouxlandia
did not make out a cause of action as it did not allege that it had
given the 30 days’ notice required by the
housing agreement;
and (3) that the LCC erred in not appreciating that it had a
discretion in terms of s 26(3) of the Constitution
to refuse the
relocation order based on considerations of equity and justice. The
amplified leave was granted by this court on
19 October 2017.
[9]
It was the third ground which was the nub of the appeal before this
court. The argument of the appellants was two-pronged. In
the first,
the appellants sought to rely on the Constitution. Failing that, it
was argued that the right to remain in their house
was located in s 5
and s 6 of ESTA.
[10]
The
starting point is the decision of this court in
Chagi
v Singisi Forest Products (Pty) Ltd
,
[2]
which conclusively spelt out whether a relocation could amount to an
eviction as contemplated by ESTA. The court held that because
s 6
encroaches upon a landowner’s right of ownership, it should be
restrictively interpreted.
[3]
Therefore an eviction in terms of ESTA is confined to an eviction
from the land, not from one dwelling to another. As such, a
relocation could not amount to an eviction in terms of ESTA. The
appellants did not suggest otherwise. Nor indeed is this avenue
available to the appellants.
[11]
Instead the contention was that, while a relocation is not an
eviction in terms of ESTA, it amounted to an eviction in terms
of s
26(3) of the Constitution, which provides that:
‘
No one may be
evicted from their home, or have their house demolished, without an
order of court made after considering all the
relevant circumstances.
No legislation may permit arbitrary evictions.’
[12]
It is not
entirely clear how this provision assists the appellants. In any
event, direct reliance on the Constitution is ill-conceived.
The
subsidiarity principle applies unless the provisions of the specific
legislation do not adequately give effect to the constitutional
rights in question.
[4]
This
means that it is impermissible for a court to bypass legislation
specifically enacted to give effect to a constitutional right
and to
decide the matter on the basis of the constitutional provision that
gives effect to the right.
[5]
ESTA and The Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (PIE) were specifically enacted
to
protect the most vulnerable sectors of our community from
homelessness and lack of security of tenure. Together they form an
integral component of the legislative measures designed to achieve
the progressive realisation of the right to housing enshrined
in s 26
of the Constitution. Accordingly, absent a finding that the
protection provided by ESTA is in some manner deficient, there
is no
justification for direct reliance on the Constitution. No deficiency
could be identified by counsel for the appellants.
[13]
In the
second prong of their constitutionality argument, the appellants
sought to locate their right to resist relocation in s 5
and s 6 of
ESTA. It is common cause that Mr Oranje is an ‘occupier’
[6]
as defined by ESTA. His right to reside on the farm is, therefore,
guaranteed. Under the heading ‘Rights and Duties of Occupiers
and Owners’ the relevant portions of ss 5 and 6 read as
follows:
‘
5. Fundamental
rights
- Subject to limitations which are reasonable and
justifiable in an open and democratic society based on human rights,
dignity,
equality and freedom, an occupier, an owner and a person in
charge shall have the right to–
(a) human dignity;
(b) freedom and security
of the person;
(c) privacy;
(d) freedom of religion,
belief and opinion and of expression;
(e) freedom of
association; and
(f) freedom of movement,
with due regard to the
objects of the Constitution and this Act.’
‘
6. Rights and
duties of occupier
- (1) Subject to the provisions of this Act,
an occupier shall have the right to reside on and use the land on
which he or she resided
and which he or she used on or after 4
February 1997, and to have access to such services as had been agreed
upon with the owner
or person in charge, whether expressly or
tacitly.
(2) Without prejudice to
the generality of the provisions of section 5 and subsection (1), and
balanced with the rights of the owner
or the person in charge, an
occupier shall have the right–
(a) to security of
tenure;
(b) to receive
bona
fide
visitors at reasonable times and for reasonable periods:
Provided that–
. . .
(c) to receive postal or
other communication;
(d) to family life in
accordance with the culture of that family . . .
(
dA
) to bury a
deceased member of his or her family . . . on the land which on which
the occupier is residing..
(e) not to be denied or
deprived of access to water; and
(f) not to be denied or
deprived of access to educational or health services.’
[14]
The position contended for, as I understand it, is that ss 5(
a
)
and (
d
) of ESTA, which provide for the rights to human dignity
and privacy, read with s 6(2)
(a)
, which provides for the right
to security of tenure, shield the appellants from any attempt at
relocation. These provisions of
ESTA afford them the right to remain
in their house and protect them from any attempted relocation. Absent
such an interpretation,
so the argument goes, there would be nothing
to prevent the appellants being moved to an inhabitable shack on the
same farm.
[15]
For this
submission reliance was placed on
Daniels
v Scribante & another.
[7]
In
Daniels,
Ms
Daniels wished to effect basic improvements, at her own expense, to
her dwelling. She had resided in the house together with
her family
for thirteen years. It was accepted by the parties that the dwelling
was in a deplorable state and lacked the most basic
of human
amenities, including running water. Mrs Daniels successfully argued,
in the Constitutional Court, that her rights in terms
of s 5 and 6 of
ESTA included the right to make improvements to her dwelling. The
counter argument by the respondent was that the
totality of an
occupier’s rights was located in s 6 of ESTA. The right to make
improvements to one’s dwelling is not
one of the rights
specified in s 6 and therefore Mrs Daniels had no rights in terms of
ESTA to effect any improvements to her dwelling
[16]
The
Constitutional Court rejected this approach to the interpretation of
the statute
[8]
and found this
reading of s 6 to be unduly narrow, taking into consideration the
constitutional context and the purpose for which
ESTA was enacted.
The Constitutional Court found that the living conditions of Mrs
Daniels did not accord with basic human dignity
and ‘like the
notion of ‘reside’ security of tenure must mean that the
dwelling has to be habitable’.
[9]
While accepting that the constitutional rights enjoyed by Mrs Daniels
were circumscribed to the extent provided for in ESTA, which
does not
make specific mention of the right to make improvements, the
Constitutional Court held that to deny Mrs Daniels the right
to make
her dwelling habitable was to deprive her of her human dignity.
[17]
Adopting the same broad interpretative approach, there can be little
doubt that the right to refuse relocation can be accommodated
within
the rubric of s 6 of ESTA. The specified rights and duties conferred
on an occupier in terms of s 6 of ESTA are not exhaustive.
The right
to security of tenure in terms of s 6(2)
(a)
could,
conceivably, have application in such situations. Relocation to an
uninhabitable dwelling would offend an occupier’s
right to live
in accordance with basic human dignity, as was found by the
Constitutional Court in
Daniels
. In such circumstances, where
a relocation infringes an occupier’s human dignity, this could
be successfully resisted by
invoking ss 5
(a)
and 6(2)
(a)
of
ESTA.
[18]
However,
what of the situation where a relocation does not impact on the human
dignity of the occupier? The Constitutional Court
has acknowledged
that the right of residence conferred by s 8 of ESTA is not
necessarily tied to a specific house.
[10]
The protection afforded by those parts of ss 5 and 6 of ESTA on which
the appellants rely, is to ensure that an occupier will not
be
subjected to inhumane conditions violating human dignity. To this
extent, an occupier’s right to resist relocation is
protected.
But these sections do not amount to a blanket prohibition on
relocation under any circumstances. If indeed the relocation
were to
impair an occupiers’ human dignity, then the provisions of s 5
and s 6 would apply and the occupiers could invoke
their
constitutional rights. This does not mean that all relocations
necessarily suffer the same fate.
[19]
In this matter, the entitlement of Mr Oranje and his family to reside
in the house arose from a housing agreement. Once the
housing
agreement was terminated his contractual right to reside in that
particular house was also terminated. It was on this basis
that
Rouxlandia sought to have the Oranje family relocated. Because Mr
Oranje is a long-term occupier with his right to reside
on the land
guaranteed in terms of ESTA, Rouxlandia correctly accepted that they
had an obligation to provide suitable alternative
housing.
[20]
Suitable
alternative accommodation is defined in s 1 of ESTA as ‘alternative
accommodation which is safe and overall not less
favourable than the
occupiers’ previous situation’.
[11]
Rouxlandia has offered alternative accommodation. It is not a
manager’s house but a smaller 5-roomed house. It has been newly
painted and has running water, a flush toilet and an inside bathroom.
The roof is corrugated iron and is leak-free. The criteria
for
suitability have, in my view, been fulfilled. In any event, Mr Oranje
does not object to the alternative accommodation on the
basis that it
is unsuitable. His complaint is that it does not befit the status of
a manager. He wants a ‘bigger and better’
house.
[21]
ESTA was not enacted to provide security of tenure to an occupier in
the house of his or her choice. The primary purpose of
ESTA as set
out in the preamble is:
‘
To
provide for measures with State assistance to facilitate long-term
security of land tenure; to regulate the conditions of residence
on
certain land; to regulate the conditions on and the circumstances
under which the right of persons to reside on land may be
terminated;
and to regulate the conditions and circumstances under which persons,
whose right of residence has been terminated,
may be evicted from the
land; and to provide for matters connected therewith.’
[22]
Mr Oranje’s long-term security of tenure is not threatened. His
continued residency on the farm is not in dispute. His
entitlement to
the particular house that he wishes to occupy is contractually linked
to his employment as a manager, which employment
has now ended due to
his ill health. He has been provided with suitable alternative
accommodation. In these circumstances any reliance
on his right of
security of tenure, in terms of s 6(2)
(a)
read with his right
to human dignity in terms of s 5
(a)
of ESTA, is misplaced.
[23]
Rouxlandia was entitled to enforce its rights at common law to
terminate Mr Oranje’s occupancy in that particular house,
subject to the proviso that none of Mr Oranje’s ESTA rights are
infringed. It is my view that they have not.
[24]
Rouxlandia sought final interdictory relief in the LCC. Although the
jurisdiction of the LCC was not argued before us, the
LCC was of the
view that Rouxlandia’s cause of action could be located in s
20(1) of ESTA. Section 20(1) gives the LCC the
‘ancillary
powers necessary or reasonably incidental to the performance of its
functions’ in terms of ESTA. This includes
the power to decide
any constitutional matter in relation to ESTA in terms of s 20(1)
(a)
and to grant interlocutory orders, declaratory orders and
interdicts in terms of s 20(2)
(b).
This view cannot be
faulted.
[25]
The other points on appeal were not strenuously pursued. But neither
were they abandoned and I deal with them briefly. To suggest
that the
claim for relocation was not established because there was no
allegation in the founding affidavit that the requisite
30 days’
notice period had been given, as was argued, is to elevate form over
substance. There was no dispute that 30 days’
written notice
had in fact been given. Nor was there any dispute that the employment
relationship had been terminated because Mr
Oranje was medically
unfit to work. In addition, the requirements for a final interdict
had been met. Rouxlandia had a clear contractual
right to terminate
Mr Oranje’s occupation of the manager’s house, (which he
occupied only on the basis of his managerial
position), and was then
obliged to provide suitable alternative accommodation in terms of
ESTA, which it did.
[26]
Insofar as
it was contended that Mrs Oranje has an interest separate from that
of Mr Oranje, this is based on an incorrect interpretation
of
Klaase
& another v Van der Merwe & others.
[12]
In that matter the Constitutional Court considered whether Mrs Klaase
had the right to reside on the land as an occupier in terms
of ESTA,
separate to that of her husband. In the present matter it is common
cause that Mrs Oranje is an occupier in her own right.
Unlike Mrs
Klaase there is no question of her being evicted from the land.
Nonetheless, she was joined in the proceedings and filed
a
confirmatory affidavit in support of her husband’s allegations.
Any rights Mrs Oranje possesses to live in the manager’s
house
flow from her husband’s housing agreement with Rouxlandia. It
is accordingly unnecessary to allege separate substantive
grounds for
her relocation.
[27]
All common
law must be subject to constitutional scrutiny, particularly in
matters affecting occupiers’ rights of residence.
[13]
The owner’s assertion of its common law rights in the
circumstances of this case, is not in conflict with any
constitutional
imperative contained in s 26(3) of the Constitution.
There is no question that homelessness will ensue. There are no
considerations
of fairness and equity which would preclude Rouxlandia
from relocating Mr Oranje and his family. Suitable alternative
accommodation
has been provided, albeit not as spacious as the
manager’s house they presently occupy. The human dignity of Mr
Oranje has
not been impaired. His constitutional right to housing has
not been denied. The appeal must accordingly fail. No order as to
costs
was sought by either party.
[28]
In the result the following order is made: The appeal is dismissed.
_____________________
C H Nicholls
Acting Judge of Appeal
APPEARANCES:
For
the Appellants: P Hathorn SC
Instructed
by: Chennels Alberty, Stellenbosch
Honey
Attorneys, Bloemfontein
For
the Respondent: S Grobler
Instructed
by: Cronje’s Attorneys, Pretoria
Symington
& De Kok Attorneys, Bloemfontein
[1]
Clause 1(d) of the Housing Agreement loosely translated from English
reads: 'It is understood that the relevant house is specifically
allocated and is applicable to management members. In the case where
the primary occupant no longer occupies a management position,
for
whatever reason, this housing agreement shall be terminated with 30
days’ written notice.'
Clause
9(a), also loosely translated from English, goes on to read: 'As
prescribed in clauses 1(d) and 9(c) of this agreement,
this housing
agreement will be terminated when the Responsible Occupier’s
permanent service as management member with the
Employer terminates
and/or for any other reasons as contained in this agreement, as well
as for any reasons as prescribed by
law.'
[2]
Chagi v Singisi Forest Products (Pty) Ltd
[2007] ZASCA 63
; [2007]
SCA 63 (RSA).
[3]
Id para 17.
[4]
Baron & others v Claytile (Pty) Ltd & another
[2017] ZACC
24
;
2017 (5) SA 329
(CC) para 10.
[5]
Minister of Health & another N.O. v New Clicks South Africa
(Pty) Ltd & others
[2005] ZACC 14
;
2006 (2) SA 311
(CC) para
437.
[6]
In s 1 of ESTA an ‘occupier’ ‘means a person
residing on land which belongs to another person, and who has
or on
4 February 1997 or thereafter had consent or another right in law to
do so, but excluding . .. .’
[7]
Daniels v Scribante & another
[2017] ZACC 13
; 2017(4) SA 341
(CC) (Daniels).
[8]
The Constitutional Court cited with approval Thoroughbred Breeders’
Association v Price Waterhouse
2001 (4) SA 551
(SCA) and Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism &
others 2004 (4) SA 490; 2004 (7)
BCLR 687 (CC).
[9]
See Daniels fn 7 para 32.
[10]
Snyders & others v De Jager & others
2017 (3) SA 545
(CC)
para 77.
[11]
See Drumearn (Pty) Ltd v Wagner & others
2002 (6) SA 500
(LCC),
where it was held that although relocation was not an eviction, it
affects the rights of occupiers and, therefore, the
accommodation
that the occupiers were being located to must be suitable
accommodation as defined in ESTA.
[12]
Klaase & another v van der Merwe & others [2016] ZACC 17;
2016 (6) SA 131 (CC).
[13]
Molusi & others v Voges N O & others
2016 (3) SA 370
(CC).