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[2013] ZACC 5
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Hattingh and Others v Juta (CCT 50/12) [2013] ZACC 5; 2013 (3) SA 275 (CC); 2013 (5) BCLR 509 (CC) (14 March 2013)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 50/12
[2013]
ZACC 5
In
the matter between:
MICHAEL
HATTINGH
.................................................................................
First
Applicant
EDWINA
JUNITA HATTINGH
................................................................
Second
Applicant
PIETER
HATTINGH
...................................................................................
Third
Applicant
and
LAURENCE
EDWARD JUTA
............................................................................
Respondent
Heard
on : 6 November 2012
Decided
on : 14 March 2013
JUDGMENT
ZONDO
J (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Nkabinde J, Skweyiya J, Van der Westhuizen J and Yacoob J
concurring):
Introduction
[1]
The three applicants have brought an application for leave to appeal
against a judgment and order of the Supreme Court of
Appeal
dismissing their appeal against a judgment and order of the Land
Claims Court. The respondent opposes the application.
Before I deal
with the application, it is necessary to set out the background to
the matter.
Background
[2]
Mr Laurence Edward Juta, the respondent, owns a smallholding called
Fijnbosch in Stellenbosch. The smallholding consists of
1,4
hectares. It has a cottage which consists of three bedrooms, a
kitchen and a living room or lounge. In the cottage live Mrs

Magrieta Hattingh, her three grandchildren and the applicants. She
is about 67 years old and is of poor health. The first and
second
applicants are, respectively, husband and wife and parents of the
three minor grandchildren.
[3]
The first and third applicants are Mrs Hattingh’s adult
children. The second applicant is Mrs Hattingh’s
daughter-in-law.
1
Ricardo, who is not a party to these proceedings, is the youngest
son of Mrs Hattingh. He also lives in the cottage.
[4]
Some time prior to December 2002 Mrs Hattingh worked for Mr Juta as
a housekeeper in his house in Stellenbosch. At that time

Mrs Hattingh, her husband and the applicants lived together as
a family on a farm owned by a Mr Mostert. In December 2002
Mrs
Hattingh and her husband moved to Fijnbosch with Mr Juta’s
consent. It appears that the applicants also came to live
in
Fijnbosch at about the same time. Mrs Hattingh was going to
continue in Mr Juta’s employment. For some time, Ricardo
lived
in accommodation provided by his then employer in Stellenbosch. He
joined the family in the cottage only when he no longer
had that
accommodation. The applicants and Mr Juta have different versions on
the basis upon which the applicants came to live
in the cottage. For
the purpose of this judgment, it is not necessary to resolve this
difference.
[5]
The cottage originally consisted of two separate units with an
interlinking wall. Initially, Mr and Mrs Hattingh were
to use
only one of the two units of the cottage but, when the applicants
moved in as well, Mr Juta converted the two units into
one house by
putting a door in the interlinking wall, thereby joining the two
units.
[6]
After Mrs Hattingh had moved to Fijnbosch, she did not perform any
work for Mr Juta from 3 December 2002 to 27 May 2003
but Mr
Juta continued to pay her salary as if she was working. Between 28
May 2003 and December 2005 there was a time when the
only work that
Mrs Hattingh performed for Mr Juta was ironing and a time when she
worked for him on a full-time basis as a domestic
worker. After
December 2005 Mrs Hattingh did not continue working for Mr Juta
but continued to live in the cottage.
There is some dispute between
the applicants and Mr Juta about how Mrs Hattingh stopped working
for him. Again, it is not necessary
to resolve that dispute.
[7]
Originally, the agreement between Mrs Hattingh and Mr Juta was
that Mr and Mrs Hattingh could live in the cottage
for as
long as Mrs Hattingh was in Mr Juta’s employ. Mr Hattingh
passed away in 2006. Mr Juta took a decision at some
stage that
Mrs Hattingh could stay in the cottage for as long as she
wanted.
[8]
Mr Juta expected that the applicants would vacate the cottage at
some stage. When they did not, he spoke to Mrs Hattingh enquiring
as
to why they had not tried to find alternative accommodation. It
appears that Mrs Hattingh’s response was that her children

could not be expected to sleep in the bush.
2
The applicants indicated to Mr Juta that they had been looking for
alternative accommodation but had not been able to find it.
Mr Juta
indicated that he was willing to pay a sum of R22 000,00 to help the
applicants towards finding alternative accommodation.
[9]
In 2008 the applicants were in the employ of different employers
around Stellenbosch. The first applicant was earning R2400,00
per
month, the second applicant about R1200,00 per month for work that
she performed three days a week and the third applicant
R2000,00 per
month.
[10]
At some stage Mr Juta employed a Mr Willemse as a farm manager. He
does not say when this was. Mr Juta says that Mr Willemse
cycles 16
km per day. It seems that Mr Willemse must be cycling 8 km to
work and back which makes the distance 16 km per
day. He says that
he needed the applicants to vacate the cottage because that would
enable him to close off one of the units
of the cottage and let Mr
Willemse live in that unit so that he would not have to cycle 16 km
per day.
In
the Magistrate’s Court
[11]
Mr Juta insisted that the applicants should leave the cottage but
they did not. They said that they had not found alternative

accommodation. He then instituted proceedings in the Magistrate’s
Court, Stellenbosch (Magistrate’s Court), for their
ejectment
from Fijnbosch. Mr Juta’s case was that he and the applicants
had agreed that the applicants would stay in the
cottage only for
three months which had long expired and that he needed one of the
two units of the cottage to accommodate Mr
Willemse.
[12]
The applicants opposed Mr Juta’s application in the
Magistrate’s Court. They denied Mr Juta’s version that

there was an oral agreement between him and them that they were to
stay in the cottage for three months only and should have
left after
the expiry of that period. Their case was that Mrs Hattingh was an
occupier as defined in section 1 of the Extension
of Security of
Tenure Act
3
(ESTA), that she had a right to family life in terms of section
6(2)(d) of ESTA
4
and this right entailed that she could live with them in the
cottage. In response to this Mr Juta adopted the position that he

was not denying Mrs Hattingh her right to family life provided for
in section 6(2)(d). He said that the applicants could visit
Mrs
Hattingh but had no right to live on the farm.
[13]
The Magistrate’s Court found in favour of the applicants on
the point that their mother’s right to family life
meant that
they could live with her in the cottage. It dismissed Mr Juta’s
application but made no order as to costs.
Appeal
to the Land Claims Court
[14]
Mr Juta appealed to the Land Claims Court against the judgment and
order of the Magistrate’s Court.
5
It was at the time of those proceedings that the legal
representatives of the applicants and Mr Juta reached an agreement
that,
notwithstanding the disputes of fact, all the requirements for
the eviction of the present applicants as occupiers in their own

right under ESTA had been complied with.
6
The parties agreed at that stage that what remained to be determined
was whether the present applicants could remain in occupation
of the
cottage because of Mrs Hattingh’s right to family life
provided for in section 6(2)(d) of ESTA.
7
[15]
Meer J wrote the judgment and Gildenhuys J concurred.
8
The Land Claims Court dealt with the appeal on the basis that the
issue before it was whether or not Mrs Hattingh’s
right
to family life entitled her to live on Mr Juta’s land with her
adult children who were not dependent upon her. It
concluded that,
in so far as the right to family life provided for in section
6(2)(d) entailed that the occupier could live with
family members,
it was limited to the occupier living with a spouse and dependants.
[16]
This conclusion was based on section 8(4) and (5) of ESTA.
9
The Land Claims Court said that, in specifically referring to a
spouse or dependant, section 8(5) provided a justification for
an
inference that those are the members of an occupier’s family
with whom an occupier is entitled to live pursuant to his
or her
right to family life in section 6(2)(d).
10
That Court pointed out that in the balancing of rights of a
landowner and an occupier required by section 6(2) of ESTA,
restricting
family members to a spouse and dependants struck an
equitable balance.
11
It said that, were it otherwise, landowners would have the onerous
and intolerable burden of housing adult members of occupiers’

extended families indefinitely. It said that this could not have
been intended by the Legislature.
12
[17]
The Court also stated that it could well be that in a specific
situation a wider interpretation could be accorded to the
right to
family life permitting other family members to reside with an
occupier.
13
It said that “[i]n such a case, evidence in support of a wider
interpretation will be required.”
14
It pointed out that in this case there was no such evidence.
15
[18]
The Court upheld the appeal, set aside the order of the Magistrate’s
Court and replaced it with an order for the eviction
of the present
applicants by 12 May 2011. In the event that the applicants did not
vacate Fijnbosch by that date, the Court authorised
and directed the
sheriff of the area to secure their eviction on or after
13 May 2011. Just as no order as to costs
had been made by
the Magistrate’s Court, the Land Claims Court also made no
order as to costs.
16
Subsequently, with the leave of the Land Claims Court, the
applicants appealed to the Supreme Court of Appeal.
17
In
the Supreme Court of Appeal
[19]
The Supreme Court of Appeal viewed the issue before it as requiring
the determination of the meaning of the phrase “family
life in
accordance with the culture of that family” in section
6(2)(d).
18
It pointed out that the applicants did not impugn “the
approach that it was incumbent upon them to prove the cultural basis

under section 6(2)(d), upon which they rely to avoid eviction
from the respondent’s farm”.
19
The Supreme Court of Appeal said that, as a result of this, it was
unnecessary to decide whether the Land Claims Court’s
approach
in this regard was correct.
20
It also said 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 section 6(2)(d)”.
21
However, the Supreme Court of Appeal expressed the view that the
question before it was “whether the extended Hattingh
family
reside together in accordance with its culture”.
22
[20]
The Supreme Court of Appeal first considered the concept of a family
and, later, that of culture. With regard to the concept
of “family”,
the Supreme Court of Appeal referred to certain international
conventions,
23
to the case of
Huang v Secretary of State for the Home
Department
,
24
the
Certification case
25
and concluded that the word “family” was “incapable
of having a precise legal connotation or definition.”
26
Nevertheless, the Court expressed the view that a right to family
life is inherent in the fundamental right to human dignity
enshrined
in the Constitution.
27
[21]
In considering the meaning of the term “culture” in
section 6(2)(d), the Supreme Court of Appeal referred to
the
decision of this Court in
MEC for Education, KwaZulu-Natal and
Others v Pillay
28
and observed that in that case this Court was unanimous that the
concept of “culture” resisted any precise definition.
29
It noted that in both the majority judgment by Langa CJ, and the
minority judgment by O’Regan J, it was concluded that
culture
is an inherently associative practice and that cultural practices
are often influenced by religious practices.
30
It also noted various statements from the judgments in
Pillay
about culture.
31
[22]
The Supreme Court of Appeal concluded that a person’s culture
as envisaged by the Constitution is not a matter of individual

practice but of association and practices pursued by a number of
persons as part of a community. It then held that the right
to
family life in accordance with the family’s “culture”
in section 6(2)(d) is “clearly a reflection
of the fundamental
rights set out in sections 30
32
and 31
33
of the Constitution”.
34
These sections provide 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.
35
[23]
The Supreme Court of Appeal also held that this Court’s
finding in
Pillay
that cultural rights are clearly
associative in nature was fatal to the applicants’ contention
that culture as envisaged
in section 6(2)(d) was non-associative and
fell to be determined solely by the manner in which Mrs Hattingh and
her extended
family lived their lives.
36
It pointed out that the applicants had not sought to establish a
cultural practice of association to show that they and Mrs Hattingh

were enjoying family life in accordance with the culture of their
family. The Court observed that the applicants’ counsel
had
conceded that in the event of that Court finding that culture was a
matter of association shared by at least a portion of
the community,
the appeal had to fail. Accordingly, the Supreme Court of Appeal
dismissed the appeal but amended the eviction
order granted by the
Land Claims Court concerning the date by which the applicants had to
vacate Fijnbosch and the date by when
the sheriff was authorised and
directed to evict them if they had not vacated the smallholding by
the given date. It made the
following order:
“
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.”
37
Constitutional
matter or issue
[24]
This Court’s jurisdiction is restricted to deciding
constitutional matters and issues connected with constitutional

matters. ESTA falls within the ambit of legislation passed to give
effect to the constitutional right provided for in section
25(6) of
the Constitution.
38
The parties were agreed that this Court is called upon to interpret
and apply the provisions of section 6(2)(d). This is clearly
a
constitutional matter.
Interests
of justice
[25]
The test for the determination of an application for leave to appeal
to this Court is whether or not it is in the interests
of justice
for this Court to grant leave. The matter raises the interpretation
of section 6(2)(d) which relates to a right that
is important and
affects a vulnerable and yet significant section of our society,
namely, people who live on other people’s
land. This is also
the first opportunity that this Court is called upon to consider and
interpret the provisions of section 6(2)(d).
Its pronouncement in
this case may bring about certainty on the meaning and scope of the
right to family life provided for in
section 6(2)(d). I consider
that the matter has reasonable prospects of success. It is in the
interests of justice that this
Court grant leave to appeal.
Rule
31 application
[26]
The applicants have brought an application for the admission of
certain new evidence in this Court in terms of Rule 31.
39
This evidence was not placed before any of the other courts which
have dealt with this matter.
[27]
The new evidence that the applicants seek to adduce in their Rule 31
application is contained in the affidavits of Dr Budlender
and Dr
Amoateng and annexures thereto. The evidence in Dr Budlender’s
affidavit and annexure thereto was extracted from
the General
Household Survey, 2010 conducted by Statistics South Africa. The
evidence to which Dr Amoateng’s affidavit
refers is
contained in an annexure to his affidavit. The annexure is a chapter
from a book co-authored by Dr Amoateng on the
living patterns of
families in post-apartheid South Africa. The evidence of Dr
Budlender is said to deal with the phenomenon
of adult children
residing with one or both of their parents.
[28]
One of the requirements that must be met in order for a Rule 31
application to succeed is that the material canvassed in
the
documents lodged with the Registrar must be relevant to the
determination of the issues before the Court. Already at the
time
when this matter was before the Land Claims Court, the parties
agreed that the only remaining issue between them was whether
Mrs
Hattingh’s right to family life in section 6(2)(d) entailed
that she could live with the applicants in the cottage.
This remains
the only issue before us as well. Given the conclusion I reach in
this matter, the new evidence relating to the
living patterns of
families in post-apartheid South Africa and relating to the
phenomenon of adult children living with their
parents is irrelevant
and should not be admitted.
40
[29]
The applicants also seek the admission of statistical material
showing the extent of the housing backlog in the Western Cape.
This
matter has been dealt with on an acceptance by all concerned that
there is a huge accommodation problem in and around Stellenbosch
in
the Western Cape. This acceptance is based, in part, on the
statements made in the papers that the applicants have been on
the
waiting list for accommodation for a long time. This is a reference
to government housing. There is therefore no need to
admit this
statistical evidence. This common cause fact will be taken into
account in the balancing exercise required by section
6(2). The
application for the admission of the statistical evidence also falls
to be dismissed.
Appeal
[30]
The question for determination is whether or not the Supreme Court
of Appeal was correct in dismissing the applicants’
appeal
against the judgment and order of the Land Claims Court. The answer
to that question depends upon whether Mrs Hattingh’s
right to
family life provided for in section 6(2)(d) will be infringed if the
applicants are evicted from Fijnbosch. This requires
a proper
construction of section 6(2)(d). Mrs Hattingh’s right to
family life as provided for in section 6(2)(d) is
a right that she
has by virtue of her status as an occupier as defined in ESTA.
41
It is common cause that Mrs Hattingh is an occupier in terms of
the definition of “occupier” in ESTA.
[31]
The critical provision in the determination of this appeal is
section 6(2)(d). However, I need to refer to sections 5 and
6(1)
because section 6(2) makes a reference to both sections 5 and 6(1).
Section 5 reads as follows:
“
Subject
to limitations which are reasonable and justifiable in an open and
democratic society based on human dignity, equality
and freedom, an
occupier, an owner and a person in charge shall have the right to—
human
dignity;
freedom
and security of the person;
privacy;
freedom
of religion, belief and opinion and of expression;
freedom
of association; and
freedom
of movement,
with
due regard to the objects of the Constitution and this Act.”
Section
6 governs the rights and duties of an occupier. Section 6(1) reads:
“
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.”
It
is now necessary to quote section 6(2)(d). It reads as follows:
“
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—
to
family life in accordance with the culture of that family
:
Provided that this right shall not apply in respect of single sex
accommodation provided in hostels erected before 4 February
1997”.
(Emphasis added.)
The
phrase “balanced with the rights of the owner or person in
charge” in section 6(2)
[32]
In my view the part of section 6(2) that says: “balanced with
the rights of the owner or person in charge” calls
for the
striking of a balance between the rights of the occupier, on the one
side, and those of the owner of the land, on the
other. This part
enjoins that a just and equitable balance be struck between the
rights of the occupier and those of the owner.
The effect of this is
to infuse justice and equity in the inquiry required by section
6(2)(d). Section 6(2)(d) is not the only
provision in which ESTA
seeks to infuse justice and equity or fairness. In this regard I
draw attention to the requirement in
section 6(4)
42
that the landowner’s right to impose conditions for the
exercise of the right by any person to visit and maintain his or
her
family graves must be exercised reasonably and the requirement in
section 8(1) that the termination of an occupier’s
right of
residence must not only be based on a lawful ground but also that it
must be “just and equitable, having regard
to all relevant
factors”. The factors set out in section 8(1) make it clear
that fairness plays a very important role.
They are:
“
(a)
the fairness of any agreement, provision in an agreement, or
provision of law on which the owner or person in charge relies;
(b)
the conduct of the parties giving rise to the termination;
(c)
the interests of the parties, including the comparative hardship to
the owner or person in charge, the occupier concerned,
and any other
occupier if the right of residence is or is not terminated;
(d)
the existence of a reasonable expectation of the renewal of the
agreement from which the right of residence arises, after
the
effluxion of its time; and
(e)
the fairness of the procedure followed by the owner or person in
charge, including whether or not the occupier had or should
have
been granted an effective opportunity to make representations before
the decision was made to terminate the right of residence.”
43
[33]
That the requirement in section 6(2) that the occupier’s
rights be balanced with the rights of the owner or person
in charge
has the effect of infusing justice and equity in section 6(2) is not
surprising, because, for some time now, there
has been movement by
Parliament towards infusing justice and equity or fairness into
certain legal relationships. A few examples
in support of this
proposition should suffice. In the employment relationship this was
already the case prior to the advent of
democracy.
44
The Constitution took this a step further when it entrenched in the
Bill of Rights the right to fair labour practices.
45
The relationship of landowner and unlawful occupier has also been
infused with an element of justice and equity. This has been
done by
the passing of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act
46
(PIE) in terms of which it is now a condition for the eviction of an
unlawful occupier that such eviction be just and equitable.
47
The result is that a court will not issue an eviction order against
an unlawful occupier of land if it is unable to find that
the
eviction will be just and equitable. The relationship of landlord
and tenant has also been infused with justice and equity.
In terms
of the Rental Housing Act
48
(RHA) a landlord to whom the RHA applies may not terminate a lease
if the termination would constitute an unfair practice as
defined in
that Act even if at common law the landlord would have been within
his or her rights to terminate the lease.
49
The
term “family” in section 6(2)(d)
[34]
The reference to “family life” in section 6(2)(d) of
ESTA raises the question of what constitutes a “family”

for purposes of that section. The applicants contended for the
inclusion of an extended family in the term “family”

whereas the respondent contended for its restriction to the
occupier’s spouse and dependent children. The Land Claims
Court held that the “family” contemplated in section
6(2)(d) is constituted by the occupier’s spouse or partner
and
dependent children.
50
That means the nuclear family. In my view there is no statutory
justification for limiting the term “family” in
section 6(2)(d) to the nuclear family. The Land Claims Court
based its conclusion in this regard on section 8(4) and (5).
It said
that those provisions gave an indication that even in section
6(2)(d) the family contemplated was the spouse of the occupier
and
his or her dependent children. Section 8(4) gives no such
indication. Section 8(5) makes a reference to a spouse and a

dependant but I do not think that the mere mention of those words in
the provision is sufficient to serve as a proper basis for
the
conclusion that the reference to “family” in section
6(2)(d) is a reference to a nuclear family. As it was said
by this
Court in
Dawood
,
51
families come in different shapes and sizes. There is no need to
attempt to define the term “family” with any precision

other than to say that it cannot be limited to the nuclear family.
The first and third applicants are two of Mrs Hattingh’s
sons.
The second applicant is Mrs Hattingh’s daughter-in-law. In my
view, whatever notion of family is contemplated in
section 6(2)(d)
will include the children of the occupier. I do not think that the
attainment of the age of majority or being
independent of parents
takes a person out of the ambit of his or her parents’ family.
I now turn to a discussion of the
term “family life”.
The
term: “family life”
[35]
It would be difficult to define with any degree of certainty the
occupier’s “right to family life in accordance
with the
culture of that family” for which provision is made in section
6(2)(d). However, it seems to me that the reference
to “family
life” in section 6(2)(d) suggests that the purpose of the
conferment of this right on occupiers was
to ensure that, despite
living on other people’s land, persons falling within this
vulnerable section of our society would
be able to live a life that
is as close as possible to the kind of life that they would lead if
they lived on their own land.
This means as normal a family life as
possible, having regard to the landowner’s rights. Most people
who fall into this
section of our society are people who, under
apartheid, were denied certain rights by landowners including the
right to live
a normal family life with their family. In this
regard, I note that the preamble to ESTA does suggest that ESTA
seeks to deal
with a situation that “is in part the result of
past discriminatory laws and practices”. The object was to
give this
section of our society human dignity which they were
denied under apartheid.
[36]
Although I have said that the purpose of section 6(2)(d) was to
ensure that, as far as possible, an occupier could enjoy
a life that
is as much of family life as is possible, the extent of that family
life in any specific set of facts will depend
upon striking a fair
balance between enabling the occupier to enjoy family life and
enabling the owner of the land to also enjoy
his rights as owner of
the land. In this regard I also note that the preamble to ESTA
includes a statement that it is desirable
that “the law should
extend the rights of occupiers, while giving due recognition to the
rights, duties and legitimate
interests of owners”.
[37]
Living a family life may mean the occupier living with his or her
spouse or partner only or living with one or more of his
or her
children or with one or more members of his or her extended family,
depending upon what the result is when one balances
the occupier’s
living with any one or more of those persons with what the owner of
the land is also entitled to. If, in
a particular case, the
balancing produces a result that is unjust and inequitable to the
owner of the land, the occupier’s
right to family life may be
appropriately limited. If, however, the occupier were to live with
his or her spouse or partner and
with one, two or more of his
children or other members of the extended family and this would not
result in any injustice or unfairness
and inequity to the owner of
the land, the occupier would be entitled to live with those members
of his or her family. The purpose
of section 6(2)(d) is to enable
occupiers to live as full a family life as possible including
engaging in cultural activities
or practices, as long as that does
not offend the equitable balance of the occupier’s rights with
the rights of the landowner
as required by section 6(2)(d).
[38]
Counsel for Mr Juta contended that, if “family life”
were interpreted broadly, a landowner would never know what
he or
she had taken on when granting a single occupier consent to reside
on the property. He pointed out that, on the basis of
the right to
family life under section 6(2)(d), a single occupier could later
claim to be entitled to live with a large number
of family members
on the landowner’s property. Counsel called this “family
life by ambush”.
[39]
The answer to the concern expressed on behalf of Mr Juta is that
ESTA ensures proper respect for the rights of the landowner.
It does
so by requiring that the occupier’s right to family life be
balanced against the rights of the landowner. Although
the scenario
mentioned by counsel for Mr Juta is conceivable, as this judgment
holds, the position is that the occupier may not
reside on the
landowner’s property with more family members than is
justified by considerations of justice and equity when
the
occupier’s right to family life is balanced with the rights of
the landowner.
[40]
The right to family life in section 6(2)(d) is not restricted
to the occupier being able to live with his or her spouse
or partner
or children only. He or she may also live with other members of his
or her family provided that doing so will not
be unjust and
inequitable to the landowner when the rights of the owner of the
land are balanced against the occupier’s
right to family life.
In such a case whether the children are adults or self-reliant is
neither here nor there. What matters
is what is just and equitable
when the rights of the occupier are balanced with those of the
landowner.
The
phrase: “in accordance with the culture of that family”
[41]
Ordinarily, the next phrase for discussion in section 6(2)(d) would
be the phrase “in accordance with the culture of
that family”.
However, in the view I take of this matter, a discussion of that
phrase is not necessary. This is so because
the decisive question in
this case is whether or not it can be said that, when Mrs Hattingh’s
right to live with the applicants
in terms of her right to family
life as provided for in section 6(2)(d) is balanced against Mr
Juta’s rights as landowner,
it would be just and equitable
that Mrs Hattingh continues to live with the applicants on Mr Juta’s
property. That calls
for the striking of a fair balance between the
rights of the two parties. That is the exercise to which I turn.
Would
it be just and equitable that Mrs Hattingh lives with the applicants
in the cottage?
[42]
In seeking to determine whether it would be just and equitable that
Mrs Hattingh lives with the applicants in the cottage,
many factors
require to be taken into account. These include the following—
(a)
Mr Juta does not seek Mrs Hattingh’s eviction from the cottage
and she will continue to live in the cottage;
(b)
Ricardo will not be evicted and Mr Juta is happy that Ricardo may
continue to live in the cottage; this means that he will
be able to
assist Mrs Hattingh whenever she needs assistance;
(c)
at some stage Mr Juta was prepared to pay an amount of R22 000,00 to
the applicants to assist them in finding alternative
accommodation;
(d)
the applicants’ eviction will enable Mr Juta to use part of
the cottage to provide accommodation to Mr Willemse who,
otherwise,
has to cycle 16 km per day because he cannot presently be
accommodated in the cottage;
(e)
it can be accepted that neither the first applicant nor the third
applicant has ever worked for Mr Juta in any serious way;
the second
applicant did work for him for a limited period in the past;
(f)
Mr Juta and his wife have committed themselves to transporting
Mrs Hattingh whenever she needs to be taken to a doctor
or
hospital;
(g)
the fact that Mr Juta owns the cottage and the applicants have no
right of their own to live in the cottage but only depend
upon Mrs
Hattingh’s right to family life to do so;
(h)
the fact that the applicants, by their own admission, wish to find
alternative accommodation and would leave for such accommodation
if
they were to find it;
(i)
the applicants are adults and independent of Mrs Hattingh;
(j)
the applicants will, after eviction, be free to visit Mrs Hattingh
at the cottage from time to time;
(k)
the applicants have stayed in the cottage for a long time during
which Mr Juta could not use it for any of his purposes;
(l)
Mr Juta has had to incur a lot of legal costs relating to the
applicants’ eviction in circumstances where he is unlikely
to
be able to recover any of those costs from the applicants whereas
the applicants have received free legal representation from
the
Legal Aid Clinic of the University of Stellenbosch;
(m)
at the time of the institution of the proceedings in the
Magistrate’s Court, the first and third applicants were
working
and earning about R2000,00 per month each, whereas the
second applicant was earning R1200,00;
(n)
the applicants have been on a housing waiting list for a number of
years in the area; and
(o)
there is an acute shortage of housing in the area.
The
factors listed in (a) to (m) above count in Mr Juta’s favour
in the balancing of the competing rights whereas the factors
in (n)
and (o) count in favour of the applicants. In this exercise all the
relevant factors must be taken into account and a
value judgment be
made whether it would be just and equitable that Mrs Hattingh lives
with the applicants in the cottage. Having
considered all these
above factors, in my view it would be just and equitable that Mrs
Hattingh does not live with the applicants.
This means that the
exclusion or eviction of the applicants from Fijnbosch will not
infringe Mrs Hattingh’s right to family
life because, even
though it limits that right, the limitation is just and equitable.
Accordingly, it would be just and equitable
that the applicants be
evicted.
[43]
With regard to the date of eviction, which must also be just and
equitable, it seems to me that the applicants should be
given a
period of about three months from the date of this judgment to
vacate Fijnbosch.
[44]
It is necessary to fix new dates for the applicants’ eviction
and for the intervention of the sheriff should they not
vacate
Fijnbosch on or before the deadline to be given in the order of this
Court. For this purpose it will be necessary to vary
paragraph 2 of
the order of the Supreme Court of Appeal and replace it with a new
order and new dates.
Order
[45]
The following order is made:
Leave
to appeal is granted.
The
application for the admission of new evidence is dismissed.
The
appeal is dismissed.
The
order of the Supreme Court of Appeal is varied to read as follows:
“
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 13 June 2013
and 14
June 2013, respectively.
3.
There will be no order as to costs in this appeal.”
There
is no order as to costs.
For
the Applicants: Advocate A Dodson SC and Advocate S Cowen instructed
by University of Stellenbosch Law Clinic.
For
the Respondent: Advocate L Wilkin instructed by Bouwer Potgieter
Inc.
1
See
[2] above.
2
That
this was Mrs Hattingh’s attitude appears from Mr Juta’s
founding affidavit. Mr Juta said in Afrikaans in this
regard: “Ek
het vir Magrieta genader en haar gevra waarom haar kinders,
kleinkinders en skoondogter . . . nie alternatiewe
akkommodasie
gesoek het nie. Magrieta se antwoord was bloot ‘dat haar
kinders tog nie in die bos kan slaap nie’.”
3
62
of 1997. An “occupier” is defined in section 1 of ESTA
as meaning:
“
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—
. . .
a person using or
intending to use the land in question mainly for industrial,
mining, commercial or commercial farming purposes,
but including a
person who works the land himself or herself and does not employ
any person who is not a member of his or her
family; and
a person who has
an income in excess of the prescribed amount”.
It
is clear from the definition of “occupier” that a person
cannot be an occupier as defined in ESTA if his or her
residence on
someone else’s land is not based on consent or on another
right in law. This means that a person who resides
on another
person’s land illegally cannot be an occupier as defined in
ESTA. It is also clear from the definition that,
if a person had
consent or had a right in law prior to 4 February 1997 but not after
that date, he or she can also not be an
occupier as defined in ESTA.
4
Section
6(2)(d) of ESTA reads:
“
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: Provided that this
right shall not apply in respect of single
sex accommodation
provided in hostels erected before 4 February 1997”.
5
Section
19(2) of ESTA provides for an appeal from the Magistrate’s
Court to the Land Claims Court.
6
In
particular they agreed that the requirements of sections 8 and 11 of
ESTA had been complied with.
7
In
the Land Claims Court the Minister for Land Affairs, the Minister
for Housing and the Municipality of Stellenbosch were joined
in the
proceedings but they took no part in the proceedings in that Court,
in the Supreme Court of Appeal or in this Court.
8
Laurence
Edward Juta v Michael Hattingh and Others
, Case No LC 145/2010,
30 March 2011, unreported (Land Claims Court judgment).
9
Section
8(4) and (5) of ESTA reads as follows:
“
(4)
The right of residence of an occupier who has resided on the land in
question or any other land belonging to the owner for
10 years and—
(a) has reached the
age of 60 years; or
(b) is an employee
or former employee of the owner or person in charge, and as a result
of ill health, injury or disability is
unable to supply labour to
the owner or person in charge,
may
not be terminated unless that occupier has committed a breach
contemplated in
section
10
(1)(a), (b) or (c): Provided that for the purposes of this
subsection, the mere refusal or failure to provide labour shall not
constitute such a breach.
(5)
On the death of an occupier contemplated in subsection (4), the
right of residence of an occupier who was his or her spouse
or
dependant may be terminated only on 12 calendar months’
written notice to leave the land, unless such a spouse or dependant

has committed a breach contemplated in section
10(1).”
10
Land
Claims Court judgment above n 8 at para 15.
11
Id.
Section 6(2) reads as follows in relevant part:
“
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 . . .”.
12
Land
Claims Court judgment above n 8 at para 15.
13
Id
at para 16.
14
Id.
15
Id.
16
The
full order made by the Land Claims Court read as follows:
“
The
appeal is upheld. The order of the Court
a
quo
is
set aside and substituted as follows.
The Respondents
are ordered to vacate the premises they occupy on the farm
Fijnbosch by 12 May 2011.
In the event of
the Respondents not vacating the premises they occupy by
12 May 2011, the Sheriff for the area is
authorised and
directed to secure their eviction on or after 13 May 2011.
There
is no order as to costs.”
17
Hattingh
and Others v Juta
2012 (5) SA 237
(SCA) (Supreme Court of Appeal
judgment).
18
Id
at para 10. Section 6(2)(d) is quoted in full above in n 4.
19
Supreme
Court of Appeal judgment above n 17 at para 11.
20
Id.
21
Id.
22
Id.
23
These
are the International Covenant on Civil and Political Rights, the
African Charter on Human and Peoples’ Rights and
the European
Convention on Human Rights and Fundamental Freedoms.
24
[2007]
UKHL 11
;
[2007] 2 AC 167
(HL).
25
Ex
parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,

1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) (
Certification case
).
26
Supreme
Court of Appeal judgment above n 17 at para 17.
27
Id.
28
[2007]
ZACC 21
;
2008 (1) SA 474
(CC);
2008 (2) BCLR 99
(CC).
29
Supreme
Court of Appeal judgment above n 17 at para 18.
30
Id.
31
Id
at paras 18-9.
32
Section
30 of the Constitution reads as follows:
“
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.”
33
Section
31 of the Constitution reads as follows:
“
(1)
Persons belonging to a cultural, religious or linguistic community
may not be denied the right, with other members of that
community—
to enjoy their
culture, practise their religion and use their language; and
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.”
34
Supreme
Court of Appeal judgment above n 17 at para 21.
35
Id
.
36
Id.
37
The
full order of the Land Claims Court appears above in n 16.
38
Section
25(6) of the Constitution
reads
as
follows:
“
A person or
community whose tenure of land is legally insecure as a result of
past racially discriminatory laws or practices is
entitled, to the
extent provided by an Act of Parliament, either to tenure which is
legally secure or to comparable redress.”
39
Rule
31 reads as follows:
“
Documents
lodged to canvass factual material
Any party to any
proceedings before the Court and an amicus curiae properly admitted
by the Court in any proceedings shall be
entitled, in documents
lodged with the Registrar in terms of these rules, to canvass
factual material that is relevant to the
determination of the
issues before the Court and that does not specifically appear on
the record: Provided that such facts—
are common cause
or otherwise incontrovertible; or
are of an
official, scientific, technical or statistical nature capable of
easy verification.
All other parties
shall be entitled, within the time allowed by these rules for
responding to such document, to admit, deny,
controvert or
elaborate upon such facts to the extent necessary and appropriate
for a proper decision by the Court.”
40
See
[42] below.
41
See
above n 3.
42
Section
6(4) reads as follows:
“
Any
person shall have the right to visit and maintain his or her family
graves on land which belongs to another person, subject
to any
reasonable condition imposed by the owner or person in charge of
such land in order to safeguard life or property or to
prevent the
undue disruption of work on the land.”
43
Reference
may also be made to section 8(7)(b), section 11(2) and (3)(a)-(e),
section 12(2)(a)-(c) and section 12(4).
Section 8(7)(b) of
ESTA reads as follows:
“
If
an occupier’s right to residence has been terminated in terms
of this section, or the occupier is a person who has a
right of
residence in terms of section 8(5)—
(b) the owner or
person in charge may institute proceedings in a court for a
determination of reasonable terms and conditions
of further
residence, having regard to the income of all the occupiers in the
household.”
Section
11(2) of ESTA reads as follows:
“
In
circumstances other than those contemplated in subsection (1), a
court may grant an order for eviction in respect of any person
who
became an occupier after 4 February 1997 if it is of the opinion
that it is just and equitable to do so.”
Section
11(3)(a)-(e) of ESTA reads as follows:
“
In
deciding whether it is just and equitable to grant an order for
eviction in terms of this section, the court shall have regard
to—
(a) the period that
the occupier has resided on the land in question;
(b) the fairness of
the terms of any agreement between the parties;
(c) whether
suitable alternative accommodation is available to the occupier;
(d) the reason for
the proposed eviction;
(e) the balance of
the interests of the owner or person in charge, the occupier and the
remaining occupiers on the land.”
Section
12(2)(a)-(c) of ESTA reads as follows:
“
In
determining a just and equitable date the court shall have regard to
all relevant factors, including—
(a) the fairness of
the terms of any agreement between the parties;
(b) the balance of
the interests of the owner or person in charge, the occupier and the
remaining occupiers on the land; and
(c) the period that
the occupier has resided on the land in question.”
Section
12(4) of ESTA reads as follows:
“
Any
order for the eviction of an occupier in terms of section
10 or 11
shall be subject to reasonable terms and conditions for
further
residence which may be determined by the court, having regard to the
income of all of the occupiers in the household.”
44
The
introduction of the unfair labour practice jurisdiction in our
employment law in the early 1980s meant that an employer who
had
lawfully dismissed an employee could still be ordered to reinstate
such employee if the court found that the dismissal was
unfair or
constituted an unfair labour practice. This continues to be our law.
45
Section
23(1) of the Constitution reads: “
Everyone
has the right to fair labour practices.”
46
19
of 1998.
47
See
section 4(6), (7), (8)(a) and (9) of PIE.
48
50
of 1999.
49
Section
1 of the RHA defines an “unfair practice” as meaning—
“
(a)
any act or omission by a landlord or tenant in contravention of this
Act; or
(b) a practice
prescribed as a practice unreasonably prejudicing the rights or
interests of a tenant or a landlord.”
In
terms of section 13(1) of the RHA a tenant or landlord may lodge a
complaint with the Rental Housing Tribunal concerning an
unfair
practice.
Section
13(4)-(6) of the RHA reads as follows:
“
(4)
Where a Tribunal, at the conclusion of a hearing in terms of
paragraph (d) of subsection (2)
is
of the view that an unfair practice exists
,
it may—
(a) rule that any
person must comply with a provision of this Act;
(b) where it would
appear that the provisions of any law have been or are being
contravened, refer such matter for an investigation
to the relevant
competent body or local authority;
(c)
make any
other ruling that is just and fair to terminate any unfair practice,
including, without detracting from the generality
of the aforegoing,
a ruling to discontinue
—
(i) overcrowding;
(ii) unacceptable
living conditions;
(iii) exploitative
rentals; or
(iv) lack of
maintenance.
(5) A ruling
contemplated in subsection (4) may include a determination regarding
the amount of rental payable by a tenant, but
such determination
must be made in a manner
that is just and equitable to both
tenant and landlord
. . .
(6) When acting in
terms of subsection (4), the Tribunal must have regard to—
(a) the regulations
in respect of unfair practices;
(b) the common law
to the extent that any particular matter is not specifically
addressed in the regulations or a lease;
(c) the provisions
of any lease to the extent that it does not constitute an unfair
practice;
(d) national
housing policy and national housing programmes; and
(e) the need to
resolve matters in a practicable and equitable manner.”
(Emphasis added.)
The
movement towards the infusion of justice and equity or fairness in
certain legal relationships is also taken further in the
National
Credit Act 34 of 2005 (see the inclusion of a prohibition of
“certain unfair credit and credit-marketing practices”

in its preamble and the reference to equity in section 3(d) thereof)
and in the Consumer Protection Act 68 of 2008 (see in part
G the
reference to the “right to fair, just and reasonable terms and
conditions” and section 48).
50
Land
Claims Court judgment above n 8 at para 15.
51
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA
936
(CC);
2000 (8) BCLR 837
(CC) (
Dawood
) at para 31.