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[2017] ZACC 13
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Daniels v Scribante and Another (CCT50/16) [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC) (11 May 2017)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 50/16
In
the matter between:
YOLANDA
DANIELS
Applicant
and
THEO
SCRIBANTE
First
Respondent
CHARDONNE
PROPERTIES
CC
Second
Respondent
and
TRUST
FOR COMMUNITY OUTREACH
AND
EDUCATION
Amicus
Curiae
Neutral
citation:
Daniels v
Scribante and Another
2017 ZACC 13
Coram:
Nkabinde
ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J,
Mbha AJ, Musi AJ and Zondo J
Judgments:
Madlanga J (first judgment / majority): [1]
to [71]
Froneman J (second judgment /
Afrikaans): [72] to [108]
Froneman J (second judgment /
English): [109] to [144]
Cameron J (third judgment): [145] to
[155]
Jafta J (fourth judgment): [156] to
[204]
Zondo J (fifth judgment): [205] to
[218]
Heard
on:
17 November 2016
Decided
on:
11 May 2017
ORDER
On
appeal from the Land Claims Court (hearing an appeal from the
Stellenbosch Magistrate’s Court):
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the Stellenbosch
Magistrate’s Court, Land Claims Court and Supreme Court of
Appeal are set aside.
4. It is declared that the applicant
is entitled to make the following improvements to her dwelling at
Chardonne Farm (farm), Blaauwklippen,
Stellenbosch:
(a)
levelling the floors;
(b)
paving part of the outside area; and
(c)
installing water supply inside the applicant’s dwelling, a wash
basin, a second window and a ceiling.
5. The parties are ordered to engage
meaningfully regarding the implementation of the improvements,
particularly on—
(a)
the time at which the builders will arrive at, and depart from, the
farm;
(b)
the movement of the builders within the farm; and
(c)
the need for, and approval of, building plans in respect of the
improvements.
6. If the parties are unable to reach
agreement within 30 days of the date of this order, either party may
approach the Stellenbosch
Magistrate’s Court for appropriate
relief.
JUDGMENT
MADLANGA J
(Cameron J, Froneman J, Khampepe J, Mbha AJ, and Musi AJ concurring):
Introduction
“
The land, our purpose is the
land; that is what we must achieve. The land is our whole
lives: we plough it for food; we build
our houses from the soil; we
live on it; and we are buried in it. When the whites took our
land away from us, we lost the
dignity of our lives: we could no
longer feed our children; we were forced to become servants; we were
treated like animals.
Our people have many problems; we are
beaten and killed by the farmers; the wages we earn are too little to
buy even a bag of mielie-meal.
We must unite together to help
each other and face the Boers. But in everything we do, we must
remember that there is only
one aim and one solution and that is the
land, the soil, our world.”
[1]
[1]
This impassioned, painful cry highlights the effects of the
dispossession of African people
[2]
of their land by whites. It is this dispossession and other
stratagems
[3]
that forced people off their land. The result was that some
found themselves living and working on land that was now in the
hands
of whites. As Mr Petros Nkosi says, their way of life had been
torn asunder. They had been stripped of their
dignity.
[2]
This takes us to the nub of this matter: the right to security of
tenure. An indispensable pivot to that right is
the right to
human dignity. There can be no true security of tenure under
conditions devoid of human dignity. Though
said in relation to
the right to life, the words of O’Regan J are apt: “without
dignity, human life is substantially
diminished”.
[4]
Addressing herself directly to human dignity, she said:
“
The
importance of dignity as a founding value of the new Constitution
cannot be overemphasised. Recognising a right to dignity
is an
acknowledgement of the intrinsic worth of human beings: human beings
are entitled to be treated as worthy of respect and
concern. This
right therefore is the foundation of many of the other rights that
are specifically entrenched in [the Bill
of Rights].”
[5]
[3]
Here the right to security of tenure and the right to human dignity
are implicated in the context of a person who is an
occupier of
farmland under the Extension of Security of Tenure Act (ESTA).
[6]
That her occupation is in terms of this Act is common cause.
Background
[4]
The applicant, Ms Daniels, is a domestic worker and the head of her
household. She and her minor children
[7]
have lived in a dwelling on Chardonne Farm (farm) for the past 16
years. The first respondent, Mr Scribante, manages the
farm.
Under ESTA he is thus “the person in charge”.
[8]
And the second respondent, Chardonne Properties CC,
[9]
owns it.
[5]
In what appears to have been a move calculated to get rid of Ms
Daniels from the farm, in January 2014 Mr Scribante removed
or
tampered with the door to Ms Daniels’s dwelling and cut
the electricity supply.
[10]
Ms Daniels obtained an interim order from the Stellenbosch
Magistrate’s Court for the restoration of her undisturbed
occupation on the farm. The order required Mr Scribante
specifically to repair and replace the door and restore the
electricity
supply.
[6]
That was not the end of the woes besetting Ms Daniels. Mr
Scribante ceased to maintain the dwelling. Again,
Ms Daniels
had to approach the Stellenbosch Magistrate’s Court. This
time she sought – and was granted –
a declarator that:
she was an occupier under ESTA; the respondents’ failure to
maintain the roof with the result that it
leaked constituted an
infringement of her right to human dignity; and the respondents’
failure to maintain and ensure the
safety of the electricity supply
to the dwelling also constituted an infringement of her human
dignity. Consequently, the
Court ordered the respondents to
repair and maintain the roof and electricity supply. The
respondents complied.
[7]
Following the maintenance work, Ms Daniels wanted to make certain
improvements which were by no means luxury items.
They included
levelling the floors, paving part of the outside area and the
installation of an indoor water supply, a wash basin,
a second window
and a ceiling. These are basic human amenities. A letter
Ms Daniels addressed to the respondents advising
them of her
intentions said as much.
[11]
Unsurprisingly, the respondents accept that, without the
improvements, the dwelling is not fit for human habitation.
In
particular, they admit that the condition of the dwelling constitutes
an infringement of Ms Daniels’s right to human dignity.
I
make no holding on what it is exactly that would make the condition
of the dwelling inconsonant with human dignity. I proceed
on
the assumption that, based on the respondents’ concession, the
condition of the dwelling did not accord with human dignity.
[8]
Crucially, Ms Daniels indicated that she would carry the cost of the
improvements. It is worth mentioning that Ms
Daniels was not
asking for the respondents’ consent. She was merely
alerting them to the fact that she was to effect
the improvements.
She received no response.
[12]
[9]
After works had commenced, Ms Daniels received a letter demanding
their immediate cessation. In it the respondents
stated that
they had not given consent that the improvements be made. They
noted that no building plans had been submitted
to them and that,
without plans, the improvements were unlawful. Yet again Ms
Daniels brought proceedings before the Stellenbosch
Magistrate’s
Court. This time she was seeking an order declaring that she
was entitled to make the improvements.
[10]
Ms Daniels placed reliance on sections 5, 6 and 13 of ESTA. She
argued that the right to reside accorded to her in ESTA
includes the
right to make improvements to her dwelling. The Court dismissed
the application with costs. It held that
an occupier under ESTA
does not have a right to effect improvements to her dwelling without
the consent of an owner or person in
charge. A subsequent
approach to the Land Claims Court (LCC) was also unsuccessful.
The LCC held that allowing Ms Daniels
to effect improvements on
her dwelling without consent is so drastic an intrusion that it
requires an express, unambiguous provision
in ESTA which, on the
LCC’s reading, there wasn’t. Both the LCC and
Supreme Court of Appeal refused leave to
appeal. That is how Ms
Daniels has landed before us persisting in her quest for leave to
appeal.
Issues
[11]
The matter raises the following issues:
(a) Should leave to appeal be granted?
(b) Does ESTA afford an occupier the
right to make improvements to her or his dwelling?
(c) If it does, is the consent of an
owner required for an occupier to make the improvements?
(d) If consent is not necessary, may
an occupier effect improvements to the total disregard of an owner?
Leave
to appeal
[12]
This matter concerns the interpretation of ESTA. ESTA is an Act
passed to give effect to the constitutional right contained
in
section 25(6) of the Constitution. We thus have
jurisdiction.
[13]
In addition, the rights embodied in section 26 of the Constitution
are at issue.
[14]
The application raises issues of great import. And, as I will
soon demonstrate, it bears prospects of success.
It is in the
interests of justice to grant leave.
Is
there a right to make improvements?
[13]
Section 25(6) of the Constitution provides that 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. ESTA affords secure
tenure – as envisaged in section
25(6) – to persons who
reside on land that they do not own. This means it is ESTA that
sheds light on the extent of
the rights conferred on occupiers.
The respondents deny the existence of an occupier’s right to
improve her or his
dwelling. I elaborate later on the nature of
the submission. Next I render a historical perspective which is
necessary
to understand ESTA’s context.
[14]
Dispossession of land was central to colonialism and apartheid.
It first took place through the barrel of the gun and
“trickery”.
[15]
This commenced as soon as white settlement began, with the Khoi and
San people being the first victims.
[16]
This was followed by “an array of laws” dating from the
early days of colonisation.
[17]
The most infamous is the Native Land Act
[18]
(subsequently renamed the Black Land Act) (Black Land Act). Mr
Sol Plaatje, one of the early, notable heroes in the struggle
for
freedom in South Africa who lived during the time this Act was
passed, says of it, “Awaking on Friday morning June 20,
1913,
the South African native found himself, not actually a slave, but a
pariah in the land of his birth”.
[19]
[15]
The effects of this Act are well known to many South Africans:
“
The
Native Land Act . . . apportioned 8% of the land area of South Africa
as reserves for the Africans and excluded them from the
rest of the
country, which was made available to the white minority population.
Land available for use by Africans was increased
by 5% [in terms of
the Native Development and Trust Land Act 18 of 1936] bringing the
total to 13% of the total area of South Africa,
although much of the
land remained in the ownership of the state through the South African
Development Trust supposedly held in
trust for the African people.
Thus 80% of the population was confined to 13% of the land while less
than 20% owned over 80%
of the land. This apportionment of land
remained until the end of apartheid and remains virtually
unchanged.”
[20]
[16]
The purpose of it all was, first, the obvious one of making more land
available to white farmers.
[21]
The second “was to impoverish black people through
dispossession and prohibition of forms of farming arrangements that
permitted some self-sufficiency. This meant they depended on
employment for survival, thus creating a pool of cheap labour
for the
white farms and the mines. White farmers had repeatedly
complained that African people refused to work for them as
servants
and labourers”.
[22]
The third was the enforcement of the policy of racial
segregation,
[23]
which assumed heightened proportions during the apartheid era.
[17]
The Black Land Act, together with other stratagems, succeeded in
pushing Africans off their land and into white farms, mines
and other
industries. These other stratagems, like the imposition of a
variety of taxes including property taxes,
[24]
created the need for cash. Selling livestock for this purpose
was unsustainable. Cash could be obtained only by working
for
whites.
[25]
[18]
Other African people found themselves working as labour tenants on
land now in the hands of whites. That dispensation
subjected
them to untold cruelty and suffering.
[26]
Sol Plaatje cites an example:
“
The
baas exacted from him the services of himself, his wife and his oxen,
for wages of 30 shilling a month, whereas Kgobadi
had been
making £100 a year, besides retaining the services of his wife
and of his cattle for himself. When he refused
the extortionate
terms, the baas retaliated [by requiring] him to betake himself from
the farm . . . by sunset of the same day,
failing which his stock
would be seized and impounded, and himself handed over to the
authorities for trespassing on the farm.”
[27]
[19]
Lest I appear to suggest that land dispossession affected only South
Africa’s African people, the truth is that “Coloured”
and Indian people also suffered this heart-wrenching pain. The
apartheid government used the Group Areas Act
[28]
“to complete the policy of racial segregation by removing
‘Coloured’ and Indian people from so-called white
areas”.
[29]
I cite a few examples. A “rich closely knit” Indian
community that used to live in an area called the Magazine
Barracks
close to the Durban CBD was removed under this Act to Chatsworth many
kilometres away from their place of work.
[30]
A community that comprised 3 500 “Coloured” and 50
Indian families was removed from an area called Die Vlakte
within the
town of Stellenbosch.
[31]
The excuse was that the area was a slum.
[32]
But, says Hector-Kannemeyer:
“‘
Die
Vlakte’ was anything but a slum area, with no overcrowding and
unclean conditions and no real reason for commissioning
such a
traumatic relocation of thousands of ‘coloured’
residents. . . . Besides the removal of 3 500 ‘coloured’
families and 50 Indian families, the heartbeat of the ‘coloured’
community located in ‘Die Vlakte’ was
affected by the
destruction of six schools, four churches, a mosque, a cinema and ten
businesses.”
[33]
[20]
African, Indian, “Coloured” and Chinese people were
removed from Sophiatown. The Indians, “Coloureds”
and Africans were moved many kilometres away and the Chinese to the
city close by.
[34]
There were also the District Six removals in Cape Town. Like
the removals of Sophiatown, the District Six removals,
which affected
“Coloured”, Cape Malay, Indian and African alike, gained
worldwide notoriety.
[21]
Earlier I referred to racial segregation under apartheid.
Apartheid sought to divest all African people of their South
African
citizenship. According to the grand scheme of apartheid,
Africans were to be citizens of so-called homelands.
[35]
The consequence was a variety of tenuous forms of land tenure for
victims within what – to apartheid – was “South
Africa proper”.
[36]
This meant throughout the length and breadth of our country victims
were made strangers in their own country. On farmland
–
which this case is about – their residence was particularly
precarious. They could be, and were often, subjected
to
arbitrary evictions. Needless to say, they could not have much
say on the conditions under which they lived on the farms,
however
deplorable. This was a life bereft of human dignity. This
is poignantly articulated by the lament and exhortation
by Mr Nkosi:
“When the whites took our land away from us, we lost the
dignity of our lives . . . . But in everything
we do, we must
remember that there is only one aim and one solution and that is the
land, the soil, our world”.
[37]
[22]
Painfully, in some instances this is not just history. To this
day, some of the poorest in our society continue to keep
homes under
the protection of ESTA. Needless to say, occupiers under ESTA
are a vulnerable group susceptible to untold mistreatment.
This
is especially so in the case of women.
[38]
[23]
With all this background in mind, the mischief that section 25(6) of
the Constitution and ESTA are seeking to address is not
far to
seek.
[39]
Addressing that mischief is not only about securing the tenure of
ESTA occupiers. It is also about affording occupiers
the
dignity that eluded most of them throughout the colonial and
apartheid regimes. We must adopt an interpretation that
best
advances this noble purpose of section 25(6) and ESTA. That
purpose provides context.
[24]
This Court
has often emphasised a purposive interpretation that is compatible
with the mischief being addressed by the statute concerned.
In
Goedgelegen
Moseneke DCJ
– dealing with the Restitution of Land Rights Act
[40]
(Restitution
Act) –said:
“
It is by now trite that not
only the empowering provision of the Constitution but also of the
Restitution Act must be understood
purposively because it is remedial
legislation umbilically linked to the Constitution . . . .
Therefore, in construing ‘as
a result of past racially
discriminatory laws or practices’ in its setting of section
2(1) of the Restitution Act, we are
obliged to scrutinise its purpose
. . . . In searching for the purpose, it is legitimate to seek
to identify the mischief
sought to be remedied. In part, that
is why it is helpful, where appropriate, to pay due attention to the
social and historical
background of the legislation.”
[41]
[25]
Also of importance is the injunction in section 39(2) of the
Constitution.
[42]
On this here is what
Goedgelegen
tells us:
“
As
we [construe section 2(1) of the Restitution Act], we must seek to
promote the spirit, purport and objects of the Bill of Rights.
We must prefer a generous construction over a merely textual or
legalistic one in order to afford claimants the fullest possible
protection of their constitutional guarantees.”
[43]
To
emphasise the obvious, the two rights contained in the Bill of Rights
at issue here are the right to security of tenure and the
right to
human dignity.
[26]
It is with all this in mind that we must establish whether an
occupier’s rights under ESTA include the right to make
improvements.
We must look at sections 5 and 6 of ESTA to
establish what the rights are. Section 5 deals with the
fundamental rights of
an occupier, an owner and a person in charge.
Of relevance for present purposes is section 5(a) which provides that
“[s]ubject
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”. Section 6 stipulates
the
rights and duties of an occupier. Section 6(1) provides:
“
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.”
[44]
[27]
The respondents argue that section 25(6) affords an occupier rights
to the extent provided by ESTA and that an occupier’s
rights
are listed in section 6. Nowhere, continues the argument, do
the listed rights provide that an occupier has the right
asserted by
Ms Daniels. It is so that section 6 has no provision that
explicitly says an occupier has a right to make improvements
meant to
bring her or his dwelling to a standard suitable for human
habitation. But surely the matter cannot end there.
Whether the right exists must depend on what an interpretative
exercise yields. The respondents are correct in saying that
in
terms of section 25(6) of the Constitution an occupier enjoys rights
to the extent provided in ESTA. The question is whether
–
on a proper interpretation of ESTA – the right contended for by
Ms Daniels indeed does not exist.
[28]
The respondents’ argument typifies the “blinkered peering
at an isolated provision” of a statute that Nienaber
JA
cautions against in
Thoroughbred
Breeders’ Association
.
[45]
Quoting this case with approval in
Bato
Star
[46]
Ngcobo J says:
“
The emerging trend in statutory
construction is to have regard to the context in which the words
occur, even where the words to
be construed are clear and
unambiguous. Recently, in
Thoroughbred Breeders’
Association v Price Waterhouse
, the SCA has reminded us that:
‘
The
days are long past when blinkered peering at an isolated provision in
a statute was thought to be the only legitimate technique
in
interpreting it if it seemed on the face of it to have a readily
discernible meaning.’”
[47]
[29]
The respondents’ argument places focus only on the rights of an
occupier that section 6 of ESTA specifically itemises.
It
disregards all else: context counts for nothing; so does the purpose
for which ESTA was enacted;
[48]
and section 39(2) of the Constitution is not taken into account at
all. This reading of section 6 is unduly narrow.
Part of
the context is section 5 of ESTA,
[49]
which the respondents’ interpretation ignores. That
section decrees that occupiers enjoy certain fundamental rights,
including the right to human dignity. On the respondents’
interpretation, occupiers have a right that could well be
empty.
They could live in conditions that infringe their right to dignity
with no remedy available to them. That simply
cannot be.
How does the respondents’ interpretation factor the need for an
occupier to live in conditions that conduce
to human dignity?
It does not. That immediately infringes an occupier’s
right under section 5.
[30]
Goedgelegen
noted that, when interpreting legislation, courts—
“
must understand the provision
within the context of the grid, if any, of related provisions and of
the statute as a whole including
its underlying values.
Although the text is often the starting point of any statutory
construction, the meaning it bears
must pay due regard to context.
This is so even when the ordinary meaning of the provision to be
construed is clear and unambiguous.”
[50]
[31]
At the heart of that “grid” is the related section 5 to
which the respondents pay no heed in the context of the
argument
under discussion.
[51]
For present purposes, the right enjoyed by an occupier in terms of
section 6(1) of ESTA is to reside on and use the land
in issue.
An occupier who lives on property under the most deplorable
conditions does “reside” on that property.
But is
that the right conferred by ESTA? Definitely not. The
occupier’s right to reside must be consonant with
the
fundamental rights contained in section 5, in particular – for
present purposes – the right to human dignity.
Put
differently, the occupation is not simply about a roof over the
occupier’s head. Yes, it is about that. But
it is
about more than just that. It is about occupation that conduces
to human dignity and the other fundamental rights itemised
in section
5. That much is plain from reading section 6 conjointly with
section 5.
[32]
ESTA has a carefully delineated process of eviction.
[52]
It is monitored by courts. A denial of the existence of the
right asserted by Ms Daniels might inadvertently result
in what would
in effect be evictions. This would be a direct result of the
intolerability of conditions on the dwelling.
And these
“evictions” might happen beneath the radar of the
carefully crafted eviction process. That would make
nonsense of
the very idea of security of tenure. After all, like the notion
of “reside”, security of tenure
[53]
must mean that the dwelling has to be habitable. That in turn
connotes making whatever improvements that are reasonably necessary
to achieve this. Of what use is a dwelling if it is
uninhabitable? None.
[33]
If you deny an occupier the right to make improvements to the
dwelling, you take away its habitability. And if you take
away
habitability, that may lead to her or his departure. That in
turn may take away the very essence of an occupier’s
way of
life. Most aspects of people’s lives are often ordered
around where they live. Bell says “[a] tenant
who fears
loss of an interest as vital as his home may forego associations or
actions that are a normal part of self-determination
and
self expression”.
[54]
Roisman puts it thus:
“
Security
of tenure is fundamentally important because it is the basis upon
which residents build their lives. It enables people
to make
financial, psychological, and emotional investments in their homes
and neighbourhoods. It provides depth and continuity
for
children’s school attendance and for the religious, social, and
employment experiences of children and adults.
Security of
tenure enables tenants ‘to fully participate in social and
political life’.”
[55]
[34]
Take away the home that is the fulcrum of security of tenure, the way
of life of an occupier will be dislocated. And
that will offend
her or his human dignity. So, permitting an occupier living in
circumstances as we have here to make improvements
to her or his
dwelling will serve the twin-purpose of bringing the dwelling to a
standard that befits human dignity and averting
the indignity that
the occupier might suffer as a result of the possible departure.
[35]
The respondents’ interpretation is completely at odds with
established principle. Let me close this part of the
discussion
by referring to Cameron J’s words in
University
of Stellenbosch Legal Aid Clinic
:
[56]
“
Since
Hyundai
,
it has been gold-plate doctrine in this Court that judges must
embrace interpretations of legislation that fall within
constitutional
bounds over those that do not, provided that the
interpretation can be reasonably ascribed to the section. Where
a legislative
provision is reasonably capable of a meaning that
places it within constitutional bounds, it should be preserved.”
[57]
[36]
Plainly the interpretation that I adopt can reasonably be ascribed to
the provisions under consideration.
[37]
The respondents have another arrow in their quiver. They argue
that, if the Court concludes that an occupier is entitled
to make
improvements to bring the dwelling to a standard that is
constitutionally compliant, that would be tantamount to indirectly
placing a positive obligation on the owner or person in charge to
ensure an occupier’s enjoyment of the section 25(6) right.
This indirect obligation is said to arise from the provisions of
section 13 of ESTA. Section 13 makes it possible for a court
to
order an owner or person in charge to pay compensation for
improvements made by an occupier upon the eviction of the
occupier.
[58]
The nub of the submission is that, because a court may order
compensation, an owner or person in charge in effect finances
the
improvements. According to the argument, constitutionally an
owner bears no positive obligation to ensure that an occupier
lives
under conditions that afford her or him human dignity.
[38]
This positive / negative obligation argument needs to be confronted
head-on. Section 8(2) of the Constitution provides
that “[a]
provision of the Bill of Rights binds a natural or juristic person
if, and to the extent that, it is applicable,
taking into account the
nature of the right and the nature of any duty imposed by the
right”. Although the right we
are concerned with here is
expanded on in ESTA, its true source is section 25(6) of the
Constitution, which is located in the Bill
of Rights. Thus
section 8(2) finds application.
[39]
I see no basis for reading the reference in section 8(2) to “the
nature of the duty imposed by the right” to mean,
if a right in
the Bill of Rights would have the effect of imposing a positive
obligation, under no circumstances will it bind a
natural or juristic
person (private persons). Whether private persons will be bound
depends on a number of factors.
What is paramount includes:
what is the nature of the right;
[59]
what is the history behind the right; what does the right seek to
achieve; how best can that be achieved; what is the “potential
of invasion of that right by persons other than the State or organs
of state”;
[60]
and, would letting private persons off the net not negate the
essential content of the right? If, on weighing up all the
relevant factors, we are led to the conclusion that private persons
are not only bound but must in fact bear a positive obligation,
we
should not shy away from imposing it; section 8(2) does envisage
that.
[40]
I should not be misunderstood. I am not suggesting that the
positive nature of the obligation imposed by the right in
issue is of
no moment. It is relevant. Section 8(2) places “the
nature of the duty” imposed at the
centre of the enquiry.
The quality of being positive is about “the nature of the
duty”. So, it must come
into the equation. Currie
and De Waal make the point that “the state is supposed to be
motivated by a concern for the
well-being of society as a whole”
and, in doing something in that regard, it is funded by the public
purse.
[61]
Private persons, on the other hand, fund their conduct from their own
pockets. It would be unreasonable, therefore,
to require
private persons to bear the exact same obligations under the Bill of
Rights as does the state.
[62]
[41]
What I am saying is that the fact that the right in issue imposes a
positive obligation is not dispositive; this is but a factor.
Yes, an important, weighty factor. The truth is that “questions
concerning the horizontal application of the Bill of
Rights cannot be
determined
a priori
and in the abstract . . . [Section 8(2)] was after all included
to overcome the conventional assumption that human rights
need only
be protected in vertical relationships”.
[63]
[42]
It is in respect of one category of rights that this Court has held
that it is the state that bears a
positive
obligation.
That is socio-economic rights.
Mazibuko
tracks the
Court’s jurisprudence in this regard:
“
The primary question in this
case, though, is the extent of the State’s positive obligation
under section 27(1)(b) and section
27(2). This issue has been
addressed by this Court in at least two previous decisions:
Grootboom
and
Treatment Action Campaign (No 2).
In
Grootboom,
the Court had to consider whether section 26 (the right to
housing) entitles citizens to approach a court to claim a house from
the state. Such an interpretation of section 26 would imply a
directly enforceable obligation upon the state to provide every
citizen
with a house immediately.
This Court concluded that section 26
does not impose such an obligation. Instead, the Court held
that the scope of the positive
obligation imposed upon the State by
section 26 is carefully delineated by section 26(2). Section
26(2) provides explicitly
that the state must take reasonable
legislative and other measures progressively to realise the right of
access to adequate housing
within available resources. In
Treatment Action Campaign No 2
, this Court repeated this in
the context of section 27(1)(a), the right of access to health
care services:
‘
We
therefore conclude that section 27(1) of the Constitution does not
give rise to a self-standing and independent positive right
enforceable irrespective of the considerations mentioned in
section 27(2). Sections 27(1) and 27(2) must be read
together
as defining the scope of the positive rights that everyone
has and the corresponding obligations on the State to “respect,
protect, promote and fulfil” such rights.’
Applying this approach to section
27(1)(b), the right of access to sufficient water, coupled with
section 27(2), it is clear that
the right does not require the State
upon demand to provide every person with sufficient water without
more; rather it requires
the State to take reasonable legislative and
other measures progressively to realise the achievement of the right
of access to
sufficient water, within available resources.”
[64]
[43]
Plainly the decisions in
Mazibuko
and the other cases it discusses turned on the particular provisions
of subsection (2) of each of the two sections that were in
issue.
The two sections were 26 and 27. That context specific
interpretation did not mean that under no circumstances
does the Bill
of Rights impose positive obligations on private persons.
[65]
[44]
This Court’s later judgment in
Juma Musjid
does not
alter this. In it Nkabinde J concluded:
“
In order to determine whether
the right to a basic education in terms of section 29(1)(a)
binds the Trust, section 8(2) requires
that the nature of the right
of the learners to a basic education and the duty imposed by that
right be taken into account.
From the discussion in the
previous paragraphs of the general nature of the right and the MEC’s
obligation in relation to
it, the form of the duty that the right to
a basic education imposed on the Trustees emerges. It is clear
that there is no
primary positive obligation on the Trust to provide
basic education to the learners. That primary positive
obligation rests
on the MEC. There was also no obligation on
the Trust to make its property available to the MEC for use as a
public school.
A private landowner may do so, however, in
accordance with section 14(1) of the [South African Schools Act]
which provides that
a public school may be provided on private
property only in terms of an agreement between the MEC and the owner
of the property.
This Court, in
Ex
Parte Chairperson of the Constitutional Assembly: In re Certification
of the Constitution of the Republic of South Africa
,
made it clear that socio-economic rights (like the right to a basic
education) may be negatively protected from improper invasion.
Breach of this obligation occurs directly when there is a failure to
respect the right, or indirectly, when there is a failure
to prevent
the direct infringement of the right by another or a failure to
respect the existing protection of the right by taking
measures that
diminish that protection. It needs to be stressed however that
the purpose of section 8(2) of the Constitution
is not to obstruct
private autonomy or to impose on a private party the duties of the
state in protecting the Bill of Rights.
It is rather to require
private parties not to interfere with or diminish the enjoyment of a
right. Its application also
depends on the ‘intensity of
the constitutional right in question, coupled with the potential
invasion of that right which
could be occasioned by persons other
than the State or organs of State’. (Footnotes omitted)”
[66]
[45]
This conclusion must be viewed in the context of the interpretative
exercise that the Court had engaged in. That exercise
yielded
the conclusion that the primary positive duty to provide education to
learners rests on the Member of the Executive Council
responsible for
education in each province. That this was not stating a
position adopted
a priori
but rather one that was the result of an interpretation of the right
to basic education appears from the Court’s reference
to “the
discussion in the previous paragraphs of the general nature of the
right and the MEC’s obligation in relation
to it”.
[67]
It is from this exercise that “the form of the duty that the
right to a basic education imposed on the Trustees emerge[d]”.
[68]
The Court concluded that it was clear from this interpretative
exercise “that there is no primary positive obligation
on the
Trust to provide basic education to the learners”.
[69]
[46]
If what the Court was saying is that section 8(2) does not envisage
that private persons may bear positive obligations in respect
of some
rights in the Bill of Rights, I see no reason why it would not have
said so directly. Why would it have reached its
conclusion
through the extensive interpretative exercise in which it engaged?
[47]
It is only logical then that even the statements that: (a) “[i]t
needs to be stressed however, that the purpose of section
8(2) of the
Constitution is not to obstruct private autonomy or to impose on a
private party the duties of the state in protecting
the Bill of
Rights”;
[70]
and (b) “[i]t is rather to require parties not to interfere
with or diminish the enjoyment of a right”
[71]
must be viewed in this context. Indeed, the first statement
does not say that obligations that, although resting on the state,
may also be found to rest on private persons should not be imposed on
private persons. The judgment of this Court in the
second
Certification
case
[72]
on which reliance is placed in
Juma Musjid
does not make the point that private persons never bear positive
obligations under the Bill of Rights.
[73]
And I do not understand
Juma
Musjid
to rely on this case
to make that point.
[48]
In sum, this Court has not held that under no circumstances may
private persons bear positive obligations under the Bill of
Rights.
[49]
Ultimately, the question is whether – overall – private
persons should be bound by the relevant provision in the
Bill of
Rights. In the context of that broad formulation, this question
is easy to answer insofar as the right to security
of tenure is
concerned. By its very nature, the duty imposed by the right to
security of tenure, in both the negative and
positive form, does rest
on private persons. People requiring protection under ESTA more
often than not live on land owned
by private persons.
Unsurprisingly, that is the premise from which this matter is being
litigated. And I dare say the
obligation resting, in
particular, on an owner is a positive one. A private person is
enjoined by section 25(6) of the Constitution
through ESTA to
accommodate another on her or his land. It is so that the
obligation is also negative in the sense that the
occupier’s
right should not be “improperly invaded”.
[74]
[50]
The issue at hand arises from a matter of detail: what is the extent
of an occupier’s constitutional entitlement as expounded
in
ESTA? Does it go so far as to create an entitlement to make
improvements to her or his dwelling with the potential –
as the
respondents argue – of imposing the positive obligation they
are complaining about? This is the question on
which the
respondents peg their argument on section 13 of ESTA. The
positive obligation that the respondents argue an
owner or person in
charge is exposed to is the possibility of an order of compensation
upon the eviction of an occupier.
[51]
Whether an owner will be so ordered depends on a variety of
considerations. It may or may never happen. This must
be
weighed against the need of an occupier to improve her or his living
conditions and lift them to a level that accords with human
dignity.
If indeed an occupier is living under conditions that subject her or
him to a life lacking in human dignity, the
possibility of an order
of compensation pales in comparison. The right to security of
tenure with the potent cognate right
of human dignity are extremely
important rights. On the other hand, the possibility of an
order of compensation upon the
eviction of an occupier, is tenuous at
best. That must be compared with the fact that this argument is
being made in the
context of an occupier who has assumed the truly
positive and immediate duty of carrying the cost of the improvements.
[52]
Taken to its logical conclusion, the respondents’ argument
means, just because there is a possibility – not certainty
–
that the owner or person in charge may be ordered to compensate an
occupier, the occupier must be content with her or his
lot, however
lamentable. I cannot agree. That is anathema to our
constitutional ethos and values. Without using
the specific
facts of this case as an aid to interpretation, I cannot but make
this observation: what makes this submission even
more jarring is
that the respondents themselves admit that Ms Daniels is living under
conditions that are at variance with human
dignity. According
to the argument, nothing can or should be done. That just
cannot be.
[53]
This Court has previously placed a direct, positive obligation on a
private party by enjoining it to continue to house illegal
occupiers
who – if evicted immediately – would have been rendered
homeless.
[75]
This placed a direct, onerous obligation on a private party. On
the contrary, the positive obligation referred to by
the respondents
may or may not arise, depending on the exercise of discretion by a
court. To the extent that my interpretation
does impose a
positive obligation on an owner, I am not in the least deterred in
adopting it. That is because the
Blue
Moonlight
principle applies
more strongly to the present facts.
[54]
Ms Daniels’s entitlement to occupy her dwelling under
conditions that are consistent with human dignity can be limited
only
on grounds that “are reasonable and justifiable in an open and
democratic society based on human dignity, equality and
freedom”.
[76]
The respondents are not seeking to thwart Ms Daniels’s quest to
improve her situation on the basis that there is justification
under
this provision. Theirs is merely an interpretative exercise: Ms
Daniels has no right to effect the proposed improvements.
That,
as I say, is misconceived.
[55]
Ordering compensation of a departing tenant or occupier of another’s
property is not unknown even at common law.
[77]
Why the respondents find it so alien in this statutory context is
difficult to comprehend.
[56]
The respondents raise separation of powers concerns. They call
in aid the Supreme Court of Appeal’s judgment in
Nkosi
.
[78]
In that matter the Supreme Court of Appeal did not accept that
ESTA affords occupiers a right to create new graves on occupied
property. It is the Legislature that later extended that right
to occupiers. The respondents argue that, since only
the
Legislature is best placed to afford occupiers the right at issue
before us, we should likewise defer to it.
[57]
I cannot accept this contention. Since the legislature remedied
the effect of that decision, it is not necessary to consider
its
correctness here. In any event, the right sought to be asserted
in
Nkosi
is very different from that at issue here. The
conclusion I reach – which is that Ms Daniels is entitled to
effect the
proposed improvements – is in line with what
Parliament has enacted. It flows naturally from a proper
interpretation
of what Parliament itself has said. Thus no
separation of powers issues arise.
[58]
The Trust for Community Outreach and Change, which we admitted as an
amicus curiae
(friend of the court), supported Ms Daniels’s case on the basis
of the right of access to adequate housing.
[79]
I do not find it necessary to reach this argument.
Is
the consent of an owner required?
[59]
Not inconceivably, the interests of an occupier and those of an owner
or person in charge may diverge. The occupier may
be of the
view that the dwelling requires improvements to bring it to an
acceptable standard. The owner may disagree.
Or, as is
the case in the instant matter, the owner may accept that the
dwelling’s condition is not consonant with human
dignity but
still not be receptive to the idea that improvements be made.
Needless to say, if consent were a requirement,
none would be
forthcoming in those circumstances. Must the occupier then be
content with that? No. If the wishes
of the owner or
person in charge were to carry the day, the occupier’s rights
would be completely denuded. In the end
the occupier must
reside under conditions that afford her or him as wholesomely as
possible all the rights contained in ESTA.
A simple stratagem
like the refusal of consent by the owner cannot be allowed to render
nugatory an occupier’s right that
is primarily sourced from the
Constitution itself.
[80]
[60]
This leads to the conclusion that in the final analysis an owner’s
consent cannot be a prerequisite when the occupier
wants to bring the
dwelling to a standard that conforms to conditions of human dignity.
May
an occupier effect improvements to the total disregard of an owner?
[61]
That an
occupier does not require consent cannot mean she or he may ride
roughshod over the rights of an owner.
The owner also has rights. The very enjoyment by an
occupier of rights conferred by ESTA creates tension between that
enjoyment and an owner’s rights. The most obvious owner’s
right that is implicated is the right to property under
section 25 of
the Constitution. If an occupier were to be entitled to act in
an unbridled manner, that would mean an owner’s
rights count
for nothing. Under section 5 of ESTA an owner enjoys the exact
same rights as does an occupier. The total
disregard of an
owner’s property right may impinge on her or his right to human
dignity. That would be at odds with
section 5(a) of ESTA.
Unsurprisingly, section 6(2) of ESTA requires that an occupier’s
right to security of tenure
be balanced with the rights of an owner
or person in charge.
[81]
[62]
Although consent is not a requirement, meaningful engagement of an
owner or person in charge by an occupier is still necessary.
It
will help balance the conflicting rights and interests of occupiers
and owners or persons in charge. In this regard I
agree with
the submissions of the
amicus curiae
, which argued for the
need for meaningful engagement between an owner and occupier.
[63]
In
Hattingh
Zondo J said:
“
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.”
[82]
[64]
It is necessary that an occupier should approach the owner or person
in charge to raise the question of the proposed improvements.
That may – not will – make it possible for the occupier
and owner or person in charge to engage each other meaningfully.
[83]
This may yield any number of results. The owner or person in
charge may actually grant consent. The owner or
person in
charge may convince the occupier that the dwelling is, in fact, in an
acceptable standard and that the proposed improvements
are not
reasonably necessary. The owner or person in charge may
demonstrate that the improvements do not have to be to the
extent the
occupier had in mind. The owner or person in charge may show
that the proposed improvements will probably compromise
the physical
integrity of the structure to the detriment of the owner. In
that event there might be further engagement on
how best to bring the
dwelling to an acceptable standard. The occupier may agree in
writing that, upon eviction, she or he
will not be entitled to
compensation for the improvements.
[84]
That said, the need for meaningful engagement does not detract from
the conclusion that the existence of the occupier’s
right is
not dependent on the owner’s consent.
[65]
If engagement between an occupier and owner or person in charge gives
rise to a stalemate, that must be resolved by a court.
[85]
The occupier cannot resort to self help.
[86]
Relief
[66]
In addition to the grant of leave to appeal, what other relief is
appropriate? On the facts, after the maintenance work
that had
been ordered by the Stellenbosch Magistrate’s Court had been
done, Ms Daniels wrote a letter thanking the respondents.
In
the letter she also notified them of her intention to effect the
improvements at issue here. She then threateningly added
that
if they dared evict her, they would be obliged to compensate her for
the improvements. This, to me, does not constitute
a
communication that was meant to commence a meaningful engagement.
Although it commenced in somewhat amicable language,
it ended on a
provocative note. And that note was completely wrong on the law
as compensation is dependent on the court’s
exercise of a
discretion. But one’s criticism of Ms Daniels should not
be exaggerated.
[67]
Must Ms Daniels be nonsuited for her failure to approach the
respondents for the purpose of meaningful engagement? On
the
facts, that would be too formalistic and unjust. The
respondents were not free of blame either. As I demonstrated
when setting out the factual background in the beginning, at every
turn they made life intolerable for Ms Daniels. This would
have
tested the patience of many a mere mortal. Every step they had
to take – which was quite obvious in the circumstances
–
was taken only after they had been ordered by a court. Also,
issues concerning the parties’ respective rights
have been
ventilated fully. If we were not to grant effective relief, we
would be causing Ms Daniels to continue to live
in conditions that
are accepted by all to violate her human dignity. Of
importance, the respondents are not taking issue
with the nature of
the proposed improvements.
[68]
An order that fully recognises the existence of the right asserted by
Ms Daniels must be made. Regarding engagement between
the
parties, as the
amicus curiae
put it, the order must address
only the “mechanics” of how the improvements will be
made.
[69]
The
amicus
submitted a draft order for which we are grateful
and which has been of assistance.
Costs
[70]
Ms Daniels very properly did not ask for costs. I will make no
order as to costs.
Order
[71]
The following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the Stellenbosch
Magistrate’s Court, Land Claims Court and Supreme Court of
Appeal are set aside.
4. It is declared that the applicant
is entitled to make the following improvements to her dwelling at
Chardonne Farm (farm), Blaauwklippen,
Stellenbosch:
(a)
levelling the floors;
(b)
paving part of the outside area; and
(c)
installing water supply inside the applicant’s dwelling, a wash
basin, a second window and a ceiling.
5. The parties are ordered to engage
meaningfully regarding the implementation of the improvements,
particularly on—
(a)
the time at which the builders will arrive at, and depart from, the
farm;
(b)
the movement of the builders within the farm; and
(c)
the need for, and approval of, building plans in respect of the
improvements.
6. If the parties are unable to reach
agreement within 30 days of the date of this order, either party may
approach the Stellenbosch
Magistrate’s Court for appropriate
relief.
Froneman
J wrote a judgment in Afrikaans and provided an English translation.
They now follow in that order.
FRONEMAN
R (met Cameron R wat saamstem):
Inleiding
[72]
Ek het met groot waardering die uitspraak (hoofuitspraak) van my
ampsbroer Madlanga R gelees. Ek stem daarmee saam.
Maar
die lees daarvan het ook gepaardgegaan met skaamte. In sy
outobiografie noem die Afrikaanssprekende historikus, Hermann
Giliomee, dat die liberale Engelssprekende historikus,
C.W. de Kiewiet se stelling dat “for the thoughtful
man
it is still important to understand how men [the Afrikaners] who
are sincere in their Christian beliefs and staunch defenders of
their
own liberties can become identified with policies of discrimination
and restriction”,
[87]
hom laat dink het dat ’n persoon wat apartheid met begrip kan
verduidelik, ’n groot bydrae tot geskiedskrywing kon
maak.
[88]
Later, met verwysing na sy eie boek oor die geskiedenis van die
verskuiwing van bruinmense van die buurt Die Vlakte vanuit
die middel
van Stellenbosch, kom hy tot die eerlike en amper bewoë
gevolgtrekking: “Ek besef nou dat ek nie daarin geslaag
het om
hierdie vraag te beantwoord nie”.
[89]
[73]
Dit is vanuit ’n soortgelyke perspektief dat ek genoop voel om
hierdie instemmende uitspraak te skryf. Die Grondwet
bied ons
almal ’n geleentheid om ’n samelewing te probeer
ontwikkel wat die onreg van ons verlede aanspreek sonder
miskenning
van die menswaardigheid, vryheid en gelyke behandeling van al die
land se inwoners. Dit is ’n geleentheid
wat ons nie mag
versmaai nie. Maar die Grondwet vra ook van ons, voordat ons
die geleentheid wat dit bied aangryp, dat die
onreg van ons verlede
erken word.
[74]
Elkeen wat deur die pragtige landelike dele van ons land ry kan nie
anders as om op te let dat die lewensomstandighede waarin
werkers op
plase bly nie altyd na wense is nie. Daar is min twyfel dat
sake verbeter het, maar dit is ongelukkig nie deurlopend
die geval
nie. Waarom nie?
[75]
Dat daar hoegenaamd nog ’n debat kan wees oor of die applikant
in die huidige geval, Me Daniels, toegelaat behoort te
word om haar
woonplek sonder toestemming te verbeter deur doodgewone dinge te doen
om dit meer leefbaar te maak, wys dat daar nog
’n lang pad
geloop moet word voordat die beloftes van ons Grondwet vervul kan
word. Onthou, wat ter sprake is hier
is die gelykmaak van
vloere, die vestiging van’n lopende waterstelsel met ‘n
wasbak binne-in die huis, die byvoeging
van nog ’n venster, ’n
plafon vir die dak en die lê van plaveisel buite.
Alledaagse, basiese goed.
[76]
Vele van ons wat hierdie basiese, alledaagse geriewe vir onsself as
vanselfsprekend aanvaar, skyn dit egter nie egter as ‘n
probleem te sien dat andere dit ontken word nie. Hoekom nie?
[77]
Deels mag dit lê in blote rasse- of klasdiskriminasie.
Vir sover as wat dit uitdruklik erken word as die rede deur
diegene
wat daardie houding het, kan korte mette daarvan gemaak word.
Die Grondwet laat dit nie toe nie. Maar dikwels
skyn ons
reaksie een van verbasing en ontkenning te wees as ons as rassisties
of andersins diskriminerend gesien word wanneer ons
hierdie
aanvaarding van die onmenswaardige bestaan van andere aanvaar, maar
nie vir onsself nie. Dit is die onderliggende
redes vir hierdie
ontkenning of ontduiking van ’n duidelik onaanvaarbare en
onregverdige stand van sake wat ek probeer aanspreek.
[78]
Voordat ons wesenlike en standhoudende vordering kan maak om die
ideale van die Grondwet ’n realiteit te maak moet daar
minstens
drie dinge gebeur:
(a) daar moet ’n eerlike en
diepe erkenning wees van die onreg van die verlede;
(b) daar moet ’n herwaardering
wees van die aard van ons eiendomsbegrip; en
(c) die gevolge van grondwetlike
verandering moet nie verdoesel of ontduik word nie.
Ek
behandel elkeen hiervan in die konteks van hierdie saak, naamlik die
verblyf op plase van mense wat daar woon en werk, maar nie
eienaars
is van die grond waarop hulle bly nie.
[90]
Erkenning
van onreg
[79]
Vir vele van ons wat op plase grootgeword het onder die vorige
bedeling was die verskil tussen ons bevoorregte lewenswyse en
dié
van die mense wat op die plaas gewoon en gewerk het, bloot
natuurlik.
Ons
en
hulle
was
anders
.
Dit het dikwels egter gepaardgegaan met aandrang, deur ouers, op
respek op persoonlike vlak deur die kinders teenoor werkers
en hulle
gesinne, maar selde indien ooit was daar ’n selfkritiese blik
op hierdie verskil in lewenswaardigheid tussen die
boer en die
plaaswerker of -bewoner. Mense wat op plase bly sal self kan
oordeel of dit wel nog steeds die geval is in hierdie
konteks.
Maar wat hier ter sake is, is die erkenning van historiese onreg wat
die huidige stand van sake onderlê.
[80]
Die historiese onreg word deesdae nie geredelik ontken nie, maar
eerder ontduik. Dit is die geneigdheid tot ontduiking
wat ek
aanvanklik wil aanraak. Die voorbeeld wat ek gebruik is die
posisie van deelsaaiers
[91]
en bywoners.
[81]
Die tweede helfde van die negentiende eeu het ongekende verandering
aangebring in die lewensomstandighede van almal in wat
later
Suid-Afrika sou word.
“
The years after 1870 witnessed
profound and violent transformations in South Africa. Old
patterns of life were shattered,
and men and women were hurled into
new, foreign, and threatening economic, social and political
environments. The rapid development
of industry and the
largescale proletarianisation of both black and white rural producers
intensified these social disruptions
in the 1920s and 1930s.
Old certainties were destroyed, old world views and moralities
undermined; men and women were forced
to adapt their values and ideas
to totally new relationships, new patterns of life.”
[92]
[82]
Baie arm witmense op plase, bywoners en deelsaaiers het ook
swaargekry. Die Afrikaanse skrywer, Jochem van Bruggen se
bekende
Ampie
-trilogie,
[93]
is gebaseer op sy eie ervaring hiervan.
“
In die buurt van ons plaas het
kort na die vorige Wêreldoorlog [die Eerste Wêreldoorlog]
die ellendigste huisgesin
gewoon wat ek ooit geken het. Hulle
het bymekaar gehok in die primitiefste skuiling en amper barbaars
gelewe. Hul ellende
is in die roman glad nie oordryf nie.
Hulle het my gedagtes in die boek vergesel.”
[83]
Die Carnegie-kommissie verslag oor die armblanke-probleem het in 1932
tot die gevolgtrekking gekom dat daar 300000,00 armblankes
was, 17%
van die blanke bevolking.
[94]
By die Volkskongres in 1934
[95]
is die ontleding gemaak dat 250,000 van hulle Afrikaners was, ’n
kwart van die Afrikanerbevolking.
[96]
Die Carnegie kommissie het erken dat swart armoede net so ‘n
groot probleem was as wit armoede, maar daar is gemeen
dat die
aanspreek van wit armoede eers moet geskied.
[97]
Maar beide die Carnegie-kommissie en die 1934 volkskongres het
aanbevelings gemaak wat die gaping tussen wit en swart vergroot
het.
[84]
Volgens Giliomee, was die kommissie se grootste bydrae dat dit die
mitologie van armoede as ’n natuurlike uitvloeisel
aan die
onderent van die menslike skaal as verkeerd bewys het:
Die
kommissie se grootste bydrae was die ontmaskering van die mites
rondom wit armoede. . . . Intelligensietoetse wat die
kommissie
onderneem het, het bevind die armblankes vergelyk goed met die res
van die bevolking. . . . N.P. van Wyk Louw [het]
dit as die
kommissie se belangrikste bydrae bestempel dat die opvatting van ‘n
inherente gebrek finaal die nek ingeslaan
is.”
[98]
[85]
Die aanpak en oplos van die armblanke-probleem word met trots bejeën
deur vele Afrikaners.
[99]
Maar dit het ook gekos. Dit is opgelos, ja, deur
self-opheffing en harde werk,
[100]
maar ook deur diskriminasie en die gebruik van politieke mag.
[86]
Armoede is nie gedefinieer ingevolge fisiese of ekonomiese data nie,
maar in relatiewe terme, naamlik hoe ’n wit persoon
uit hoofde
van witheid behoort te leef in vergelyking met swart- en
bruinmense.
[101]
So verklaar ’n (wit) kabinetsminister in 1926 dat die
“beskaafde” arbeidsbeleid nooit gemik was daarop
om aan
bruinmense gelyke betaling te verskaf nie:
“
Die gekleurde man verskil van
die blanke man wat betref sy vlak van beskawing en moet
dienooreenkomstig behandel word.”
[102]
In
sy deel van die Carnegie-kommissie verslag skryf Professor Malherbe:
“’
n [A]rmblanke is ’n
blanke wat gesink het tot ‘onderkant die ekonomiese lewenspeil
wat . . . deur die blanke, aangesien
hy ‘n wit vel het,
gehandhaaf moet word teenoor die naturel’.”
[103]
[87]
Ten slotte was die politieke doel van oplossing van die armblanke
probleem nie altruisties nie. Inteendeel:
“
Die vertrekpunt . . . was die
uitskakeling van die swart deelsaaier. Hertzog het geglo dat
indien die situasie nie omgekeer
word nie, die deelsaaier ’n
swart kieser sou word. Sowel die deelsaaier as die toekomstige
swart kieser was ’n
direkte bedreiging vir die groeiende aantal
armblankes en baie ander Afrikaners wie se posisie nie veel beter was
nie – mense
wat nie net arm was nie, maar ook sonder
vaardighede vir die stedelike ekonomie. Hulle het slegs die
stemreg gehad om op
staat te maak.”
[104]
[88]
Dit is wat gebeur het. Aan blanke kant, het Afrikaners
gaandeweg politieke mag teruggekry. Vanuit ’n sekere
perspektief het die Anglo-Boereoorlog die koloniale oorheersing van
beide inheemse Afrikane en Republikeinse Afrikaners voltooi.
Maar ras het laasgenoemde bevoordeel. Binne ’n paar jaar
na hul sukses in die oorlog het die Afrikaners politieke mag
verkry
in die Vrystaat en Transvaal wat selfregerende gebiede soos die Kaap
en Natal geword het. Uniewording volg in 1910.
Die
verdeling van Suid-Afrika onder wit beheer is bereik.
[89]
Teen 1905 was daar 1,057,610 swartmense wat in die Transkei en Ciskei
gebly het, terwyl ongeveer 25,000 op plase gewerk het.
In die
destyds Natal het 228,000 in die reserwes gewoon, 421,000 op plase,
meesal as arbeidhuurders (“labour tenants”)
en nog ander
op Kroongrond. In die ou Transvaal was daar 123,000 in die
reserwes, ongeveer 430,000 in vorige stamgebiede,
180,000 op
Kroongrond en 130,000 op plase wat hulle saamgewerk en aangekoop
het. In die Vrystaat het slegs 27,000 in die
reserwes gewoon,
maar meer as ’n kwartmiljoen het op plase gewoon as deelsaaiers
of arbeidhuurders.
[90]
Drie jaar na uniewording volg die “Naturellen Grond Wet”,
[105]
vandag beter bekend, of berug, as die “1913 Land Act”.
Vir Sol Plaatje maak hierdie wet die “South African
native a
pariah in the land of his birth”.
[106]
Hoewel hierdie wet meer ’n bevestiging was van voorafgaande
besitsontneming
[107]
het dit die toekomstige aspirasies van swartmense vireers ’n
nekslag gegee. Waar hulle teen die naderende einde van
die
negentiende kon verwag het om ’n klas van onafhanklike swart
boere te ontwikkel,
[108]
het die teendeel, en meer, gebeur:
[109]
“
The Land Act prohibited
purchasing of white land, but not occupation; it demarcated scheduled
areas for African communal land ownership;
and it controlled the
forms of tenancy on white-owned land. Agricultural production
on white land was controlled, not prohibited.
While each region
revealed its own patterns, ‘almost all had one thing in common:
white-owned land was not occupied exclusively
by whites. Black
people predominated on the great majority of white-owned farms in
South Africa, where they lived as tenants
and workers both before and
after the 1913 Land Act.’ In the Free State sharecropping
remained important right into
the 1940’s, caused by white
farmers unable to raise capital to turn into large scale grain
producers and cattle. The
advent of the tractor changed that.
In the Transvaal much land continued, despite the Act, to be
purchased by Africans up
until 1936. Some of these purchases
were for individual ownership outside traditional authority.
African occupation
and agricultural production also remained in the
Cape and Natal. In the Cape the Act’s provisions were
inapplicable
until 1936.”
[110]
[91]
Oor die lewenswyse, waardigheid en deursettingsvermoë van swart
deelsaaiers het ons nie bloot ’n fiktiewe lewe van
’n
swart
Ampie
beskikbaar nie,
[111]
maar die werklike biografie van ’n swart deelsaaier en sy
gesin, Mnr Kas Maine. In
The
Seed is Mine
,
[112]
word die verhaal van hierdie swart deelsaaier op die Hoëveld
deur die historikus, Charles van Onselen, vertel. Ter aanvang
skryf Van Onselen:
“
The Highveld has, for more than
a century, also been the site of some of the most intense, intimate
and searing interactions between
Afrikaner landlords and their
predominantly Sotho-speaking labour tenants and farm labourers.
Bitter-sweet relationships
born of paternalism and unending rural
hardship have seen the emergence of peculiar quasi-kinship terms such
as outa (venerable
father) and ousie (older sister) − nouns
that are as embedded in the modern Setswana lexicon as they are in
Afrikaans.
When an authentic identity eventually emerges from
this troubled country it will, in large part, have come from painful
shared
experiences on the Highveld.”
[113]
[92]
Kas Maine was een van vele goeie swart landbouers wat ten spyte van
moeilike omstandighede ‘n redelike bestaan kon maak
as ’n
deelsaaier. Daar was ook suksesvolle wit landbouers wat ook uit
arm omstandighede opgestaan het en met mense
soos Kas Maine
saamgewerk het. Een van hulle was die suksesvolle seun van ’n
wit bywoner met wie hy saamgewerk het,
maar uiteindelik mee uitgeval
het. Maar die uitval en woorde van Kas Maine by hul skeiding
illustreer die bittere verskil:
“
You know, one day God will
allow us to purchase property − just like you − and I
will hire you, and overwork you just
as you are doing to me.”
[114]
[93]
Die sukses van swart deelsaaiers het ook, ironies, hulle hoogs
kwesbaar gemaak. Giliomee stel dit so:
“
Die opkoms van die swart
deelsaaiers het ‘n groot bedreiging vir die bywoners
verteenwoordig. Die boere wou mense hê
met kapitaal en
die vermoë om die lande te bewerk. Die bywoner was traag
om bevele te gehoorsaam en onwillig om sy aan
sy met die swart
arbeiders op die land te werk. Hy het ook daarvan gehou om ‘n
redelike stuk grond vir eie gebruik
re hê. Boere met
deelsaaiers het bevind dat ses swart families op ’n stuk grond
van 220 akker ’n bestaan
kon maak, terwyl ’n enkele wit
familie op 100 akker aangedring het.”
[115]
En
Van Onselen:
“
With the benefit of hindsight,
then, we can see that, between the mid-nineteenth and mid-twentieth
centuries, the emerging South
African state engaged in a hundred year
war to seal off the sharecropping frontier so as to deliver to
politically privileged white
landlords a black labour force that
capitalist agriculture demanded. It is within the context of
this long march north and
west that we must situate our understanding
of those black farmers and white landlords whose whispered verbal
agreements remain
muffled to this day by the sigh of the highveld
breeze.”
[116]
[94]
Die fiktiewe, dog werklike realiteit van Van Bruggen se
Ampie
,
die werklikheid van Mnr Kas Maine en die hoofuitspraak se Mnr Petros
Nkosi, skets ’n prentjie van dikwels bittere verweefdheid.
Die Grondwet bied ons ’n keuse en geleentheid om in die
verweefdheid iets te soek wat ons in die toekoms kan saambind.
In Van Onselen se woorde, weer:
“
Old and new social forces,
contested in surprising ways in the day-to-day interactions between
black and white folk who lived in
the Transvaal, lie at the core of
this book. Currents of anger, betrayal, hatred and humiliation surge
through many accounts of
modern South Africa’s race relations,
but what analysts sometimes fail to understand is that without prior
compassion, dignity,
love or a feeling of trust − no matter how
small, poorly or unevenly developed − there could have no
anger, betrayal,
hatred or humiliation. The troubled
relationship of black and white South Africans cannot be fully
understood by focusing
on what tore them apart and ignoring what held
them together.”
[117]
[95]
Wat het dit alles met Me Daniels se appèl te make?
Feitlik alles. Die Carnegie-kommissie verslag oor armblankes
toon aan dat armoede, ook op plase, niks te make het met ’n
inherente minderwaardigheid nie. Sosiale en ekonomiese
prosesse
buite mense se individuele beheer is grootliks daarvoor
verantwoordelik. Die probleem is aangespreek sodat witmense
menswaardige lewenstandaarde kon handhaaf. Die skreiende onreg
dat hierdie regstelling nie ook uitgebrei is na swart- en
bruinmense
nie, moet en kan reggestel word. Daar bestaan geen rede om die
voortbestaan van onmenswaardige toestande op plase
nog vandag te duld
nie. In hedendaagse terme, waar die bevoorregtes onder ons gewoond is
aan redelike behuising, watertoevoer en
elektrisiteit, bestaan daar
geen regverdiging daarvoor om dit nie te gun aan andere wat dit nog
nie het nie, veral nie waar hulle,
soos Me Daniels, dit self wil
bekom nie.
Die
eiendomsbegrip
[96]
Die argument aangevoer namens die respondent, Mnr Scribante, het
berus op die aanname dat die eiendomsreg in die plaas die
aanvanklike
uitgangspunt moet wees vir die beoordeling van die geldigheid van
enige reg wat Me Daniels mag hê. Die
hoofuitspraak toon
duidelik aan waarom daardie aanname nie in hierdie saak gemaak kan
word nie. Maar dit is ’n hardnekkige
siening wat dikwels
gebruik word om die noodwendige gevolge van ons grondwetlike waardes
to probeer vertraag of ontduik.
Dit is miskien behulpsaam om
verder as die hoofuitspraak te gaan om die onhoudbaarheid van hierdie
soort van absolutistiese eiendomsbegrip
aan te toon.
[97]
Eerstens berus dit op ’n vergestalting daaraan gegee in die
Romeins-Hollandse reg in ’n bepaalde tydvak van die
geskiedenis
van Europa, naamlik die stryd tussen die moderne siviele reg en
feodale reg.
[118]
Dit was belangrik in die stryd om politieke en ekonomiese vryheid van
individue om die idee te vestig dat ’n allesomvattende
eiendomsreg in een persoon moet vestig om feodale beperkings daarop
te verhoed of te verminder.
[119]
Hierdie konseptualisering stel ’n hiërargie van regte
daar, met eiendomsreg bo-aan, en mindere saaklike en persoonlike
regte daaronder wat in bepaalde en omskrewe omstandighede daaraan mag
afbreuk doen. Dat hierdie siening van eiendomsreg ’n
belangrike rol gespeel het in die vestiging van individuele vryheid
in die opkoms van westerse kapitalisme beteken egter nie dat
die
voortgesette bestaan daarvan as vanselfsprekend aanvaar kan word
onder die Grondwet nie.
[98]
Die redes daarvoor is velerlei. Vir die meer formalistiese
onder ons mag die eerste antwoord genoegsaam wees, naamlik
dat
hierdie Hof al by verskeie geleenthede hierdie verabsolutering van
eiendomsreg verwerp het. In die woorde van Sachs R
in
PE
Municipality
:
“
In sum, the Constitution
imposes new obligations on the courts concerning rights relating to
property not previously recognised
by the common law. It
counterposes to the normal ownership rights of possession, use and
occupation, a new and equally relevant
right not to be arbitrarily
deprived of a home. The expectations that ordinarily go with
title could clash head-on with the
genuine despair of people in dire
need of accommodation. The judicial function in these
circumstances is not to establish
a hierarchical arrangement between
the different interests involved, privileging in an abstract and
mechanical way the rights of
ownership over the right not to be
dispossessed of a home, or vice versa. Rather it is to balance
out and reconcile the opposed
claims in as just a manner as possible
taking into account of all the interests involved and the specific
factors relevant in each
particular case.”
[120]
[99]
Die sosiale gebondenheid van die eiendomsbegrip in ons huidige reg is
ook op vele ander gebiede deur hierdie Hof erken en beklemtoon.
[121]
Die hoofuitspraak is ’n elegante, weldeurdagte en
deurslaggewende mylpaal in hierdie ontwikkeling van ons reg.
[100]
Maar die dieper, onderliggende redes moet ook verstaan word.
Die verduideliking daarvan is deur andere ook gedoen, maar
die
onlangse afsterwe van Professor André van der Walt bied ’n
gepaste geleentheid om sy baanbrekerswerk in daardie
opsig te
huldig. Soos hy aangetoon het,
[122]
het die verabsolutering van die eiendomsbegrip en die hiërargie
van regte wat daaruit voortgespruit het, nie die doel om persoonlike
en ekonomiese vryheid in Suid-Afrika te vestig, vervul nie.
Inteendeel, dit het die bestaande ongelykhede in persoonlike,
sosiale, ekonomiese en politieke vryheid bevestig en vererger.
Swart- en bruinmense is ontneem daarvan om eiendomsreg in
hulle
vryheidstryd te gebruik. Die laaste woord in hierdie konteks is
Professor van der Walt s’n:
“
[T]raditional notions of
property do not suffice in transformational contexts, where the
foundations of the property regime itself
are or should be in
question because regulatory restrictions , even when imposed in terms
of a broadly conceived notion of the
public good, simply cannot do
all the transformative work that is required. In this perspective it
is not sufficient to demonstrate
that property is subject to . . .
public purpose restrictions; the point is to identify and
explain instances where transformation
justifies changes that
question the very foundations upon which the current distribution of
property rests.”
[123]
[101]
Hierdie insig kloof dieper as bloot die regstel van historiese
ongeregtighede. Wanneer die rasse-ongelykhede van die
verlede
reggestel word gaan die moontlike onregverdighede van die nuwe
verspreiding van eiendom nie noodwendig rasgedrewe wees
nie.
Maar die Grondwet se waardes slaan nie slegs op die verlede en hede
nie, dit is ook van toepassing op die toekoms.
’n
Toekomstige “Me Daniels” gaan steeds geregtig wees op ’n
menswaardige bestaan, ongeag die ras van die
eienaar van die grond.
Gevolge
van grondwetlike verandering
[102]
Net soos die erkenning van historiese onreg soms indirek ontduik
word, word die belangrikheid van beskerming van eiendomsreg
dikwels
buite-geregtelik geregverdig deur die voordele wat dit sou hê
in die moderne mark-ekonomie.
[124]
Hierdie poging om die gevolge van grondwetlike verandering te
vertraag of teen te werk, gaan mank aan dieselfde gebreke waarom
die
gemeenregtelike verabsolutering van eiendomsreg nie kan slaag nie,
naamlik die ahistoriese gebruik daarvan in die Suid Afrikaanse
konteks.
[103]
Ekonomiese doeltreffendheidsargumente verskuil dikwels die teoretiese
vertrekpunt daarvan. Een daarvan, die “Coase
theorem”,
kom daarop neer dat ongeag hoe eiendomsregte aanvanklik toegeken
word, ’n ekonomiese doeltreffende uitkoms
bereik sal word vir
die hele samelewing solank as wat daardie regte ten volle
gespesifiseer word en die transaksiekoste beperk
word, omdat die bate
sal vloei na die mees effektiewe verbruiker daarvan. Ander
partye sal nie slegter daaraan toe wees nie
aangesien die party wat
die meeste waarde kan genereer van die bate ander partye kan vergoed
wat minder waarde daaruit sou verkry.
[125]
Dikwels egter word die sprong van beskrywing van ’n teoretiese
mededingende situasie gemaak na ’n voorskriftelike
waarde-oordeel, naamlik dat die ekonomie nadelig geraak word deur
enige verandering wat bestaande beskerming en verdeling van
eiendomsregte bedreig. Maar so ’n sprong word nie
geregverdig deur die Coase stelling nie. Dit swyg oor die
moontlikheid
dat ’n ander verdeling van eiendomsregte nie ook
’n ekonomies doeltreffende uitkoms tot gevolg sou kon hê
nie.
En die tasbare bewys, naamlik dat die partye wat die
meeste waarde genereer die ander partye wat daardeur verloor kan
vergoed,
word nooit voor gevra in praktiese terme nie.
[126]
[104]
Ekonomiese doeltreffendheid is een moontlike regverdiging vir
regsreëls. Maar ekonomiese groei kan ons dikwels
verblind
vir die beperkinge van mark gebaseerde transkasies en die
onderliggende aannames ten opsigte van die verdeling van
eiendom.
Me Daniels se lot is ’n goeie voorbeeld van die
ontoereikendheid van ekonomiese doeltreffendheid as deurslaggewende
regverdiging in ’n oop en demokratiese samelewing gebaseer op
menswaardigheid, gelykheid en vryheid. Indien ons die
gemeenregtelike absolutisme sou navolg en in die Scribante’s
die alleenreg vestig om verbeteringe aan die okkupeerder se
woning
aan te bring, watter prys sou hulle op kon aandring in ruil hiervoor
en met watter fondse sou die verarmde Me Daniels haar
waardigheid
finansier? Die reg op menswaardigheid pas nie gemaklik in as
die voorwerp van ’n geldelike mark-transaksie
nie.
[105]
’n Ekonomiese doeltreffende uitkoms vereis die intellektuele
veronderstelling van perfekte mededinging: grootskaalse
kopers en
verkopers gemotiveer deur eie belang; geen kontrole oor
mark-pryse nie; pryse as betroubare aanduiding van skaarsheid;
gestandardiseerde produkte; geen weerhouding van toetrede of
verlating van die mark nie; beide verkopers en kopers met volledige
kennis van mark-transaksies; hulpbronne in privaatbesit met regte wat
ten volle en omvattend gedefinieer en toegeken is; en gevolglike
perfekte afdwinging van die regte deur die Staat.
[127]
Hierdie perfekte marktoestande bestaan egter natuurlik feitlik nooit
nie. En dit het nie in ons koloniale en apartheids-geskiedenis
bestaan nie.
[128]
[106]
Die werklikheid is dat ons koloniale en apartheidsgeskiedenis wys dat
daar geen “vrye mark” was nie; dit was deurspek
met
“mark- en owerheidsmislukkings” wat die behoorlike
werking daarvan verhoed het en miljoene mense nes Me Daniels
se
deelname aan die sogenaamde vrye mark verhoed het. Beskerming
van bestaande (oneweredige) patrone van toekenning en verspreiding
van hulpbronne kan nie geregverdig word deur die blote steun op die
“bestaande doeltreffende ekonomie” argument nie,
waar die
basiese onderliggende aannames van die teorie juis afwesig is nie.
Terwyl regverdigheid nie ’n voorvereiste
is nie, kan daar nie
aan die basiese vereiste voldoen wees wanneer ’n gedeelte van
die samelewing aktief uitgesluit was van
die “aanvanklike
verdeling” van eiendomsregte nie.
[129]
Dit is ’n dapper ekonoom wat sal argumenteer dat ons samelewing
vandag steeds beter daaraan toe is, in ’n ekonomies
doeltreffende sin, op grond van die historiese toekenning van
eiendomsreg aan witmense tot uitsluiting van ander. Daar is
min
rede om te aanvaar dat ’n verskillende aanvanklike verdeling
wat nie op rasse- en klasuitsluiting gebaseer was nie, nie
ook
ekonomies doeltreffend sou gewees het nie. Die mees basiese
aannames vir hierdie
status
quo
ekonomiese
doeltreffendheids-argument makeer.
Samevattend
[107]
Die onreg van ons geskiedenis kan nie ontduik word nie. Op die
onmiddellike vlak van hierdie saak noodsaak dit dat ons
dieselfde
menswaardigheid betoon en dieselfde soort regstelling maak teenoor
mense in onmenswaardige omstandighede op plase, as
wat die oplossing
van die “armblanke probleem” in die eerste helfte van die
vorige eeu gemotiveer het. Dit beteken
ook dat ons moet besef
dat die gemeenregtelike beskerming van eiendomsreg en die ekonomiese
voordele wat daaruit gespruit het,
in ons geskiedkundige konteks nie
persoonlike outonomie en ekonomiese vryheid ondersteun het nie, maar
dit effektiewelik teëgewerk
het. Die argument dat
beskerming van hierdie eiendom ’n noodsaaklike voorvereiste is
vir persoonlike en ekonomiese
vryheid is nie selfverduidelikend in
die Suid-Afrikaanse konteks nie. Dit sal slegs in daardie
rigting begin beweeg wanneer
ons sterker beskerming onder die
Grondwet gee aan die prekêre soort eiendom wat
minderbevoorregte mense op plase tans het.
[108]
Vanuit hierdie verdere perspektief beaam ek weereens my instemming
met Madlanga R se belangrike en rigtinggewende uitspraak.
FRONEMAN
J (Cameron J concurring):
Introduction
[109]
I read the judgment (main judgment) of my brother Madlanga J with
great appreciation. I concur in it. But its
reading was
accompanied by a sense of shame. In his autobiography, the
Afrikaans-speaking historian, Hermann Giliomee, mentions
that the
statement by the liberal English-speaking historian, C.W. de Kiewiet
that “for the thoughtful man it is still important
to
understand how men [the Afrikaners] who are sincere in their
Christian beliefs and staunch defenders of their own liberties
can
become identified with policies of discrimination and
restriction”,
[130]
made him think that a person who could explain apartheid with
understanding could make a big contribution to historical
writing.
[131]
Later, with reference to his book on the history of the removal
of “coloured” people from the area known as “Die
Vlakte” from the centre of Stellenbosch, he came to the honest
and almost solemn conclusion: “I now realise that I
have not
succeeded in answering that question”.
[132]
[110]
It is from a similar perspective that I feel constrained to write
this concurrence. The Constitution affords us all
the
opportunity to attempt to develop a society where the injustice of
the past can be addressed without the denial of the dignity,
freedom
and equal treatment of all the inhabitants of this country. It
is an opportunity that we dare not ignore. However,
the
preamble to the Constitution asks more of us before we can seize the
opportunity it grants, and that is that the injustices
of the past be
acknowledged.
[111]
Anyone who travels through our beautiful countryside cannot help but
notice that the living conditions of workers who live
on farms do not
always meet a standard that accords with human dignity. There
is little doubt that things have improved,
but unfortunately not
uniformly so. Why not?
[112]
That there still can be a debate about whether the applicant, Ms
Daniels, should be allowed to improve her home dwelling by
doing
ordinary things to make it more habitable without consent, shows that
we still have a long way to travel before the promises
of the
Constitution are fulfilled. Remember, what is at stake here is
the levelling of floors, the establishing of a system
of running
water with a washbasin in the house, the addition of another window
and the laying of paving outside. Ordinary,
basic, things.
[113]
Many of us who take these basic everyday conveniences for granted,
appear not to view it as a problem that others are denied
them. Why
not?
[114]
A partial explanation may be that it lies in simply race or class
discrimination. To the extent that there is express
recognition
that discrimination is the reason, the short answer is that the
Constitution prohibits that. But often our reaction
appears to
be one of surprise and denial when we are labelled as racist or
otherwise discriminatory when we accept this undignified
existence of
others, but do not accept it for ourselves. It is the
underlying reasons for this denial or avoidance of a clearly
unacceptable and unjust state of affairs that I attempt to address.
[115]
Before we can make substantial and lasting progress in making the
ideals of the Constitution a reality at least three things
must
happen:
(a) an honest and deep recognition of
past injustice;
(b) a re-appraisal of our conception
of the nature of ownership and property; and
(c) an acceptance, rather than
avoidance or obfuscation, of the consequences of constitutional
change.
I
deal with each of these in the context of this case, namely the
existence on farms of people who live and work on land they do
not
own.
[133]
The
recognition of injustice
[116]
For many of us who grew up on farms, under the previous dispensation
of apartheid, the difference between our privileged lifestyle
and
those of the people who lived and worked on the farm was merely
natural.
We
and
they
were
different
.
This was often, however, accompanied by insistence of parents that
their children should treat workers and their families
with respect
on an individual level. But seldom, if ever, was there a
self-critical look at the difference in dignified living
between
farmer and farmworker, or other inhabitants on the farm. It is
important to consider whether things remain the same
in this context
because what is relevant here is the recognition of the historical
injustice that underlies the present state of
affairs.
[117]
The historical injustice is nowadays not easily denied, but rather
avoided. It is the tendency of avoidance that I initially
wish
to touch on. The example I will use is the position of
sharecroppers
[134]
and “bywoners”.
[118]
The second half of the nineteenth century brought unimagined change
to the living circumstances of all in what would later
become South
Africa.
“
The years after 1870 witnessed
profound and violent transformations in South Africa. Old
patterns of life were shattered,
and men and women were hurled into
new, foreign, and threatening economic, social and political
environments. The rapid development
of industry and the
largescale proletarianisation of both black and white rural producers
intensified these social disruptions
in the 1920’s and 1930’s.
Old certainties were destroyed, old world views and moralities
undermined; men and
women were forced to adapt their values and ideas
to totally new relationships, new patterns of life.”
[135]
[119]
White people also suffered hardship. There were many poor white
people on the farms, “bywoners” and sharecroppers
who
suffered. The Afrikaans writer, Jochem van Bruggen’s
well-known
Ampie
-trilogy,
[136]
is based on his own experience.
“
In the vicinity of our farm
shortly after the previous World War [World War I] there lived the
most wretched family that I ever
knew. They lived together in
the most primitive caged shelter and lived almost barbarically.
Their deprivation in the
novel is not exaggerated. They
accompanied my thoughts in the book.”
[120]
The Carnegie Commission report of 1932 on the “poor white
problem” came to the conclusion that there were 300,000
poor
whites, 17% of the white population.
[137]
At the Afrikaner “Volkskongres” (Peoples’
Congress) in 1934
[138]
an analysis revealed that of those, 250,000 were Afrikaners, one
quarter of the white Afrikaner population.
[139]
The Carnegie Commission recognised that black poverty was as
much a problem as white poverty, but opined that white poverty
had to
be addressed first.
[140]
But both the Carnegie Commission and the Volkskongres made
recommendations that widened the gap between white and black people.
[121]
According to Giliomee, the Commission’s biggest contribution
was to dispel the mythology of poverty as a natural or
innate
consequence at the lowest level of the human scale:
“
The commission’s report
heralded a new understanding of the crisis of large-scale poverty.
It was not a problem for
which the poor themselves were
responsible, but the result of social and economic processes over
which they had little control.
Intelligence tests undertaken by
the commission found that the poor whites compared well with the rest
of the population.
N.P. van Wyk Louw . . . called the rejection
of this ‘scornful approach’ the commission’s most
important contribution.”
[141]
[122]
The tackling of, and solution to, the poor white problem is regarded
with some pride by many Afrikaners.
[142]
But it came at a cost. It was resolved, yes, by self-help
and hard work,
[143]
but also by discrimination and the wielding of political power.
[123]
Poverty was not defined in terms of physical or economic data, but in
relational terms, namely to what extent a white person
should live,
by virtue of whiteness, in comparison to black and “coloured”
persons.
[144]
In 1926 a (white) cabinet minister declared that the “civilised”
labour policy was not aimed at equal wages for
“coloured”
people:
“
The Colo[u]red man is different
from the white man in his standard of civilisation and must be
treated accordingly.”
[145]
In
his portion of the Carnegie Commission report Professor Malherbe
wrote:
“
A very appreciable portion of
our white population is sinking below the economic standard of living
which we consider that a white
man should maintain by virtue of his
white skin over the native.”
[146]
[124]
In conclusion: the political purpose of solving the “poor white
problem” was not altruistic. To the contrary:
“
the common point of departure
for Afrikaner politicians was the elimination of the black
sharecropper and the potential black voter.
Both these
categories of blacks posed a direct threat to the rapidly growing
class of Afrikaners who were poor, lacked skills,
and had only the
vote to rely on. Without a formula to exclude them, pressure
for the qualified franchise would become steadily
stronger.
This would spell the political demise of the poorer whites and
possibly of Afrikaner political domination as well.
The
reserves offered a justification for black exclusion from both the
land and the vote.”
[147]
[125]
That is what happened. On the white side, Afrikaners gradually
regained political power. From a particular perspective
the
Anglo-Boer War completed the colonial domination of both indigenous
Africans and Republican Afrikaners. But race favoured
the
latter. Within a few years after their defeat in the war the
Afrikaners managed to regain significant political control
in the
Transvaal and Free State, which became self-governing
territories as the Cape and Natal were. Union followed
in
1910. The division of South Africa under white rule was
secured.
[126]
By 1905 there were 1,057,610 black people living in the Transkei and
Ciskei, whilst about 25,000 worked on farms. In
the then Natal,
228,000 lived in the reserves, 421,000 on farms, mostly as labour
tenants, and others on Crown Land. In the
old Transvaal there
were 123,000 people in the reserves, about 430,000 in erstwhile
tribal lands, 180,000 on Crown Lands and 130,000
on farms that they
acquired together. In the Free State only 27,000 lived in the
reserves and more than a quarter of a million
people lived on farms
as sharecroppers or labour tenants.
[127]
The infamous Land Act followed three years after Union.
[148]
For Sol Plaatje the Act made the “South African native a pariah
in the land of his birth”.
[149]
Although this Act was more an affirmation of previous
dispossession,
[150]
it nevertheless dealt a fatal blow to the aspirations of black
people. Whereas black people could have expected, towards
the
end of the nineteenth century, to develop into a class of independent
black farmers, the opposite,
[151]
and more, transpired:
[152]
“
The Land Act prohibited
purchasing of white land, but not occupation; it demarcated scheduled
areas for African communal land ownership;
and it controlled the
forms of tenancy on white-owned land. Agricultural production
on white land was controlled, not prohibited.
While each region
revealed its own patterns, ‘almost all had one thing in common:
white-owned land was not occupied exclusively
by whites. Black
people predominated on the great majority of white-owned farms in
South Africa, where they lived as tenants
and workers both before and
after the 1913 Land Act.’ In the Free State sharecropping
remained [an] important right
into the 1940’s, caused by white
farmers unable to raise capital to turn into large scale grain
producers and cattle. The
advent of the tractor changed that.
In the Transvaal much land continued, despite the Act, to be
purchased by Africans up
until 1936. Some of these purchases
were for individual ownership outside traditional authority.
African occupation
and agricultural production also remained in the
Cape and Natal. In the Cape the Act’s provisions were
inapplicable
until 1936.”
[153]
[128]
For the life, dignity and perseverance of a black sharecropper we do
not have to rely on the fiction of a black Ampie,
[154]
for we have the real biography of a black sharecropper and his
family. In
The Seed is
Mine
,
[155]
the historian, Charles van Onselen, has reconstructed the lives of Mr
Kas Maine and his family. At the outset he tells us:
“
The Highveld has, for more than
a century, also been the site of some of the most intense, intimate
and searing interactions between
Afrikaner landlords and their
predominantly Sotho-speaking labour tenants and farm labourers.
Bitter-sweet relationships
born of paternalism and unending rural
hardship have seen the emergence of peculiar quasi-kinship terms such
as outa (venerable
father) and ousie (older sister) −
nouns that are as embedded in the modern [Setswana] lexicon as they
are in Afrikaans.
When an authentic identity eventually emerges
from this troubled country it will, in large part, have come from
painful shared
experiences on the Highveld.”
[156]
[129]
Kas Maine was one of many successful black agriculturalists who,
despite difficult odds, managed to make a reasonable living
as a
sharecropper. There were also successful white agriculturalists
who were able to make a success by working with people
like Kas
Maine. One of them was the son of a “bywoner” who
worked with him. But their ways parted in acrimony.
Kas
Maine’s parting words encapsulated the bitter difference
between them:
“
You know, one day God will
allow us to purchase property − just like you − and I
will hire you, and overwork you just
as you are doing to me.”
[157]
[130]
Ironically, the success of black sharecroppers became their
vulnerability. In Giliomee’s words:
“
The advance of black
sharecroppers spelled great danger to the Afrikaner bywoners.
Farmers increasingly needed people with
capital and ability to work
hard in the lands. Bywoners had no capital, were reluctant to
obey orders and were unwilling
to do manual work side by side with
[black people]. They also liked having some space on the farm
for their own use.
Farmers hiring out land on a share-cropping
basis found that six black families could make a living on two
hundred acres, while
a single white family insisted that it needed at
least a hundred acres on which to subsist.”
[158]
And
in those of Van Onselen:
“
With the benefit of hindsight,
then, we can see that, between the mid-nineteenth and mid-twentieth
centuries, the emerging South
African state engaged in a hundred year
war to seal off the sharecropping frontier so as to deliver to
politically privileged white
landlords a black labour force that
capitalist agriculture demanded. It is within the context of
this long march north and
west that we must situate our understanding
of those black farmers and white landlords whose whispered verbal
agreements remain
muffled to this day by the sigh of the highveld
breeze.”
[159]
[131]
The fictitious, but nevertheless very real, world of Van Bruggen’s
Ampie, the actual reality of the world of Mr Kas
Maine and that of Mr
Petros Nkosi related in the main judgment, sketch a picture of an
often recurrent interwovenness. The
Constitution provides us
with an opportunity and choice to seek, in that interwovennes,
something that can bind us to a common
future. Again, in Van
Onselen’s words:
“
Old and new social forces,
contested in surprising ways in the day-to-day interactions between
black and white folk who lived in
the Transvaal, lie at the core of
this book. Currents of anger, betrayal, hatred and humiliation
surge through many accounts
of modern South Africa’s race
relations, but what analysts sometimes fail to understand is that
without prior compassion,
dignity, love or a feeling of trust −
no matter how small, poorly or unevenly developed − there could
have been no
anger, betrayal, hatred or humiliation. The
troubled relationship of black and white South Africans cannot be
fully understood
by focusing on what tore them apart and ignoring
what held them together.”
[160]
[132]
What has all this to do with Ms Daniels’s appeal? Just about
everything. The Carnegie Commission’s report
on poor
whites showed that poverty, also on farms, had nothing to do with
inherent inferiority, but everything to do with social
and economic
processes outside individual control. The problem was addressed
so that white people could maintain dignified
living standards. The
burning injustice, namely that this corrective action was not
extended to black and “coloured”
people, must and can be
rectified. There is no reason to continue countenancing the
continuation of inhuman and undignified
living on farms any more. It
cannot be tolerated in light of the constitutional mandate to heal
the divisions of the past.
In contemporary terms, where the
privileged among us are used to reasonable housing, access to water,
and electricity, there is
no justification for denying it to others
who do not yet have it, especially to those, like Ms Daniels,
who want to create
those conditions for themselves.
The
conception of property
[133]
The argument advanced on behalf of the respondent, Mr Scribante,
proceeded from the premise that the initial departure point
of the
enquiry into the evaluation of the validity of any right that Ms
Daniels may have, must be ownership of the farm. The main
judgment
clearly shows why this premise cannot be sustained. But it is a
recurrent view of property and ownership that is
often used to delay
or avoid the consequences of constitutional values. It may be
of some assistance to the main judgment
to demonstrate the
unfeasibility of this absolutist kind of conception of property a bit
further.
[134]
First, this conception rests on the content given to the nature of
ownership and property in a particular period in the history
of
Europe, namely the struggle between the modern civil law and feudal
law, as well as the socio-political struggle against feudal
oppression.
[161]
It was important for the struggle to attain individual
political and economic freedom to ground the idea of an
all-encompassing
right of ownership in one person in order to prevent
or lessen feudal burdens on it.
[162]
This conception of property creates a hierarchy of rights with
ownership at the top, and lesser real and personal rights
that may in
circumscribed circumstances subtract from it. That this
conception of property and ownership played an important
role in the
establishment of individual freedom in the development of western
capitalism does not, however, mean that its continued
existence in
this form must be accepted as a given under the Constitution.
[135]
The reasons for not doing so are many. For the more
formalistically minded the first may be sufficient, namely that
this
Court has already often rejected this absolutist conception of
property. In the words of Sachs J in
PE Municipality
:
“
In sum, the Constitution
imposes new obligations on the courts concerning rights relating to
property not previously recognised
by the common law. It
counterposes to the normal ownership rights of possession, use and
occupation, a new and equally relevant
right not arbitrarily to be
deprived of a home. The expectations that ordinarily go with
title could clash head-on with the
genuine despair of people in dire
need of accommodation. The judicial function in these
circumstances is not to establish
a hierarchical arrangement between
the different interests involved, privileging in an abstract and
mechanical way the rights of
ownership over the right not to be
dispossessed of a home, or vice versa. Rather it is to balance
out and reconcile the opposed
claims in as just a manner as possible
taking account of all the interests involved and the specific factors
relevant in each particular
case.”
[163]
The
social boundedness of property in our current law has also been
recognised and emphasised in many other areas of our law.
[164]
The main judgment is an elegant, thoughtful and conclusive milepost
in this development of our law.
[136]
But the deeper underlying reasons must also be understood. They
have been expounded also by others, but the recent death
of Professor
André van der Walt provides a fitting moment to honour his
pioneering work in this regard. As he showed,
[165]
the absolutisation of ownership and property and the hierarchy of
rights it spawned did not fulfil the purpose of founding political
and economic freedom in South Africa. To the contrary, it
confirmed and perpetuated the existing inequalities in personal,
social, economic and political freedom. Black people were
deprived of using property and ownership in their freedom struggle.
The last word is Professor van der Walt’s:
“
[T]raditional notions of
property do not suffice in transformational contexts, where the
foundations of the property regime itself
are or should be in
question because regulatory restrictions, even when imposed in terms
of a broadly conceived notion of the public
good, simply cannot do
all the transformative work that is required. In this
perspective it is not sufficient to demonstrate
that property is
subject to…public purpose restrictions; the point is to
identify and explain instances where transformation
justifies changes
that question the very foundations upon which the current
distribution of property rests.”
[166]
[137]
This insight cuts deeper than only the rectification of historical
injustices. When the racial inequalities of the past
are
rectified, the potential injustices of the then existing distribution
of property may not be racially tainted any more. But
the
values of the Constitution are not aimed solely at the past and
present, but also the future. A future “Ms
Daniels”
will still be entitled to live a dignified life, no matter the race
of the owner.
Consequences
of constitutional change
[138]
Just as the recognition of historical injustice is sometimes
indirectly avoided, so is the importance of protecting property
sometimes extra-judicially justified on the basis of its benefits in
a modern market economy.
[167]
This attempt to slow down or frustrate the consequences of
constitutional change suffers from the same defects as why the
common
law absolutisation of property cannot succeed, namely its ahistorical
use in the South African context.
[139]
Economic efficiency arguments often hide their theoretical
assumptions. For example, the Coase theorem holds that, as
long
as property rights are secure and transaction costs are absent, an
economically efficient outcome will result no matter the
initial
allocation of property rights because an asset will flow to the
highest value user. Other parties need not be worse
off because
the party who can generate the most wealth from the asset can
compensate those who would generate less wealth from
it.
[168]
Often the jump is then made from this description of a theoretical
competitive situation to a prescriptive one: that the
economy will
suffer from any change that upsets the existing protection and
distribution of property. But the jump does not
follow from the
theorem. It says nothing to the effect that a different
allocation of property rights might not also produce
an economically
efficient outcome. And the practical proof of the pudding,
namely that the party who generates the wealth
from the asset can
compensate those who lose, is never asked for in practical
terms.
[169]
[140]
Economic efficiency may be one important justification for legal
rules. But economic growth can often blind us to the
limits of
market-based exchanges and the distributional assumptions that
underlie them. Ms Daniels’s plight is a good
illustration
of the inadequacy of mere economic efficiency as a legal
justification in an open and democratic society based on
human
dignity, equality, and freedom. Were we to follow the common
law absolutism and vest in the Scribantes the sole right
to make
improvements to an occupier’s property, what price would they
demand in exchange for this and with what funds would
the
impoverished Ms Daniels finance her dignity? The right to
dignity does not easily fit into the subject of a market exchange.
[141]
To get to this economically efficient outcome, one must assume an
intellectual construct of perfect competition: large numbers
of
buyers and sellers motivated by self interest to maximise their
utilities and profits, without control over market prices;
prices
serve as indicators of scarcity; products are standardised or
homogenous; there are no entry or exit barriers; buyers and
sellers
are fully informed on the terms of market transactions; resources are
held in private property with rights fully defined
and assigned; and
these rights and prevailing laws are fully enforced through the
State.
[170]
But of course these “necessary conditions” hardly ever
exist. And they did not exist in our colonial and
apartheid
history.
[142]
The reality is that our colonial and apartheid history precluded any
“free market” and millions of people like
Ms Daniels were
precluded from participating in any free market. It was fatally
flawed by both “market” and “government”
failures. Protecting existing (skewed) patterns of allocation
and distribution of resources cannot be justified with bland
reliance
on efficiency when such obvious inequality in bargaining power
prevents citizens from not only enjoying the benefits of
that
efficiency, but from protecting their basic rights. While
justice and fairness are not necessary preconditions for distribution
in terms of economic efficiency arguments, it does not follow that,
where people were actively excluded from even some initial
distribution, the basic assumptions for economic efficiency have been
met.
[171]
It is a brave economist who argues today that our society is still in
a better shape, in an economically efficient sense,
on the basis of
the historical allocation of property rights to white people only.
There is little reason to assume that
a different “initial
distribution” of property rights, not based on race and class
exclusion, would not also have been
economically efficient. The
most basic assumptions for these
status
quo
economic efficiency
arguments are lacking.
In
summary
[143]
The injustice of our history cannot be avoided. At the
immediate level of this case it requires that we afford the same
dignity, and rectification of indignity, to those living on farms, as
that which motivated the solution to the “poor white
problem”
in the first half of the previous century. It means that we
must recognise that the common law protection
of property and its
attendant economic privileges did not, in our historical context,
support personal autonomy and economic freedom,
but effectively
worked against it. The argument that the protection of existing
property is a necessary condition for personal
and economic freedom
is not self-explanatory in the South African context. It will
only start to become convincing when property
held in tenuous form by
previously disadvantaged people is protected in stronger form under
the Constitution.
[144]
From this additional perspective I re-affirm my concurrence in
Madlanga J’s important and path-breaking judgment.
CAMERON
J:
[145]
The judicial business this case places before us is despatched, with
convincing power, in paragraphs 23 to 70 of the judgment
of my
colleague Madlanga J (first judgment). I concur in that
reasoning and conclusion.
[146]
But the first judgment does more than despatch the dispute. It
also gives voice to history: an aching and, for me, shaming,
account
of dispossession from land of black people by white people –
with the grief and pain and dislocation and shocking
material
deprivation this led to. This serves, in the word the first
judgment chooses, as interpretative background to the
case’s
adjudication.
[147]
With deliberateness, I concur in that exposition. Equally, I
concur in the moving and unusually feelingful Afrikaans-language
judgment of Froneman J (second judgment). In both, I do so
after hesitating. Why?
[148]
Because neither of my colleagues’ historical accounts may be
taken – could
expect
to be taken – as other than partial and incomplete reflections
of our country’s fractured past. They are neither
impartial nor complete. Yet our country’s history is
omnipresent when one applies the Constitution and the reparative
legislation that flowed from it. That history is not always
directly functional to the determination of the case.
[172]
Yet it often cries out for voice.
[149]
And yet I feel hesitation, too, because it is not within the primary
competence of judges to write history. The histories
in my
colleagues’ judgments were not expressly in issue during
argument before us. Neither side referred to them.
We did
not have the benefit of the parties’ contesting approaches to
or submissions on them. And the parties placed
before us none
of the historical sources my colleagues refer to and quote from.
This means we are on spongy ground.
And we could lose our
step. Especially where accounts are incomplete and where they
are not directly functional to the determination
of the dispute.
[150]
All these cautions apply here. An application that recently
confronted this Court underscores them vividly. An
organisation
styled the Indigenous First Nation Advocacy South Africa (IFNASA)
lodged an application for direct access.
[173]
The applicants said they spoke on behalf of “our communities
also known as Boesman, KhoiKhoi or the collective labels
KhoiSan
(so-labelled Coloureds)”. Their articulated demands
included affirmation as an indigenous first nation; the
restoration
of their land rights; the repeal of the Traditional and Khoi-San
Leadership Bill, 2015; and the end of racism “against
the
Indigenous First Nation in the context of ‘Blacks but Africans
in Particular’” in what they termed the context
of
government’s “decadent past fabricated identities”.
[151]
By order dated 16 November 2016, the Court dismissed the
application. It was not in the interests of justice to hear
it
“at this stage because the Traditional and Khoi-San Leadership
Bill, 2015 is still before Parliament, and the applicants
have failed
to show that they will have no effective remedy if the legislation is
enacted”.
[152]
Why all this? To make an obvious point: that some of the very
issues my colleagues have written about may yet come before
this
Court. That application is one example. And it invites an
obvious caution, not only judicially, for what we have
yet to decide,
but more generally, about the perils of writing history.
Indeed, the Court’s very power to influence
what the
application calls our country’s “collective historical
narrative” suggests a diffident approach, and
a light footfall.
[153]
And yet, despite all this – despite the caution, despite the
perils, despite their partiality and incompleteness –
I concur
in both expositions. I concur because the two
judgments
do vital work at an important time in our country – a time of
angry rhetoric and intransigent attitudes, whose perils
exceed those
of history and the frailties of its telling.
[154]
The first and second judgments remind us all – and remind white
people in particular, people like me, lawyers who grew
up with the
benefits, both accumulated and immediate, of their skin colour in a
society that deliberately set out to privilege
them, white people who
are still the majority in the profession and probably still the
majority readers of these reports –
that the past is not done
with us; that it is not past; that it will not leave us in peace
until we have reckoned with its claims
to justice.
[155]
When important things are being said, when insufficiently heard
truths are being spoken, it is bad to hide behind the indeterminacies
of history and the inevitable incompleteness and partiality of its
telling. I concur in both the first and the second judgments.
JAFTA
J (Nkabinde ACJ concurring):
[156]
I have had the benefit of reading the erudite judgment of my
colleague Madlanga J (first judgment). I agree with
it
except on one issue. This is whether the Constitution imposes a
positive obligation on a private person to enable bearers
of rights
guaranteed by the Bill of Rights to enjoy those rights. While I
agree with the first judgment that section 8(2)
of the Constitution
illustrates that the rights in the Bill of Rights are not enforceable
only vertically but also horizontally,
[174]
I don’t read this provision as being a source of any
obligation, let alone a positive obligation borne by a private
person.
Purpose
of section 8(2)
[157]
In my view the purpose of section 8(2) is to ensure that some of the
rights entrenched in the Bill of Rights are enforceable
against the
state (vertically) and against private persons (horizontally).
It is evident from the text of section 8(2) that
not all rights are
capable of being enforced vertically and horizontally. Some of
them may be enforced vertically only.
With section 8(1) having
declared that the Bill of Rights binds all three arms of the
state,
[175]
section 8(2) proceeds to pronounce that some provisions of the Bill
of Rights bind “a natural or juristic person” to
the
extent that they are applicable, taking into account the nature of
the rights and the duties they impose.
[158]
The question whether any provision of the Bill of Rights applies
vertically and horizontally is determined with reference
to the
nature of the right and the duty it imposes. Take for example
administrative justice rights guaranteed by section
33 of the Bill of
Rights.
[176]
The nature and the duty imposed by these rights indicate that they
may be enforced vertically only. By way of a contrast
the right
to equality guaranteed by section 9 is enforceable both vertically
and horizontally.
[177]
[159]
It is quite plain from the text of section 9(4) that the nature of
the right and duty that it imposes on private persons are
negative
ones. It is the right not to be unfairly discriminated against
and the corresponding duty imposed on private persons
that prohibit
them from unfairly discriminating against another person. The
plain reading of the Bill of Rights reveals that
the rights which are
capable of being enforced both vertically and horizontally are rights
which impose both positive and negative
obligations. To the
extent that such rights bind private persons, they impose negative
obligations.
[178]
[160]
However, negative obligations are not limited to rights framed in
negative terms. For example, the right to human dignity
and the
right to life entrenched by sections 10 and 11 are defined in
positive terms and yet they impose negative obligations in
the form
of prohibitions on the state and private persons alike. Both
the state and private persons are prohibited from violating
a
person’s right to life or human dignity. Of course, they
may limit those rights provided the limitation meets the
requirements
of section 36 of the Constitution.
[179]
[161]
Ordinarily, the breach of a negative obligation is remedied by a
negative relief like a prohibition and a violation of a positive
obligation is cured by a positive remedy such as a mandatory
injunction. Negative remedies are generally less intrusive into
the domain of the legislative and executive arms of the state.
In contrast, a positive remedy is more intrusive as it may
require
the party against which the claim is brought to do something in order
to discharge the positive duty.
[162]
Apart from the general positive obligation imposed upon the state by
section 7(2), where the Bill of Rights imposes a
positive duty,
it does so in express terms.
[180]
There is no provision that expressly imposes a positive obligation on
a private person in the entire Bill of Rights.
It does not
appear to me that any of the relevant provisions may be interpreted
as imposing a positive duty on a private person.
It would be
odd for the Constitution to be express when it imposes a positive
duty upon the state and choose to be obscure when
imposing such a
duty upon a private person.
Meaning
of section 25(6)
[163]
The first judgment does not identify any provision of the Bill of
Rights which imposes a positive obligation upon a private
person in
express terms. Instead, it holds that the right to security of
tenure in section 25(6) of the Bill of Rights imposes
a positive duty
on private persons.
[181]
I cannot agree.
[164]
Section 25(6) provides:
“
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.”
[165]
What this provision means is that persons or communities who lost
security of tenure or never had a secure tenure as a result
of
discriminatory laws or practices of the apartheid era are entitled to
have secure tenure restored in terms of an Act of Parliament.
If it is not possible to restore the lost tenure such persons or
communities are entitled to comparable redress. There is
nothing in the text of section 25(6) which suggests that the duty to
restore the lost tenure rests on private persons. This
is not
surprising because the loss of tenure that was suffered occurred as a
result of discriminatory laws or practices of the
state.
Innocent private persons could not be saddled with the duty to remedy
the wrongs of the state.
[166]
That is why, if the land on which the lost tenure was, is now
privately owned, tenure can only be restored if the private
owner is
willing to sell it to the state or if the land is expropriated.
If it is expropriated, a just and equitable compensation
must be paid
for it. If the private owner of the land has a positive duty to
give a legally secure tenure, it would not be
necessary for the state
to buy his or her land or even expropriate it. The claimant
would be entitled to enforce his or her
right against such private
person and the latter would be under an obligation to give the secure
tenure on his or her own property.
This is not supported by the
text of that provision.
[167]
Section 25(6) first and foremost is part of section 25 which begins
by safeguarding property rights. Together with section
25(7)
they form the transformative component of section 25 which seeks to
redress the injustices caused by the past racially discriminatory
laws or practices in terms of which forced removals were carried
out. The positive obligation to address the injustices in
relation to loss of tenure or dispossession of land is imposed on the
state alone by section 25(5). This provision provides:
“
The State must take reasonable
legislative and other measures, within its available resources, to
foster conditions which enable
citizens to gain access to land on an
equitable basis.”
[168]
This duty of the state is buttressed by section 25(8). It
proclaims—
“
No provision of this section
may impede the state from taking legislative and other measures to
achieve land, water and related
reform, in order to redress the
results of past racial discrimination, provided that any departure
from the provisions of this
section is in accordance with the
provisions of section 36(1).”
[169]
Section 25(6) must be read together with section 25(5) to determine
the content and scope of the obligation it imposes.
The
Constitution contemplates that the right of equitable access to land
will depend on reasonable legislative and other measures
taken by the
state, within its available resources. In this way the
Constitution recognises that at the time it was adopted,
millions of
South Africans had no access to land and those that had access had a
legally insecure tenure. The purpose of
entrenching the rights
of access to land and secure tenure was to ensure that the state,
through reasonable measures within its
budget, progressively makes
the realisation of those rights achievable to the millions who did
not enjoy them.
[170]
In
Mazibuko
this Court laid down the standard applicable to
enforcing social and economic rights in courts. It said:
“
Thus the positive obligations
imposed upon government by the social and economic rights in our
Constitution will be enforced by
courts in at least the following
ways. If government takes no steps to realise the rights, the
courts will require government
to take steps. If government’s
adopted measures are unreasonable, the courts will similarly require
that they be reviewed
so as to meet the constitutional standard of
reasonableness. From
Grootboom
,
it is clear that a measure will be unreasonable if it makes no
provision for those most desperately in need. If government
adopts a policy with unreasonable limitations or exclusions, as in
Treatment Action Campaign No
2
, the Court may order that
those are removed. Finally, the obligation of progressive
realisation imposes a duty upon government
continually to review its
policies to ensure that the achievement of the right is progressively
realised.”
[182]
[171]
That standard cannot appropriately apply to a claim against a private
person. Enforcing a positive obligation against
a private
person would also raise a spectre of practical difficulties, like how
that private person is identified and what exactly
he or she is
required to do to fulfil the obligation and what would happen if he
or she has no financial means with which to discharge
the
obligation. Without the internal qualifiers available to the
state, it is difficult to see how these challenges may be
overcome.
In contrast, a negative obligation is easy to enforce as it requires
a private person to refrain from interfering
with the enjoyment of a
right.
[172]
Before turning to the Extension of Security of Tenure Act
[183]
(ESTA), it needs to be emphasised that the right to security of
tenure provided for in section 25(6) of the Constitution addresses
tenure that became “legally insecure as a result of past
racially discriminatory laws or practices”. This means
that the insecure tenure which the right seeks to correct must have
been caused by discriminatory laws or practices of the colonial
or
apartheid eras.
Provisions
of ESTA
[173]
It is true that ESTA constitutes legislation envisaged in section
25(6) which Parliament was obliged to enact in terms of
section 25(9)
of the Constitution. As its long title declares, ESTA’s
objective is to provide for measures, with state
assistance, to
facilitate long-term security of land tenure and to regulate the
conditions on and circumstances under which the
right of persons to
reside on land may be determined, and to regulate conditions and
circumstances under which persons whose right
of residence has been
terminated, may be evicted from land.
[174]
Section 13 of ESTA governs a situation where at the time of ordering
eviction, the evictee has crops which were planted with
the consent
of the landowner or has made improvements to the land in question.
In granting an eviction order, a court may,
in terms of section 13
order the landowner or a person in charge to pay a just and equitable
compensation to the evictee or order
that the evictee be afforded a
fair opportunity to demolish the improvements erected or “tend
standing crops to which he
or she is entitled until they are ready
for harvesting and then harvest and remove them”.
[184]
Blue
Moonlight
[175]
It is quite plain from the language of section 13 that its purpose is
to regulate an eviction in circumstances where the evicted
occupier
has effected improvements or had planted crops. The section
addresses conditions of an eviction where the right
of residence has
been terminated already.
[176]
Therefore, the respondents’ submission to the effect that
section 13 imposes a constitutional obligation on them to
make
improvements for the occupier’s benefit is misconceived.
At the time of an eviction, two options are open to the
parties.
One is to keep the improvements intact, in which event the value of
the property might be enhanced and the landowner
might be required to
compensate the occupier. The other is to afford the occupier an
opportunity to demolish the improvements
and to remove salvaged
material. In this way, the section seeks to achieve justice and
equity between the landowner and the
evicted occupier. This has
nothing to do with the right to security of tenure created by section
25(6) of the Constitution.
This is because an eviction gets
activated only after termination of the right of residence.
[185]
And when the right of residence is terminated, there is no tenure
remaining to be secured by section 13. This
section
applies to a stage after a lawful termination of tenure.
[177]
Returning to the first judgment, I am unable to agree with its
conclusion that in
Blue
Moonlight
[186]
this Court imposed a direct and positive obligation on a private
person to continue to house illegal occupiers.
[187]
What happened in
Blue
Moonlight
is that this
Court held that, as the owner of the property,
Blue
Moonlight
was entitled to
an order evicting the occupiers. In this regard, the Court
said:
“
The findings are briefly
summarised. To the extent that it is the owner of the property
and the occupation is unlawful, Blue
Moonlight is entitled to an
eviction order.
All
relevant circumstances must be taken into account though to determine
whether, under which conditions and by which date, eviction
would be
just and equitable.
The availability of alternative housing for the Occupiers is one of
the circumstances. The eviction would create an
emergency
situation in terms of Chapter 12. The City’s
interpretation of Chapter 12 as neither permitting nor
obliging them
to take measures to provide emergency accommodation, after having
been refused financial assistance by the province,
is incorrect.
The City is obliged to provide temporary accommodation.”
[188]
[178]
Having concluded that an eviction order ought to be granted, the
Court proceeded to determine conditions which would make
the eviction
just and equitable as required by the Prevention of Illegal Eviction
from and Lawful Occupation of Land Act (PIE).
[189]
[179]
Section 4(8) of PIE provides:
“
If the court is satisfied that
all the requirements of this section have been complied with and that
no valid defence has been raised
by the unlawful occupier, it must
grant an order for the eviction of the unlawful occupier, and
determine
—
(a)
a just and equitable date on
which the unlawful occupier must vacate the land
under the
circumstances; and
(b) the date on which an eviction
order may be carried out if the unlawful occupier has not vacated the
land on the date contemplated
in paragraph (
a
).”
[180]
In accordance with this provision, once a court is satisfied that the
requirements of section 4 have been complied with and
that the
unlawful occupier has no valid defence, the court must grant an order
for the eviction of the occupier and determine a
just and equitable
date on which the occupier must vacate and the circumstances under
which he or she may vacate. It was
in the discharge of this
obligation imposed on a court that this Court determined that it
would be just and equitable to set the
date of eviction some 14 days
after the date on which the City of Johannesburg was ordered to
provide temporary accommodation to
the evicted occupiers.
[181]
On the justice and equity of the date of eviction, van der Westhuizen
J said in
Blue Moonlight
:
“
The date of eviction must be
linked to a date on which the City has to provide accommodation.
Requiring the City to provide
accommodation 14 days before the
date of eviction will allow the Occupiers some time and space to be
assured that the order to
provide them with accommodation was
complied with and to make suitable arrangements for their relocation.
Although Blue Moonlight
cannot be expected to be burdened with
providing accommodation to the Occupiers indefinitely, a degree of
patience should be reasonably
expected of it and the City must be
given a reasonable time to comply. The date should not follow
too soon after the date
of the judgment.”
[190]
[182]
While it is true that the Court order that determined the date of
eviction to be 15 April 2012 had the effect of obliging
Blue
Moonlight to accommodate the occupiers for a few months from the date
of the order, this was not based on any positive obligation
imposed
by a constitutional right. On the contrary, the Court’s
order was based squarely on section 4(8) of PIE which
enjoined the
Court to determine a just and equitable date for eviction. This
is not a new phenomenon. Even at common
law, courts make
allowance for an occupier to have a reasonable time within which to
vacate. This is hardly regarded as imposing
a positive
obligation on the landowners. Instead, it amounts to a
prohibition restraining the landowner from removing the
occupier from
the property before the date determined by the court that granted the
eviction order.
[183]
To hold that this Court in
Blue Moonlight
imposed a positive
obligation to accommodate unlawful occupiers on Blue Moonlight
Properties is not consistent with the conclusions
reached there.
For instance the Court held that the unlawful occupation of the
property concerned amounted to deprivation
of property under section
25(1) of the Constitution. It was stated:
“
Unlawful occupation results in
a deprivation of property under section 25(1). Deprivation
might however pass constitutional
muster by virtue of being mandated
by law of general application and if not arbitrary. Therefore,
PIE allows for eviction
of unlawful occupiers only when it is just
and equitable.”
[191]
[184]
It is apparent from this statement that the Court considered the
unlawful occupation not only as a deprivation of property
but also
that it was a deprivation that passed constitutional scrutiny because
it was mandated by PIE. This is not consonant
with the
proposition that Blue Moonlight Properties had an obligation arising
from the Constitution to house the occupiers.
If this were to
be so, then the occupation could not be regarded as having been
unlawful. For what is authorised by the Constitution
cannot be
unlawful. Nor could it constitute deprivation in terms of
section 25(1) of the Constitution.
[185]
Indeed this Court was at pains to point out in
Blue Moonlight
that the property owner had no obligation to house the occupiers.
It stated:
“
It could reasonably be expected
that when land is purchased for commercial purposes the owner, who is
aware of the presence of occupiers
over a long time, must consider
the possibility of having to endure the occupation for some time. Of
course, a property owner
cannot be expected to provide free housing
for the homeless on its property for an indefinite period. But
in certain circumstances,
an owner may have to be somewhat patient,
and accept that the right to occupation may be temporarily
restricted, as Blue Moonlight’s
situation in this case has
already illustrated. An owner’s right to use and enjoy
property at common law can be limited
in the process of the justice
and equity enquiry mandated by PIE.”
[192]
Socio-economic
rights
[186]
With regard to socio-economic rights, no positive obligation is
imposed by those rights upon private persons. Instead
the
positive obligation is imposed on the state to take reasonable
legislative and other measures, within its available resources,
to
achieve the progressive realisation of the rights defined in section
26(1) and 27(1) of the Constitution.
[193]
These sections define the nature of the rights conferred on
everyone. But their corresponding obligations are found
in
sections 26(2) and 27(2). Both these latter sections refer back
to the rights in sections 26(1) and 27(1).
[187]
It was this scheme which motivated this Court in a number of cases to
declare that the right approach to construing these
provisions is to
read section 26(1) and (2) together and section 27(1) and (2)
together.
[194]
In
Treatment Action Campaign
this Court defined the obligation arising from sections 26 and 27 in
these terms:
“
We therefore conclude that
section 27(1) of the Constitution does not give rise to a
self-standing and independent positive right
enforceable irrespective
of the considerations mentioned in section 27(2). Sections
27(1) and 27(2) must be read together
as defining the scope of the
positive rights that everyone has and the corresponding obligations
on the state to respect, protect,
promote and fulfil such rights.
The rights conferred by sections 26(1) and 27(1) are to have ‘access’
to the
services that the state is obliged to provide in terms of
sections 26(2) and 27(2).”
[195]
[188]
It is apparent that the rights in sections 26(1) and 27(1) may not be
enforced independently of the qualifications in sections
26(2) and
27(2). It is also clear that those qualifications apply to the
state only. This point was emphasised by this
Court in
Grootboom
:
“
Subsection (2) speaks to the
positive obligation imposed upon the State. It requires the
State to devise a comprehensive and
workable plan to meet its
obligations in terms of the subsection. However subsection (2)
also makes it clear that the obligation
imposed upon the State is not
an absolute or unqualified one. The extent of the State’s
obligation is defined by three
key elements that are considered
separately: (a) the obligation to ‘take reasonable legislative
and other measures’;
(b) ‘to achieve the progressive
realisation’ of the right; and (c) ‘within available
resources’.”
[196]
[189]
Once it is accepted, as it must, that the enforcement of rights
conferred by sections 26(1) and 27(1) depends on the state
obligations in sections 26(2) and 27(2), which must be read together
with sections 26(1) and 27(1), the conclusion that the rights
in
those sections impose positive obligations on the state only is
inevitable. It follows that, properly construed, sections
26
and 27 of the Constitution do not impose a positive duty on private
persons. To hold otherwise would mean that the qualifications
in sections 26(2) and 27(2) are not available to a private person.
This would also be at odds with the construction that
requires
sections 26(1) and 27(1) to be read together with sections 26(2) and
27(2) respectively.
[190]
Of course, socio-economic rights, just like other constitutional
rights, are understood as imposing a negative obligation
upon the
state and private persons, to refrain from interfering with the
enjoyment of such rights. In
Mazibuko
, O’Regan J
stated:
“
Traditionally, constitutional
rights (especially civil and political rights) are understood as
imposing an obligation upon the State
to refrain from interfering
with the exercise of the right by citizens (the so-called negative
obligation or the duty to respect).
As this Court has held,
most notably perhaps in
Jaftha
v Schoeman
, social and
economic rights are no different. The State bears a duty to
refrain from interfering with social and economic
rights just as it
does with civil and political rights.”
[197]
[191]
Consistent with the jurisprudence of this Court on the enforcement of
socio-economic rights this Court held in
Juma
Musjid
[198]
that a private person bore a negative obligation not to interfere
with the exercise of the right to a basic education on its property
but that the private person had no positive obligation to provide
learners with basic education.
[192]
Defining the obligation imposed on a private person by section
29(1)(a) of the Constitution, Nkabinde J declared:
“
It is clear that there is no
primary positive obligation on the Trust to provide basic education
to the learners.
That primary positive obligation rests on
[the Member of the Executive Council]. There was also no
obligation on the
Trust to make its property available to [the Member
of the Executive Council] for use as a public school . . . .
It needs to be stressed however, that
the purpose of section 8(2)
of the Constitution is not
to
obstruct private autonomy or
to
impose on a private party the duties of the state in protecting the
Bill of Rights.
It is
rather to require private parties not to interfere with or diminish
the enjoyment of a right.”
[199]
Application
of ESTA to the facts
[193]
Accordingly, I uphold the respondents’ submission that the
second respondent as the owner of the Chardonne Farm had
no positive
duty to promote and fulfil any of the rights conferred on Ms Daniels
by ESTA. On the contrary the farm owner
had a negative
obligation to refrain from interfering with the exercise of those
rights by Ms Daniels. This means that
the respondents were
under an obligation to refrain from conduct that interfered with the
exercise by Ms Daniels of her right to
reside on the farm in
question. This is consistent with section 7 of ESTA, that deals
with the rights and duties of the owner.
Section 7(2) provides
that “the owner or person in charge
may not prejudice an
occupier
if one of the reasons for the prejudice is the past,
present or [future] exercise of any legal right”. It
follows that
that right, properly construed in the context of ESTA,
included making improvements that were necessary to make the dwelling
suitable
for human habitation.
[194]
By preventing Ms Daniels from effecting the necessary improvements,
the respondents effectively interfered with the enjoyment
by her of
the right of residence. This constituted a breach of their
negative duty not to interfere with her right of residence.
[195]
It must be stressed however that here we are not concerned with the
right of access to land or restoration of a lost right
in land.
The obligation to ensure that every citizen gains access to land
falls upon the state. The respondents have
no such duty even if
they may have large tracks of spare land. It remains a duty of
the state to take reasonable legislative
and other measures to ensure
equitable access to land, within available state resources.
[196]
Neither the Constitution nor ESTA imposes such obligation on private
persons. In contrast, what these legal instruments
do is to
protect the security of tenure where the right of access is already
enjoyed. This case concerns that protection
and nothing more.
As the first judgment illustrates, Ms Daniels has been residing on
the farm for more than a decade.
ESTA safeguards her existing
right of residence by prescribing conditions under which that right
may be terminated and her eviction
from the farm may be obtained.
This confirms the simple proposition that the respondents do not bear
the duty to give her
access to land. If that duty were to
exist, they would have no right to terminate her residence so as to
avoid the obligation
to discharge that duty.
[197]
This is another factor which supports the proposition that private
persons have no legal obligation to ensure that their fellow
citizens
have access to land that was denied to them by the government of the
past colonial and apartheid eras. But where
a private person
has voluntarily permitted an individual to reside on his or her
property, everyone including the state has a negative
obligation not
to interfere with the exercise of that right of residence, unless the
interference is justified by law which passes
constitutional muster.
[198]
The right to security of tenure was designed to protect millions of
South Africans who lived in sprawling informal settlements
outside
our towns and cities as well as those living on farms. The
tenure of these people was not secure in law. While
those
living on farms do so with consent of landowners, the people in
informal settlement occupy land unlawfully and in some instances
they
would have lived on such land for long periods of time. Without
ESTA they could be evicted any time the landowner wishes
that they be
removed, regardless of whether the eviction would render them
homeless.
[199]
However, here we are not concerned with a threat to tenure but with
interference that impacted negatively on the enjoyment
of the right
of residence. The respondents did not seek the eviction of Ms
Daniels. Instead, they prevented her from
effecting
improvements on her dwelling to make it suitable for human
habitation. As the first judgment points out, living
in a house
unsuitable for human habitation cannot constitute a proper exercise
of the right of residence protected by ESTA.
The respondents
conduct, therefore, amounted to interference with Ms Daniel’s
right and was a breach of the negative duty
placed on them by section
25(6) of the Constitution read with ESTA.
[200]
ESTA provides a legal framework within which an existing right of
access to land may be interfered with or even terminated.
Most
significantly, ESTA recognises that there is no duty on a private
person to make the right of access to land a reality.
Central
to the security of tenure which the legislation seeks to safeguard is
the property owner’s consent to an occupier
to reside on or use
its land. ESTA defines this consent as including both the
express and tacit consent of the owner or a
person in charge of the
land in question.
[201]
The consent envisaged in terms of ESTA is the source of the right of
residence from which the negative duty of not interfering
with that
right arises. Once the right of residence is created, the
corresponding negative duty comes into existence.
But that duty
remains alive for the duration of the right of residence. The
bearer of the right of residence is protected
by ESTA against
interference with the enjoyment of the right from everyone, including
the landowner. Once granted, consent
to residence on land may
only be terminated in terms of section 8 of ESTA.
[200]
Section 8 prescribes conditions under which the right of residence
may be terminated. If the right of residence is
lawfully
terminated, the negative duty falls away automatically.
[202]
In
PE Municipality
this Court delineated the
inter-connectedness of the rights in section 25 of the Constitution
and their relationship with the housing
rights in section 26.
Sachs J said:
“
Much of this case, accordingly,
turns on establishing an appropriate constitutional relationship
between s 25, dealing with property
rights, and s 26, concerned with
housing rights. The Constitution recognises that land rights
and the right of access to
housing and of not being arbitrarily
evicted, are closely intertwined. The stronger the right to
land, the greater the prospect
of a secure home. Thus, the need
to strengthen the precarious position of people living in informal
settlements is recognised
by s 25 in a number of ways. Land
reform is facilitated, and the State is required to foster conditions
enabling citizens
to gain access to land on an equitable basis;
persons or communities with legally insecure tenure because of
discriminatory laws
are entitle to secure tenure or other redress;
and persons dispossessed of property by racially discriminatory laws
are entitled
to restitution or other redress. Furthermore, ss
25 and 26 create a broad overlap between land rights and
socio-economic
rights, emphasising the duty on the State to seek to
satisfy both, as this Court said in
Grootboom.
There are three salient features of
the way the Constitution approaches the interrelationship between
land hunger, homelessness
and respect for property rights.
In the first place, the rights of the
dispossessed in relation to land are not generally delineated in
unqualified terms as rights
intended to be immediately
self-enforcing. For the main part they presuppose the adoption
of legislative and other measures
to strengthen existing rights of
tenure, open up access to land and progressively provide adequate
housing. Thus, the Constitution
is strongly supportive of
orderly land
reform, but does not purport to effect
transfer of title by constitutional fiat. Nor does it sanction
arbitrary seizure of
land, whether by the State or by landless
people. The involved in s 26(3) are defensive rather than
affirmative. The land-owner
cannot simply say: This is my land, I can
do with it what I want, and then send in the bulldozers or
sledgehammers.”
[201]
[203]
However, here the complaint was not that Ms Daniels’s right of
residence was terminated. It was that the respondents
prevented
her from enjoying that right fully by stopping her from making her
home suitable for human habitation. This is
the interference
she seeks protection from.
[204]
For these reasons I support the order proposed in the first judgment.
ZONDO
J:
Introduction
[205]
The issue for determination in this matter is whether or not the
applicant is entitled to effect certain improvements to the
dwelling
she occupies on the second respondent’s land on Chardonne farm,
a farm on Blaauwklippen road outside Stellenbosch,
without the
consent of the first or second respondent. The dwelling is one
half of a small cottage. The half of the
small cottage that the
applicant occupies has a kitchen and one bedroom.
Brief
background
[206]
The applicant is an adult woman employed as a domestic worker.
She resides on the second respondent’s land as
an occupier as
defined in the Extension of Security of Tenure Act
[202]
(ESTA) together with her two children one of which is now an adult.
She is divorced. The applicant and her former husband
lived in
the same house before they got divorced. The applicant’s
husband was employed by the second respondent when
she started living
with him in the dwelling. After the two had been divorced, the
applicant continued to live in the dwelling
together with her
children.
[207]
The applicant wants to effect certain improvements to the dwelling.
It is common cause that the condition of the dwelling
is such that
living there violates the applicant’s right to human dignity as
well as the right to human dignity of her children
who live with her
on the property. It is also common cause that the improvements
that the applicant seeks to effect are not
luxurious improvements but
basic improvements that, once effected, will enable the applicant to
live on the property with dignity.
The applicant will pay for
the improvements from her own pocket. She, accordingly, does
not ask the respondents to pay any
costs for the improvements.
The second respondent is not prepared to give the applicant consent
to effect the improvements.
Nor is the first respondent who on
the farm is a “person in charge” as defined in ESTA.
[203]
Jurisdiction
and leave to appeal
[208]
I have read the judgments of my Colleagues Madlanga J (first
judgment), Froneman J (second judgment), Cameron J (third judgment)
and Jafta J (fourth judgment). For the reasons given in the
first judgment, I agree that this Court has jurisdiction and
that the
applicant should be granted leave to appeal. With regards to
the appeal, I prefer to decide the matter on the basis
set out below.
Appeal
[209]
I have already pointed out that the applicant is an “occupier”
on the second respondent’s land as defined
in ESTA. As
such, she enjoys certain rights including those in sections 5
[204]
and 6
[205]
of ESTA. The question for determination is whether the
applicant is entitled to effect improvements on the dwelling she
occupies without the consent of the first or second respondent in
circumstances where, without those improvements, living in the
dwelling means living in conditions of human indignity and the
improvements she seeks to effect will enable her and her children
not
to live in conditions of human indignity. It seems to me that
one could also formulate the question for determination
this way:
does a landowner have the right to prevent an occupier as defined in
ESTA from effecting improvements to his or her
[206]
dwelling which will enable him or her to live in the dwelling under
conditions that do not violate his or her right to human dignity?
[210]
I am of the view that under ESTA an occupier has a right to effect
improvements to his or her dwelling without the consent
of the owner
of the land where, as here, the improvements are basic improvements
that will ensure that the occupier ceases to live
in conditions of
human indignity. In this case there is no suggestion by the
respondents that they will suffer any prejudice
if the applicant were
to effect the improvements she seeks to effect.
[211]
The respondents contended that the applicant did not have a right to
effect the improvements to the dwelling without their
consent.
The respondents also contended that there were certain regulations
that needed to be complied with before improvements
could be effected
to the dwelling which had not yet been complied with.
Obviously, the applicant would have to ensure compliance
with any
applicable legal requirements before improvements could be effected
if this Court’s decision were to be that she
does not require
the consent of the first or second respondent to effect the
improvements. She has indicated that she wishes
to have a
determination of the dispute first because, if it is determined
against her, the issue might fall away but, if it is
determined in
her favour, she would then need to approach the relevant authorities
to ensure compliance with any applicable legal
requirements before
she could effect the improvements. Therefore, in my view, if
the order that this Court makes favours
the applicant, it should not
be construed as exempting her from the obligation to comply with any
applicable legal requirements
before effecting the improvements.
[212]
The basis for my conclusion that the applicant has a right to effect
improvements to the dwelling without the consent of the
first or
second respondent is this. The applicant made it clear in her
founding affidavit that the right to improve the dwelling
she
occupies is “an incidence of [her] rights as an occupier in
terms of ESTA”. Some of those rights are to be
found in
section 5 of ESTA. Those in section 5 include the right to
human dignity. In so far as section 5 may
be relevant, it
reads:
“
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—
(a) human dignity;
. . .
with due regard to the objects of the
Constitution and this Act.”
It
is to be noted that the section 5 rights are subject to limitations
that are reasonable and justifiable in an open and democratic
society
based on human dignity, equality and freedom.
[213]
The applicant drew attention to the following opening words in
section 6(2), namely:
“
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
. . . .”
She
stated in her affidavit that it would be submitted on her behalf at
the hearing that the rights in section 6 of ESTA do not
constitute a
closed list. One of the rights in section 6 is the right
provided for in section 6(2)(d). That is an occupier’s
right “to family life in accordance with the culture of that
family”.
[207]
[214]
In
Hattingh
[208]
this Court dealt, among other things, with the phrase “balanced
with the rights of the owner or person in charge” which
appears
in section 6(2) of ESTA. There, we said:
“
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 into the inquiry required by section 6(2)(d).”
[209]
[215]
We also said in
Hattingh
that the purpose of the conferment of the right to family life in
section 6(2)(d) that an occupier enjoys is “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”.
[210]
Unless there is to be prejudice to the respondents, we should lean
towards a conclusion that would assist the applicant and
her children
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.
[216]
It seems to me that the provisions of ESTA have infused the
requirements of justice and equity into the relationship between
an
occupier and the land owner or person in charge in a way similar to,
though not to the same extent as, the way the unfair labour
practice
provisions of the now repealed Labour Relations Act, 1956
[211]
did to the employer-employee relationship after the amendments
effected to that Act subsequent to 1979. Therefore, the
question
for determination may be decided on the basis of what would
be just and equitable between the parties when the rights of the
occupier
are balanced against those of the land owner or the person
in charge.
[217]
In my view, when considerations of justice and equity are taken into
account and a balance is struck between the rights of
the applicant
and those of the first and/or second respondents there can only be
one answer to the question for determination.
That is that the
applicant is entitled to effect the improvements she seeks to effect
and she does not need the consent of the
first and/or second
respondent. The improvements are basic. If the
improvements are effected, there will be no prejudice
whatsoever to
the respondents and yet the improvements will mean a great deal to
the applicant and her children. However,
that the applicant
does not need the respondents’ consent does not mean that she
need not consult them about her intentions
so as to look at
logistical arrangements that may need to be made to ensure that there
is minimal inconvenience to all parties.
In this regard I agree
with the first judgment that there should be meaningful engagement
between the parties.
[218]
For the above reasons I agree with the order proposed in the first
judgment.
For
the Applicants: P Hathorn SC and M Adhikari instructed by JD Van Der
Merwe Attorneys.
For
the First Respondent: C Steinberg and R Tshetlo instructed by Gerhard
Gous Attorney.
For
the Amicus Curiae: M Bishop and S Sephton instructed by the Legal
Resources Centre.
[1]
These words are reported to have been uttered by an old man, Mr
Petros Nkosi, at a community meeting in the then Eastern Transvaal.
I found them in Rugege “Land Reform in South Africa: An
Overview” (2004) 32
International
Journal Legal Information
283 at 286.
[2]
Ordinarily I would use “blacks”, which is a term often
used to denote black Africans, “Coloureds” and
Indians,
but later I refer to the three groups separately. It is this
that has necessitated the use of “Africans”.
[3]
More on these later.
[4]
S v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para
327.
[5]
Id at para 328.
[6]
62 of 1997.
[7]
At the time the application was launched before this Court, they
were aged 6, 9 and 13.
[8]
Section 1 of ESTA provides that—
“‘
person in charge’
means a person who at the time of the relevant act, omission or
conduct had or has legal authority to
give consent to a person to
reside on the land in question.”
[9]
Mrs Anita Scribante, the first respondent’s wife, is the sole
member of the second respondent.
[10]
I deduce these facts from reading an affidavit filed before the
Stellenbosch Magistrate’s Court, which forms part of the
record, together with an interim order granted by that Court.
[11]
The parties’ correspondence emanated from their respective
attorneys.
[12]
In a letter sent after Ms Daniels had commenced with the
improvements, the respondents suggest that they were yet to respond
but were delayed by an intervening weekend and public holiday.
[13]
See
Hattingh v Juta
[2013] ZACC 5
;
2013 (3) SA 275
(CC);
2013 (5) BCLR 509
(CC) at para
24;
Molusi v Voges N.O.
[2016] ZACC 6
;
2016 (3) SA
370
(CC);
2016 (7) BCLR 839
(CC) at para 23; and
Klaase
v van der Merwe N.O.
[2016]
ZACC 17
;
2016 (6) SA 131
(CC);
2016 (9) BCLR 1187
(CC) at para 30.
[14]
See
Mamahule Communal
Property Association v Minister of Rural Development and Land Reform
[2017] ZACC 12
at para 11,
where this Court reaffirmed what it said in
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd
[2011]
ZACC 33
;
2012 (2) SA 104
(CC);
2012 (2) BCLR 150
(CC) (
Blue
Moonlight
) at para 36.
[15]
Rugege above n 1 at 284.
[16]
Lephakga
The Significance
of Justice for True Reconciliation on the Land Question in the
Present Day South Africa
(Master of Theology thesis, University of South Africa, 2012) at 32.
[17]
Id.
[18]
27 of 1913.
[19]
Plaatje
Native Life in
South Africa
(Picador
Africa, South Africa, 2007) at 21.
[20]
Rugege above n 1 at 284.
[21]
Id.
[22]
Id at 284-5. According to Lephakga above n 16 at 34,
continuing farming activity by Africans was a “problem”
for white people who wanted them to provide labour in the mines and
on the farms.
[23]
Rugege above n 1 at 285.
[24]
Saunders
Land Reform in
South Africa: An Analysis of the Land Claim Process
(Submitted in partial fulfilment for the degree Masters in Public
Management and Governance, Potchefstroom University for Higher
Education, 2003) at 13.
[25]
Id.
[26]
Lephakga above n 16 at 37.
[27]
Plaatje above n 19 at 72. I must make the observation that “baas”
(Afrikaans for “boss”) had little to
do with being the
boss of the African person concerned. It had more to do with
white supremacy. In the South Africa
of that time all grown
white men who subscribed to the notion of white superiority regarded
themselves as the baas of every African
regardless of whether they
were employed or not or who their employer was. And each
expected to be addressed as baas by
every African he encountered.
And it was required to address their little sons as “klein
baas” (Afrikaans for
“little boss”).
Likewise, in her mind each grown white woman of that ilk was the
“madam” of all
Africans.
[28]
41 of 1950.
[29]
Rugege above n 1 at 285. Of course, this Act was used on
African people as well. According to Rugege:
“
Pockets of black farmers who
had escaped the 1913 Land Act because they had title deeds to their
land, were removed under the
Group Areas Act in a process that was
dubbed cleaning up the ‘black spots’. The ‘black
spots’ were
usually fertile land whereas the areas in the
Bantustans where the people were moved to were over-crowded,
over-grazed and over-cultivated.”
[30]
Gopalan
the Destruction and
Remaking of ‘Community’: a case study of the Magazine
Barracks residents relocation to Chatsworth
(A
thesis submitted in fulfilment of the requirements for the degree of
Doctor of Philosophy, University of KwaZulu-Natal, Durban)
at 196.
[31]
Hector-Kannemeyer
Current
Manifestation of Trauma Experienced During Forced Removals under
Apartheid: Interviews with a Former “Vlakte”
Inhabitant
(A mini-thesis submitted in partial fulfilment of the requirements
for the degree of Magister Artium in the Department of Social
Development, University of the Western Cape 2010) at 7.
[32]
Id.
[33]
Id.
[34]
Mapungubwe Institute for Strategic Reflection (MISTRA)
Nation
Formation and Social Cohesion
(Real African Publishers, Johannesburg 2014) at 151. Indians
were taken to Lenasia, “Coloureds” were moved
to
Eldorado Park, and Africans settled in Meadowlands. See Ngwabi
The
Emergence of the Market-Based Approach to Urban Regeneration in
South Africa
in Urban
Regeneration and Private Sector Investment: Exploring Private Sector
Perception of Urban Regeneration Initiatives in
the Johannesburg
Inner City (Submitted in partial fulfilment of the requirements for
the degree Philosophiae Doctor (Town and
Regional Planning) in the
Faculty of Engineering, Built Environment and Information
Technology, University of Pretoria 2009)
at 110-111.
[35]
There were ten homelands, which followed tribal lines. They
were: Transkei (for amaXhosa), Ciskei (also for amaXhosa),
KwaZulu (for amaZulu), KwaNdebele (for amaNdebele),
Bophutswana (for Batswana), Qwaqwa (for Basotho), Venda (for
VhaVenda), Gazankulu (for the Tsonga people), KaNgwane (for
amaSwati) and Lebowa (for Bapedi). These were meant first to
be “self-governing” entities within South Africa and
later to attain “complete independence”. Indeed,
a
few of these homelands – like Transkei, Ciskei, Bophuthatswana
and Venda did attain this sham independence.
[36]
I should not be understood to suggest that in the homelands the
picture was rosy. Quite the contrary. The land assigned
to Africans in the homelands was the least fertile and hardly
sufficient for grazing. It was not meant for them to earn
a
livelihood from it. To this day a significant number of the
poorest in our country are to be found in the former homelands.
[37]
Rugege above n 1 at 286.
[38]
Klaase
above
n 13 at para 30.
[39]
Compare
Molusi
above
n 13 at para 7.
[40]
22 of 1994.
[41]
Department of Land Affairs
v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC)
(
Goedgelegen
)
at para 53. This is in line with the lone voice of Schreiner
JA who – writing a minority judgment well over six
decades ago
– said in
Jaga v
Dönges N.O.; Bhana v Dönges N.O.
1950 (4) SA 653
(A) at 662G-H:
“
Certainly no less important
than the oft repeated statement that the words and expressions used
in a statute must be interpreted
according to their ordinary meaning
is the statement that they must be interpreted in the light of their
context. But it
may be useful to stress two points in relation
to the application of this principle. The first is that ‘the
context’,
as here used, is not limited to the language of the
rest of the statute regarded as throwing light of a dictionary kind
on the
part to be interpreted.
Often of more importance is
the matter of the statute, its apparent scope and purpose, and
within limits, its background
.” (Emphasis added.)
[42]
This section provides:
“
When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
[43]
Goedgelegen
above n 41 at para 53.
[44]
In order to see in perspective an argument made by the respondents,
which I deal with shortly, it is necessary to quote section
6 in
full. The rest of the section provides:
“
(2) 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
—
(a) to security of tenure;
(b) to receive bona fide visitors at
reasonable times and for reasonable periods:
Provided that—
(i) the owner or person in charge may
impose reasonable conditions that are normally applicable to
visitors entering such land
in order to safeguard life or property
or to prevent the undue disruption of work on the land; and
(ii) the occupier shall be liable for
any act, omission or conduct of any of his or her visitors causing
damage to others while
such a visitor is on the land if the
occupier, by taking reasonable steps, could have prevented such
damage;
(c) to receive postal or other
communication;
(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;
(dA) to bury a deceased member of his
or her family who, at the time of that person’s death, was
residing on the land on
which the occupier is residing, in
accordance with their religion or cultural belief, if an established
practice in respect of
the land exists;
(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.
(3) An occupier may not—
(a) intentionally and unlawfully harm
any other person occupying the land;
(b) intentionally and unlawfully
cause material damage to the property of the owner or person in
charge;
(c) engage in conduct which threatens
or intimidates others who lawfully occupy the land or other land in
the vicinity; or
(d) enable or assist unauthorised
persons to establish new dwellings on the land in question.
(4) 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.
(5) The family members of an occupier
contemplated in section 8(4) of this Act shall on his or her death
have a right to bury
that occupier on the land on which he or she
was residing at the time of his or her death, in accordance with
their religion
or cultural belief, subject to any reasonable
conditions which are not more onerous than those prescribed and that
may be imposed
by the owner or person in charge.”
[45]
Thoroughbred Breeders’
Association v Price Waterhouse
[2001] ZASCA 82; 2001 (4) SA 551 (SCA).
[46]
Bato Star Fishing (Pty) Ltd
v Minister of Environmental Affairs
[2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC).
[47]
Id at para 52.
[48]
In truth, purpose forms part of context. See
Bertie
Van Zyl (Pty) Ltd v Minister for Safety and Security
[2009]
ZACC 11
;
2010 (2) SA 181
(CC);
2009 (10) BCLR 978
(CC) at para 21
where Mokgoro J said: “The purpose of a statute plays an
important role in establishing a context that
clarifies the scope
and intended effect of a law”.
[49]
Before, in
Democratic
Alliance v Speaker of the National Assembly
[2016] ZACC 8
;
2016 (5) BCLR 577
;
2016 (3) SA 487
(CC) at para 27,
we have observed that:
“
In [
Hoban v ABSA Bank Ltd
t/a United Bank
[1999] ZASCA 12
;
1999 (2) SA 1036
(SCA) at para
20] the Supreme Court of Appeal held that ‘context’ does
not mean only ‘parts of a legislative
provision which
immediately precede and follow the particular passage under
examination’; it ‘includes the entire
enactment in which
the word or words in contention appear’.”
[50]
Goedgelegen
above
n 41 at para 53.
[51]
In their general discussion of the constitutional and statutory
framework, the respondents do refer to section 5.
[52]
It is provided for in section 9. This section provides:
“
(1) Notwithstanding the
provisions of any other law, an occupier may be evicted only in
terms of an order of court issued under
this Act.
(2) A court may make an order for the
eviction of an occupier if—
(a) the occupier’s right of
residence has been terminated in terms of section 8;
(b) the occupier has not vacated the
land within the period of notice given by the owner or person in
charge;
(c) the conditions for an order for
eviction in terms of section 10 or 11 have been complied with; and
(d) the owner or person in charge
has, after the termination of the right of residence, given—
(i) the occupier;
(ii) the municipality in whose area
of jurisdiction the land in question is situated; and
(iii) the head of the relevant
provincial office of the Department of Rural Development and Land
Reform, for information purposes,
not less than two calendar months’
written notice of the intention to obtain an order for eviction,
which notice shall contain
the prescribed particulars and set out
the grounds on which the eviction is based: Provided that if a
notice of application to
a court has, after the termination of the
right of residence, been given to the occupier, the municipality and
the head of the
relevant provincial office of the Department of
Rural Development and Land Reform not less than two months before
the date of
the commencement of the hearing of the application, this
paragraph shall be deemed to have been complied with.
(3) For the purposes of subsection
(2)(c), the Court must request a probation officer contemplated in
section 1 of the Probation
Services Act, 1991 (Act No. 116 of 1991),
or an officer of the department or any other officer in the
employment of the State,
as may be determined by the Minister, to
submit a report within a reasonable period—
(a) on the availability of suitable
alternative accommodation to the occupier;
(b) indicating how an eviction will
affect the constitutional rights of any affected person, including
the rights of the children,
if any, to education;
(c) pointing out any undue hardships
which an eviction would cause the occupier; and
(d) on any other matter as may be
prescribed.”
Chapter
IV of ESTA deals with the termination of the right of residence and
eviction. For purposes of this decision, it
is not necessary
to quote all the provisions in this chapter.
[53]
See section 6(2)(a) of ESTA.
[54]
Bell “Providing Security of Tenure for Residential Tenants:
Good Faith as a Limitation on the Landlord’s Right to
Terminate”
(1985) 19
Georgia
Law Review
483
at 532.
[55]
Roisman
“The Right to Remain: Common Law Protections for Security of
Tenure”
(2008) 86
North
Carolina Law Review
817
at
820.
[56]
University of Stellenbosch
Legal Aid Clinic v Minister of Justice and Correctional Services;
Association of Debt Recovery Agents
NPC v University of Stellenbosch
Legal Aid Clinic; Mavava Trading 279 (Pty) Ltd v University of
Stellenbosch Legal Aid Clinic
[2016] ZACC 32
;
2016 (6) SA 596
(CC);
2016 (12) BCLR 1535
(CC) at
para 135.
[57]
Here reliance was placed on the oft-cited statement of the law by
Langa DP in
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd In re: Hyundai Motor Distributors
(Pty) Ltd v Smit N.O
.
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at
para 23.
[58]
Section 13(1) provides:
“
If a court makes an order for
eviction in terms of this Act—
(a) the court shall order the owner
or person in charge to pay compensation for structures erected and
improvements made by the
occupier and any standing crops planted by
the occupier to the extent that it is just and equitable with due
regard to all relevant
factors, including whether—
(i) the improvements were made or the
crops planted with the consent of the owner or person in charge;
(ii) the improvements were necessary
or useful to the occupier; and
(iii) a written agreement between the
occupier and the owner or person in charge, entered into prior to
the making of improvements,
provides that the occupier shall not be
entitled to compensation for improvements identified in that
agreement.”
[59]
In
Khumalo v Holomisa
2002 [ZACC] 12
[2002] ZACC 12
; ;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at para
33 this Court was partly moved by what it called “the
intensity of the constitutional right in question”
to hold
that “
it
is clear that the right to freedom of expression is of direct
horizontal application in this case as contemplated by section
8(2)
”.
That case concerned the media’s right to freedom of expression
under section 16 of the Constitution.
[60]
Id.
[61]
Currie and De Waal
The Bill
of Rights Handbook
6 ed
(Juta & Co Ltd, Cape Town 2013) at 50.
[62]
Id.
[63]
Id.
[64]
Mazibuko v City of
Johannesburg
[2009] ZACC
28
;
2010 (4) SA 1
(CC);
2010 (3) BCLR 239
(CC) at paras 48-50.
[65]
Compare Liebenberg “Socio-Economic Rights Beyond the
Public-Private Law Divide” in Langford et al (eds)
Socio-Economic in South
Africa Symbols or Substance?
(Cambridge
University Press New York 2014) at 71-2.
[66]
Governing Body of the Juma
Musjid Primary School v Essay N.O.
[2011] ZACC 13
;
2011 (8) BCLR 761
(CC) (
Juma
Musjid
) at paras 57-8.
[67]
Id at para 57.
[68]
Id.
[69]
Id.
[70]
Id at para 58.
[71]
Id.
[72]
Ex Parte Chairperson of the
Constitutional Assembly: In re Certification of the Constitution of
the Republic of South Africa
[1996]
ZACC 26
;
1996 (4)
SA 744
(CC);
1996
(10) BCLR 1253
(CC)
(
Certification
)
at para 78
.
[73]
Here is what the Court held in the second
Certification
case:
“
The objectors argued further
that socio-economic rights are not justiciable, in particular
because of the budgetary issues their
enforcement may raise.
They based this argument on CP II which provides that all
universally accepted fundamental rights
shall be protected by
‘entrenched and justiciable provisions in the Constitution’.
It is clear, as we have
stated above, that the socio-economic rights
entrenched in NT 26-29 are not universally accepted fundamental
rights. For
that reason, therefore, it cannot be said that
their ‘justiciability’ is required by CP II.
Nevertheless, we
are of the view that these rights are, at least to
some extent, justiciable. As we have stated in the previous
paragraph,
many of the civil and political rights entrenched in the
NT will give rise to similar budgetary implications without
compromising
their justiciability. The fact that
socio-economic rights will almost inevitably give rise to such
implications does not
seem to us to be a bar to their
justiciability.”
[74]
Compare
Juma Musjid
above n 66 at para 58 and the second
Certification
case above n 72 at para 78.
[75]
Blue Moonlight
above n 14.
[76]
Section 5 of ESTA.
[77]
See
Old Mutual Life
Assurance Company (South Africa) Ltd v Glowing Sunset Trading 165 CC
t/a English Blazer
[2006]
ZAGPHC 200
at para 20.
[78]
Nkosi v Bührmann
[2001] ZASCA 98; 2002 (1) SA 372 (SCA).
[79]
Section 26 of the Constitution.
[80]
Section 25(6) of the Constitution.
[81]
Section 6(2)(a) 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—
(a) to security of tenure . . . .”
[82]
Hattingh
above
n 13 at para 32.
[83]
The instant matter is an example of a case where an approach by an
occupier did not result in meaningful engagement.
[84]
Of course, a written agreement by an occupier and owner or person in
charge that the occupier shall not be entitled to compensation
for
improvements upon eviction does not exclude the possibility of
compensation. In terms of section 13(1)(a)(iii) of ESTA
it is
merely one of the factors that a court takes into account when
deciding whether an owner or person in charge should compensate
an
occupier.
[85]
Compare
City of Tshwane
Metropolitan Municipality v Link Africa (Pty) Ltd
[2015] ZACC 29
;
2015 (6) SA 440
(CC);
2015 (11) BCLR 1265
(CC) at
para 152.
[86]
Compare
Motswagae v
Rustenburg Local Municipality
[2013] ZACC 1
;
2013 (2) SA 613
(CC);
2013 (3) BCLR 271
(CC) at para
14.
[87]
Soos aangehaal in Giliomee
Historikus
Hermann Giliomee ’n Outobiografie
(Tafelberg Uitgewers, Kaapstad 2016) op 210-1 (hierna Giliomee
(2016)).
[88]
Id
op 211. Die boek wat Giliomee geskryf het, is sy meesterlike
Die Afrikaners: ’n
Biografie
(Tafelberg
Uitgewers, Kaapstad 2004) (hierna Giliomee (2004)).
[89]
Id op 226.
[90]
Die lewenswyse op plase is ter sprake in hierdie saak, maar dit
beteken nie dat onreg beperk is tot plase nie.
[91]
In Engels “sharecropping”. In ons gemenereg is die
historiese aanknoping met die Romeinse en Romeins-Hollandse
reg die
regsposisie van die
colonus
partiarius
: sien en
vergelyk Van den Heever
The
Partiarian Agricultural Lease in South African Law
(Juta,
Kaapstad 1943).
[92]
O’Meara
Volkskapitalisme
.
Class, Capital and Ideology
in the Development of Afrikaner Nationalism
.
1934 1948
(Ravan Press, Johannesburg 1983) op 67.
[93]
Van Bruggen
Ampie
(Perskor,
Johannesburg 1930).
[94]
Grosskopf
Verslag van die
Carnegie Kommissie rakende die Armblanke Probleem in Suid Afrika
(Stellenbosch Universiteit, Stellenbosch 1932).
[95]
Giliomee (2004) n 88 hierbo op 296-297. Die eerste
Volkskongres het in 1934 plaasgevind en het uitsluitlik ten doel
gehad
om die armblanke probleem te ondersoek.
[96]
Giliomee (2004) n 88 hierbo op 297.
[97]
Id op 300-1:
“
Die voorsitter van die
kongres, Ds. William Nicol het dit beklemtoon dat die pogings om die
armblankes op te hef nie ten koste
van die naturelle moet wees nie.
Die besluit om wit armoede eerste aan te pak, is nie op grond van ’n
beginsel geneem
nie. Dit het volgens Nicol daarmee te doen
gehad dat ‘hoe sterker die blanke op hulle voete kan staan hoe
beter kans
het hulle om die naturel op sy beurt te help’.
Hoe gouer die armblanke-vraagstuk opgelos is, hoe gouer kan die
naturellevraagstuk
opgelos word. Malherbe, wat die verslag oor
blanke onderwys geskryf het, het daarteen gewaarsku dat armoede
gebruik word
as verskoning vir ’n strenger beleid van
segregasie. ‘Om ons superioriteit te wil behou deur die
kaffer laer
af te druk, is nie alleen onbillik nie maar die toppunt
van dwaasheid, selfs van ons eie standpunt gesien’.”
[98]
Id op 297.
[99]
Vergelyk Giliomee (2016) n 87 hierbo, hoofstuk 16 “Om trots én
skaam te wees” op 324.
[100]
Giliomee (2004) n 88 hierbo op 348-349.
[101]
Id op 318.
[102]
Id op 292.
[103]
Id op 297.
[104]
Id op 254.
[105]
Naturellen Grond Wet 27 van 1913.
[106]
Plaatje
n 19 hierbo op 21; Plaatje se perspektief is aanvanklik deur PR King
and Son Ltd, Londen in 1916 gepubliseer.
[107]
Beinart en Delius “The Natives Land Act of 1913: A Template
but not a Turning Point” in Cousins and Walker (eds
)
Land Divided, Land Restored; Land reform in South Africa for the
21st Century
(Jacana
Media, Johannesburg 2015) op 24.
[108]
Bundy
The Rise & Fall
of the South African Peasantry
2 ed (David Philip Publishers, Kaapstad 1988) op 239:
“
A hypothetical projection,
then, of trends in the closing years of the nineteenth century might
envisage that class formation
and differentiation among African
agriculturists would lead to: the emergence of a class of black
farmers, a diminishing ‘traditional’
peasantry, and a
growing permanently proletarianised urban working force. But
various forces, interests and interventions
operated to inhibit,
check and distort the direction of economic changes in peasant
areas, a phenomenon that found its most graphic
expression in the
1913 Natives Land Act.”
[109]
Id.
[110]
Beinart en Delius n 107 hierbo. Sien ook O’Meara n 92
hierbo op 25:
“
British scorched earth policy
during the war had devastated Boer agriculture . . . .
Thousands of bywoners and small landlords
could no longer survive
and were driven off their land. In the immediate postwar years
most Boer landlords were able to
survive only by populating their
farms with ever larger numbers of cultivating African tenants −
in many cases driving
off Boer bywoners to accommodate them.”
[111]
Van Bruggen het ook ’n boek oor swartmense se landelike
ervaring van die tyd geskryf.
Booia
(De Bussy, Pretoria 1931),
is die eerste roman in Afrikaans met ’n swart hoofkarakter en
ook ’n eerste wat die tragiek
verbonde aan die swart mense se
bestaanswyse beskryf. ’n Kommentator merk op: “Die
verhaal word geteken uit
die oogpunt van Booia, maar die roman doen
fragmentaries aan met gebeurtenisse wat beskryf word eerder as ’n
karakterontwikkeling
en Booia word weinig meer as ’n swart
Ampie. Die beskrywing van die leefwyse van die swart
gemeenskap is realisties
en soortgelyk aan die skrywer se
behandeling van die bywonerfiguur. Ten spyte van ’n
patriargale wit perspektief
wat soms deurskemer, is dit ’n
eerlike poging om die swart gemeenskap van binne af te beleef en nie
van buite af te beskryf
nie.” “Jochem van Bruggen”
beskikbaar by http://www.wikiwand.com/af/Jochem_van_Bruggen.
Sien ook
Kritzinger “Booia. Deur Jochem van Bruggen”
(1931) Deel 3 No 3
Nuwe
Brandwag
157.
[112]
Van Onselen
The Seed is
Mine − The Life of Kas Maine, A South African Sharecropper
1894-1985
(David Philip
Publishers, Kaapstad 1996).
[113]
Id op vi.
[114]
Id op 118.
[115]
Giliomee (2004) n 88 hierbo op 250-251 en vergelyk ook 249.
[116]
Van Onselen n 112 hierbo op 8 en vergelyk ook 5-8.
[117]
Id op 4. Plaatje n 19 hierbo het ook ’n hoofstuk
getiteld “Our Indebtedness to White Women”.
[118]
Van der Walt
Property in
the Margins
(Hart
Publishing, Oxford en Portland 2009) op 29-34.
[119]
Id op 29.
[120]
Port Elizabeth Municipality
v Various Occupiers
[2004]
ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) (
PE
Municipality
) op para 23.
[121]
Oorweeg, byvoorbeeld,
Tshwane
City v Link Africa (Pty) Ltd
[2015]
ZACC 29
;
2015 (6) SA 440
(CC);
2015 (11) BCLR 1265
(CC);
Shoprite
Checkers (Pty) Ltd v MEC for Economic Development, Eastern Cape
[2015] ZACC 23;
2015
(6) SA 125
(CC);
2015 (9) BCLR 1052
(CC);
Agri
SA v Minister for Minerals and Energy
[2013] ZACC 9
;
2013 (4) SA 1
(CC);
2013 (7) BCLR 727
(CC);
Offit
Enterprises (Pty) Ltd v Coega Development Corporation (Pty) Ltd
[2010] ZACC 20
;
2011 (1)
SA 293
(CC);
2011 (2) BCLR 189
(CC);
Reflect-All
1025 CC v MEC for Public Transport, Roads and Works, Gauteng
Provincial Government
[2009] ZACC
24;
2009 (6) SA 391
(CC);
2010 (1) BCLR 61
(CC); en
Nhlabathi
v Fick
[2003] ZALCC 9
;
2003 JDR 0226 (LCC); 2003 (7) BCLR 806 (LCC).
[122]
Van der Walt en Dhliwayo “The notion of absolute and exclusive
ownership: A doctrinal analysis”
(2017) 134
South
African Law Journal
34
;
Van der Walt
Property and
Constitution
(Pretoria
University Law Press, Pretoria 2012); Van der Walt “Transformative
Constitutionalism and the Development of South
African Property Law
(Part 2)” (2006)
Tydskrif
vir die Suid-Afrikaanse Reg
1; Van der Walt “Resisting Orthodoxy − Again: Thoughts
on the Development of Post-Apartheid South African Law”
(2002)
17
South African Public Law
258; en Van der Walt “Tradition on Trial: A Critical Analysis
of the Civil-law Tradition in South African Property Law”
(1995) 11
South African
Journal on Human Rights
169.
[123]
Van der Walt
Property in
the Margins
n 118 hierbo
op 16.
[124]
Id op 215.
[125]
Die Coase stelling. Sien Coase “The Problem of Social
Cost” (1960) 3
The
Journal of Law & Economics
1
op 8; sien ook Medema
The
Hesitant Hand: Taming Self-Interest in the History of Economic Ideas
(Princeton University Press, Princeton 2009) op 176; en Smith
“On the Economy of Concepts in Property” (2012)
160
University of Pennsylvania
Law Review
2097.
[126]
Sien Mercuro en Medema
Economics
and the Law: From Posner to Post-Modernism and Beyond
2
ed (Princeton University Press, Princeton en Oxford 2006) op 106,
113; en Singer
Entitlement:
The Paradoxes of Property
(Yale University Press, New Haven 2006) op 145.
[127]
Sien Mercuro en Medema n 126 hierbo op 20; en Medema n 125 hierbo op
160-196.
[128]
Coase n 125 hierbo op 8-9; en Mercuro en Medema id op 20-22.
[129]
Mercuro en Medema id op 25.
[130]
Giliomee
Historikus Hermann
Giliomee:’n Outobiografie
(Tafelberg Publishers, Cape Town 2016) at 210-1 (hereafter Giliomee
(2016)).
[131]
Id at 211. The book which Giliomee wrote is his magisterial
The Afrikaners, Biography
of a People
(Tafelberg
Publishers, Cape Town 2004) (hereafter Giliomee (2004)).
[132]
Id at 226. Own translation.
[133]
The way of life on farms is relevant at present, but it does not
mean that injustice is limited to the rural context.
[134]
In our common law the historical tie-in with Roman and Roman-Dutch
law is the
colonus
partiarius
; see and
compare Van den Heever
The
Partiarian Agricultural Lease in South African Law
(Juta,
Cape Town 1943).
[135]
O’Meara
Volkskapitalisme.
Class, Capital and Ideology in the Development of Afrikaner
Nationalism
1934 1948
(Ravan Press, Johannesburg 1983) at 67.
[136]
Van Bruggen
Ampie
(Perskor, Johannesburg 1930).
[137]
Grosskopf
Report of the
Carnegie
Commission
on the Poor White Problem in South Africa
(Stellenbosch University, Stellenbosch 1932).
[138]
Giliomee (2004) above n 131 at 346. The first Volkskongres,
which took place in 1934, was entirely dedicated to investigating
the poor white problem.
[139]
Id at 347.
[140]
Id at 346:
“
The commission recognised that
the problem of black poverty was as acute as that of white poverty.
To justify a focus only
on whites, it was suggested that solving the
poverty of whites would ultimately also benefit other communities.
W. Nicol,
a prominent Dutch Reformed Church minister in Johannesburg
told the 1934 conference: ‘[We] can do little about a solution
for the native question before making progress with the poor-white
question.…Once whites stand firmly on their own feet
they
would have a better chance to help the native in his turn’.
Malherbe, who wrote the report on white education,
warned against
using white poverty as an excuse for intensifying segregation . . .
: ‘To maintain our superiority by pushing
the Kaffer lower
down would not only be unfair but the height of folly, even seen
from our own point of view’.”
[141]
Id at 348. Own translation.
[142]
Compare Giliomee (2016) above n 130 at 324: Chapter 16 “To be
proud and ashamed”. Own translation.
[143]
Giliomee (2004) above n 131 at 348-9.
[144]
Id at 318.
[145]
Id at 343.
[146]
Id at 347 fn 138.
[147]
Id at 30. Own translation.
[148]
Natives Land Act 27 of 1913 (Act).
[149]
Plaatje above n 19 at 21. Plaatje’s perspective was
first published by PR King and Son Ltd, London in 1916.
[150]
Beinart and Delius “The Natives Land Act of 1913: A Template
but not a Turning Point” in Cousins and Walker (eds)
Land
Divided, Land Restored; Land Reform in South Africa for the 21st
Century
(Jacana Media,
Johannesburg 2015) at 24.
[151]
Bundy
The Rise & Fall
of the South African Peasantry
2 ed (David Philip Publishers, Cape Town 1988) at 239:
“
A hypothetical projection,
then, of trends in the closing years of the nineteenth century might
envisage that class formation
and differentiation among African
agriculturists would lead to: the emergence of a class of black
farmers, a diminishing ‘traditional’
peasantry, and a
growing permanently proletarianised urban working force. But
various forces, interests and interventions
operated to inhibit,
check and distort the direction of economic changes in peasant
areas, a phenomenon that found its most graphic
expression in the
1913 Natives Land Act.”
[152]
Id.
[153]
Beinart and Delius above n 150. See also O’Meara above n
135at 25:
“
British scorched earth policy
during the war had devastated Boer agriculture. . . .
Thousands of bywoners and small landlords
could no longer survive
and were driven off their land. In the immediate postwar years
most Boer landlords were able to
survive only by populating their
farms with ever larger numbers of cultivating African tenants −
in many cases driving
off Boer bywoners to accommodate them.”
[154]
Van Bruggen also wrote a book about black people’s rural
experience at the time.
Booia
(De Bussy, Pretoria 1931) is the first novel in Afrikaans with a
black protagonist as well as a first in describing the tragedy
attached to this rural experience of black people. A
commentator remarked: “The story is sketched from Booia’s
point of view, but the novel fragmentally deals with the events it
describes rather than character development, and Booia becomes
nothing more than a black Ampie. The description of the way of
life of the black community is realistic and similar to
the author’s
treatment of the sharecropper or ‘bywoner’.
Despite the patriarchal white perspective that
is evident from time
to time, it is an honest attempt to experience the black community
from within and to not describe from
the outside.” “Jochem
van Bruggen” available at
http://www.wikiwand.com/af/Jochem_van_Bruggen. See also
Kritzinger “Booia. Deur Jochem van Bruggen” (1931) Deel
3 No 3
Nuwe Brandwag
157.
[155]
Van Onselen
The Seed is
Mine − The Life of Kas Maine, A South African Sharecropper
1894-1985
(David Philip
Publishers, Cape Town 1996).
[156]
Id at vi.
[157]
Id at 116.
[158]
Giliomee (2004) above n 131 at 298 and compare 297.
[159]
Van Onselen above n 155 at 8 and also compare 5-8.
[160]
Id at 4. Plaatje above n 19 also has a chapter titled “Our
Indebtedness to White Women”.
[161]
Van der Walt
Property in
the Margins
(Hart
Publishing, Oxford and Portland 2009) at 29-34.
[162]
Id at 29.
[163]
Port Elizabeth Municipality
v Various Occupiers
[2004]
ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) (
PE
Municipality
) at para 23.
[164]
Consider, for example,
Tshwane
City v Link Africa (Pty) Ltd
[2015]
ZACC 29
;
2015 (6) SA 440
(CC);
2015 (11) BCLR 1265
(CC);
Shoprite
Checkers (Pty) Ltd v MEC for Economic Development, Eastern Cape
[2015] ZACC 23
;
2015 (6)
SA 125
(CC);
2015 (9) BCLR 1052
(CC);
Agri
SA v Minister for Minerals and Energy
[2013] ZACC 9
;
2013 (4) SA 1
(CC);
2013 (7) BCLR 727
(CC);
Offit
Enterprises (Pty) Ltd v Coega Development Corporation (Pty) Ltd
[2010] ZACC 20
;
2011 (1)
SA 293
(CC);
2011 (2) BCLR 189
(CC);
Reflect-All
1025 CC v MEC for Public Transport, Roads and Works, Gauteng
Provincial Government
[2009]
ZACC 24
;
2009 (6) SA 391
(CC);
2010 (1) BCLR 61
(CC); and
Nhlabathi
v Fick
[2003] ZALCC 9
;
2003 JDR 0226 (LCC); 2003 (7) BCLR 806 (LCC).
[165]
Van der Walt and Dhliwayo “The notion of absolute and
exclusive ownership: A doctrinal analysis”
(2017) 134
South
African Law Journal
34
;
Van der Walt
Property and
Constitution
(Pretoria
University Law Press, Pretoria 2012); Van der Walt “Transformative
Constitutionalism and the Development of South
African Property Law
(Part 2)” (2006)
Tydskrif
vir die Suid-Afrikaanse Reg
at 1; Van der Walt “Resisting Orthodoxy ― Again:
Thoughts on the Development of Post-Apartheid South African Law”
(2002) 17
South African
Public Law
258; and Van
der Walt “Tradition on Trial: A Critical Analysis of the
Civil-law Tradition in South African Property Law”
(1995) 11
South African Journal on
Human Rights
169.
[166]
Van der Walt
Property in
the Margins
above n 162 at
16.
[167]
Id at 215.
[168]
The Coase theorem. Coase “The Problem of Social Cost”
(1960) 3
The Journal of Law
& Economics
1 at 8;
see also Medema
The
Hesitant Hand: Taming Self-Interest in the History of Economic Ideas
(Princeton University Press, Princeton 2009) 176; and Smith “On
the Economy of Concepts in Property” (2012) 160
University
of Pennsylvania Law Review
2097.
[169]
See Mercuro and Medema
Economics
and the Law: From Posner to Post-Modernism and Beyond
2
ed (Princeton University Press, Princeton and Oxford 2006) at 106,
113; and Singer
Entitlement:
The Paradoxes of Property
(Yale University Press, New Haven 2000) at 145.
[170]
See Mercuro and Medema id at 20; and Medema above n 168 at 174-196.
[171]
Mercuro and Medema id at 25.
[172]
See, in contrast,
South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration
[2016] ZACC
38; 2017 (1) SA 549 (CC); 2017 (2) BCLR 241 (CC).
[173]
See
Williams v President of
South Africa
filed on 23
September 2016 under case number CCT 229/16.
[174]
Section 8(2) provides:
“
A provision of the Bill of
Rights binds a natural or a juristic person if, and to the extent
that, it is applicable, taking into
account the nature of the right
and the nature of any duty imposed by the right.”
[175]
Section 8(1) provides:
“
The Bill of Rights applies to
all law, and binds the legislature, the executive, the judiciary and
all organs of state.”
[176]
Section 33(1) provides:
“
Everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair.”
[177]
Section 9 provides:
“
(1) Everyone is equal before
the law and has the right to equal protection and benefit of the
law.
(2) Equality includes the full and
equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative
and other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may
be taken.
(3) The state may not unfairly
discriminate directly or indirectly against anyone on one or more
grounds, including race, gender,
sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief,
culture, language and
birth.
(4) No person may unfairly
discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3).
National legislation must
be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of
the grounds listed in subsection (3) is unfair unless it is
established that the discrimination
is fair.”
[178]
Examples of this are found in sections 9, 12, 13, 14, 24 and 25 of
the Bill of Rights.
[179]
Section 36(1) of the Constitution reads:
“
The rights in the Bill of
Rights may be limited only in terms of law of general application to
the extent that the limitation
is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of
the limitation;
(c) the nature and extent of the
limitation;
(d) the relation between the
limitation and its purpose; and
(e) less restrictive means to achieve
the purpose.”
[180]
See sections 19, 24, 25, 26 and 27 of the Bill of Rights.
[181]
First judgment at [49].
[182]
Mazibuko
above
n 64 at para 67.
[183]
62 of 1997.
[184]
Section 13(1) provides:
“
(1) If a court makes an order
for eviction in terms of this Act—
(a) the court shall order the owner
or person in charge to pay compensation for structures erected and
improvements made by the
occupier and any standing crops planted by
the occupier, to the extent that it is just and equitable with due
regard to all relevant
factors, including whether—
(i) the improvements were made or the
crops planted with the consent of the owner or person in charge;
(ii) the improvements were necessary
or useful to the occupier; and
(iii) a written agreement between the
occupier and the owner or person in charge, entered into prior to
the making of improvements,
provides that the occupier shall not be
entitled to compensation for improvements identified in that
agreement;
(b) the court shall order the owner
or person in charge to pay any outstanding wages and related amounts
that are due in terms
of the Basic Conditions of Employment Act,
1983 (Act No. 3 of 1983) the Labour Relations Act or a determination
made in terms
of the Wage Act, 1957 (Act No. 5 of 1957); and
(c) the court may order the owner or
person in charge to grant the occupier a fair opportunity to—
(i) demolish any structures and
improvements erected or made by the occupier and his or her
predecessors, and to remove materials
so salvaged; and
(ii) tend standing crops to which he
or she is entitled until they are ready for harvesting, and then to
harvest and remove them.”
[185]
In this regard see
Klaase
above n 13 para 65, where
this Court remarked:
“
An eviction order may be
granted against her only if certain conditions are met. The
first is that her right of residence
must have terminated on lawful
grounds, provided that the termination is just and equitable, having
regard to certain listed
factors. So, for as long as the right
of residence of an occupier like Mrs Klaase has not been terminated
in terms of section 8,
the occupier may stay.”
[186]
Blue Moonlight
above n 14.
[187]
First judgment at [53].
[188]
Blue
Moonlight
above n 14 at
para 96.
[189]
19 of 1998.
[190]
Blue Moonlight
above n 14 at para 100.
[191]
Id at para 37.
[192]
Id at para 40.
[193]
Section 26 provides:
“
(1) Everyone has the right to
have access to adequate housing.
(2) The state must take reasonable
legislative and other measures, within its available resources, to
achieve the progressive
realisation of this right.”
Section
27 provides:
“
(1) Everyone has the right to
have access to:
(a) health care services, including
reproductive health care;
(b) sufficient food and water;
and
(c) social security, including, if
they are unable to support themselves and their dependants,
appropriate social assistance.
(2) The state must take reasonable
legislative and other measures, within its available resources, to
achieve the progressive
realisation of each of these rights.”
[194]
Mazibuko
above
n 64;
Khosa v Minister of
Social Development
[2004]
ZACC 11
;
2004 (6) SA 515
(CC);
2004 (6) BCLR 569
(CC);
Jaftha
v Schoeman, Van Rooyen v Stoltz
[2004]
ZACC 25
;
2005 (2) SA 140
(CC);
2005 (1) BCLR 78
(CC);
Minister
of Health v Treatment Action Campaign No. 2
[2002]
ZACC 15
;
2002 (5) SA 721
(CC);
2002 (10) BCLR 1033
(CC) (
Treatment
Action Campaign
);
Government of the Republic
of South Africa v Grootboom
[2000] ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC)
(
Grootboom
)
and
Soobramoney v Minister
of Health, Kwazulu-Natal
[1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC).
[195]
Treatment Action Campaign
above n 194 at para 39.
[196]
Grootboom
above n 194 at para 38.
[197]
Mazibuko
above
n 64 at para 47. See also
Jaftha
above n 194 at paras 30-4.
[198]
Juma Musjid
above n 66.
[199]
Id at paras 57-8.
[200]
Section 3(1) of ESTA provides:
“
Consent
to an occupier to reside on or use land shall only be terminated in
accordance with the provisions of section 8.”
[201]
PE Municipality
above
n 163 at paras 19 and 20.
[202]
62 of 1997. Section 1 of ESTA defines an “occupier”
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) . . .
(b) 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
(c) a person who has an income in
excess of the prescribed amount;”
[203]
Section 1 of ESTA defines a “person in charge” as
meaning: “a person who at the time of the relevant act,
omission or conduct had or has legal authority to give consent to a
person to reside on the land in question”.
[204]
Section 5 of ESTA reads:
“
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—
(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.”
[205]
Section 6(1) and (2) of ESTA reads as follows in so far as it is
relevant to this case:
“
(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 person in charge, an
occupier shall have the right—
(a) to security of tenure;
. . .
(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. . .”
[206]
I say “his or her” dwelling for convenience as the
dwelling does not belong to an occupier but belongs to the
landowner.
[207]
See section 6(2)(d) above n 205.
[208]
Hattingh v Juta
[2013] ZACC 5
;
2013 (3) SA 275
(CC);
2013 (5) BCLR 509
(CC) at paras
32 and 33.
[209]
Id at para 32.
[210]
Id at para 35.
[211]
28 of 1956, as amended.