An Occupier’s Right to Human Dignity Includes Housing with Basic Human Living Conditions
October 13, 2017
Daniels v Scribante and Another
The Constitutional Court of South Africa
Case CCT 50/16
Nkabinde ACJ, Cameron, Froneman, Jafta, Khampepe, Madlanga, Zondo JJ, Mbha and Musi AJJ
May 11, 2017
Reported by Linda Awuor & Faith Wanjiku
Constitutional Law-Bill of Rights-property and housing- whether under sections 25(6) on property and 26 on housing of the Constitution the Applicant was entitled to the right to effect improvements to her dwelling-The Constitution of the Republic of South Africa, 1996, section 25 (6),26
Land Law-security of tenure-rights and duties of occupiers and owners- whether section 5 of the Extension of Security of Tenure Act on fundamental rights of an occupier afforded an occupier the right to make improvements to his or her dwelling to bring it to a level consonant with human dignity- Extension of Security of Tenure Act 62 of 1997, section 5
The Applicant, Ms. Yolanda Daniels, resided as an occupier under the Extension of Security of Tenure Act 62 of 1997 (ESTA) in a dwelling on the farm Chardonne, which was owned by Chardonne Properties CC (2nd Respondent). The dwelling required improvements that were no more than basic human amenities. Those included leveling 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. Crucially, the Applicant was to carry the costs of making the improvements. Her attorney addressed a letter to the 1st Respondent indicating her intention. Receiving no response, she enlisted a builder to make the improvements. When the builder arrived, the 1st Respondent’s attorney sent a letter which advised that permission to effect improvements was refused and demanded the builder to stop. The Applicant sought a declarator that she was entitled to make improvements to the dwelling without the owner’s consent.
Both the Stellenbosch Magistrates’ Court and the Land Claims Court reasoned that ESTA set out the rights of occupiers and that the right asserted by the Applicant was not one of those rights. Aggrieved, the Applicant unsuccessfully sought leave to appeal from the Supreme Court of Appeal.
In the Constitutional Court, the Applicant argued that the improvements were meant to bring the dwelling to a level consonant with human dignity. She contended that, based on the right to human dignity which ESTA occupiers enjoyed in terms of section 5 of ESTA, she was entitled to make the improvements. She also argued that the right was not a drastic intrusion into the common law rights of property owners.
- Whether section 5 of the ESTA on fundamental rights of an occupier afforded an occupier the right to make improvements to his or her dwelling to bring it to a level consonant with human dignity.
- Whether under sections 25(6) on property and 26 on housing of the Constitution the Applicant was entitled to the right to effect improvements to her dwelling.
- Whether under sections 5 and 6 of ESTA the consent of an owner was required for an occupier to make improvements tohis or her dwelling.
- Whether under section 8(2) of the Constitution on application of Bill of Rights the Respondent owed a positive obligation to the Applicant to ensure that she lived under conditions that afforded her human dignity.
- Whether the Applicant could be granted leave to appeal.
Relevant Provisions of the Law
The Constitution of the Republic of South Africa, 1996
Section 8 (2)-Application
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.
Everyone has inherent dignity and the right to have their dignity respected and protected.
Section 25 (6) – Property
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.
(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.
(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.
Extension of Security of Tenure Act No. 62 of 1997
Section 5-Rights and duties of occupiers and owners
5. 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;
Section 6-Rights and duties of occupier
6. (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.
- The matter concerned the interpretation of ESTA. ESTA was an Act passed to give effect to the constitutional right contained in section 25(6) of the Constitution on security of tenure of land. The Court thus had jurisdiction. In addition, the rights on housing embodied in section 26 of the Constitution were at issue. The Application raised issues of great import and it bore prospects of success. It was in the interests of justice to grant leave.
- Courts when interpreting legislation had to 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 was often the starting point of any statutory construction, the meaning it bore had to pay due regard to context. That was so even when the ordinary meaning of the provision to be construed was clear and unambiguous.
- Security of tenure was fundamentally important because it was the basis upon which residents built their lives. It enabled people to make financial, psychological, and emotional investments in their homes and neighborhoods. It provided depth and continuity for children’s school attendance and for the religious, social, and employment experiences of children and adults. Security of tenure enabled tenants to fully participate in social and political life. Taking away the home that was the fulcrum of security of tenure, the way of life of an occupier would be dislocated. And that would offend his or her human dignity. Permitting an occupier living in circumstances as in the present case to make improvements to his or her dwelling would serve the twin-purpose of bringing the dwelling to a standard that befit human dignity and averting the indignity that the occupier could have suffered as a result of the possible departure.
- Ultimately, the question was whether, overall, private persons could be bound by section 25 (6) in the Bill of Rights on property. By its very nature, the duty imposed by the right to security of tenure, in both the negative and positive form, did rest on private persons. People requiring protection under ESTA more often than not lived on land owned by private persons. That was the premise from which the matter was being litigated. The obligation resting, in particular, on an owner was a positive one. A private person was enjoined by section 25(6) of the Constitution through ESTA to accommodate another on his or her land. It was so that the obligation was also negative in the sense that the occupier’s right could not be improperly invaded.
- The interests of an occupier and those of an owner or person in charge could diverge. The occupier could be of the view that the dwelling required improvements to bring it to an acceptable standard. The owner could disagree or accept that the dwelling’s condition was not consonant with human dignity but still not be receptive to the idea that improvements be made. If consent were a requirement, none would be forthcoming in those circumstances. 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 had to reside under conditions that afforded him or her as wholesomely as possible all the rights contained in ESTA. A simple stratagem like the refusal of consent by the owner could not be allowed to render nugatory an occupier’s right that was primarily sourced from the Constitution. An owner’s consent could not be a prerequisite when the occupier wanted to bring the dwelling to a standard that conformed to conditions of human dignity.
- That an occupier did not require consent could not mean that he or she could have ridden roughshod over the rights of an owner. The owner also had rights. The very enjoyment by an occupier of rights conferred by ESTA created tension between that enjoyment and an owner’s rights. The most obvious owner’s right that was implicated was 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 counted for nothing. Under section 5 of ESTA an owner enjoyed the exact same rights as did an occupier. The total disregard of an owner’s property right could impinge on his or her right to human dignity. That would be at odds with section 5(a) of ESTA. Section 6(2) of ESTA required that an occupier’s right to security of tenure be balanced with the rights of an owner or person in charge.
- Although consent was not a requirement, meaningful engagement of an owner or person in charge by an occupier was still necessary. It would help balance the conflicting rights and interests of occupiers and owners or persons in charge. If engagement between an occupier and owner or person in charge gave rise to a stalemate, that had to be resolved by a court. The occupier could not resort to self-help.
- Issues concerning the parties’ respective rights had been ventilated fully. If the Court were not to grant effective relief, it would be causing the Applicant to continue to live in conditions that were accepted by all to violate her human dignity. Of importance, the Respondents were not taking issue with the nature of the proposed improvements. An order that fully recognised the existence of the right asserted by the Applicant had to be made. Regarding engagement between the parties, the order had to address only the mechanics of how the improvements would be made.
Froneman J (Cameron J concurring):
- 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 the corrective action was not extended to black and coloured people, had to be rectified. There was no reason to continue countenancing the continuation of inhuman and undignified living on farms any more. It could not be tolerated in light of the constitutional mandate to heal the divisions of the past. In contemporary terms, where the privileged were used to reasonable housing, access to water, and electricity, there was no justification for denying it to others who did not yet have it, especially to those, like the Applicant, who wanted to create those conditions for themselves.
- The Constitution imposed new obligations on the courts concerning rights relating to property not previously recognised by the common law. It counter posed 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 went with title could have clashed head-on with the genuine despair of people in dire need of accommodation. The judicial function in those circumstances was 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 was 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.
- The injustice of the country’s history could not be avoided. At the immediate level of the case it required that the Court 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 meant that the Court had to recognise that the common law protection of property and its attendant economic privileges did not, in the country’s historical context, support personal autonomy and economic freedom, but effectively worked against it. The argument that the protection of existing property was a necessary condition for personal and economic freedom was not self-explanatory in the South African context. It would only start to become convincing when property held in tenuous form by previously disadvantaged people was protected in stronger form under the Constitution.
Jafta J (Nkabinde ACJ concurring):
- The purpose of section 8(2) was to ensure that some of the rights entrenched in the Bill of Rights were enforceable against the state (vertically) and against private persons (horizontally). It was evident from the text of section 8(2) that not all rights were capable of being enforced vertically and horizontally. Some of them could be enforced vertically only. With section 8(1) having declared that the Bill of Rights bound all three arms of the state, section 8(2) proceeded to pronounce that some provisions of the Bill of Rights bound a natural or juristic person to the extent that they were applicable taking into account the nature of the rights and the duties they imposed.
- It was quite plain from the text of section 9(4) of the Constitution that the nature of the right and duty that it imposed on private persons were negative ones. It was the right not to be unfairly discriminated against and the corresponding duty imposed on private persons that prohibited them from unfairly discriminating against another person. The plain reading of the Bill of Rights revealed that the rights which were capable of being enforced both vertically and horizontally were rights which imposed both positive and negative obligations. To the extent that such rights bound private persons, they imposed negative obligations.
- Apart from the general positive obligation imposed upon the state by section 7(2), where the Bill of Rights imposed a positive duty, it did so in express terms. There was no provision that expressly imposed a positive obligation on a private person in the entire Bill of Rights. It did not appear that any of the relevant provisions could be interpreted as imposing a positive duty on a private person. It would be odd for the Constitution to be express when it imposed a positive duty upon the state and choose to be obscure when imposing such a duty upon a private person.
- The right to security of tenure in section 25(6) of the Bill of Rights did not impose a positive duty on private persons. Section 25(6) had to be read together with section 25(5) to determine the content and scope of the obligation it imposed. The Constitution contemplated that the right of equitable access to land would depend on reasonable legislative and other measures taken by the state, within its available resources. In that way the Constitution recognised 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 made the realisation of those rights achievable to the millions who did not enjoy them.
- The positive obligations imposed upon government by the social and economic rights in the Constitution would be enforced by courts in at least the following ways; if the Government took no steps to realise the rights, the courts would require the Government to take steps. If the Government adopted unreasonable measures, the courts would similarly require that they be reviewed so as to meet the constitutional standard of reasonableness. It was clear that a measure would be unreasonable if it made no provision for those most desperately in need. If the Government adopted a policy with unreasonable limitations or exclusions, the Court could order that those be removed. The obligation of progressive realisation imposed a duty upon the Government continually to review its policies to ensure that the achievement of the right was progressively realised.
- That constitutional standard of reasonableness could not 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 was identified and what exactly he or she was required to do to fulfil the obligation and what would happen if he or she had no financial means with which to discharge the obligation. Without the internal qualifiers available to the state, it was difficult to see how those challenges could be overcome. In contrast, a negative obligation was easy to enforce as it required a private person to refrain from interfering with the enjoyment of a right.
- The right to security of tenure provided for in section 25(6) of the Constitution addressed tenure that became legally insecure as a result of past racially discriminatory laws or practices. That meant that the insecure tenure which the right sought to correct must have been caused by discriminatory laws or practices of the colonial or apartheid eras.
- No positive obligation was imposed by socio-economic rights upon private persons. Instead the positive obligation was 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.
- The 2nd Respondent as the owner of the Chardonne Farm had no positive duty to promote and fulfil any of the rights conferred on the Applicant by ESTA. The farm owner had a negative obligation to refrain from interfering with the exercise of those rights by the Applicant. That meant that the Respondents were under an obligation to refrain from conduct that interfered with the exercise by the Applicant of her right to reside on the farm in question. That was consistent with section 7 of ESTA that dealt with the rights and duties of the owner. Section 7(2) provided that the owner or person in charge could not prejudice an occupier if one of the reasons for the prejudice was the past, present or future exercise of any legal right. It followed that that right, properly construed in the context of ESTA, included making improvements that were necessary to make the dwelling suitable for human habitation.
- Private persons had no legal obligation to ensure that their fellow citizens had access to land that was denied to them by the government of the past colonial and apartheid eras. But where a private person had voluntarily permitted an individual to reside on his or her property, everyone including the state had a negative obligation not to interfere with the exercise of that right of residence, unless the interference was justified by law which passed constitutional muster.
- The Respondents did not seek the eviction of the Applicant. Instead, they prevented her from effecting improvements on her dwelling to make it suitable for human habitation. Living in a house unsuitable for human habitation could not constitute a proper exercise of the right of residence protected by ESTA. The Respondents’ conduct, therefore, amounted to interference with the Applicant’s right and was a breach of the negative duty placed on them by section 25(6) of the Constitution read with ESTA.
- Under ESTA an occupier had a right to effect improvements to his or her dwelling without the consent of the owner of the land where, as there, the improvements were basic improvements that would ensure that the occupier ceased to live in conditions of human indignity. In the case, there was no suggestion by the Respondents that they would suffer any prejudice if the Applicant were to effect the improvements she sought to effect. The Applicant made it clear in her founding affidavit that the right to improve the dwelling she occupied was an incidence of her rights as an occupier in terms of ESTA. Some of those rights were to be found in section 5 of ESTA. Those in section 5 included the right to human dignity.
- Section 6 (2) (d) of ESTA provided for an occupier’s right to family life in accordance with the culture of that family. It also stated that it be balanced with the rights of the owner or person in charge which called 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. That part enjoined that a just and equitable balance be struck between the rights of the occupier and those of the owner. The effect of that was to infuse justice and equity into the inquiry required by section 6(2) (d) of ESTA.
- The purpose of the conferment of the right to family life in section 6(2) (d) of ESTA that an occupier enjoyed was to ensure that, despite living on other people’s land, persons falling within that vulnerable section of the society would be able to live a life that was as close as possible to the kind of life that they would lead if they lived on their own land. Unless there was to be prejudice to the Respondents, the Court would lean towards a conclusion that would assist the Applicant and her children to live a life that was as close as possible to the kind of life that they would lead if they lived on their own land.
- When considerations of justice and equity were taken into account and a balance was struck between the rights of the Applicant and those of the 1st or 2nd Respondents there could only be one answer to the question for determination. That was that the Applicant was entitled to effect the improvements she sought to effect and she did not need the consent of the 1st or 2nd Respondent. The improvements were basic. If the improvements were effected, there would be no prejudice whatsoever to the Respondents and yet the improvements would mean a great deal to the Applicant and her children. That the Applicant did not need the Respondents’ consent did not mean that she needed not consult them about her intentions; she did so as to look at logistical arrangements that could need to be made to ensure that there was minimal inconvenience to all parties.
Appeal allowed; no order as to costs.
On appeal from the Land Claims Court (hearing an appeal from the Stellenbosch Magistrate’s Court):
a) The orders of the Stellenbosch Magistrate’s Court, Land Claims Court and Supreme Court of Appeal were set aside.
b) It was declared that the applicant is entitled to make the following improvements to her dwelling at Chardonne Farm (farm), Blaauwklippen, Stellenbosch:
i. levelling the floors;
ii. paving part of the outside area; and
iii. installing water supply inside the applicant’s dwelling, a wash basin, a second window and a ceiling.
c) The parties were ordered to engage meaningfully regarding the implementation of the improvements, particularly on—
i. the time at which the builders would arrive at, and depart from, the farm;
ii. the movement of the builders within the farm; and
iii. the need for, and approval of, building plans in respect of the improvements.
d) If the parties were unable to reach agreement within 30 days of the date of this order, either party could approach the Stellenbosch Magistrate’s Court for appropriate relief.
Relevance to the Kenyan Situation
The Constitution of Kenya, 2010 providesthat every person has inherent dignity and the right to have that dignity respected and protected in Article 28.
It also provides for protection of right to property in Article 40 and more so sub-article (2) states that Parliament shall not enact a law that permits the State or any person—
(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description;
(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds of discrimination.
Article 43 on economic and social rights provides that every person has the right to accessible and adequate housing, and to reasonable standards of sanitation.
There is other legislation on land, the Land Act No. 6 of 2012 whose purpose is to revise, consolidate and rationalize land laws and to provide for the sustainable administration and management of land and land based resources. The Act in section 65 (1) (d) provides that if any dwelling house, flat, or room is leased, that the house, flat or room should be fit for human habitation at the commencement of the lease and shall be kept fit for human habitation during the lease.
The South African case is an important precedent because it brings out to light the strains of the relationship between land owners and occupiers with insecure tenure. Rights of occupiers ought to always be respected by land owners and managers. It also clearly spells out that everyone, including people who have insecure tenures, is entitled to the right to human dignity in their housing which has to have basic living conditions that are fit for human habitation.