The Constitutional Court speaks about land and dignity

In South Africa, the dispossession from land of black people by white people is the original sin of colonial conquest, a sin whose consequences loom large over present day South Africa. Last week South Africa’s Constitutional Court handed down a judgment of considerable rhetorical power to address a modest aspect of this legacy.

Ms Yolanda Daniels is a domestic worker who has lived with her minor children in a dwelling on Chardonne Farm outside Stellenbosch for the past 16 years. Ms Daniels wanted to make certain improvements to her dwelling – levelling the floors, paving part of the outside area and installing an indoor water supply, a wash basin, a second window and a ceiling.

After work had commenced, Ms Daniels received a letter from the farm manager, one Theo Scribante, ordering her to stop the work. He argued that the improvements were unlawful. In effect, Mr Scribante argued that the property rights of the owners of the farm trumped (can one use this term with a straight face in these times of The Donald?) Ms Daniels’ right to live in a dwelling that would afford her a modicum of dignity.

In a judgment handed down last week in Daniels v Scribante and Another the Constitutional Court rejected this argument. The main judgment, authored by Madlanga J, opens with the following quote from Mr Petros Nkosi:

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.

The main judgment, as well as a stirring concurring judgment by Froneman J – written in Afrikaans (an English translation is provided) as Ms Daniels is Afrikaans speaking – explicitly links access to land and housing with the protection of dignity.

The nub of the matter, held the court, was 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”.

The court pointed out that dispossession of land was central to colonialism and apartheid. It first took place through the barrel of the gun and “trickery”. This commenced as soon as white people settled in (a more precise term would be “invaded) South Africa, with the Khoi and San people being the first victims. This was followed by “an array of laws” dating from the early days of colonisation aimed at depriving black South Africans of access to land.

The purpose of it all was, first, the obvious one of making more land available to white farmers. 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. The third was the enforcement of the policy of racial segregation, which assumed heightened proportions during the apartheid era.

These facts are not in dispute. Nor should they be controversial. But as Froneman J points out in his concurring judgment, although this “historical injustice is nowadays not easily denied”, it is often avoided. As Froneman states:

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.

Before we can make substantial and lasting progress in making the ideals of the Constitution a reality. However, it is necessary for all of us to recognise this past injustice and its continuing effects in an honest and deep manner.

It is with this in mind, that the Constitutional Court tackled the legal issues in the case.

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. The Extension of Security of Tenure Act (ESTA) is the Act of Parliament that gives effect to this right.

Ms Daniels invoked sections 5, 6 and 13 of ESTA, arguing that the right to reside on the farm accorded to her in ESTA includes the right to make improvements to her dwelling. Mt Scribante argued that ESTA does not explicitly provide occupiers of land with the right to improve the property in which they live and that Ms Daniels therefore had no such right.

The Court held that the latter reading was “unduly narrow”. One must read ESTA as legislation that not only gives effect to section 25(6) of the Constitution, but also as responding to the particularly egregious history of land dispossession in South Africa. ESTA can therefore be interpreted to provide an occupier of land with the right to make improvements on the dwelling in which he or she lives.

To hold otherwise could turn the occupier’s rights into empty rights with no substance. Specifically, while the right enjoyed by an occupier could – on paper – be viewed as no more than a right to reside on and use the land in issue, the section must be interpreted purposively to give it a broader meaning. As Madlanga explained:

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 [of ESTA], 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 … other fundamental rights.

In any event, if occupiers were not allowed to upgrade their dwellings, this could lead to eviction by stealth by property owners. 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 guaranteed by the Constitution.

After all, like the notion of ‘reside’, security of tenure 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.

Mr Scribante and the owners of the farm advanced a second argument. They argued that the Court should not rule that an occupier is entitled to make improvements to bring the dwelling to a standard that is constitutionally compliant, because 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. The owner of the land would therefore potentially have to reimburse the occupier for the improvements made on the dwelling.

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

The Court’s response to this was that the provisions of the Bill of Rights – including section 25(6) could, in certain circumstances – bind private land owners and could therefore place a financial obligation on a land owner to reimburse an occupier who had made improvements on his or her dwelling.

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’.

For traditionalists, this idea that the owner of private property could be held liable for improvements made on the property or that the rights of the property owner in certain circumstances had to yield to the rights of occupiers to give effect to constitutional values might seem strange. But as Froneman pointed out in his concurring judgment, the Constitution now requires us to reimagine the nature of property rights in South Africa. This is because:

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.

Quoting from the seminal work of the late Prof Andre van der Walt Froneman continues:

[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.

This means that the Constitution now requires us to think differently about property rights and especially to reject the idea that property owners have rights that will always trump the rights of others in society. This has potentially radical consequences for many South Africans who live on land nominally “owned” by somebody else, who go to school in buildings on such land, or who make use of such land as a community. Depending on the specific facts, in all such cases the rights of the users of the land might be held to trump (that word again) the rights of the legal owner.

While the judgment will not have any immediate dramatic effect on the nature of land distribution in South Africa, it contains important jurisprudence which social justice lawyers will be able to use in other cases to change the way we think of land and land ownership in South Africa. The judgment calls on us to think of land in terms of relationships, rather purely in terms of rights that owners can enforce to exclude others from using the land for any purpose.

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