Ms Daniels (the Applicant) lived in a dwelling on Chardonne Farm (farm) owned by Chardonne Properties CC (the Second Respondent), for 16 years. The First Respondent, Mr Scribante, manages the farm and is thus the “person in charge” as detailed in the Extension of Security of Tenure Act 62 of 1997 (ESTA).
The Appellant wanted to effect basic improvements to her dwelling at her own expense. 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. She duly notified the Respondents, who said nothing in response to her written notification. After works had commenced, the Appellant received a letter from the Respondents demanding their immediate cessation as, according to them, they had not given consent that the improvements be made. The Appellant brought proceedings before the Stellenbosch Magistrate’s Court where she sought an order declaring that she was entitled to make the improvements.
Both the Magistrates Court and the Land Claims Court (LCC) dismissed her claim that under sections 5, 6 and 13 of ESTA, she is entitled to effect the improvements to her dwelling, ruling that she needed consent from the Respondents. The LCC and subsequently the Supreme Court of Appeal refused her request for leave to appeal and she then appealed to the Constitutional Court.
The issues for determination before the CC were: 1) whether leave to appeal should be granted; 2) if the ESTA allows for an occupier to improve his/her dwelling; if it does, then 3) is the consent of the owner required and if not, 4) can the occupier proceed to effect improvements without the owner’s consent.
It is worth noting that the Respondents themselves acknowledged that the Appellant’s dwelling was in a deplorable state.
RE LEAVE TO APPEAL
The application was held to raise issues of great import and it was found that it bears prospects of success. Leave to appeal was granted as it was in the interests of justice to do so.
RE RIGHT TO MAKE IMPROVEMENTS
It was held that the Court must use a purposive interpretation in interpreting legislation and it is helpful to pay due attention to social and historical background of legislation. Furthermore, as ESTA basically gives effect to s 25(6) rights of the Constitution, the Court, in terms of s 39(2) of the Constitution, must promote the spirit, purport and objects of the Bill of Rights.
The two rights at issue were security of tenure and the right to human dignity.
Of relevance was section 5(a) of ESTA which provides that “subject to limitations which are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, an occupier, an owner and a person in charge shall have the right to… human dignity”.
The Respondents argued that s 6 (rights of an occupier) of ESTA does not confer on the Appellant the right to effect improvements to her dwelling. The Court held that this argument specifically focusses on the rights of an occupier as itemized by s 6 of ESTA and pays no regard to context, the purpose of ESTA, s 39(2) of the Constitution and that the interpretation is unduly narrow.
Section 6 should be read with s 5 of ESTA which affords the right to human dignity. The Court held that because of this, occupation is not just about a roof over one’s head but also about the dwelling being conducive to human dignity and other fundamental rights itemized in s 5. If the right that is contended for by the Appellant is denied, it would result in evictions caused by the intolerability of conditions of the dwelling and such evictions will happen beneath the radar of the eviction process provided for by s 9 of ESTA. This would make the idea of security of tenure nonsensical. It was further held that like the idea of “residing”, “security of tenure” must mean a habitable dwelling because if it is not, then the dwelling is of no use.
In holding that the Appellant could effect the improvements, the Court held that judges should embrace interpretations of legislation that fall within constitutional bounds over those that do not, provided that the interpretation so used can be reasonably ascribed to the section.
RE WHETHER CONSENT REQUIRED
In response to the Respondents’ argument that should the Applicant be allowed to effect the improvements without consent, it will place a positive obligation on the Respondents in terms of s 13 of ESTA to finance the improvements upon eviction and that there is no duty to make sure the Appellant lives in a dignified dwelling, the Court held that it has never through case law ruled that private persons, in terms of s8(2) of the Constitution, may not bear positive obligations under the Bill of Rights. Further, that the question of positive obligations is tenuous in comparison to tenure and human dignity. The Court held that the enquiry into whether the Appellant has the right to effect improvements to her dwelling cannot end merely because allowing same will create a positive obligation on the Respondents. Notwithstanding, the ordering of compensation at eviction is not unknown, even at common law.
RE WHETHER OCCUPIER CAN EFFECT IMPROVEMENTS WITHOUT CONSENT
It was finally held that the owner’s consent cannot be a prerequisite when an occupier wants to bring his/her dwelling to a standard that conforms to conditions of human dignity. This does not give the occupier a right to self-help and the parties must engage in meaningful conversation with regard to the improvements. If the talks result in a stalemate, then a court must be approached.
The rest of the Court also agreed with the above but for varying reasons. Of importance is the dissenting judgment of Jaftha J, who agreed with the first judgment but disagreed in holding that s 8(1) of the Constitution creates a positive obligation on private persons with regard to individuals’ rights. He held that nothing in s 25(6) of the Constitution suggests that there is a duty incumbent on private persons to restore lost tenure as the loss was suffered through the collective efforts of the Apartheid government, and not private persons. If such a duty indeed existed among private persons, then there would not be a need for the democratic government to buy or expropriate land. The Blue Moonlight case was also referred to by the majority of the Court in ruling that a positive obligation did rest on private persons, however, Jaftha J held that the fact that the occupiers were allowed to live there for a few more weeks before they were evicted did not create a positive obligation.
This case has linked the right to security of tenure to the right to human dignity. It has set a precedent for people who were previously disadvantaged and are living on another’s property as occupiers in terms of ESTA to be able to effect improvements to their dwellings to bring them in line with conditions that are conducive to human dignity. In the event that the owner of the property refuses to the improvements and there is no amicable solution, the court should still be approached before anything further is done.