'Without dignity human life is substantially diminished'. Meaningful engagement at the heart of social change

On the 11th May 2017 the Constitutional Court handed down an important judgment in the case of Daniels v Scribante and Another (Case CCT 50/16). The significance of this case has been highlighted by constitutional law expert Prof Pierre de Vos in a recent opinion piece appearing in the Daily Maverick on 18th May.

At face value the case involves a series of disputes between Yolanda Daniels and Theo Scribante of Chardonne Properties CC, Ms Daniels is a domestic worker and household head who has lived in a house on the farm for 16 years and as such has the status of an occupier in terms of the Extension of Security of Tenure Act (ESTA). However the case goes to the heart of the complex relationship between owners and occupiers in a constitutional democracy where the Constitution has enshrined the right to security of tenure.


The Constitutional Court judgment provides a chronology of events which start with the tampering or removal of the door by the farm manager and the cut off of Ms Daniels electricity supply. Somewhat puzzlingly the judgment does not review the background triggering this initial conflict. In response to this attempt at what ESTA construes as constructive eviction Ms Daniels approached the Stellenbosch Magistrate's court and obtained an order "for the restoration of her undisturbed occupation on the farm" requiring the manager to repair the door and restore electricity".

The person in charge responded to the directive of the court but abandoned any further maintenance of the house which fell into disrepair. Ms Daniels returned to court seeking a declarator that she was an occupier under ESTA and the failure to maintain the dwelling or ensure a safe supply of electricity was an infringement of her right to human dignity. The court instructed the respondents to repair and maintain the roof and the electricity supply.

Ms Daniels wrote to the owners that she planned to make some improvements to the house at her own cost including levelling the floors, installing water inside the dwelling, putting in a wash basin, a second window and a ceiling. She received no response. Work commenced on the improvements until the owners intervened demanding an immediate halt arguing that no building plans had been provided and that their consent had not been given. The matter went back to the Magistrate's Court with Ms Daniels arguing that her right to reside under ESTA entitled her to make improvements to the dwelling.

Her application was dismissed with costs. The matter was appealed in the Land Claims Court and the Supreme Court of Appeal where it was also unsuccessful. Both courts refused Ms Daniels leave to appeal hence her approach to the Constitutional Court.

Justice Madlanga wrote the primary judgment  in the Constitutional Court with five justices concurring.  The judgment addressed four questions:

1. Should leave to appeal be granted?
2. Does ESTA afford an occupier the right to make improvements to her or his dwelling?
3. If it does, is the consent of an owner required for an occupier to make the improvements?
4. If consent is not required, may an occupier effect improvements to the total disregard of an owner?

With regard to question 1 the Constitutional Court clearly had jurisdiction to hear the appeal as ESTA seeks to give effect to section 25(6) of the Constitution which requires 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.

In addressing question 2 Judge Madlanga reviews the history of land dispossession and in this context states that ESTA"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".He reviews the history of land dispossession and the intergenerational impacts on those whose rights were undermined.

He reviews the rights of the occupier in terms of Section 6(1) of ESTA and finds that:

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.

In reviewing questions 3 and 4 the Constitutional Court judgement finds that while the consent of the owner is not a mandatory requirement, meaningful engagement between an owner or person in charge and an occupier is essential to balance the conflicting rights and interests of occupiers and owners or persons in charge.

Justice Madlanga argues that the ruling with regard to consent does not undermine the rights of the owner:

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.

Where the balance of these rights are in dispute this requires meaningful engagement between the owner/ the person in charge and the occupier.

If engagement between an occupier and owner or person in charge gives rise to a stalemate, that must be resolved by a court. The occupier cannot resort to self-help.

Meaningful engagement emerges as the key concept. It is one which must form the foundation of all social dialogue initiatives as it is premised on the recognition of the dignity to all those who engage as a prerequisite for finding local solutions and preempting disputes which carry high social and economic costs.

The supporting judgment of Justice Froneman provided in both English and Afrikaans emphasises the need to rethink our understanding of property.  He draws on a range of sources including the late professor van der Walt to challenge a narrow "absolutist conception" of prperty and a supposed hierarchy of rights with ownership at the top and lesser real and personal rights below.

Justice Froneman concludes:

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.