Pioneer land ruling puts justice first

Justice Mbuyiseli Madlanga wrote that seeking to divine the relevant purpose of Esta by way of looking at the “mischief” it sought to cure was the critical first move. (Craig Nieuwenhuizen/Foto24/Gallo)

Justice Mbuyiseli Madlanga wrote that seeking to divine the relevant purpose of Esta by way of looking at the “mischief” it sought to cure was the critical first move. (Craig Nieuwenhuizen/Foto24/Gallo)

The judiciary has found itself in the populist firing line recently, particularly after the high court in Pretoria held that the president had to supply his record of decision for why he had fired certain Cabinet ministers in his March reshuffle. An ANC march in KwaZulu-Natal protested against what was claimed to be unacceptable moves by the judiciary on to the terrain of the executive.

After the recent Constitutional Court judgment of Daniels vs Scribante, one is tempted to say to these protestors: Why don’t you ask Yolanda Daniels about the importance of a robust judiciary?

Daniels is a domestic worker. She occupied a small property on the farm where she works.
The manager of the farm, Theo Scribante, appears to have been particularly obstructive in respect of Daniels’s peaceful occupation of her dwelling. Things came to a head. Daniels wanted to make certain basic improvements, which included levelling the floors, paving part of the outside area and installing an indoor water supply, a wash basin, a second window and a ceiling.

Even Scribante and his fellow respondents accepted that, without these improvements, the dwelling was not fit for human habitation. Yet, even though Daniels had indicated that she was paying for these basic improvements, the respondents objected, forcing a process of litigation.

Relying on the Extension of Security of Tenure Act (Esta), Daniels argued that the right to reside accorded to her in Esta included the right to make improvements to her dwelling.

In a startling illustration that an extremely conservative legal tradition is still alive, both the Land Claims Court and the Supreme Court of Appeal dismissed Daniels’ case, essentially on the basis that, without an express provision in Esta permitting an occupier to effect improvements, Daniels could not encroach on the rights of the owners of the farm.

Daniels and her legal representatives persisted all the way to the Constitutional Court. There, Justice Mbuyiseli Madlanga, for the majority of the court, eschewed the narrow approach to interpretation adopted by the other courts and immediately located Esta in the vortex of South African history.

He wrote: “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 settlement began, 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. The most infamous is the Native Land Act (subsequently renamed the Black Land Act).”

Madlanga accepted that there was no wording in Esta that created a right of an occupier to make improvements. But, as he wrote, seeking to divine the relevant purpose of Esta by way of looking at the “mischief” it sought to cure was the critical first move: “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.”

The context made it clear that Esta was designed to ensure that occupiers who were protected by the legislation could live in dignity, which would not be the case if an occupier was prevented from making basic improvements. To the argument that an owner might then have to compensate the occupier for the cost of improvements, if the latter gave up occupation, Madlanga found that this hypothetical could wait determination in the appropriate case.

“There is much in the various judgments of the court which deserve analysis,” he wrote. “Suffice to mention one. Justice Johan Froneman, supported by Justice Edwin Cameron, penned a concurring judgment which took on the unusual quality of being written in both Afrikaans (Froneman’s home language) and in English. It represents a further unusual aspect for a judgment – a deeply personal reflection on our horrendous past. In this connection the following set of observations may well constitute a signpost for further legal development: “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 reappraisal 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.”

This is a judicial call to review the traditional legal conceptions of ownership, and arguably other legal concepts, so that, after a clear recognition of our unjust past, an embrace of the constitutional vision of constructing a substantive democracy for 55-million people can be realised.

Though some may march against the judiciary, and some populists will trash the Constitution itself, this path-breaking judgment holds hope for the reconstruction of the legal system so it can respond more meaningfully to our past and present.

Serjeant at the Bar

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