In a recent judgement by the South African Constitutional Court, Daniels v Scribante and Another, the court made a link between land dispossession, the right to security of tenure and the right to human dignity. This case will hopefully spark a new way to think about not only the right to security of tenure, but also the right to property, housing and the land reform project, all of which are geared towards redressing the impact of the colonial and apartheid land dispossession of Blacks.
The dispossession of land from Black South Africans was a key part of the colonial and apartheid strategies of entrenching white superiority over the Black population, it rendered Blacks unable to live on and live of their land, forcing them to work for the colonial and apartheid powers. It removed people from ancestral land, disabling them from being able to perform cultural rites, to visit graves, to bury the umbilical cords of new-borns as well as the dead on ancestral land. However, some Blacks were able to remain on the land as farm workers, on the fields and in the kitchens. But their presence on the land was precarious, at the will of the white landowners, often occupation was made conditional on work, so generation after generation, mothers would retire and send their daughters and sons to the kitchens and fields, all to secure the family’s right to reside on the land. To protect this vulnerable group of people, section 25(6) of the Constitution protects the right to security of tenure for persons whose tenure is insecure as a result of past racially discriminatory laws or practices.
The applicant in this case, Ms Daniels, is a tenant who has security of tenure over property in accordance with the Extension of Security of Tenure Act (the Act) which was enacted pursuant with section 25(6) of the Constitution. The Act entitles persons ‘occupiers’ who lived on or used land that they did not own on or after 4 February 1997, with the right to continue their residence or use of the land.
Ms Daniels, wanted to make improvements to her home, she wanted to level the floors, insert paving on the outside of the house, install a water supply, a wash basin, a second window and a ceiling to her house, little things to make her home more habitable and safe. However, the owner of the property refused to allow her to make the improvements. The court had to determine whether the right to security of tenure included the right to make improvements, if so, whether the improvements required the consent of the owner of the property. The judgement in this case made two important findings.
Firstly, the court held that “there can be no true security of tenure under conditions devoid of human dignity”. In this regard, the court held that the right to security of tenure must be interpreted as including the right to make improvements, such an interpretation was in line with protecting the human dignity of the occupiers under the Act. In addition, the court held that no consent was required from the owner of the land to make improvements, all that was required is meaningful engagement.
The second important finding in this case relates to the argument made by the respondents that extending the right to security of tenure to include the right to make improvements would in effect place an indirect positive obligation on the owners of the land as, in the case of an eviction, the occupiers could be entitled to compensation for the improvements. The court rejected this argument and held that under certain circumstances, depending on a range of factors, private parties could bear positive obligations in relation to the rights in the Bill of Rights. These factors include, the nature of the right; the history behind the right; how best the right can be realised; the extent to which the right can be infringed by private parties; and, whether by not imposing positive obligations, the essential content of the right would be negated. In relation to this case, the court held that the very nature of the right to security of tenure imposed both negative and positive obligations on private parties.
The landlessness of many Black South Africans is perhaps the most visible of the things inherited from its past colonial and apartheid regimes, it is both the root and the rain that nurtures much of the continuing racialised and gendered socio-economic inequality in South Africa. This judgement has introduced a new way to think about the impact of land dispossession and the need for land reform, from the perspective of the dignity of the dispossessed and not the rights of the owners of the land. Perhaps, as argued by Justice Froneman in his concurring opinion, we need to reinvigorate our current understanding of the right to property, it cannot continue to be blind to the historical injustices of colonialism and apartheid. Furthermore, this Judgement extends our understanding of positive and negative obligations, reiterating further that the private can no longer hide from the people.
*While this blog uses the term Black, which in South Africa, includes African, Coloured, Indian and Chinese people, for some level of historical accuracy, Black in this article refers only to African and Coloured people.