In a case the Constitutional Court has described as an “impassioned and painful cry” highlighting the effects of the dispossession of African people of their land by whites, the country’s apex court has ruled in favour of a domestic worker and farm resident challenging the property owner’s decision to bar her from improving living conditions on the “dilapidated” property she inhabited.
A mother-of-three and farm resident of more than 10 years, Yolanda Daniels had filed an application for leave to appeal against the order of the Stellenbosch Magistrate’s Court that she was not entitled to make improvements without the owner’s consent. Daniels and her children lived in one half of a small building.
She and her children shared a kitchen, a bedroom and used an outside toilet. The builder who inspected Daniels’s dwelling had testified it was in “extremely poor condition”. The electricity supply did not conform to regulations and the building had one window.
The existing ceiling, which did not cover the area under the roof, was in such a state of disrepair that it was only after dirt covering it had been removed that it became apparent it was made of asbestos, according to the builders.
Chardonne Properties CC and the owners of the farm Chardonne in Blaauwklippen Road, near Stellenbosch, where Daniels resided contended that allowing her, under the Extension of Security of Tenure Act (Esta), to improve her house without their consent would constitute a “drastic intrusion” into owners’ common-law property rights, which would require an express, unambiguous, provision in the statute.
However, the Constitutional Court held that Esta afforded an occupier the right to make improvements to her or his dwelling without the consent of the property owner.
The majority judgment held that there was no constitutional bar to the imposition of a positive duty on a private individual.
In his judgment, Concourt Justice Mbuyiseli Madlanga said a denial of the existence of the right asserted by Daniels might inadvertently result in what would in effect be evictions.
He said this would be a direct result of the intolerability of conditions on the dwelling. “Apartheid sought to divest all African people of their South African citizenship.
“According to the grand scheme of apartheid, Africans were to be citizens of so-called homelands.
“The consequence was a variety of tenuous forms of land tenure for victims within what - to apartheid - was ‘South Africa proper’.
“This meant throughout the length and breadth of our country victims were made strangers in their own country,” Justice Madlanga said.
“The respondents are not seeking to thwart Ms Daniels’s quest to improve her situation on the basis that there is justification under this provision. Theirs is merely an interpretative exercise: Ms Daniels has no right to effect the proposed improvements. That is misconceived.”