Daniels v. Scribante and Another, (2017) SA (CC), (2017) BCLR (CC),  ZACC 13
From colonial times through the apartheid era, land dispossessions, forced removals, racial segregation, and other discriminatory practices resulted in widespread poverty and left countless South Africans without secure legal tenure in land or residence. The Court held in this case that residents with insecure tenure have a right, without the owner’s consent, to make improvements designed to render the property fit for habitation at a minimum level consistent with human dignity.
Yolanda Daniels is a domestic worker and sole head-of-household who resided for 16 years in a farm dwelling. She began living there when her former husband was employed by the owner. She and her three children remained in the dwelling with the owner’s consent after the couple divorced.
Daniels is an “occupier” in terms of the Extension of Security of Tenure Act (ESTA), No. 62 of 1997. ESTA gives effect to s 25(6) of the Bill of Rights which provides: “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.” Occupiers as defined in the ESTA are guaranteed human dignity, residence, security of tenure, and other rights. ESTA also specifies circumstances under which an occupier’s right of residency may be terminated and the occupier evicted.
Ms. Daniels wished to make improvements to the dwelling at her own expense, including installing an indoor water supply, a wash basin, a second window, and a ceiling; leveling the floors; and paving a portion of the outside area. The owner conceded that, without the improvements, the dwelling is not fit for human habitation and that its current condition infringes Ms. Daniels’s right to human dignity. Nevertheless, the owner refused consent and attempted to bar her from making the improvements.
Reversing three successive courts below, the Constitutional Court held that ESTA affords Daniels a right to make these improvements without owner-consent. The Court ordered the parties to “engage meaningfully” regarding the implementation of the improvements.
The Court acknowledged that ESTA does not by explicit words guarantee occupiers the right to improve their dwelling up to a level fit for human habitation. Nevertheless this interpretation followed from a contextual and purposive reading of the statute that best advances the purposes for which the statute was enacted, in this case to afford ESTA-occupiers “the dignity that eluded most of them throughout the colonial and apartheid regimes” (para. 23).
It was argued that ESTA cannot bear an interpretation that occupiers are entitled to make dignity-complying improvements without owner-consent because an occupier who is evicted at a future date is sometimes entitled to compensation for improvements made during the occupancy. Authorizing occupiers to make improvements without owner-consent would or might have the consequence of indirectly compelling private property owners to subsidize the enjoyment by others of their rights to security of tenure and human dignity. It was argued that the Bill of Rights does not impose positive obligations on private, non-governmental parties to insure that other persons can enjoy constitutional rights. Rejecting this contention, the Court held that under some circumstances private parties are bound by provisions of the Bill of Rights, and that in appropriate cases, horizontal application of the Bill of Rights may impose positive as well as negative duties on private parties. The Court concluded in this case that “[b]y its very nature, the duty imposed by the right to security of tenure, in both the negative and positive form, does rest on private persons” (para. 49).
The ruling has immediate practical significance for countless poor people residing under circumstances of insecure legal tenure.
The Court’s decision marks a new departure in South African constitutionalism opening the way for a re-distributional understanding of social and economic rights. The Court held that under some circumstances the Bill of Rights binds private parties to contribute some quantum of their wealth and property to those less fortunate so that the latter may realize and enjoy their constitutional rights.
Magisterial opinions by Justice Madlanga (for the Court) and Justice Froneman (concurring) exemplify an approach to legal reasoning that is historically grounded, contextually sensitive, purposive, and informed by the aspiration of the South African Constitution to encourage legal processes and methods that will contribute to transforming society and realizing social justice. Notably, Justice Froneman’s searching concurrence calls for a critical interrogation of traditional conceptions of property and market-based exchange. He argues that in the South African historical context, the common law protection of private property “did not support personal autonomy and economic freedom, but effectively worked against it.” He urges jurists to look beyond the economic efficiency and economic-growth consequences of legal rules and carefully attend also to the distributive consequences of legal decisions: “The right to dignity does not easily fit into the subject of a market exchange.”
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.