Summary
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).
