A Farm Worker’s Victory
Yolanda Daniels v Theo Scribante and Another (2017)
How does the Constitution protect the living conditions and dignity of farm workers and dwellers who were historically marginalised?
Background
Yolanda Daniels had lived with her children in a dwelling on a farm in Stellenbosch for 16 years. Her house was protected by the Extension of Security of Tenure Act 62 of 1997 (ESTA) which protects historically marginalised farm dwellers from unlawful evictions, and secures their land tenure.
Daniels worked as a domestic worker for Theo Scribante – the manager of the farm. She wanted to make basic improvements on her home that would allow her to live comfortably, and with dignity. These 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. Daniels notified Scribante of her intention to make the improvements, but received no response. Scribante only responded when the builders showed up to work, and he then refused to grant permission.
The building only had one window, was dark and dilapidated and without any access to running water. The existing ceiling, which did not cover the area under the roof, was in such a state of disrepair that it was only after the dirt which was covering it had been removed that it became apparent that it was made of asbestos. The planned improvements sought to render the building fit for humans to live in.
Ms Fourie
Yolanda Daniels’ builder, 17 June 2015
While Scribante accepted that without the improvements, the dwelling was not fit for human habitation, and that the condition of the dwelling constituted an infringement of Daniels’ right to human dignity, the farm manager attempted to force Daniels out of the house.
Path to the Constitutional Court
Daniels approached the courts to seek an order that would entitle her to make the improvements. She argued that ESTA allowed her to make improvements to her dwelling without Scribante’s permission.
Both the Stellenbosch Magistrates’ Court and the Land Claims Court reasoned that ESTA sets out the rights of occupiers, and that it did not allow Daniels to make improvements without the consent of the owner.
Some of the Arguments
Yolande Daniels
Daniels argued that ESTA gave her the right to make improvements to her dwellings without the owner’s consent.
Theo Scribante
The manager and owner of the farm (Chardonne Properties cc) argued that, in accordance with ESTA, Daniels could not make improvements to her dwellings without their permission.
What did the Constitutional Court decide?
The Constitutional Court ruled in favour of Daniels, and found that Scribante had a duty and obligation to allow for the improvements on Daniels’ home, given that the conditions that she was living under were undignified. It held that at the heart of the matter was the right to security of tenure: “An indispensable pivot to that right is the right to human dignity. There can be no true security of tenure under conditions devoid of human dignity.”
It also held that if occupiers were not allowed to upgrade their dwellings, this could lead to eviction by other covert means by property owners. The Court said that this would make nonsense of the very idea of security of tenure guaranteed by the Constitution.
“The land, our purpose is the land; that is what we must achieve. The land is our whole lives: we plough it for food; we build our houses from the soil; we live on it; and we are buried in it. When the whites took our land away from us, we lost the dignity of our lives: we could no longer feed our children; we were forced to become servants; we were treated like animals. Our people have many problems; we are beaten and killed by the farmers; the wages we earn are too little to buy even a bag of mealie-meal. We must unite together to help each other and face the Boers. But in everything we do, we must remember that there is only one aim and one solution and that is the land, the soil, our world.”
– Petros Nkosi
“To this day, some of the poorest in our society continue to keep homes under the protection of ESTA. Needless to say, occupiers under ESTA are a vulnerable group susceptible to untold mistreatment. This is especially so in the case of women … Put differently, the occupation is not simply about a roof over the occupier’s head. Yes, it is about that. But it is about more than just that. It is about occupation that conduces to human dignity and the other fundamental rights.”
-Justice Mbuyiseli Madlanga, from the Daniels Judgment, 11 May 2017
“Dit is vanuit ’n soortgelyke perspektief dat ek genoop voel om hierdie instemmende uitspraak te skryf. Die Grondwet bied ons almal ’n geleentheid om ’n samelewing te probeer ontwikkel wat die onreg van ons verlede aanspreek sonder miskenning van die menswaardigheid, vryheid en gelyke behandeling van al die land se inwoners. Dit is ’n geleentheid wat ons nie mag versmaai nie. Maar die Grondwet vra ook van ons, voordat ons die geleentheid wat dit bied aangryp, dat die onreg van ons verlede erken word … Elkeen wat deur die pragtige landelike dele van ons land ry kan nie anders as om op te let dat die lewensomstandighede waarin werkers op plase bly nie altyd na wense is nie. Daar is min twyfel dat sake verbeter het, maar dit is ongelukkig nie deurlopend die geval nie. Waarom nie?”
“It is from a similar perspective that I feel compelled to write this assent. The Constitution provides all of us with an opportunity to try and develop a society that addresses the injustices of our past without disregarding the human dignity, freedom and equal treatment of all the country’s inhabitants. This is an opportunity we must not waste. But the Constitution also asks us, before we seize the opportunity it offers, for the injustice of our past to be recognised … Anyone who travels through our beautiful countryside cannot help but notice that the living conditions of workers who live on farms do not always meet a standard that accords with human dignity. There is little doubt that things have improved, but unfortunately not uniformly so. Why not?”
– Justice Johan Froneman, from the Daniels Judgment, 11 May 2017
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).
Justice Mbuyiseli Madlanga
from the Daniels Judgment, 11 May 2017
Impact and Significance
Constitutional law expert, Professor Pierre de Vos, believes that while the judgment will not have an immediate dramatic effect on the nature of land distribution in South Africa, it contains important jurisprudence which social justice lawyers will be able to use in other cases to change the way we think of land and land ownership in South Africa. He also said that the judgment calls on us to think of land in terms of relationships, rather than purely in terms of rights that owners can enforce to exclude others from using it for any purpose.
