HATTINGH AND OTHERS V JUTA: BALANCING LANDOWNER AND OCCUPIER RIGHTS

Recently, the Constitutional Court delivered a judgment which illustrates the balance to be sought between the rights of landowners on the one hand, and the rights of occupiers of the same land on the other.

In the matter of Hattingh and Others v Juta, the Court was called upon - in an appeal from the Magistrate's Court to the Land Claims Court, and thereafter the Supreme Court of Appeal - to consider certain provisions of the Extension of Security of Tenure Act 62 of 1997 (ESTA) (see full judgment here).

The respondent in the matter - Mr Juta - owns a smallholding called Fijnbosch in Stellenbosch. On the smallholding is a cottage which consists of three bedrooms, a kitchen and a living room or lounge. Mrs Hattingh - a 67-year-old woman - lived in the cottage with her three grandchildren and the applicants. The first and second applicants are, respectively, husband and wife and parents of the three minor grandchildren. 

During 2002, Mrs Hattingh and her husband moved to Fijnbosch in terms of an arrangement with with Mr Juta, as well as his consent. At some stage thereafter, the applicants also came to live on the smallholding. 

The matter came before the Court in that Mr Juta wanted the applicants evicted because he required part of the cottage to accommodate his farm manager, who had to cycle a long distance to and from work, but Mrs Hattingh wished to continue living with the applicants in the cottage.

In essence, the applicants claimed that Mrs Hattingh was an occupier as defined in section 1 of ESTA, and that she - as an occupier - had a "right to family life in accordance with the culture of that family" and on that basis sought to justify their claim to stay on the land which belonged to Mr Juta. 

The applicants resisted the eviction by Mr Juta on the ground that their mother's right to family life in terms of ESTA entited them to live with her on the premises.

The Constitutional Court interpreted the relevant sections of ESTA and held that there was no need to define the term "family" since families differed in shape and size and could be limited to the nuclear family. The Court also refrained from making a concrete finding on the meaning of the term "in accordance with the culture of that family".

In argument before the Court, counsel for Mr Juta submitted that if "family life" were interpreted broadly, a landowner would never know what he or she had taken on when granting a single occupier consent to reside on the property. He further pointed out that, on the basis of the right to family life under section 6(2)(d), a single occupier could later claim to be entitled to live with a large number of family members on the landowner's property and that this could potentially amount to a scenario of "family life by ambush".

This is exactly why cases such as this must be decided on a case-by-case basis and why the Court refrained from specifically defining "family life" and "in accordance with the culture of that family" for what would be fair and equitable in one case, might not be the same in a different scenario.

The Court reiterated that the right to family life in section 6(2)(d) is not necessarily restricted to the occupier being able to live with his or her spouse or partner or children only. He or she may also live with other members of his or her family, provided that doing so will not be unjust and inequitable to the landowner when the rights of the owner of the land are balanced against the occupier's right to family life.

The Court ruled that the right to family life of an occupier allows such an occupier to enjoy as much of a family life as possible. 

This however and conversely, should not be unjust and inequitable to the landowner and would be dependent on the unique facts of each case. The Court - in balancing the two sets of rights - found that it would be just and equitable in this matter that the applicants be evicted. 

Issued by the Centre for Constitutional Rights, March 25 2013

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