ESTA grants a right to family life, but who qualifies?
Section 6(2)(d) of the Extension of Security of Tenure Act (ESTA) grants occupiers the right to “family life in accordance with the culture of that family.” In practice, this means that a farm labourer may insist that his wife and minor children reside with him in his accommodation on the farm.
We are often called upon to advise how far this right extends – what about independent adult children, cousins, nephews, aunts and uncles? What about problem occupants who are related to the main occupier? Recently, we advised on the prospects of evicting the 16-year-old son of a farm worker who had repeatedly been caught stealing diesel on the farm. Could the son be evicted in isolation?
The confusion amongst landowners stems from the omission in ESTA of definitions of “family life” and guidance on how “the culture of that family” should be understood.
In Hattingh and others v Juta, an elderly and frail Mrs. Hattingh lived with her three sons. Two of her sons were adults, one of whom also had his wife living with him, and they lived on Mr. Juta’s small holding outside Stellenbosch. Mr. Juta, was happy to allow Mrs. Hattingh and her minor son to continue living on the property, but needed the space occupied by her adult children and daughter-in-law to accommodate his farm manager, who cycled long distances to work every day.
The landowner’s attempt to evict the two adult sons and daughter-in-law from the property was met with resistance from Mrs. Hattingh, who argued that she had a right to family life, and that she was entitled to have the additional occupiers live with her. The Magistrate’s Court ruled in favour of Mrs. Hattingh. On appeal, the Land Claims Court ruled in favour of the land owner, saying that the right to family life only extended to the spouse and dependents of the main occupier (neither of the adult sons or the daughter-in-law were dependent on Mrs. Hattingh).
After an appeal to the Supreme Court of Appeal, where judgment was again given in favour of the landowner, the occupiers then appealed to the Constitutional Court.
The Constitutional court held that it is not possible to define what “family” means, as families come in many different shapes and sizes. The Court remarked that it differed with the Land Claims Court’s interpretation that the term should be limited to “nuclear” family, i.e. spouse or partner and dependent children, but declined to offer an alternative interpretation. Instead, the Court turned its attention to section 6(2) of ESTA, which states that the right to family life must be “balanced with the rights of the owner or the person in charge”. A just and equitable balance between competing rights must therefore be struck. Indeed, the principles of “just and equitable” and “fairness” are mentioned throughout ESTA.
The Constitutional Court held that an occupier is entitled to a family life which is as normal as possible, having regard to the landowner’s rights. The extent of what is allowed will depend on the specific set of facts and on striking a fair balance between enabling the occupier to enjoy family life and allowing the owner to also enjoy the rights of the land. If, in a particular case, the balancing produces a result that is unjust and inequitable to the owner of the land, the occupier’s right to family life may be appropriately limited. If, for example, the occupier were to live with his or her spouse or partner and with one, two or more of his children or other members of the extended family and this would not result in any injustice or unfairness and inequity to the owner of the land, the occupier would be entitled to live with those members of his or her family.
In balancing the rights, the court held that the balance was in favour of the landowner and found that it would be just and equitable to evict the adult children and daughter-in-law.
What does the diesel-thirsty minor mentioned above think of all this? We don’t know – he was evicted from the farm…