The Constitutional Court in a unanimous judgment authored by Zondo J upheld an eviction order that was granted to Mr Juta, the respondent, for the eviction of the three applicants.  The Court was called upon to interpret section 6(2)(d) of the Extension of Security of Tenure Act 62 of 1997 (“ESTA“), and determine whether that provision precludes the eviction of the applicants.  ESTA also seeks to provide a constitutional balance between two competing constitutional rights.  On the one hand, the owner’s right to property and, and the occupiers right of access to housing.  The parties agreed that the Mr Juta was entitled to the eviction order except in so far as section 6(2)(d) of ESTA is applicable.   

ESTA was enacted pursuant to section 26(3) of the Constitution which requires that‘[a] person or community whose tenure of land is legally insecure as a result of past racially discriminate 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’.  Accordingly, occupiers as defined by ESTA are given a right in terms of section 6(1)  ‘to reside and use the land which he or she resided on and which he or she used on or after 4 February 1997’    Section 6(2) articulates further rights of occupiers.  Relevant to this matter was section 6(2)(d), which reads:

Without prejudice to the generality of the provisions of section 5 [which mentions rights enshrined in the Constitution] and subsection (1), and balanced with the rights of the owner or person in charge, an occupier shall have the right—

(d)          to family life in accordance with the culture of that family… 

Mrs Hattingh, a protected occupier in terms of ESTA and therefore entitled to the rights allowed for in section 6(2), resides on a farm owned by Mr Juta.  Mrs Hattingh was initially employed as a domestic worker on the farm.  Upon ceasing her employment on the farm it was agreed that she could continue to live in the workers’ cottage on the farm.  With time, two of Mrs Hattingh’s adult sons and her daughter-in-law – Michael, Pieter, and Edwina (applicants) – moved into the cottage as well.  Mr Juta sought the removal of the applicants to allow a worker of Mr Juta to occupy a part of the workers’ cottage.

The applicants resisted their eviction on the ground that section 6(2)(d) grants Mrs Hattingh a right to a family life.  They argued that her right would be infringed if they were to be evicted as the right to family life permits occupiers to allow family members to reside with them.  Mrs Hattingh wished that the applicants reside with her.  Both the Land Claims Court and the Supreme Court of Appeal allowed for the eviction of the applicants.

The Constitutional Court made two important interpretive findings in respect to section 6(2)(d).  First, the Court held that the term ‘family’ does not preclude non-dependent children that have reached the age of majority.  The applicants were therefore considered to form part of Mrs Hattingh’s family.  This finding was contrary to the findings of the Supreme Court of Appeal which held that ‘family’ only extends to spouses and dependents.  Second, the Court held that the purpose of section 6(2)(d) was to ensure that vulnerable occupiers living on other people’s land ‘would be able to live a life that is as close as possible the kind of life that they would lead if they lived on their own land.  This means as normal a family life as possible’.

The Court however proceeded to indicate that the extent of the family life permitted in terms of section 6(2)(d) ‘in any specific sets of facts will depend upon striking a fair balance between enabling the occupier to enjoy family life and enabling the owner of the land to also enjoy his rights as owner of the land.’  The Court held that the fairness of this balancing enquiry entails that an occupier may enjoy as full a family life as possible including living with family members provided that it does ‘not result in any injustice or unfairness and inequality to the owner of the land’.  This balancing exercise is therefore a fact and context specific enquiry.

In the balancing of interests in this case, the Court held that it would be ‘just and equitable that Mrs Hattingh does not live with the applicants’.  Some of the notable factors the Court considered was that: (i) Mrs Hattingh’s youngest son could continue to reside with her and provide her with necessary care; (ii) Mr Juta required part of the cottage for an employee; (iii) Mr Juta had undertaken to transport Mrs Hattingh if she need medical treatment, (iv) the applicants had already resided in the cottage for a long time; and (v) the applicants were working and earning a salary.

The Court provided the applicants a three month period from the date of the judgment to leave the premises.