—Aoife Nolan, University of Nottingham
The South African Constitutional Court ruling in Daniels v Scribante and Another is a ground-breaking decision on the right to security of tenure – an aspect of the right to property under the South African Constitution (Section 25(6)) that has received relatively limited judicial analysis from a constitutional law perspective. In Daniels, all members of the Court found that the complainant was entitled to make improvements to her dwelling on a Stellenbosch farm owned by the second respondent. These improvements were sought against a backdrop of ‘a move calculated to get rid of Ms Daniels from the farm’ (para 5), involving the first respondent farm manager interfering with the dwelling’s door, cutting off the electricity supply and failing to maintain the dwelling adequately. Although earlier orders by the Stellenbosch Magistrate’s Court requiring the respondents to address these issues were implemented, it was accepted by all parties that the ongoing condition of the dwelling constituted an infringement of Ms Daniels’s right to human dignity. However, in a further proceeding, the Magistrate’s Court held that as an occupier of farmland under the Extension of Security of Tenure – an Act passed to give effect to the constitutional right contained in Section 25(6) of the Constitution – Ms Daniels did not have the right to effect improvements to her dwelling without the consent of an owner or person in charge.
In a decision authored by Madlanga J and concurred with by five other members of the Court, great emphasis was placed on the importance of the historical context of systemic discrimination and dispossession experienced by generations of black South Africans as a result of colonialism and apartheid. (See also the concurring judgment of Froneman J). The same judgment stressed the linkage between the right to security of tenure and the right to human dignity. Adopting a purposive approach, Madlanga J highlighted that Section 25(6) and ESTA are not only about securing the tenure of ESTA occupiers but are also about affording occupiers the dignity that eluded most of them throughout the colonial and apartheid regimes. In doing so, he stated that the notions ‘reside’ in terms of ESTA and ‘security of tenure’ must mean that the dwelling has to be habitable. In this instance, ‘denial of the existence of the right asserted by Ms Daniels might inadvertently result in what would in effect be evictions. This would be a direct result of the intolerability of conditions on the dwelling’ (para 32).
Most excitingly from the perspective of comparative constitutional law, a majority of the Court rejected the argument that constitutionally an owner bears no positive obligation to ensure that an occupier lives under conditions that afford her or him human dignity. In doing so, it recognised the possibility of the direct horizontality of positive obligations imposed by constitutional ESR.
The direct horizontal application of constitutional rights to non-state actors is a controversial and evolving area of constitutional law. A growing number of national constitutions contain provisions that would appear to render constitutional rights (at least potentially) directly enforceable against private actors in some circumstances. However, these provisions are broadly phrased, leaving open key questions relating to the circumstances in which such direct application arises, the nature of the obligations imposed, and the identity of (to quote many of the provisions) the ‘natural and legal persons’ to whom they might attach. In the absence of textually-prescribed precision, many of these provisions have lain dormant. Where they have not, courts have had a crucial part to play in determining when, how and to whom such direct horizontal application pertains. This has certainly been true in the South African context.
All rights in the Final Constitution of 1996 —including ESR—impose a mix of obligations on the state. Section 7 of the Constitution provides that the state is obliged to respect, protect, promote and fulfil the rights in the Bill of Rights. The key provision in terms direct horizontal application is Section 8(2). This section states explicitly that a provision of the Bill of Rights binds a natural or a juristic person ‘if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.’ The wording of Section 8(2) acknowledges the varying extent to which rights (and the duties imposed by those rights) may apply to private actors, effectively according a margin of judicial discretion in terms of the application of particular obligations to different NSA.
Prior to Daniels there had only been one case, Governing Body of the Juma Musjid Primary School v Essay N.O. in which the South African courts had addressed the horizontal application of ESR in terms of Section 8(2) in any detail. (Information on the other ways in which horizontal application of ESR arises under the South African Constitution can be found here and here). In Juma Musjid, a private property owner, the Juma Musjid Trust, sought to evict a public school conducted on its property. Here the Court ruled that the private Trust had a negative constitutional obligation to respect, and not impair, the learners’ right to a basic education under Section 29 of the Constitution. In terms of the test to be applied with regard to Section 8(2), the court followed the approach adopted by it in an earlier decision on the constitutional right to freedom of expression (Section 16), Khumalo v. Holomisa, stating that the application of Section 8(2) depends on the ‘intensity of the constitutional right in question, coupled with the potential invasion of that right which could be occasioned by persons other than the State or organs of State’ (para 58).
In Daniels, the majority rejected the argument that the reference to ‘the nature of the duty imposed by the right’ meant that if a right in the Bill of Rights would have the effect of imposing a positive obligation, under no circumstances will it bind a natural or juristic person. According to Madlanga J: ‘[w]hether private persons will be bound depends on a number of factors. What is paramount includes: what is the nature of the right; what is the history behind the right; what does the right seek to achieve; how best can that be achieved; what is the “potential of invasion of that right by persons other than the State or organs of state”; and, would letting private persons off the net (sic.) not negate the essential content of the right?’ (para 39). In holding that the fact that the right at issue imposes a positive obligation is not dispositive, he made clear that it was a factor: Section 8(2) places ‘the nature of the duty’ imposed at the centre of the enquiry, and the quality of being positive is about ‘the nature of the duty’. Highlighting the difference between the position and sources of funding on the part of the state and private person, the Court stated that it would be unreasonable, to require private persons to bear the exact same obligations under the Bill of Rights as the state.
According to the majority, by its very nature, the duty imposed by the right to security of, in both the negative and positive form, does rest on private persons: ‘a private person is enjoined by section 25(6) of the Constitution through ESTA to accommodate another on her or his land. It is so that the obligation is also negative in the sense that the occupier’s right should not be “improperly invaded”’ (para 49). Ms Daniels’ entitlement extended to making improvements that were necessary to bringing the dwelling to a standard that conforms to conditions of human dignity. With regard to the owners’ rights, while the owners’ consent was not a prerequisite for such improvements, they could not be carried out without meaningful engagement of an owner or person in charge.
In a 2014 ICON article, I stated that the debate about the question of the horizontality of the positive obligations imposed by ESR had not yet fully played out either in the courts or in academic literature. That this remains true is evidenced by the strongly worded judgment from Jaftha J in Daniels arguing that Section 8(2) is not a source of any obligation, ‘let alone a positive obligation borne by a private person’ (para 156) and that with regard to constitutional ESR, no positive obligation is imposed upon private persons. There is no question however that Daniels decision is a crucial jurisprudential milestone in that debate.
Suggested Citation: Aoife Nolan, Daniels v. Scribante: South Africa Pushes the Boundaries of Horizontality and Social Rights, Int’l J. Const. L. Blog, June 27, 2017, at: http://www.iconnectblog.com/2017/06/daniels-v-scribante-south-africa-pushes-the-boundaries-of-horizontality-and-social-rights
 (CCT50/16)  ZACC 13 (11 May 2017).
 Section 25(6) of the Final Constitution of 1996 provides that a person or community whose tenure of land is Iegally 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
 Act 62 of 1997
 See, e.g., Kenyan Constitution 2010, Art. 20(1); Ghanaian Constitution, 1992, art. 12(1); Constitution of Malawi, 1995, Section 15(1); Gambian Constitution, 1997, art. 17(1); Constitution of Cape Verde, 1990, art. 18; Constitution of Swaziland, 2005, Section 14(2); and Argentinean Constitution, 1994, art. 43).
  ZACC 13; 2011 (8) BCLR 761 (CC).
  ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771.