T.M Sibanyoni & Sibanyoni Family v Van Der Merwe & Any other person in charge of Farm 177, Vaalbank Protion 13 Hendrina, Mpumalanga and Others (LCC 119/2020) [2021] ZALCC 33 (7 September 2021)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

Case Number: LCC 119/2020

Before: The Honourable Acting Judge President Meer

Heard on: 20 August 2021

Delivered on: 7 September 2021

DELETE WHICHEVER IS NOT APPLICABLE

(1) REPORTABLE: YES

(2) OF INTEREST TO OTHER JUDGES: YES

(3) REVISED: NO

DATE: 07/09/2021

In the matter between:

TATE MATTHEW SIBANYONI &

Applicant

SIBANYONI FAMILY

and

MARIANNE VAN DER MERWE

First Respondent

AND ANY OTHER PERSON IN CHARGE OF THE

FARM 177, VAALBANK PROTION 13 HENDRINA,

MPUMALANGA

MINISTER OF RURAL DEVELOPMENT

Second Respondent

AND LAND REFORM

PROVINCIAL HEAD OF THE DEPARTMENT

Third Respondent

OF RURAL DEVELOPMENT AND LAND REFORM

ESKOM HOLDINGS SOC LTD

Fourth Respondent

STEVE TSHWETE MUNICIPALITY

Fifth Respondent

JUDGMENT

MEER J

[1] The Applicant seeks orders in the following terms:

“That the First Respondent be interdicted from violating the Applicants’ rights to effect improvement in the homestead situated on the farm 177, Vaalbank Portion 13 Hendrina, Mpumalanga;

That the First Respondent be ordered and directed to permit connection of electricity to the homestead of the Applicants”.

[2] The Applicant is an occupier in terms of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”) who resides on the farm known as Portion 13 Vaalbank 177 JS in Hendrina, Mpumalanga (“the farm”). The First Respondent is the owner of the farm. The Applicant states that he has cited the Second to Fifth Respondents by virtue of the statutory obligations placed upon them and that he seeks no relief against them. The Second to Fifth Respondents have not participated in these proceedings.

Background Facts

[3] The Applicant and his family have lived on the farm for many years in a permanent structure which they built. The Applicant was born on Mooiplaas, a farm close by, from where he was relocated to the First Respondent’s farm. Although the founding affidavit does not indicate precisely when the relocation occurred, the Applicant alleges that he resided on the First Respondent’s farm without interference until 2011. This would indicate that the Applicant and his family have been occupiers on the farm since before 2011. At that stage the farm was owned by the First Respondent’s father, Mr MJC Van der Merwe, who passed away in 2018.

[4] There is a history of litigation on the part of the Applicant concerning his occupation on the farm. In an abandoned application in 2012 before this Court under case number LCC 49/2012, the Applicant sought inter alia the right of access to water and the return of his attached cattle. In 2017, under case number LCC 293/2017, the Applicant sought inter alia orders similar to those which are being sought in this application, namely that the First Respondent be interdicted from violating the Applicant’s right to improve his household and be ordered to permit the connection of electricity to the Applicant’s

homestead. The First Respondent in the latter application was the aforementioned Mr MJC Van der Merwe.

[5] The founding affidavit in this application alleges that the son-in-law of the previous farm owner, Vincent “Schalk”, signed a consent form for the installation of electricity to the Applicant’s homestead and handed the form to the Municipality. The replying affidavit points out that the son-in-law is Vincent Schulze, who denies in his confirmatory affidavit that he signed such document, or that he gave verbal consent as alleged. In reply, the Applicant states that the Fourth Respondent, Eskom, would not have delivered poles for the installation of electricity if a proper inspection had not been conducted, and if consent had not been given, as the farm is privately owned.

[6] Be that as it may, during November 2018 a meeting was convened between the parties at the South African Police Service station at Hendrina, at the Applicant’s request. There, he requested permission to contact Eskom to install electricity. The Applicant was told that his attorney should contact the attorney of the estate of the late owner. The First Respondent’s answering affidavit states that as a result of the longstanding disputes between the Applicant and her late father, the executor of the latter’s estate indicated that the issue of electricity could only be addressed once the estate was wound up and the property transferred to her, and that this has not yet occurred. Her affidavit is dated 27 October 2020. The Applicant, she says, accepted this arrangement. This is denied in reply.

[7] The founding affidavit states that on 7 September 2020, Eskom officials came to the farm to install electricity access to the Applicant’s dwelling, but were denied access by the First Respondent who said she had not given consent for the installation. In her opposing affidavit, the First Respondent says this incident occurred on 5 September 2020, when she was surprised to discover that Eskom had, without her consent, started dropping off poles for the supply of electricity supply to the Applicant’s homestead. She indicated that she was not prepared to grant “such consent at

this stage”. She submits that “it is trite that, in order for Eskom to establish electricity supply to any portion on private land, the consent of the land owner would be required particularly as the effect of the environment and the operations of the land owner would have to be considered before such electrical supply is provided”.

[8] In reply, the Applicant states the First Respondent could not have been surprised by the poles being dropped off as the Fourth Respondent’s officials had come to the farm on several occasions to take measurements and conduct inspections before the poles were delivered.

[9] The First Respondent avers further that she was prevented by the Applicant’s family from collecting the poles to place in safekeeping, and that members of the family assaulted her son and daughter. A charge of assault was subsequently brought in the Hendrina Police Station. In reply, the Applicant states that he intends to deal with his defence during the criminal case in that matter.

[10] The First Respondent complained to Eskom about their failure to communicate any intention to establish electricity supply over her farm and Eskom then removed the poles from her property. She states that to date, Eskom has not responded to her requests for information as to “how and why” they intended to deliver electricity to the Applicant without her consent. These were the events which preceded the current application.

[11] Mr Mtimunye for the Applicant asserted, with reference to Daniels v Scribante 2017 (4) SA 341 (CC) (“Daniels”), that the Applicant had a clear right to make improvements to render his dwelling habitable and that the First Respondent’s refusal to grant consent to the installation of electricity and thereby to consent to the improvement of his dwelling was a violation of his right to human dignity, recognized in section 5(a) of ESTA.

[12] Mr Brandmuller for the First Respondent countered that the Applicant had no such clear right. Firstly, he submitted this matter was distinguishable from Daniels because inter alia there was no evidence by the Applicant that the lack of electricity had rendered his dwelling not habitable and in a condition which is not consonant with human dignity. Secondly, neither the Constitution of the Republic of South Africa, 1996 (“the Constitution”) nor ESTA, he submitted, recognizes the right to electricity as a fundamental right. Thirdly, there was, he asserted, no agreement between the First Respondent (or her predecessors in law) and the Applicant entitling the Applicant to electricity. Finally, he averred that the reasonableness or not of the First Respondent’s refusal to grant consent ought not to be considered. In any event, her refusal is justified, he submitted, because of the acrimonious relationship between the Applicant and the First Respondent and her predecessor, the assault on members of her family, and the fact that an impact assessment of the electrical connection on the environment and farming operations had not been conducted.

Discussion

[13] It is indeed so that the right to electricity is not explicitly provided for in either the Constitution or ESTA. Section 5(a) of ESTA however does provide that an occupier and a person in charge shall have a right to human dignity.

“5. Fundamental rights – Subject to limitations which are reasonable and justifiable in an open and democratic society based on human dignity, equality

and freedom, an occupier, an owner and person in charge shall have the right to –

a) human dignity;

b) freedom and security of the person;

c) privacy;

d) freedom of religion, belief and opinion and of expression;

e) freedom of association; and

f) freedom of movement, with due regard to the objects of the Constitution and this Act.”

[14] In Daniels the Constitutional Court in considering the right to human dignity at section 5(a) of ESTA held that giving effect to such right denotes making whatever improvements are reasonably necessary to make an occupier’s dwelling habitable. The Court, employing a purposive interpretation to promote the spirit, purport and objects of the Bill of Rights as required in section 39(2) of the Constitution,[1] reasoned that an occupier’s right to reside must be consonant with the fundamental rights contained in section 5 of ESTA, in particular, relevant to that case,[2] the right to human dignity.[3] The Court went on to state that the right to reside in terms of ESTA must mean that the dwelling of an occupier has to be habitable. That in turn, said the Court, connotes making whatever improvements that are reasonably necessary to achieve this.[4] The Court reasoned that

“if you deny an occupier the right to make improvements to the dwelling, you take away its habitability. And if you take away habitability, that may lead to her or his departure. That in turn, may take away the very essence of an occupiers’ way of life”.[5]

The Court went on to say that

“permitting an occupier to make improvements to a dwelling will serve the twin purpose of bringing the dwelling to a standard that befits human dignity and averting the indignity that the occupier might suffer as a result of the possible departure”.[6]

[15] With regard to the owner’s consent to make improvements, the Court in Daniels held that an “owner’s consent cannot be a prerequisite when the occupier wants to bring a dwelling to a standard that conforms with conditions of human dignity”. [7] The Court acknowledged however, that although consent is not a requirement, the meaningful engagement of an owner is necessary. [8] It will help balance the conflicting rights and interests of occupiers and owners or persons in charge. However, “the need

for meaningful engagement does not detract from the conclusion that the existence of the occupier’s right is not dependent on the owner’s consent”.[9]

[16] In line with Daniels, the question that must be posed is whether the installation of electricity is an improvement which is reasonably necessary to make

the Applicant’s dwelling habitable, and thereby give effect to his right to human dignity.

[17] Electricity is an essential part of modern life. A dwelling unimproved by electricity is deprived of the benefits of convenient and safe lighting, heating, refrigeration and an electric stove, at the very least. One can accept that replacing smoke emissions from traditional bio-mass stoves and other traditional forms of energy, reduces potential respiratory health problems and offers an eminently improved and safer environment. Then, too, there is the convenience of electrically-operated appliances which modern life takes for granted. There can be no doubt that electricity improves living conditions, habitability and welfare. This cannot be reasonably doubted and is a fact of which I can take judicial notice.

[18] Electricity has come to be recognized as a basic necessity and implicit in the exercise of pre-existing rights to inter alia housing and health, as discussed in the texts which appear below.

[19] In Government of the Republic of South Africa and Others v Grootboom and Others 2000 BCLR (11) 1169 (CC), the Court recognized that access to electricity may be included in the obligation to provide access to housing by stating that:

“The state’s obligation to provide access to adequate housing depends on context, and may differ from province to province, from city to city, from rural to urban areas and from person to person. Some may need access to land and no more; some may need access to land and building material; some may need access to finance; some may need access to services such as water, sewerage, electricity and roads.”

[20] In Joseph and Others v City of Johannesburg and Others 2010 (4) SA 55 (CC) (“Joseph”), the Court held that

“there are constitutional and statutory obligations on local government to provide basic municipal services, which include electricity. The applicants are entitled to receive these services…. Although, in contrast to water, there is no specific provision in respect of electricity in the Constitution, electricity is an important basic municipal service which local government is ordinarily obliged to provide.”[10]

The Court acknowledged:

“Electricity is one of the most common and important municipal services and has become virtually indispensable, particularly in urban society.”[11]

[21] In Makeshift 1190 (Pty) Ltd v Cilliers [2020] 3 All SA 234 (WCC), Rogers J acknowledged at para 25:

“In the modern day, a supply of electricity and water to a residential property is a practical necessity in order for the occupant to use the property as a dwelling”.

[22] In an article “Power to the People? A rights-based analysis of South Africa’s electricity services”,[12] Professor Jackie Dugard states:

“Normatively, electricity should be viewed as an essential good because: ‘electricity is a basic necessity and access to it has a wide range of positive developmental benefits for communities. Increased usage of electricity improves the level of welfare, decreases health expenditures and improves opportunities for low income families, and women in particular. Poor communities should have access to electricity and should be enabled to afford it without sacrificing other basic necessities.”[13]

Dugard points out that in 1995 South Africa ratified the United Nation Convention on the Elimination of all Forms of Discrimination against Women[14], which states:

“States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas . . . to ensure . . . the right . . . to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply . . . ”

and further that:

“……an implied right to electricity is supported in international law by the United Nations Committee on Economic, Social and Cultural Rights (‘CESCR’) which monitors compliance with the International Covenant on Economic, Social and Cultural Rights

(‘ICESCR’). The CESCR has construed the right to electricity as being inherent to the enjoyment of other socio-economic rights in a way similar to that in which it has construed the right to water. …..

In the case of electricity, in General Comment 4 on the right to adequate housing[15], the CESCR has stipulated that ‘all beneficiaries of the right to adequate housing should have sustainable access’ to ‘energy for cooking, heating and lighting’ (para. 8(b)). Although General Comment 4 refers to energy rather than electricity specifically, the United Nations Special Rapporteur on adequate housing…has clarified in his reports that the right to adequate housing ‘includes access to essential civic services such as electricity.’”[16]

“Despite being a signatory South Africa has never ratified the ICESCR. Nonetheless, section 39(1)(b) of the Constitution stipulates that, when interpreting the Bill of Rights, a court ‘must consider international law.’ The Constitutional Court… has established that, for the purposes of interpretation, international law would include non-binding as well as binding law. It is consequently clear that the ICESCR is relevant to the interpretation of socio-economic rights in South Africa.”[17]

Finally,

“Access to sufficient affordable electricity of an adequate quality is intrinsically linked to positive transformative and developmental

goals that underwrite South Africa’s Constitution. In order to redress apartheid’s legacy of socio-economic inequality as well as to continually improve the standard of living of citizens, it is essential that poor communities should have access to electricity ‘and be able to pay for its use within their available resources without sacrificing other basic necessities’.”[18]

[23] Lars Löfquist, in an article entitled “Is there a universal human right to electricity?”,[19] refers to the right to electricity as a derived or derivative right which is necessary for protecting or satisfying basic rights such as life or housing.

“Humans have rights to sufficient living conditions, and electricity can help to improve such conditions. This is the position of Steven Tully who claims:

‘Electricity access is already well established within the framework of human rights, either as an implicit attribute of a pre-existing right (non-discrimination, adequate living standards, housing, health and sustainable development) or explicitly in the context of eliminating discrimination against women.’

Tully claims that electricity becomes a right because of such rights as the right to housing.”[20]

Lofquist also refers to a commentary by Owoeye on a provision of the outcome document of the UN Conference Rio + 20, which outcome document was adopted by the UN as a General Assembly Resolution, as follows:

“this provision clearly accentuated the significance of energy access to the right to life, the right to health, the right to social security, the right to the highest attainable standard of living and the right to development”[21]

[24] The above analyses make clear that electricity has come to be variously accepted as a basic necessity to enjoy adequate living conditions, a practical necessity to use a property as a dwelling, virtually indispensable, and that there is a right to receive electricity as a basic municipal service. It also reveals that there is a strongly implied right to electricity in international and domestic law. A more positive assertion that the installation of electricity would be an improvement that is reasonably necessary to make the Applicant’s dwelling habitable, to enable him to exercise his right inter alia to human dignity in section 5(a) of ESTA, would be difficult to find.

[25] Turning to the First Respondent’s consent, as was held in Daniels, the existence of the Applicant’s right to bring his dwelling to a standard that conforms with conditions of human dignity, which in this case entails installing electricity, is not dependent on the owner’s consent. To the extent that Daniels nonetheless advocates meaningful engagement, the meeting at the Hendrina police station between the parties, referred to above,

initiated by the Applicant, in my view passes muster. The First Respondent’s assertion that the reasonableness of her refusal

cannot “play a role” is contrary to the notion of meaningful engagement. I note also that the First Respondent’s

allegations of an acrimonious relationship between the Applicant and her or her predecessor and her reference to an impact evaluation and unsubstantiated risks to the environment and farming operations do not impact on the existence of the Applicant’s right to human dignity, which is not dependent on an owner’s consent. Nor indeed, in the light of the analyses above and my taking judicial notice of the improvements rendered by electricity, does the fact that the Applicant did not specify how the lack of electricity made his dwelling uninhabitable impact on his right to human dignity and entitlement to electricity.

[26] Finally, it remains to be said how disquieting in the extreme it is that some twenty years into a constitutional democracy based on freedom, equality and dignity, a farm owner can, in antithesis to these very values, refuse an occupier access to electricity, thereby perpetuating the injustices of the past and the stark division and disparity between the “haves” and “have-nots” in our society.

[27] The Applicant is not entitled to a general right to make improvements to his dwelling, which the first prayer of his notice of motion seeks. He is entitled to an order permitting improvements which are reasonably necessary to render his dwelling habitable in the exercise of his right to human dignity. In the circumstances of this case, that entitles him to have electricity

installed in his dwelling. Although as aforementioned the consent of the First Respondent is not a prerequisite when an occupier like the Applicant wants to bring his dwelling to a standard that conforms with conditions of human dignity, I intend ordering consent as sought. This is for practical purposes to enable the installation of electricity by Eskom or any other provider.

Costs

[28] I convened a telephone conference prior to the hearing of this matter in an attempt to get the parties to settle. During such conference, the First Respondent’s attention was pointedly drawn to the case of Daniels in an attempt to achieve settlement. Her intransigence in this regard constitutes, in my view, exceptional special circumstances which warrant a deviation from this Court’s usual practice not to make orders pertaining to costs, given that litigation before it is generally in the genre of public interest litigation. The First Respondent must, in the circumstances, bear the costs of the application.

[29] I grant the following order:

1. The First Respondent is directed to consent to the connection of electricity to the homestead of the Applicant on the farm 177,

Vaalbank, Portion 13 Hendrina, Mpumalanga.

2. The First Respondent is interdicted from preventing the installation of electricity to the homestead of the Applicant on the farm 177, Vaalbank, Portion 13 Hendrina, Mpumalanga.

3. The First Respondent shall pay the costs of the application.

____________________________

Y S MEER

Acting Judge President

Land Claims Court

APPEARANCES

For the Applicant: Mr V. Mthimunye

Mthimunye Attorneys

For the First Respondent: Mr A. Brandmuller

Brandmullers Inc.

[1] “When interpreting any legislation, and when developing the common law or customary law,, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

[2] Relevant to the present matter also.

[3] Daniels at para 31.

[4] Daniels at para 32.

[5] Daniels at para 33.

[6] Daniels at para 34.

[7] Daniels at para 60.

[8] Daniels at para 62.

[9] Daniels at para 64.

[10] Joseph at para 34.

[11] Joseph at para 34.

[12] Duagrd, J “Power to the People? A rights-based analysis of South Africa’s electricity services” Electric Capitalism: Recolonising Africa on the power grid (2009) 264-287 at 266. References omitted.

[13] Dugard at 266.

[14] 1249 UNTS 13.

[15] General Comment No. 4: The Right to Adequate Housing (Art. 11 (1) of the Covenant), 13 December 1991, UN Doc E/1992/23.

[16] Dugard at 267. References omitted.

[17] Dugard at 267-8. References omitted.

[18] Dugard at 272. References omitted.

[19] Löfquist,, L “Is there a universal human right to electricity?” The International Journal of Human Rights (2020) 24:6, 711-723.

[20] Löfquist at 716. References omitted.

[21] Loqfist at716.