Judges must decide: what is a family in SA?

2012-11-07 00:00

WHAT are the rights of adult children to live with their parents, and what exactly constitutes a family?

These are two of the questions the grown children of an elderly and sickly widow are asking the Constitutional Court to answer, to prevent them from being evicted from a farm in Stellenbosch.

Pieter and Michael Hattingh, as well as one of their wives and three minor grandchildren, are asking the court to determine if they have a right to stay on the small farm, based on the fact that their mother used to be employed as a domestic worker by the farmer.

The Extension of Security of Tenure Act (Esta) grants certain rights to people such as farm workers and other labourers living on farms not owned by them.

These include the right to live on the property as occupiers, to bury family members on the land and to have visitors on the property.

It also includes the right “to family life in accordance with the culture of the family”, which is what the Hattingh family are relying on to prevent their eviction.

The Hattingh family, who have lived with their mother on the three-hectare farm since 2002, are arguing that it is part of their culture to have a multi-generational family under one roof.

But the owner of the farm, Laurence Juta, says he needs the space in the cottage for a labourer who is working for him and who has to cycle 16 km to work from where he lives.

This creates a conundrum for the court: what exactly is a family and who decides what the “culture of the family” is?

This was summarised by Justice Zak Yacoob when he asked counsel if one could simply say “no other group in the world has this culture … but we have this culture”.

He said that “living together was not necessarily a part of family life”.

Various judges also pointed out that given the wide variety of family values and cultures in South Africa, a situation could easily develop where 600 family members arrived on the farm claiming that according to their culture and right to a family life, they had the right to cohabit on a farm.

The legal problem the court has to solve is complicated by the fact that it has in past cases recognised many different types of families, including gay families and traditional families.

This makes it difficult to come up with a single definition of a family.

Advocate Alan Dodson SC, appearing for the Hattingh family, said Esta did not confer “a right on every member of that family to arrive and set up camp”.

He said the facts had to be determined with regard to every case, and that there had to be a “genuine emotional wish to cohabit with a family”.

But Lawrie Wilkin, appearing for Juta, said that because South Africans had “stared at each other over a divide for 300 years”, we had a very limited idea of each other’s cultural values. He said this created a problem where the landowner granted consent to a person without knowing what their culture was with regard to family.

“The problem is that when the landowner grants consent, he’s granting uninformed consent,” said Wilkin.

The case might be referred to mediation for settlement, with Chief Justice Mogoeng Mogoeng showing particular support for this approach.

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