Domestic worker wins battle to upgrade her dwelling

2017-05-11 22:57
Constitutional court. (News24)

Constitutional court. (News24)

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Cape Town - A Stellenbosch domestic worker will be allowed to upgrade her quarters at her own expense after a long battle with the farm owners she worked for was concluded in the Constitutional Court on Thursday.

The unusual case of domestic worker Yolanda Daniels began in January 2014 when a door was tampered with at her dwelling on the farm in Blaauwklippen road, and the electricity was cut off, in what appeared to be an attempt to get her out, according to the judgment handed down on Thursday.

She obtained an interim order from the Stellenbosch Magistrate’s Court for the restoration of her undisturbed occupation on the farm and the owners Theo Scribante and Chardonne Properties CC had to fix the door and put the lights back on.

Scribante stopped maintaining her dwelling after that, so she went back to court.

She asked for, and was granted, a declarator that she was an occupier under the Extension of Security of Tenure Act (ESTA), a law which guarantees rights of occupation to farm employees.

She also got a declarator that the roof was leaking, the electricity supply was not being kept safe because there was no maintenance, and that her human dignity was being infringed because of this.

The court ordered that Scribante repair and maintain the roof and electricity supply, which he did.

Then Daniels decided to make a few improvements to her dwelling.

She wrote to Scribante to say that she was going to do this out of her own pocket.

She wanted to level the floors, pave part of the outside area, and install an indoor water supply, a wash basin, a second window, and a ceiling.

She received no response and started with the improvements. Then she received a letter from Scribante telling her to stop the work because she did not have permission to make the improvements. She was also told that no building plans had been submitted to them, and that, without plans, the improvements were unlawful.

This time Daniels went to court to obtain an order declaring that she was entitled to make the improvements, but she was not successful. Instead, she took it on appeal and eventually it got to the Constitutional Court.

Protecting dignity

The judges grappled with ESTA, in the context of South Africa's long history of land dispossession.

The ESTA was introduced so that families who have lived on farms for decades are not evicted overnight if they lost their jobs.

It gives some certainty to people like Daniels in that there are court processes that need to be followed to remove employees who live on farms.

There were five individual judgments written for the Daniels v Scribante case, with judges stressing South Africa's troubled history of black, Indian, and Coloured people being dispossessed of land and dignity, and white people benefiting and having all the power.

They said that not looking after property and making it uninhabitable could well be a form of evicting people under the radar of the required court processes.

"Of what use is a dwelling if it is uninhabitable? None.'' remarked Justice Mbuyiseli Madlanga.

Scribante had submitted that ESTA does not mention an occupier being allowed to make improvements in its list of the rights and responsibilities of occupants and land owners.

But the Constitutional Court said that although ESTA does not say it specifically, it would be in line with the purpose of ESTA - which is to protect dignity.

The court ruled that Daniels is entitled to make the following improvements to her dwelling at the farm:
Levelling the floors;
Paving part of the outside area;
Installing water supply inside her dwelling;
As well as a wash basin;
A second window; and
A ceiling.

The parties must agree to times at which the builders will arrive and leave the farm every day, the movement of the builders on the farm, and the need for, and approval of building plans.

If they cannot agree on this within 30 days they can approach the Stellenbosch Magistrate's Court for appropriate relief.

The Trust for Community Outreach and Education assisted with the application.

Read more on:    cape town  |  housing

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