Page 94 - Litigating Land and Housing in South Africa: Lessons and Reflections

dispensation subjected them to to untold cruelty and suffering 39 Sol Plaatje cites an example:
‘The baas exacted from him him the services of of himself his his wife and his his oxen for wages of of 30 shilling a a a a a a a a a a month whereas Kgobadi had been making £100 a a a a a a a a a year besides retaining the the services of of his his wife and of of his his cattle for himself When he he he he he refused the the the extortionate terms the the the baas retaliated [by requiring] him him to to to betake himself from the the the farm by by sunset of the the same day failing which his stock would be be seized and and and impounded and and and himself handed over to to the the authorities for trespassing on the the farm ’40”
Redressing those wrongs by equalising the skewed and discriminatory relationships between farm occupiers labour tenants and and and land owners is is an an an an an urgent and and and vital constitutional purpose Section 25(6) does not only impose impose obligations on on on on on on on the state – it it imposes horizontal
8 2 2 2 2 2 2 2 2 2 ESTA
constitutional obligations on on on on on on on private landowners 41 As the the Constitutional Court has held in the the context of ESTA:
“By its very nature the the the duty imposed by the the the right to security of tenure in in both the the the negative and positive form does rest on on on on private persons People requiring protection under ESTA
more often than not live on on on on on land owned by private persons And I dare say the obligation resting in in in particular on on on on on an an owner is is a a a a a a positive one A
A
private person is is enjoined by section 25(6) of the the Constitution through ESTA
to accommodate another on on on on her her or his land ”42
That includes an obligation to be protected from unlaw- ful eviction by the the the farm farm owners or or persons in in in charge of of farms Furthermore it includes an obligation on on on on the the the the the side of of the the the the state to ensure that the the the the farm farm occupiers are protected ESTA
was passed by Parliament on on on on 19 19 19 November November 1997 1997 and came into force on on on on 28 November November 1997 1997 According to to to to its long long title the the the the purpose of of of the the the the Act is is to to to to to to “provide for for measures with State assistance to to to to to to facilitate long-term security of of of land land land tenure to to to to to to regulate regulate regulate the the the the the the conditions conditions conditions of of of of residence on on on on on on on on on on on on certain land land land to to to to to to regulate regulate regulate the the the the the the conditions conditions conditions on on on on on on on on on on on on and and and and and and circumstances circumstances under under which which the the the the right right of of of persons persons to to to to to reside reside reside on on on on on on on on on on on land land land land may may be be be terminated terminated and and and and and and and and to to to to to regulate regulate regulate the the the the conditions conditions conditions and and and and and and and and circumstances circumstances under under which which persons persons whose right right of of residence has been terminated terminated may may be be be evicted from land land and and and and and to to to provide for matters connected therewith” The preamble of of the the Act recognises that: “many South Africans do not have secure tenure of of their homes and and and the the the the the land which they use and and and are therefore vulnerable to to to unfair eviction” According to to to the the the the the the preamble “it is desirable to to to ensure that the the the law should promote the the the achievement of of of of long-term security of of of of tenure for for occupi- ers ers ers of of of of land land where possible through the the joint efforts of of of of occupiers occupiers landowners and and and government bodies that the the the law should extend the the the rights rights of occupiers occupiers while giving due recognition to the the rights rights duties and legitimate interests
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LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS
39 40 41 42
Lephakga The The Significance of of of Justice for True Reconciliation on on on on the the the Land Question in in the the the Present Day South South Africa Africa (Master of of of Theology thesis University of of of South South Africa 2012) at 37 (modified original footnote) Plaatje above n n n n n n n n n n n n n 19 at at at at at 72 I I I must make the the the the the the observation that that “baas” (Afrikaans for “boss”) had had little to to to do do with with being the the the the the the boss boss of of of the the the the the the African person concerned It had had more to to to to do do with with white white white supremacy In the the the the the the the the the the South Africa Africa Africa of of of of of that that time all grown white white white men who who subscribed to to to to the the the the the the the the the the notion of of of of of white white white superiority regarded themselves as as as as as as as as the the the the the the the the baas baas baas of of of of every every African African regardless of of of of whether they were employed or or or or or not not or or or or or who who their their employer was was And And each each expected to to to to be be addressed as as as as as as as as baas baas baas by every every African African African he he he he he he he he he encountered And And it it it it was was was required to to address address their their little little sons as as as as as as as as as “klein baas” (Afrikaans for “little boss”) Likewise in in in in her her mind each each grown white woman of of that ilk was was the the “madam” of of all Africans (original footnote) See Constitution s s 8(2) Daniels at para 49