Public Interest Litigation in South Africa

March 1st, 2019

By Jason Brickhill (contributing ed)

Cape Town: Juta

(2018) 1st edition

Price R 645 (incl VAT)

390 pages (soft cover)

The importance of the recent publication, ‘Public interest litigation in South Africa’ can hardly be underestimated. The subject matter of this book covers several fields of law, and very few similar works have ever been published. It is a must read for every lawyer practising in a developing social democracy.

Save to note that the book is interwoven with interesting and stimulating theoretical reflections, this article is limited to some comments on chs 5 and 6 of the book. The purpose of this article is to follow on the second challenge raised by Geoff Budlender SC in the book’s foreword, and to pave the way for some important aspects and areas, which have been omitted from the book but should be noted and included in further editions, or in related publications.

In the foreword Mr Budlender outlines six major challenges that still have to be addressed and concludes that much more remains to be done. The second of these challenges refers to the needs of rural South Africans, and in particular their land rights. Mr Budlender specifically mentions the oppressive or unaccountable traditional authorities, but the challenge to address the unequal power relations in rural areas is of course not limited to the network of traditional authorities.

Chapter 5 (pp 159 to 182) of the book, is headed ‘Making space for social change: Pro-poor property rights litigation in post-apartheid South Africa’. There is a complete absence of any reference in this to  the advances made by public interest litigation in rural areas, particularly those in the five years prior to the publication of the book. The failure of this chapter to refer to these advances and the constitutional recognition of the rights of poor rural dwellers are noticeable and regrettable.

Chapter 5 introduces a discourse on reshaping property rights in South Africa (SA). While on a universal, theoretical, speculative level, it may be stated at p 162 that ‘litigants, courts, the state and Parliament have embarked on a sustained process of re-imagining the nature and purposes of South African property law’ this notion does not adequately give recognition of the role of the Constitution in the practice of reshaping property rights in SA. The point is that in practice, the source of reshaping property law in SA is the Constitution. The impression that litigants may let their imagination roam free to boundlessly reshape property rights is unfounded. In this regard see Johan van der Merwe ‘On the relativity of property rights in the Constitution’ 2016 (Sept) DR 32.

This failure to give adequate recognition to the role of the Constitution in reshaping property law is reflected again in the conclusion of ch 5, where it is stated at p 182 that ‘[t]hrough reforms to property law, South Africa has embarked on a fundamental re-imagining of those terms.’ This conclusion overlooks the reality that all the reforms to property law emanate from, and is subject to, the Constitution.

Chapter 5 limits the reshaping of property law to three areas, namely –

  • unlawful occupation of land;
  • landlord and tenant law; and
  • debtor/creditor law.

In limiting the reshaping of the law to these three fields, the book overlooked the important reshaping of the law that took place in the lawful occupation of rural land, and the constitutional rights of rural dwellers.

This shortcoming is exacerbated when the author proceeds to elevate the law relating to the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 (PIE) at p 173 as ‘the most dramatic post-apartheid reform of property law’. How such claim could be made without even referring to other reforms is not clear, and this claim is open to doubt.

The most dramatic post-Apartheid Constitutional Court case reforming property law is probably Daniels v Scribante and Another 2017 (4) SA 341 (CC). When the issue of informed consent in the context of socio-economic rights was recently developed in the Xolobeni judgment (Baleni and Others v Minister of Mineral Resources and Others (GP) (unreported case number 73768/2016, 23-11-2018) (AC Basson J) the court from the outset quoted from the Daniels matter.

It is not the place in this article to review the advances in the constitutional rights of rural dwellers and suffice to refer to some of the relevant cases, none of which had even been referred to in ch 5 or anywhere else in the book. These cases include –

  • Hattingh and Others v Juta 2013 (3) SA 275 (CC);
  • Molusi and Others v Voges NO and Others 2016 (3) SA 370 (CC);
  • Klaase and Another v Van der Merwe NO and Others 2016 (6) SA 131 (CC);
  • Snyers and Another v Mgro Properties (Pty) Ltd and Another [2016] 4 All SA 828 (SCA);
  • Snyders and Others v De Jager and Others 2017 (3) SA 545 (CC);
  • the Daniels case; and
  • Baron and Others v Claytile (Pty) Ltd and Another 2017 (5) SA 329 (CC).

In conclusion, a brief comment on ch 6. This chapter labours under a similar failure to mention or even consider developments in jurisprudence applicable to rural dwellers. The discussion of equality jurisprudence, and the discussion of domestic partnerships, do not refer to the important gain that was made for spouses of rural dwellers. In this regard, the precedent had been set of such significance that it should advance the rights of women in an urban environment as well. In essence, the Constitutional Court found that the spouse of a farm-worker is also an occupier in her own right:

‘The Land Claims Court’s finding that Mrs Klaase occupied the premises “under her husband” subordinates her rights to those of Mr Klaase. The phrase is demeaning and is not what is contemplated by s 10(3) of ESTA [Extension of Security Tenure Act 62 of 1997]. It demeans Mrs Klaase’s rights of equality and human dignity to describe her occupation in those terms. She is an occupier entitled to the protection of ESTA. The construction by the Land Claims Court would perpetuate the indignity suffered by many women similarly placed, whose rights as occupiers ought to be secured’ (Klaase at para 66) (my italics).

Without incorporating all the relevant aspects and authority, the book stands more like a summary of the work of some non-governmental organisations, as opposed to a treatise on public interest litigation.

Johan van der Merwe BCom BA (Hons) LLB (Stell) LLM (University of Kiel) (Germany) is a legal practitioner at JD van der Merwe Attorneys in Stellenbosch.

This article was first published in De Rebus in 2019 (March) DR 36.