Leo Boonzaier | Constitutional Court preview: Klaase v Van der Merwe

2 September 2015 – Tomorrow the Constitutional Court hears Klaase v Van Der Merwe NO CCT 23/15 (court papers), another case in its third term of 2015.

Date of hearing:  Thursday, 3 September 2015

Issue:  Whether a spouse of an “occupier” of land in terms of section 1 of the Extension of Security of Tenure Act (“ESTA”) is herself an “occupier” and thus entitled to be joined to, and to resist, the eviction proceedings against her husband

Background:  Jan Klaase had worked on the Van der Merwe farm, Noordhoek, in Citrusdal, since 1972.  He was an “occupier” of the land in terms of section 1 of ESTA, since he had been allocated a home on the farm and thus “had consent or another right in law” to reside there.  ESTA therefore affords him a right of residence which may be terminated only in limited circumstances.  In July 2013, Jozia van der Merwe applied for Mr Klaase’s eviction, saying he had fallen foul of section 10(1)(c) of ESTA by committing a “fundamental breach” of their relationship “that it is not practically possible to remedy”: he had fallen out with the new farm manager, absconded from work, refused to attend a disciplinary hearing, and taken up employment elsewhere.

In January 2014, the Clanwilliam Magistrate’s Court ordered the eviction of Mr Klaase “and all persons occupying under him”.  This included his wife, Elsie Klaase — who says she had been born on the farm, had thus lived there even longer than her husband, and had laboured on it for thirty years — and their children and grandchildren.  In June 2014, she applied to be joined to her husband’s appeal against the eviction order, then pending in the Land Claims Court (“LCC”), and argued that she was herself an occupier under ESTA.  Mr Klaase asked that his eviction be suspended pending the determination of his wife’s application.

The LCC refused them both.  On the face of it, Ms Klaase surely had Mr van der Merwe’s “consent” to reside on the land, just as her husband did, and was therefore entitled to the same protections under ESTA.  But Canca AJ held that Ms Klaase was not entitled to occupy the farm in her own right, but only vicariously, in terms of Mr Klaase’s right of residence.  This is because ESTA elsewhere draws a distinction between two kinds of “occupiers”: it says in section 10(3) that “a court may grant an order for eviction of the occupier and of any other occupier who lives in the same dwelling as him or her, and whose permission to reside there was wholly dependent on his or her right of residence if it is just and equitable to do so”.  The only way to make sense of this, our courts have said, is to distinguish between two kinds of “occupiers”: those who occupy in their own right, whom the Act protects from eviction; and those who have no independent right to reside, whom the Act does not protect, except derivatively.  The upshot, the LCC held, is that Ms Klaase has no claim.  Her protections are dependent on her husband’s — but he had already been lawfully evicted.

Things to watch:  As with many other cases this term, the Court’s decision to set the matter down suggests it thinks the applicant has suffered an injustice.  It is not hard to see why.  As the Women on Farms Project, which has intervened as an amicus curiae, points out, the LCC judgment undermines the security of tenure of the many vulnerable people in Ms Klaase’s position.

Ms Klaase’s counsel, Peter Hathorn, a tireless veteran of several major land restitution cases, argues at length that the LCC erred in finding that Ms Klaase did not have consent to reside on the land.  In truth, Canca AJ did not deny that Ms Klaase had consent.  His point was, rather, to deny that a “person residing on property with consent ipso facto becomes an ESTA occupier” — and that, indeed, Ms Klaase had not become one, because her right to reside derived from her husband’s.

But why?  The LCC does little to justify this finding.  True, ESTA clearly envisages some occupiers who have a right to reside that is “wholly dependent” on that of a family member.  The Constitutional Court has recognised as much.  But why was Ms Klaase an occupier of that kind?  The LCC’s underlying thought seems to be that, because Mr Klaase had a standalone right to reside, none of his relatives or dependents could have one too; their rights must be “wholly dependent” on his.

This seems under-motivated at best.  Both Mr and Ms Klaase could have independent rights to reside.  Indeed, contrary to what our courts have previously said, there is nothing absurd about Mr Klaase getting to stay on the farm, through his wife’s permission, even after having his own right of residence lawfully terminated.  The real absurdity would be to say that ESTA, which is aimed precisely at securing the tenure of farmworkers, does not give a woman who has lived on the farm her entire life, and worked on it for decades, her own right to reside there.

Interestingly, Mr van der Merwe’s legal team seems now to accept this.  Andrew Breitenbach SC, one of the Cape Bar’s most thoughtful advocates, has been brought in late as lead counsel.  He has narrowed Mr van der Merwe’s case, effectively conceding that the spouse of an ESTA occupier could well be an occupier in her own right.  The question in every case (as both counsel seem now to agree, dispensing with the LCC’s unconvincing approach) is simply whether the spouse has consent to reside.

Mr Breitenbach’s argument is that Ms Klaase did not.  He points to Mr van der Merwe’s detailed affidavits, which explain why Ms Klaase never received consent to occupy the land independently of her husband.  Mr Breitenbach says that these averments must be accepted, in accordance with the common-law rule that, in the absence of a trial to resolve factual disputes, the respondent’s version of events must prevail.

Mr van der Merwe is indeed the respondent in Ms Klaase’s application for joinder, but is that what matters?  If Ms Klaase’s application for joinder were successful, she would become the respondent in the eviction proceedings instituted by Mr van der Merwe.  Then she, not Mr van der Merwe, would benefit from the rule of evidence Mr Breitenbach cites.  This highlights the peculiar procedural route by which this case has reached the Constitutional Court, which mires the case in technical niceties.  The Court is being asked to decide a mere application for joinder, but one that is being argued as though the merits are already fair game.  Up to a point, this makes sense: in order to be joined, Ms Klaase must have some basis upon which she could resist the eviction on the merits.

But Mr Breitenbach has now rightly conceded that, in principle, she has one.  That alone seems to mean the LCC was wrong on the meaning of ESTA, and wrong to deny joinder.  This will be an important point of principle for the Constitutional Court’s judgment to establish.  But the question that remains — did Ms Klaase in fact have consent? — is not one an appellate court can easily resolve.  The Court could simply grant Ms Klaase’s joinder, so that the real issues of substance, and of disputed fact, are properly on the table, and then send those back to the court of first instance — as it did, controversially, in last year’s Zulu v eThekwini Municipality.

Leo Boonzaier

About Leo Boonzaier

Leo is an Editor for the African Legal Centre, and he reports on the Constitutional Court of South Africa. He has BSocSci and LLB degrees from the University of Cape Town and a BCL from the University of Oxford. He has worked as a visiting researcher at the Max Planck Institute for Private Law in Hamburg, Germany, and more recently as a law clerk at the Constitutional Court of South Africa. He is currently a doctoral student at the University of Oxford.