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Assessment of the ImpAct of DecIsIons
of the Constitutional Court and supreme Court of appeal on
the transformation of soCiety
final Report: Annexures
1
Assessment of the Impact of Decisions of the Constitutional Court and Supreme Court of Appeal on the Transformation of Society
Final Report: Annexures
(Consitutional Justice Report)
Prepared for The Department of Justice and Constitutional Development
by the
Democracy, Governance and Service Delivery Research Programme of the Human Sciences Research Council
in partnership with the
Nelson R Mandela School of Law of the University of Fort Hare
November 2015
2
Contents ANNEXURE A –Bibliography .................................................................................................................. 4
ANNEXURE B: Report on the first colloquium held on 6 February 2014 ............................................. 13
ANNEXURE C: Report on the second colloquium held on 26 November 2014 ................................... 27
ANNEXURE D: Report on the third colloquium held on 4 June 2015 .................................................. 42
ANNEXURE E: Constitutional Justice Project: Attitudes towards the Courts ...................................... 66
Contents ............................................................................................................................................... 67
1. Background to the study ......................................................................................................... 69
2. National Level Results (Weighted %, Unweighted N) ............................................................. 72
3 Results Disaggregated by Province (Weighted %, Unweighted N) ......................................... 78
4 Results Disaggregated by Geographic Type (Weighted %, Unweighted N) ............................ 87
5 Results Disaggregated by Age Group (Weighted %, Unweighted N) ...................................... 94
6 Results Disaggregated by Sex (Weighted %, Unweighted N) ................................................ 102
7 Results Disaggregated by Population Group (Weighted %, Unweighted N) ......................... 108
8 Results Disaggregated by Educational Attainment (Weighted %, Unweighted N) ............... 114
9 Appendix: South African Social Attitudes Survey (SASAS) 2014 DOJ Attitudes towards the Courts .................................................................................................................................... 123
ANNEXURE F: “Intestate Succession” in: Chuma Himonga and Elena Moore Reform of Customary Marriage, Divorce and Succession in South Africa. Cape Town: Juta. Forthcoming ... 127
1. Introduction ................................................................................................................................... 128
2. Sources: Data segments ................................................................................................................. 129
3. Location of findings in existing literature ...................................................................................... 130
4. The living customary law of succession conceptual framework .................................................... 131
5. The Bhe rules ................................................................................................................................. 135
5.1 The decision on substantive law .................................................................................... 135
5.2 To whom do the Bhe rules of intestate succession apply? ............................................... 137
5.3 Bhe and the new system of administration of estates ..................................................... 138
6. Research assumption and measure of compliance with the Bhe rules in practice ........................ 142
7. Consonances and dissonances with the Bhe rules ......................................................................... 142
7.1 Administration of black people’s estates by the Master .................................................. 142
7.1.1 Estates of black people administered by the Master ......................................................... 143
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7.1.2 Appointment of primary heirs as administrators ............................................................... 143
7.1.3 Jurisdictional indicators ..................................................................................................... 147
7.1.4 Beyond the appointment of the administrator .................................................................. 148
7.1.4.1Knowledge of the legal rules and procedures ................................................................. 149
7.1.4.2 Weaknesses in the interface between service points and the Master ........................... 149
7.1.5 Administration of estates by family members ................................................................... 151
7.2 Inheritance by beneficiaries under the Bhe rules ............................................................ 152
7.2.1 Dissonances in the distribution of estates ......................................................................... 153
7.2.1.1 Estate not inherited but given to a family member as custodian for the rest of the family ................................................................................................................... 154
7.2.1.2 Inheritance by the deceased’s family to the exclusion of the widow and children of the deceased ................................................................................................................... 160
7.2.1.3 Negotiated inheritance for extramarital children ...................................................... 161
7.2.1.4 Polygamous marriage widows inherit equally with qualification ................................. 162
7.2.1.5 The widow inherits, but only because she is perceived to be the caregiver to deceased’s children or it is believed that she will use the money for the children’s upkeep .... 164
7.2.1.6 All children of the deceased inherit in equal shares but with qualifications ................. 164
7.2.1.7 Extramarital children not to inherit ................................................................. 165
7.2.1.8 The widow and children inherit simultaneously ............................................. 165
7.2.2 Nuanced compliance with the Bhe rules ................................................................ 166
7.3 Public knowledge of the rules ................................................................................... 169
7.4 Public perceptions about Bhe rules ........................................................................... 169
7.5 The absence of challenges in the application of the Bhe rules ................................. 170
8. Summary ........................................................................................................................................ 172
ANNEXURE G: DOJ Landmark Case Data: case summaries ............................................................ 174
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ANNEXURE A –Bibliography
List of South African Cases: Abahlali Basemjondolo Movement SA & Another v Premier of the Province of KwaZulu-‐
Natal & Others 2010 (2) BCLR 99 (CC) Bhe & Others v Khayelitsha Magistrate & Others (Commission for Gender Equality as
amicus curiae) 2005 (1) BCLR 1 (CC) Carmichele v Minister of Safety and Security and Another 2001 (4) SA 938 (CC) Cipla Medpro (Pty) Ltd v Aventis Pharma SA, Aventis Pharma SA & Others v Cipla Life
Sciences (Pty) Ltd & Others 2013 (4) SA 579 (SCA) Director: Mineral Development, Gauteng Region & Another v Save the Vaal Environment
& Others 1999 (2) SA 709 (SCA) Du Plessis & Others v De Klerk & Another 1996 (3) SA 850 (CC) Ex parte Chairperson of the Constitutional Assembly: In re-‐Certification of the
Constitution of the Republic of South Africa, 1996 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (CC)
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) Fuel Retailers Association of Southern Africa v DG: Environmental Management, Dept of
Agriculture, Conservation and Environment, Mpumalanga & Others (CCT 67/06) [2007] ZACC 13 (7 June 2007); 2007 (6) SA 4 (CC)
Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC)
Govt of the RSA & Others v Grootboom & Others 2000 (11) BCLR 1169 (CC) Khosa & Others v Minister of Social Development & Others; Mahlaule & Others v Minister
of Social Development & Others (CCT 13/03 and 14/03) 2004 (6) BCLR 569 (CC) Mayelane v Ngwenyama & another (Womens Legal Centre Trust & Others as amicus
curiae) 2013 (4) SA 415 (CC) Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) MEC for Education in Gauteng Province & Others v Governing Body of the Rivonia Primary
School & Others (Equal Education & Others as amicus curiae) 2013 (6) SA 582 (CC) Minister of Health & Others v Treatment Action Campaign & Others (No 2) (CCT 8/02)
[2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC) Modder East Squatters & Another v Modderklip Boerdery (Pty) Ltd; President of the RSA
& Others v Modderklip Boerdery (Pty) Ltd (187 / 03 and 213 / 03) [2004] ZASCA 47; 2004 (8) BCLR 821 (SCA); [2004] 3 All SA 169 (SCA)
Moseneke & Others v Master of the High Court 2001 (2) SA 18 (CC) Nokotyana & Others v Ekurhuleni Metropolitan Municipality & Others 2009] ZACC 33;
2010 (4) BCLR 312 (CC)
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Pheko & Others v Ekurhuleni Metropolitan Municipality [Online] (No 2) (CCT19/11) [2015] ZACC 10 (7 May 2015), available at http://www.saflii.org/za/cases/ZACC/2015/10.html. [Accessed: 2nd July 2015]
Residents of Chiawelo Flats, Soweto v Eskom Holdings Limited & Another; Unreported Case No: 2010/35177; South Gauteng High Court, Johannesburg; 10 September 2010
Residents of Joe Slovo Community Western Cape v Thubelisha Homes and Others 2010 (3) SA 454 (CC)
S v Makwanyane & Another 1995 (6) BCLR 665 (CC) Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC) Soobramoney v Minister of Health (KwaZulu-‐Natal) 1997 (12) BCLR 1696 (CC) Trustees for the Time Being of the Biowatch Trust v Registrar of Genetic Resources and
Others (Centre for Child Law, Lawyers for Human Rights and Centre for Applied Legal Studies as amici curiae) 2009 (6) SA 232 (CC)
Women’s Legal Centre Trust v President of the Republic of South Africa & Others 2009 (6) SA 94 (CC)
List of Foreign Cases Olmstead v United States 277 U.S. 438 List of South African Legislation and Legal Instruments Amendment of Certain Laws Act 28 of 2005 Black Administration Act 38 of 1927 Constitution of the Republic of South Africa, 1996 Constitution Seventeenth Amendment Act of 2012 Housing Act 107 of 1997 Legal Practice Act 28 of 2014 Medicines and Related Substances Act 101 of 1965. Mineral and Petroleum Resources Development Act 28 of 2002 Minerals Act 50 of 1991 National Health Act 61 of 2003 Social Assistance Act 13 of 2004 Social Assistance Act 59 of 1992 Traditional Leadership and Governance Framework Act 41 of 2003 Welfare Laws Amendment Act 106 of 1997
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ANNEXURE B: Report on the first colloquium held on 6 February 2014
Assessment of the Impact of Decisions of the Constitutional Court and Supreme Court of Appeal on the
Transformation of Society
Colloquium Report
7 February 2014
Emperor’s Palace, Johannesburg
14
Colloquium Report Assessment of the Impact of Decisions of the Constitutional Court and Supreme Court of Appeal on the transformation of society
1. Background and Purpose of the Report
The Democracy, Governance and Service Delivery (“DGSD”) research programme of the Human Sciences Research Council (“HSRC”), together with its partner, the Nelson R Mandela School of Law of the University of Fort Hare (“UFH), were appointed by the Department of Justice and Constitutional Development (DoJ&CD) to assess the impact of the two highest courts, the Constitutional Court (“CC”) and the Supreme Court of Appeal (“SCA”), on the lived experiences of all South Africans. The research will particularly focus on the adjudication and implementation of socio-‐economic rights within the context of a capable and developmental state, and pertinent issues relating to access to justice with a view to addressing inequality and the eradication of poverty (Project Number RFB 2013 03). The project commenced on 1 October 2013 and will run for 18 months. The Terms of Reference for the project required that a stakeholder workshop be convened during the inception stage of the project. Accordingly, a colloquium was scheduled for 7 February 2014 in Gauteng. The colloquium delegates were drawn from a cross-‐section of role-‐players including representatives from the legal profession, former CC judges, academia, civil society and other research institutes. Annexure A hereto contains a list of those delegates who attended the colloquium. The aim of the colloquium was to test key aspects of the methodological approach (contained in a “Colloquium Discussion Document” which was disseminated to the delegates prior to the colloquium). The programme for the colloquium is attached hereto as Annexure B.1 The assessment in this research project has been divided into four themes, as follows:
THEME 1: A comprehensive legal analysis of select decisions of the CC and the SCA since 1994
THEME 2: A study on the implementation of the decisions of the CC and the SCA with a focus on providing long-‐term benefits to all South Africans
THEME 3: A desk-‐top study of direct access to the CC and the factors limiting direct access
1 Annexures of the various sections in this report are available upon request.
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THEME 4: An assessment of (a) the costs of litigation in the CC and SCA and (b) the
time taken to finalise cases in these courts within a broader understanding of access to justice that includes an exploration of the experiences and perceptions of the users of the CC and the SCA.
As set out in the colloquium programme attached as Annexure B, the Theme Leaders made presentations to all the participants. After completion of the presentations, delegates were asked to consider key questions in group discussions. After the group discussions were concluded, delegates shared their responses in plenary and further deliberations took place.
This document provides an overview of the colloquium discussions held in both the individual group sessions as well as the plenary deliberations.2 Sections 2 to 5 of this document sets out the content of the various deliberations in response to theme questions.
2. Theme 1: A comprehensive legal analysis of select decisions of the CC and SCA since 1994
A copy of the presentation given at the commencement of this session is attached as Annexure C hereto.
a) Are there any cases related directly / indirectly to socio-‐economic rights or direct
access to the Constitutional Court which you feel should be added to the list in Annexure A?
It was agreed that Theme 1 was fundamental in setting the framework for the entire project. In addition to considering the issues identified as part of this theme (as per the enumerated sub-‐themes), its outputs will also help inform the work programme of other themes.
Some delegates felt that there was too much focus on socio-‐economic rights (“SERs”) cases. While there was an acknowledgement that the focus of the project terms of reference was on SERs, these delegates were of the opinion that a number of key considerations need to be taken into account when selecting a representative sample of cases. They felt that it was vital to understand that all three branches of the government 2 This document should not be disseminated without the permission of the project team.
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were involved in the pursuit of South Africa’s Constitutional Justice Project. In this respect it was argued that it was difficult to evaluate one branch’s activities in isolation. It was also reasoned that the notion of the separation of powers and the undertaking of a constitutional dialogue between the branches of government is an important issue requiring further elaboration. It was further submitted that the notion of “transformation of society" needed to be clarified. It was felt that a clearer understanding of the qualitative and quantitative indicators by which societal transformation was to be measured, was needed. For example, any assessment of societal transformation needed to acknowledge that the inequalities in our society are often gender and/or race-‐specific. Some delegates also argued that many people are disadvantaged as a result of social stratification and not necessarily only because of gender and race. It was reiterated that it is essential to clarify the notion of transformation in order to provide a theoretically sound base by which the impact of court decisions can be measured. The selection of cases needs to specifically accommodate this concern or, alternatively, if the study is to exclusively focus on SER cases, the rationale for this focus should be explicitly set out and justified.
It was also suggested that consideration should be given to the inclusion of non SER cases in the list of landmark cases which have “impacted” on customary law and common law. In this respect it was noted that the Bhe case did deal with customary law but in a narrow manner. It was felt that consideration should be given to the inclusion of a wider range of customary law cases, particularly those with a wider focus on power relations. Examples include cases such as Gumede, Ngwenyama and Shilubana. Some delegates felt that land right cases should also be included. In this regard the Jafta case was mentioned. In response to these suggestions, the research team explained that the more inclusive sub-‐theme reports would analyse both the selected landmark cases and other significant cases related to legal transformation.
Delegates felt that the Joseph case had been incorrectly categorised in the case list and should be moved to the housing (electricity) section.
A concern was raised as to the exclusion of High Court judgments from the study since these judgments increasingly contribute directly to the transformation of society. It was also noted that there are a number of High Court judgments which were not appealed and which have had a significant impact on the interpretation and enforcement of SERs. It was emphasised that case discussions should look at the full trajectory of the cases, including judgments in the High Court if at all possible.
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Delegates felt that the list of selected landmark cases should be further refined and updated to accommodate the suggestions made during the colloquium. b) One of the main purposes of the assessment is to examine the range of decisions
in the selected cases with reference to the effectiveness of remedies such as declaratory orders; mandatory orders; damages; structural interdicts; “reading in” words; severance and contempt of court orders. Are there other categories of remedies -‐ perhaps recent innovations developed in other (relevant) jurisdictions -‐ which could be considered?
Delegates identified the following additional remedies to be considered:
prohibitory interdicts (as a particular form of mandatory orders); meaningful engagement (interaction between parties and affected communities and between parties and amici curiae); “reading down, in or out”; and constitutional damages. Consideration should be had to possibly developing new remedies which are responsive to context.
There was some discussion about whether “reading down, in or out” is more correctly seen as an interpretative approach (to legislation) or a remedy. While recognising that this is the subject of much legal debate, its practical effect can be defined as a remedy and thus should be covered by the study.
With respect to meaningful engagement as a remedy it was felt that the Occupiers of 51 Olivia Road and the Joe Slovo CC cases should be considered for inclusion in the study.
Much of the plenary discussion focussed on what exactly is meant by “effectiveness of remedy” and how effectiveness would be measured. It was felt that effectiveness could be seen from different perspectives. By way of example, is it to be examined from the perspective of the litigant alone or from society’s perspective more generally? Effectiveness could also be judged in terms of the precedential value of a case. In other words, how have lower courts applied the decisions of higher courts? Moreover, consideration should be given to assessing the frequency by which the selected cases have been cited in reported cases.
The discussion also focussed on the notion of co-‐operative governance in the implementation of court decisions. How is effectiveness to be evaluated where two or more of the National, Provincial and/or Local spheres of government are required to co-‐operate to give effect to a judgment? It is possible that one sphere’s contribution is bedevilled by another or that there is uneven delivery of services in different areas.
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c) Which ‘informal’ sources of information should be considered when determining the impact of court decisions: civil society; mass media; popular legal commentaries? Which other sources besides court cases should be interrogated and analysed in order to measure impact?
Delegates generally felt that an analysis of print media could be a good starting
point. However significant concerns as to the quality of legal reporting in this medium were raised. It was mentioned that some cases receive widespread coverage for reasons which are not always clear. It was felt that this issue should be explored further.
Delegates also felt that public perceptions, in other words the manner in which cases and decisions influence public debate, should be considered. Public comments with reference to cases, for example on talk show programmes, are frequently value loaded and/or politicised. The media can in fact contribute to the misrepresentation of the outcome of a case. One discussion group posed the questions of how case reporting could influence public debate, and what the difference is between public opinion and the public interest. It was suggested that other informal sources (e.g. television) should also be considered in this part of the study.
Attention was drawn to the fact that the budgetary planning cycles dictated by the Public Finance Management Act, the Municipal Finance Management Act and Treasury regulations could be a significant source of information. Documents such as Estimates of National Expenditure, Departmental Strategic and Annual Plans, Auditor-‐General reports and publicised Programme Plans could provide a paper trail with respect to financial allocations and prioritisations in giving effect to court judgments. d) Are there any other issues which you would like to raise with respect to this
Theme? Some delegates felt that the difference in approach by the CC and the SCA needs to be
closely interrogated. This is particularly true of cases where the CC has reversed the decision of the SCA. There was a feeling from some delegates that the SCA had at times been reluctant to embrace the jurisprudential thinking of the CC and that this apparent tension should be investigated. In this regard the SCA and CC Metrorail decisions were mentioned as a potential case study. A number of
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delegates argued that the role of civil society and social movements should also be considered when examining the implementation and impact of court decisions (e.g. the TAC case). Related to this, the difference between implementation and impact should be taken into account.
3. Theme 2: A study on the implementation of the decisions of the CC
and the SCA with a focus on providing long-‐term benefits to all South Africans
A copy of the presentation given at the commencement of this session is attached as Annexure D hereto. a) Owing to the fact that Theme 2 deals with implementation and service delivery
issues, it is proposed that the focus will be on cases dealing with health, housing and water/ sanitation. Is this a suitable starting point?
Delegates generally felt that the focus on health, housing, water and sanitation
was a good starting point when considering the measurement of implementation but that, as highlighted in the previous section, other categories also needed to be considered. It was suggested that developing a more precise understanding of what is implied by “transformation” would help in the identification of cases and that the case list may very well need to be expanded. Social security and education were 2 examples put forward for consideration and possible inclusion. It was pointed out, however, that practical considerations would have to be taken into account when choosing cases for closer analysis.
Some delegates felt that if cases impacting on customary and common law are to be included then consideration would have to be given to how the implementation of these decisions could be assessed or measured. In other words, from an impact perspective, the assessment of SER cases may well prove to be easier than the assessment of customary and common law cases.
Delegates also queried what was meant by “implementation”. From the court’s perspective control was handed to other branches once judgment was delivered. Was it intended to assess, for example, progress towards full realisation of a right against progressive realisation in the light of resource availability? Was the intention to assess institutional capacity to implement court judgments? Delegates also argued that “implementation” of (landmark) apex court decisions by the lower courts is an important dimension to be included in the assessment.
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b) The methodology assumes that the State’s approach to implementation flowing
from court decisions is comprised of one or more of the following sub-‐sets: legislation, policies, and government programmes and projects. Is this assumption correct?
Some delegates felt that implementation could take many forms. Was
implementation to be assessed narrowly in respect of the litigant or more broadly in respect to transformation of society more generally? Whichever approach or combination of approaches was adopted, it was also felt necessary to examine how implementation occurred in all three spheres of government, i.e. the National, Provincial and Local spheres and across various areas (e.g. rural and urban) in South Africa.
It was also felt that implementation might well be a more complex process than envisaged by the adjudicating court. Judgments, by definition, are narrowly defined and issue driven. However, implementation at a ground level may be subject to a number of variables, dependencies and sequencing which may not have been apparent at the time of the decision. This concern alludes to the tension between the judiciary and the executive, where the judiciary holds the executive accountable for the progressive realisation of rights but the executive maintains the right to decide how best the implementation of a right should be achieved. Equally, there may well be cases where implementation was planned, budgeted and undertaken in good faith, but for one or other reason could not be effected.
The measurement of implementation needed to bear in mind that the development of programmes and policies alone is not sufficient. It is the allocation of resources and the delivery of services aimed at the achieved outcome which should also be evaluated. Delegates felt that there were often difficulties associated with the uneven nature of implementation between provinces and municipalities or rural and urban areas. This makes the measurement of the state’s approach to implementation extremely difficult.
Delegates felt that it was important that both direct and indirect beneficiaries are included in any assessment of implementation as currently planned. Some delegates felt that a distinction needed to be drawn between positive and negative implementation duties and that the case studies needed to include examples of both.
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c) Is the proposed list of interviewees suitable? Bearing in mind that only 125
interviews will be conducted in relation to selected cases, who should be removed/ added? Where should the focus lie?
Delegates felt that the proposed list of people to be interviewed contained too many legal professionals and should include more public servants from all three spheres of government. This would allow for representatives of the implementing agencies themselves to provide their experiences of implementation initiatives aimed at giving effect to court orders. The reassurance was given that the existing methodology includes officials as an important group of interviewees.
Some delegates felt that the stratification issues mentioned previously would need to be reflected in the list of interviewees. For example urban/rural; formal/informal; gender and race. Others suggested that with respect to the local sphere of government, an 80% (Metro municipalities) to 20% (District or Local municipalities) split of interviewees should be adopted.
It was submitted that attorneys should be added to the list as they are closer to the client than advocates. In fact, a few delegates argued that interviews with advocates were unnecessary when considering the impact on people’s lived experiences. It was, however, acknowledged that although possibly not strictly relevant to this theme, there is a pool of legal individuals who should be interviewed in order to obtain their opinion on the various jurisprudential approaches adopted by the courts as this would be beneficial to the research more generally.
It was felt that social organisations such as NGOs, civil society organisations, public interest law firms and local law clinics should be included as they would be a valuable source of information. d) Are there any other issues which you would like to raise with respect to this
Theme?
Questions were raised as to how the issues of inter-‐governmental relations (“IGR”) between the three spheres of government and the co-‐operative governance doctrine would be accommodated. In other words, it is likely that implementation could be uneven and could be traced back to underlying issues in governance more generally.
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It was noted that the measurement of impact is notoriously difficult and should focus on differences in peoples’ lived experiences as opposed to just the content of the ruling. In other words, it is not enough to say something must be or has been changed, but rather to reality test whether the desired change actually took place. In this regard, consideration should be given to the measurement of impact over the short, medium and longer terms. For this reason it was also stated that recent cases should not be considered as sufficient time would not have passed to allow for a proper assessment of whether there was implementation and how this impacted on the transformation of society.
The issue of causality was raised by some delegates. How will the research link adjustments in government’s behaviour to a specific court decision?
Delegates stressed the importance of using existing sources of information when assessing implementation. Specific mention was made to Statistics South Africa, available departmental databases and other relevant research reports. 4. Theme 3: A desk-‐top study of direct access to the CC and the factors
limiting direct access
A copy of the presentation given at the commencement of this session is attached as Annexure E hereto. a) What are the main arguments for and against direct access that need to be taken
into account? Delegates felt that the main arguments in favour of direct access included: • Provides easier access to the CC as the ultimate authority in these matters; • Reduces the cost of proceedings; • Reduces the duration of proceedings – i.e. quicker answers and certainty; and • Would lower emotional and other indirect costs. Delegates felt that the main arguments against direct access included the following: • Direct access might flood the CC; • Issues might not be properly ventilated if lower courts were bypassed;
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• Direct access to the CC could contradict the traditional rules of precedent and thereby hinder the transformation of jurisprudence across all levels of the court system; and
• One should not automatically assume direct access will decrease costs. This should be investigated further.
b) The desk-‐top study on direct access to the Constitutional Court will examine the approaches adopted in various jurisdictions but will focus particularly on those of Brazil and India. Are there other jurisdictions which have particular relevance to the South African context? Which other African jurisdictions would be most suitable for comparison in this regard?
Many delegates cautioned in adopting the approaches of other jurisdictions
without critically evaluating their applicability in the context of South Africa’s legal framework.
Some delegates felt that consideration should be given to an examination of the
Kenyan system as it has a relatively new Constitution and has many similar elements to the South African Constitution. Other countries mentioned for consideration include Namibia, Botswana, Colombia and Costa Rica. Once again the caveat around applicability and quality of legal and court systems was mentioned by many delegates. c) Are there any other issues which you would like to raise with respect to this
Theme?
Many delegates felt that the focus of this Theme was too narrow and that access to the entire judicial system and not just the CC is important. It was, however, noted that such a broad consideration may be beyond the scope of the current assignment and that, in any event, aspects of access to justice were being considered under Theme 4 (below).
5. Theme 4: An assessment of the costs of litigation in the CC and SCA and the time taken to finalise cases in these courts within a broader understanding of access to justice that includes an exploration of the experiences and perceptions of the users of the SCA and the CC.
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A copy of the presentation given at the commencement of this session is attached as Annexure F. a) What do we need to be specifically aware of in relation to the role of costs, the
duration of cases and the quality of procedures and outcomes, which may undermine access to justice in socio-‐economic rights cases?
Some delegates felt that a distinction between start-‐up costs and legal costs should be drawn. In this context start-‐up costs relate to the costs incurred in preparation for the commencement of legal proceedings while legal costs kick in thereafter. Legal costs should also include a consideration of the costs of judges, court staff and the like as well as the alleged collusion of legal representatives with the taxing master to drive up taxed costs. The indirect costs mentioned in the methodology are important. Such costs would include transport costs, opportunity costs, emotional costs and the like. Some delegates felt that the formalistic and adversarial nature of South African law drives up the cost of litigation.
The notion of targeted focus group discussions was widely supported. It was felt that this would assist the research process and that careful thought should be given as to the composition of focus groups. Some delegates felt that focus groups should pair “like with like” while others felt that if you mixed the groups you would obtain a more varied result i.e. mixing lawyers, litigants and public servants around common themes. b) Do you think this methodology will effectively draw out the impact of these factors
on access to justice? What are its strengths and limitations?
Some delegates felt that while the qualitative methodology is appropriate, there is a need to disaggregate the component cost of the system and identify any perverse incentive structures which are currently applicable.
A number of delegates felt that the possibility of a role for legal aid needs to be considered in the context of SER cases as they are complex and thus expensive.
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c) Are there any specific factors or risks that we need to take into account in
assessing costs, duration, quality of procedure and outcome in socio-‐economic rights cases in particular (e.g. does the fact that most are funded by public interest law firms impact on which litigation is funded?)
Delegates noted that the state often responded negatively to public interest organisations or civil society organisations that brought cases against it. The experiences of such organisations should be canvassed.
Some delegates also noted that the state often fought weak or unjustifiable cases because of a political directive. These types of cases often frustrated officials involved as they agreed with the points being made but had their hands tied. This phenomenon should be considered in the investigation. d) Are there any other issues which you would like to raise with respect to this
Theme? No further issues were raised for consideration.
6. Conclusion
The project team is of the view that the colloquium inception work session was worthwhile as it brought together relevant stakeholders whose inputs and comments will add much value to the outcome of the research project. The colloquium provided a platform for the researchers to interact with knowledgeable members of the South African legal profession, former CC judges, academia, civil society and other research institutes, to share their perspectives on the main themes of the project and, perhaps more importantly, to be able to obtain the input of external role-‐players and thereby further refine the proposed methodological approaches. Both plenary and group discussions yielded new insights and broader perspectives which would otherwise have been lost to the researcher team. The mix of disciplines in the room added significant
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value to the exercise and confirmed the multi-‐disciplinary approach adopted by the project team.
The conversations which were shared during the work session were conducted in a respectful and constructive manner and we hope that some of the concerns relating to the project have been ameliorated.
The project team is mindful of the fact that the commissioned research is wide ranging and potentially contentious. As such it is extremely important to clarify and narrow the issues prescribed for consideration by the terms of reference and to be realistic about what is and is not possible in the given time frame. One of the primary purposes of the inception colloquium was to communicate the project approach to a wider range of stakeholders. This practice of communicating with stakeholders will continue as the research process unfolds and no doubt the final product will be enriched by the interactions with both experts and society generally.
The project team would like to thank all the delegates for giving of their time and insights. We invite you to remain in contact with us as the process unfolds. In this regard we encourage you to communicate with Prof Narnia Bohler-‐Muller if you have any specific areas of interest in respect of which you would like to contribute information at [email protected] or on her office phone 012 302 2502.
We hope that your experience of the colloquium was a fruitful one and look forward to sharing the next iteration of our thinking with you in June or July 2014.
We especially wish to thank the Department of Justice and Constitutional Development for partnering with us on this initiative and for their assistance in the hosting of this colloquium.
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ANNEXURE C: Report on the second colloquium held on 26 November 2014
Constitutional Justice Project Assessment of the Impact of Decisions of the Constitutional Court and Supreme Court of Appeal on the transformation of society
Mid-‐term report colloquium
26 November 2014, Johannesburg
Not for distribution without approval of the project team.
Contact:
Prof Narnia Bohler-‐Muller
Tel. 012 302 2502
Cell: 082 371 3367
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Colloquium Report:
Constitutional Justice Project
Assessment of the Impact of Decisions of the Constitutional Court and Supreme Court of Appeal on the transformation of society
1. Background and Purpose of this Report
The Democracy, Governance and Service Delivery research programme of the Human Sciences Research Council (“HSRC”), together with its partner, the Nelson R Mandela School of Law of the University of Fort Hare (“UFH”), were appointed by the Department of Justice and Constitutional Development (“DoJ&CD”) to assess the impact of the 2 highest courts, the Constitutional Court (“CC”) and the Supreme Court of Appeal (“SCA”), on the lived experiences of all South Africans. The research focuses particularly on the adjudication and implementation of socio-‐economic rights within the context of a capable and developmental state, and pertinent issues relating to access to justice with a view to addressing inequality and the eradication of poverty (Project Number RFB 2013 03). The project, under the title “Constitutional Justice Project”, commenced on 1 October 2013 and is currently scheduled to run until June 2015.
As a follow-‐up to the inception colloquium held in February 2014, the mid-‐term colloquium was scheduled for 26 November 2014 in Gauteng. The colloquium delegates were drawn from a cross-‐section of role-‐players including representatives from the legal profession, former CC judges, academia, civil society and other research institutes.3
The aim of the colloquium was to keep identified stakeholders informed of the progress of the project as well as to test and refine key identified aspects of the mid-‐term report.4
Three thematic areas were identified for focussed discussion namely:
• Separation of powers and the transformative impact of the courts; • Implementation gaps and impact; and • Accessibility and utilization of judicial processes, structures and organisations.
The colloquium commenced with 2 key note addresses by retired Constitutional Court Justices Skweyiya and Goldstone.5 Thereafter an overview of the mid-‐term report
3 A copy of a list of those delegates who attended the colloquium is attached hereto as Annexure A. Annexures are available upon request. 4 The programme for the colloquium is attached hereto as Annexure B. 5 Copies of these addresses are available from the project team on request.
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and its key findings was presented by one of the joint project leaders, Prof Narnia Bohler-‐Muller.6
In each area a presentation was made and thereafter delegates were asked to consider key questions in group discussions. After the group discussions were concluded, a plenary session took place for further deliberations. The programme was slightly modified during proceedings and session 3 (implementation gaps) as outlined in the original programme took place before session 2 (accessibility and utilization of judicial processes, structures and organisations). It should also be noted that due to time constraints, no group discussion took place in respect of the questions relating to accessibility and utilization of judicial processes, structures and organisations. The identified questions were therefore discussed in plenary.
This document provides an overview of the colloquium discussions held in both the individual group sessions as well as the plenary deliberations.7 It sets out the content of group and plenary deliberations under the three thematic areas. The thematic area questions were not intended to be representative of the entire content of the mid-‐term report and its annexures but were rather chosen by Theme Leaders to highlight specific issues, particularly those that have been flagged in key informant interviews and focus groups. 8
Separation of Powers and the Transformative Impact of the Courts
It was explained that the project team has undertaken a comprehensive analysis of the decisions of the CC and the SCA since 1994. A choice of landmark CC and SCA cases were identified for in-‐depth analysis in Themes 2 (implementation) and 4 (access). These cases are concerned with the realisation of the socio-‐economic rights contained in the Constitution. An analysis of the manner in which the print media has reported on socio-‐economic rights cases has also been undertaken.
The mid-‐term report identifies that some commentators have argued that the apex courts have not made effective use of opportunities to develop substantive normative content of socio-‐economic rights. These commentators have suggested that the adoption of a normatively principled approach by the courts would help litigants determine the actual content of socio-‐economic rights while also providing guidance to government on its constitutional obligations. In certain judgments, the courts have
6 A copy of the overview is attached hereto as Annexure C. 7 This document should not be disseminated without the permission of the project team. 8 Copies of these documents are available from the project team on request.
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acknowledged a lack of substantive normative content and have ascribed this to a constraint posed by insufficient and inadequate evidentiary material placed before them. While government has at times criticised certain apex court judgments as representing undue interference in executive responsibilities, some non-‐government commentators have complained that the judicial branch has been overly deferential to both the executive and legislative branches.
The key thematic preliminary findings which have emerged include:
• There is uncertainty as to whether socio-‐economic rights should have a minimum core In this respect certain academics take the view that establishing a minimum core for socio-‐economic rights will allow for the development of substantive normative content. It is argued that the identification of the substantive normative content of a socio-‐economic right would provide greater certainty with respect to court judgments. In a sense it would mean that judgments become more “measureable”. Other academics argue that the progressive realisation provisions attached to certain of the socio-‐economic rights are purposive and intended to give effect to the separation of powers doctrine. In other words the judiciary should not prescribe to the executive how to achieve a socio-‐economic right, but will hold the executive accountable to demonstrate rational and reasonable measures to realise socio-‐economic rights.
• Flowing from this point there is a need for the doctrine of separation of powers to be clarified. Such clarity would allow for a better understanding of what is meant by a constitutional dialogue between the three branches of government.
• The role of Chapter 9 institutions in the articulation and realisation of socio-‐economic rights needs to be better understood. This is particularly so where Chapter 9 institutions have overlapping mandates with respect to socio-‐economic rights.
• The implementation of SCA and CC judgments with respect to socio-‐economic rights has not been adequately monitored. There is a need to strengthen accountability mechanisms for the implementation of these judgements. The question then arises as to who should bear this responsibility and how it should be undertaken.
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In order to explore these issues delegates were set a number of questions for small group discussion and subsequent plenary deliberation.9 The questions, group and plenary discussions are recorded below.
If even contingent / iterative minimum core content of socio-‐economic rights provide some clarity and guidance – to citizens, government and lower courts – what can be done, and by whom, to assist courts & government to identify that content?
It was recognised by delegates that developing the content for a minimum core is
not strictly speaking a legal undertaking but rather involves a multi-‐disciplinary identification of the content of a socio-‐economic right. Delegates acknowledged that the apex courts have generally avoided ascribing minimum core content to socio-‐economic rights. It was understood that there are sensitivities over the separation of powers and the polycentric nature of many issues effecting the realisation of socio-‐economic rights.
Some delegates felt that it was not the (sole) responsibility of the judiciary to create the substantive normative content of socio-‐economic rights and that it would be useful for organs of state and non-‐state actors to engage in a dialogue around what the content of specific socio-‐economic rights should be. Such a dialogue needs to be grounded in what is possible and realistic in the South African context. This discussion should not be restricted to resource constraints alone, but also requires an examination of the implementation capacity available to the state. In this regard it was noted that the judiciary did not necessarily have a well-‐defined sense of how the executive branch conducts its activities.
Many delegates felt that there was much international (and specifically African) research which could assist in the identification of the core component of socio-‐economic rights. In addition, many South African organisations and Chapter 9 institutions have already conducted relevant socio-‐economic research. In this regard delegates discussed whether Chapter 9 institutions as well as academic, research and civil society organisations could play a greater role in supporting government to identify suitable normative content and thereby enhance policy making.
Which institution(s) / entity(ies) should be tasked with the responsibility of driving, co-‐ordinating and monitoring implementation of socio-‐economic rights court orders?
There was reasonable consensus that the primary responsibility for driving, co-‐
ordinating and monitoring the implementation of socio-‐economic rights should reside
9 A copy of the presentation given by Gary Pienaar at the commencement of this session is attached as Annexure D hereto.
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with the primary implementing agency itself. This is of course subject to the oversight role played by the legislatures.
However delegates noted that South Africa is a young developmental state with uneven capability. This can mean that court orders aimed at specific organs of state are sometimes not acted upon timeously or successfully. In this regard delegates felt that Chapter 9 institutions and community and civil society organisations could play an important monitoring role as they are often better placed to observe implementation initiatives at a ground level. The mandate of the SAHRC was acknowledged. It was noted that responsibility to ensure that socio-‐economic rights court judgments were implemented should not be placed on affected communities themselves as this would place an unfair burden on the “poorest of the poor”. Power differentials must not be ignored.
It was stressed that the media has a crucial role to play in furthering public discourse and highlighting implementation inadequacies. A concern was expressed that sometimes the media focus was not always equal and was “demand” driven.
The suggestion was made that all court orders should be lodged with the Department of Planning, Monitoring and Evaluation to ensure the monitoring of executive responses to judicial court orders. This would allow a single co-‐ordination point and ensure a “whole of government’’ view. It would further allow for the preparation of an integrated report on all socio-‐economic rights court orders which were made against the executive. This report could be tabled in parliament on an annual basis. Such an approach would support accountability and the furtherance of a constitutional dialogue.
Not yet a capable state – is there a need for enhanced court oversight (use of remedies)?
It was recognised that South Africa is a young constitutional democracy still grappling to establish the structures of a democratic state. The public service in particular has undergone profound change and transformation. The foundations for a capable state have been set in place but there are concerns around perceived (and real) weaknesses and implementation abilities.
There was some debate around the meaning of “a capable state” but it was generally felt that the definition contained in the National Development Plan (“NDP”) should be used as a benchmark. The NDP highlights the unevenness in state capacity which often leads to uneven performance in local, provincial and national government.
Most delegates acknowledged that a failure to implement was not necessarily a result of bad faith but rather that it often had to do with government capacity. Some
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suggested that the meaning of “capacity” should be unpacked further. In this regard it was felt that departments should be appropriately capacitated and resourced to perform their core functions, especially with respect to service delivery. A failure to implement court judgments by the executive, places pressure on the judiciary in how best it should respond, being mindful of the separation of powers and the maturity of our democracy.
Some delegates felt that courts should be more proactive and order that progress reports with respect to implementation of judgments be filed at court.
Is there value in a more explicitly problem-‐solving approach to constitutional dialogue? Delegates grappled with what is meant by “constitutional dialogue”. The prevalent South African view is that it refers to the constitutional interactions between the three branches of government. Each is responsible for its own mandate and is unwilling to intrude into areas of the others influence. However, all three branches of government are inter-‐dependant to the extent that they all drive the South African Constitutional Justice Project. In this view, the apex courts “speak” to the other branches through their judgments.
Some delegates felt that this is only one way in which the dialogue happens and a broader interpretation could and should be embraced. It was noted that other jurisdictions have adopted a less formal approach to the notion of constitutional dialogue and have created fora in which members of all branches of government can engage in a non-‐binding (public) constitutional dialogue in order to obtain a better understanding of the complexities with which each branch is tasked.
Some delegates felt that South Africa should adopt a more overt problem solving approach. Such an approach could involve requiring organs of state to report back to courts in respect of court ordered implementation and possibly even the harmonisation of effort between different spheres of government.
It was noted that even if these report backs were informal in nature, the judiciary could derive benefit as they would be informed about the consequences and effectiveness of the remedies that were granted in relation to the implementation of socio-‐economic rights.
Implementation gaps and impact
It was explained that the project team has conducted research, in line with the TORs, with respect to the implementation of court decisions and assessing the associated impacts on communities in particular and society in general. Research was conducted by tracing the impact of court decisions on the work of government departments. Attempts
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were made to assess the successes or challenges with respect to implementing court decisions. In order to undertake this assessment, interviews were conducted with key officials at the national, provincial and local spheres of government.
The key preliminary findings which have emerged include:
• There are divergent levels of implementation of socio-‐economic rights court orders. This generally speaks directly to the capacity of affected implementing organs of state. This is particularly true of the local sphere of government, which is often the primary implementation agency with respect to many of the socio-‐economic rights.
• There is a need for improved inter-‐departmental and intergovernmental collaboration. This takes place both on a horizontal and a vertical level. Nationally, government departments have tended to be clustered around thematic areas such as economic affairs or justice, crime prevention and security. There is evidence to suggest that the cluster approach is not performing optimally. Intergovernmental relations between the three spheres of government have also proved to be challenging. This is in spite of the constitutional requirement to pursue co-‐operative governance. This can and does at times counter co-‐ordinated implementation to achieve common goals. These co-‐ordination difficulties come into stark focus particularly where spheres of government have concurrent functions.
• There is a need for increased consultation with relevant stakeholders. This is particularly true during strategic planning and budgeting processes. The alignment of a “whole of government” approach to the implementation of socio-‐economic rights is critical. While a single department may have been identified as bearing the primary responsibility for the progressive realisation of a right, it may well be that the performance of other departments directly impacts on the primary department. A query was made as to whether the DoJ&CD could or even should play a co-‐ordinating role in this regard.
• The measurement of the impact of court decisions on government programmes and projects is a complex undertaking. Often the impact is not immediately apparent. In order for the implementing agency to give effect to a judgment it will need to reallocate available resources, both human and financial. This will happen traditionally over a 3 year planning period. The measurement of impact could then simply be stated as ensuring that the relevant planning and budgeting processes were undertaken in line with the judgment and thereafter ensuring the efficient and effective implementation of the programme and project. The next step of measurement would be to focus on the impact of the lived experience of people. This therefore
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represents a multi-‐year process. It is for this reason that “aged” cases were selected for analysis.
In order to explore these issues, delegates were set a number of questions for small group discussion and subsequent plenary deliberation.10 The questions, group and plenary discussions are recorded below.
a) How to resolve the complexity of intergovernmental relations and bureaucratic inefficiencies which often lead to delays in the implementation of court decisions within municipalities/government departments
Delegates felt that many of the implementation difficulties can be attributed to poor co-‐ordination between the spheres of government. In this respect attention needs to be paid to the strengthening and deepening of the intergovernmental relations framework. The national sphere needs to provide leadership in this regard. It was noted that communities do not understand or care about the complexities of service delivery but are rather focussed on what services are provided on the ground.
Once again delegates recognised that service delivery is mostly provided by the local sphere of government. It was noted that levels of competency were uneven and not always optimal. It was also felt that local government is becoming increasingly politicised and that there is a growing incidence of corruption and cadre deployment at all spheres of government.
A suggestion was made that a single person in each organ of state be made responsible for intergovernmental relations. Other delegates felt that the primary task is the co-‐ordination of multiple planning and budgeting approaches when aligning linked activities within and across the spheres of government and that this may be beyond a single individual. Once again the potential role of the Department of Planning, Monitoring and Evaluation as a co-‐ordinating body was highlighted.
As such, what could be required was a change in the philosophy of how socio-‐economic rights could be implemented within and across the 3 spheres of government. It was further noted that it should not be a “competition” and that that the environment should be de-‐politicised where possible to promote the notion of an integrated developmental and capable state.
What is the standard of measurement of quality services by government officials in meeting the expectation of the communities and how should such officials take
10 A copy of the presentation given by Prof Barwa Kanyane at the commencement of this session is attached as Annexure E hereto.
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responsibility to account for poor/inadequate or non-‐implementation of court decisions?
Delegates felt that it was important to draw a distinction between what was required in terms of a court order and the expectations of communities as to what level of services should be delivered. A starting point was that generally, courts were not prescriptive in their orders, but rather tried to provide the space for the executive to make the necessary policy and implementation decisions. Delegates felt that the executive should include communities in planning initiatives so as to manage expectations.
Many delegates also felt that where officials had behaved poorly or implemented programmes or projects in a deficient manner they should be held to account. This does not always appear to be the case within the public sector and needs to be addressed.
Delegates noted that there are sufficient accountability frameworks in place at all spheres of government, but that these are often not adhered to. Adherence to these systems should be promoted and encouraged. It was also noted that skills and competency training at particularly the local sphere of government was urgently needed and that national government should take the lead in facilitating this.
In the majority of cases the judiciary did not receive any feedback information. This comment was made in the context of a learning organisation and not in terms of monitoring compliance. It was felt that if the judiciary better understood implementation challenges it could well affect the manner in which court orders were formulated and which innovative remedies are chosen.
There are situations where the communities frustrate good intentions of the government departments/municipalities to implement court decisions. What is your view in resolving this standoff?
Delegates generally felt that this difficulty was likely to arise when communities had not been involved, or that a poor consultative process had been followed, in the planning of executive activities. Some delegates questioned the term “meaningful engagement” in this context and asked what it means. This issue often arises in the context of whether a community could veto the planning processes of an implementing agency. In many instances there appears to be a disconnection between the aspirations of a community and the fiscal realities of the implementing agencies. The management of community expectations is clearly an important issue which needs to be addressed early on in implementation processes. It is also important not to merely see the consultation process as a “tick box” exercise.
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There appears to be a tension in particularly rural areas between municipalities and traditional leaders. In certain rural areas there appears to be 2 centres of power (traditional leaders and municipalities) and this can often cause tension around service delivery and other issues.
To what extent does implementation of court decisions by government officials lead to transformation and impact of improving people’s lives?
Delegates once again raised the question of terminology and said that it is important to contextualise what “transformation” means. Some delegates also raised the point that measuring transformation or the lived experience of people through the lens of the judiciary/ law is limiting. The constitutional imperative of transformation requires effort by all 3 branches of government and separating out 1 branch is problematic. Other delegates took the view that the court decisions had made a great contribution to transformation, but that often, transformative initiatives were slow to materialise given that even with the best intention government moves slowly. Others questioned the existence of political will when it comes to service delivery.
Part of what makes implementation challenging is the perceived confusion around overlapping competencies and jurisdiction. Delegates highlighted the difficulties experienced with inter-‐governmental relations and the interaction between the 3 spheres of government. There is clearly an unevenness of capacity both across and within spheres of government which directly undermines co-‐ordinated planning and budgeting and the sequencing of activities aimed at the realisation of socio-‐economic rights.
Accessibility and utilization of judicial processes, structures, organisations
It was explained that the project team has conducted research with respect to the accessibility and utilization of judicial processes, structures and organisations. In this regard qualitative interviews with litigants and other key role-‐players were undertaken. The interview questions for legal NGOs focused on issues such as ways to improve access to justice in general including cost and duration, as well as direct access to the CC, role of civil society in funding socio-‐economic rights litigation and the role of state bodies such as Legal Aid South Africa (“LASA”). Questions for litigants focused on their direct experience of the litigation process, costs they incurred (material and emotional),
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opinions on the fairness of the process, extent to which they felt they had agency and opinions about the outcome of the case. A number of community focus group discussions have been held to canvass these issues with litigants.
The key preliminary findings which have emerged include:
• Litigants found the process of socio-‐economic rights litigation to be empowering and felt that their legal representatives had represented them respectfully and fairly. They did however, raise the issue of the funding of this litigation as they had to bear direct costs such as travelling to and from courts, lost work days attending court, or raising money for community mobilisation around a case.
• In most socio-‐economic rights litigation civil society and NGOs are the primary funders, in many instances using donor funds. This could well prove to be unsustainable and the question arises as to the role of the state in funding socio-‐economic rights litigation. It was noted that LASA had established and funded an impact litigation unit but that there may be tension regarding which socio-‐economic rights litigation or other LASA priorities should be funded. For example, recently funds from the LASA impact litigation unit were diverted to the Marikana Commission.
• While there are members of the legal profession who make a significant contribution to pro bono work, there appear to be significant limitations in the current system relating to general disorganisation, the low number of hours required, reluctance by professional bodies to monitor these hours and a tick-‐box approach to doing hours that does not prioritise the needs of the client. The issue was also raised that those offering pro bono representation may not have the skills to pursue complex socio-‐economic rights litigation.
• There appears to be a difference between the positive perceptions of the CC as opposed to the High Court. Litigants felt that while the CC treated them and their cases with respect, care and fairness, this was not always the case at a High Court level.
• Litigants felt that the CC and the SCA gave them dignity as they were recognised as “equals to the state”. They noted that they were not always fully aware of their rights or the fact that these rights were justiciable prior to the case they were involved in. In this respect the process of bringing a case to court had an important educative effect in terms of their awareness of their rights and legal procedures for pursuing those rights.
• A key concern expressed by litigants was a perceived failure of implementation and possible ignoring of court orders by the state. Some suggested closer monitoring by the courts of implementation.
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In order to explore these issues delegates were set a number of questions for small group discussion and subsequent plenary deliberation.11 The questions and plenary discussions are recorded below.
a) How should Socio-‐Economic Rights litigation be funded?
Generally, delegates felt that it was clearly in the interests of the Constitutional Justice Project that socio-‐economic rights litigation be funded, but that this was complicated by the fact that the government was often a defendant in such matters. In this regard it was mentioned that this tension was recognised by the Constitution and gave rise to the establishment of the Chapter 9 institutions. The role of the South African Human Rights Commission (“SAHRC”) in this regard needs to be better formulated and articulated. Some delegates felt that the SAHRC was the primary institutional body tasked with ensuring the actualisation of socio-‐economic rights, and as such should play a more pro-‐active role to ensure the adequate funding of relevant litigation.
Pro Bono -‐ what are the blockages, is there resistance to doing this among private
practitioners and how can it be overcome? It was generally felt that the pro-‐bono system was not well suited to the conducting of socio-‐economic rights litigation. It was noted that other professions do not have a similar imposed obligation and that the available pro-‐bono days were insufficient to see a matter to conclusion.
Is ADR an appropriate option for Socio-‐Economic Rights cases in terms of balancing immediate needs and setting precedent?
Some delegates felt that ADR was best used prior to formal disputes being declared. They felt that it was a mechanism which could help resolve disputes in a less adversarial manner. It was however noted that the ADR process could be expensive and that there were varying degrees of professional expertise in South Africa.
In this regard, many delegates felt that an out-‐of-‐court settlement would not establish enforceable precedent. This highlighted the tension between what was in the best interests of a particular community and what was in the best interests of all communities/society. This point was also made in the context of the funding of socio-‐ 11 A copy of the presentation given by Dr Vanessa Barolsky at the commencement of this session is attached as Annexure F hereto.
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economic rights litigation, where programme litigators were trying to establish precedents and had to balance this with acting in the best interests of their client. Programme litigators often felt conflicted as although they were acting for a specific client, they were aware that the subject matter had much wider implications in terms of precedent.
Conclusion
The project team is of the view that the mid-‐term colloquium work session was worthwhile as it brought together relevant stakeholders whose inputs and comments will add much value to the outcome of the research project. The colloquium provided a platform for the researchers to interact with former CC judges, members of the South African legal profession, academia, civil society and other research institutes, to share their perspectives on the main themes of the project and, perhaps more importantly, to be able to obtain the input of external role-‐players and thereby further refine research content and approaches. Both plenary and group discussions yielded new insights and broader perspectives which otherwise may have been lost to the researchers. The mix of disciplines in the room added significant value to the exercise and confirmed the value of the multi-‐disciplinary approach adopted by the project team.
The conversations which were shared during the work session were conducted in a respectful and constructive manner, and it appears that the initial concerns expressed at the first colloquium relating to the “politicised” nature of the research are no longer an issue. Many delegates expressed the view that the project was of critical importance in relation to the building of the South African constitutional democracy.
Delegates also expressed the view that the project should be careful that its initial successes could be viewed as a risk. Delegates identified the fact that further research on a number of areas (e.g. High Courts) may well be necessary, but that this should ideally form the scope of a separate or a readjusted scope of work (including time deliverables) lest the final research output be watered down due to unrealistic expectations which compromised the existing high standard of evidence-‐based research.
The project team would like to thank all the delegates for giving of their time and insights and would invite you to remain in contact with us as the process unfolds. In this regard we would encourage you to communicate with Prof Narnia Bohler-‐Muller if you have any specific areas of interest in respect of which you would like to contribute information at [email protected] or on her office phone 012 302 2502.
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We would specifically wish to thank the Department of Justice and Constitutional Development for partnering with us on this initiative and for their assistance in the hosting of this Colloquium.
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ANNEXURE D: Report on the third colloquium held on 4 June 2015
Constitutional Justice Project Assessment of the Impact of Decisions of the Constitutional Court and Supreme Court of Appeal on the transformation of society
Fieldwork Report Colloquium
4 June 2015, Johannesburg
The powerpoint presentations of the colloquium Annexures C-‐F will be sent separately at request to prevent overload of recipients’ emails.
Contact:
Prof Narnia Bohler-‐Muller
Tel. 012 302 2502
Cell: 082 371 3367
www.hsrc.ac.za
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Colloquium Report
Constitutional Justice Project
Background and Purpose of this Report
The Democracy, Governance and Service Delivery research programme of the Human Sciences Research Council (“HSRC”), together with its partner, the Nelson R Mandela School of Law of the University of Fort Hare (“UFH”), were appointed by the Department of Justice and Constitutional Development (“DoJ&CD”) to assess the impact of the 2 highest courts, the Constitutional Court (“CC”) and the Supreme Court of Appeal (“SCA”), on the lived experiences of all South Africans. The research focuses particularly on the adjudication and implementation of socio-‐economic rights within the context of a capable and developmental state, and pertinent issues relating to access to justice with a view to addressing inequality and the eradication of poverty (Project Number RFB 2013 03). The project, under the title Constitutional Justice Project, commenced on 1 October 2013 and is currently scheduled to run until the end of June 2015.
The third colloquium for stakeholders was held on 4 June 2015 at the Emperors Palace Convention Centre, Kempton Park. The colloquium delegates were drawn from a cross-‐section of role-‐players including representatives from the legal profession, the South African Human Rights Commission and other Chapter Nine institutions, former CC judges, academia, civil society and other research institutes.12
The aim of the colloquium was to keep identified stakeholders informed of the progress of the project as well as to test and refine key identified aspects of the Fieldwork Report.13
Four thematic areas were identified for focussed discussion namely:
• Jurisprudence and legal practices; • Direct access to the Constitutional Court; • Implementation gaps and impact; and • Access to justice -‐ process, costs and duration.
The colloquium commenced with an overview of the project and Fieldwork Report and its key findings presented by one of the joint project leaders, Prof Narnia Bohler-‐Muller. She highlighted some of the apprehensions generated around the project, particularly the fear that embarking on a project of this nature might infringe on the independence of the courts, and how the support for the research increased throughout the project 12 A copy of a list of those delegates who attended the colloquium is attached hereto as Annexure A. 13 The programme for the colloquium is attached hereto as Annexure B.
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time, including support by former judges. Subsequently the milestones in the project were summarised including the reports, fieldwork interviews (108 individuals and 12 focus groups), appointment of the Think Tank, networking and the response from the Justice Portfolio Committee of Parliament.
The introductory presentation was followed by the keynote address by Prof. Jonathan Klaaren of the Wits School of Law. The keynote address highlighted the history of the project, how it developed during the project trajectory, and issues that could be dealt with in future. The key issues that were addressed included separation of powers; constitutional dialogue; performance of the judiciary management of the process of litigation; access to justice; and efficacy and efficiency of grievance mechanisms.14
As the main feature of the colloquium in each thematic area Theme Leaders made a presentation on the fieldwork findings.15 In the plenary sessions delegates engaged with the presentations through questions, comments and recommendations.
The colloquium ended with 2 short but incisive speeches by former justices Johann Kriegler and Albie Sachs in which they gave their personal impressions of the project and what they viewed as key issues that should be addressed in future research.
This document provides an overview of the colloquium presentations and discussions held in the plenary deliberations under the 4 thematic areas. 16 As the Fieldwork Report has not yet been released in the public domain, the content of this report may not be quoted or referred to in any other publication without the permission of the Project Leaders.
The Transformative Impact of the Courts: Jurisprudence and Legal Practices17
The research team presented their findings with regard to transformation, separation of powers, minimum core content and right to food.
a. Jurisprudential and social transformation
14 Copies of the keynote address are available from the project team on request. 15 Presentation slides are provided in Annexures 16 This document should not be disseminated without the permission of the project team. 17 A copy of the presentation given by Gary Pienaar at the commencement of this session is attached as Annexure C hereto.
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Diverse interpretations of “transformation” have been considered by the team. At the very least, it includes the Constitution’s commitment to democracy, social justice and uplifting the quality of life of all people, and it specifically protects a range of socio-‐economic rights (SERs). SERs are justiciable and the judiciary has an important role to play in interpreting and adjudicating SER claims. However, the role of the court is limited and litigation in the courts is not sufficient to ensure societal and policy change. For example, the breakthrough by the Treatment Action Campaign (“TAC”) in the AIDS case was, according to a former judge, due to a combination of public opinion, advocacy, public demonstrations, media exposure, and litigation, and the law working hand-‐in-‐hand. The executive is responsible for the development, choice and implementation of policy – and bears primary responsibility for the realisation of SERs, and hence social transformation. The courts are widely understood to be “guardians” of the Constitution, and thus have the right and duty to review government legislation and policy. As the courts do not implement their own orders, lack of transformation cannot be “blamed” solely on the courts. Problems include the failure – or delay – by the executive or legislature to implement the courts’ decisions. Most respondents expressed deep concern regarding the impact of the failure to implement court orders on respect for the Constitution and the rule of law. Furthermore, most respondents were of the view that transformation happens incrementally and that the courts have been “wise” in their cautionary approach to transformation.
b. Separation of powers
The doctrine of separation of powers (“SoP”) is inherent in the Constitution because it regulates the exercise of public power. This doctrine should not be seen as inflexible, and the principle should not detract from the courts’ mandates and power of judicial review. Courts may evaluate the reasonableness of government policy and action, and have a duty to grant effective remedies for the enforcement of SER. Most respondents were sensitive to the democratic imperatives of the SoP doctrine and understood that the courts are not well-‐placed to make policy, or even prescribe policy choices to government. However, the courts’ power of judicial review and the justiciability of SERs places the doctrine within a specific context. Courts have the authority and responsibility to judge the reasonableness of government policy.
c. Minimum core content of SERs
The debate around the recognition of a “minimum core” content of socio-‐economic rights is heated in South Africa. Respondents agreed that the “reasonableness” yardstick prevents the courts from becoming too involved in policy-‐making. All respondents recognised the complexities entailed in establishing the substantive content of a
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minimum core for each SER as content changes over time with fluctuations in national prosperity. It is not the responsibility of the courts to determine content, but an inclusive dialogue could assist in moving us towards a determination of the content of SERs. The Constitution requires government to take reasonable steps to ensure the progressive realisation of SERs within available resources. In a constitutional democracy, the executive bears the primary responsibility for delivering on SERs. If they do not do so, the most appropriate remedy is removal at the next election. Respondents suggested that an opportunity exists for a concerted effort by the executive, the legislature, academics and civil society, possibly led by the SAHRC, to identify the substantive content of a minimum core for each SER – as part of a constitutional dialogue.
d. The right to food (relative litigation)
The research team was struck by the complete absence of apex court decisions involving the right to food. The right to food is recognised in section 27(1)(b) of the Constitution: “Everyone has the right to have access to sufficient food and water” – as they are closely associated basic human needs. Recent statistics indicate that 1 in 1 South Africans suffers from hunger on a daily basis. Several respondents suggested that successful litigation of SERs is usually dependent on the existence of an organisation (e.g. TAC) that focuses on the right in question, and that has forged links with and an understanding of the needs of an affected community. Further, SERs are usually first litigated in the lower courts, but because cases increasingly do not reach the apex courts, we may be less aware of these decisions. This may be because, it was suggested, it is increasingly reasonable to expect to find “justice” in SER matters in the High Courts. One ex-‐CC justice suggested that the need for food may be partly satisfied by government’s social grants programme.
e. Discussion
The presentation was followed by plenary deliberation which is recorded below.
A remark was made that the separation of powers model may be artificial, as there will always be overlapping of powers, with dominant political parties deploying members to key positions throughout the state and society. Attention to African constitutionalism and customary law with less-‐defined boundaries between the 3 branches of the state, and the idea of an accountable state may contribute to more effective practices in the area of separation of powers. The establishment of the office of the Chief Justice as a state or public department through the 17th Amendment, is indeed a progressive aspect in that direction. Chapter 9 institutions in the Constitution are responsible for issues of accountability.
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One participant remarked that the Fieldwork Report has covered a lot of scope but the introduction and conclusion do not provide much insight into the scope of the research and discussion of the problems encountered and of how they have been addressed. The participant will make a written submission. In response it was mentioned that the objective was to make the report both readable and comprehensive. In the final report a system of cross referencing between the final report and the other reports will be included.
Some concern was raised about critical perceptions of the role of the judiciary within its broader context, which the Fieldwork Report doesn’t address. Furthermore, the question of why the minimum core is still important has to be answered. Possibly the HRC can lead this process. In response it was pointed out that the Constitution makes promises, which give rise to expectations, but it has been unable to effectively manage those expectations. What does it mean to live a dignified life? How do rights of foreigners residing in South Africa and South African citizens compare? It is a complex debate, because a defined minimum core can lead to rigidities as surrounding realities change. However, our current system of judicial precedents can also be rigid and binding. There seems to be continued demand for a system to measure our progress in realising SERs. The SAHRC can convene in this space – to help consider how to define the minimum core of SERs. During the course of the HSRC research, the team has learned that the SAHRC and SPII are collaborating to develop methodologies to identify the substantive content and track progress in implementing and realising SERs.
According to one participant the process of selecting judges is flawed. Can a judge president be vigilant of both government and transformation? There has never been any debate on whether there is a need to change the Roman-‐Dutch jurisprudence. Should people whole-‐heartedly accept Roman-‐Dutch law without also accepting traditional jurisprudence? For example, is it possible to operate with a system that protects pre-‐1994 property rights? Is poverty even considered by the Constitution? In response it was pointed out that the terms of reference for the project do not include an assessment of the procedures and criteria for appointment of the judiciary. However, it is not impossible for the bench to undergo some transformation in views and values even after appointment, as some recent examples have shown. Our field research has elicited a widely-‐held view that indirect access to the CC via the hierarchy of courts also has an important educative effect on both legal representatives and members of the judiciary as the Constitution is applied and “comes alive” in every courtroom. There is some evidence that the courts (perhaps the CC more than the SCA) have been willing to grapple with the legacy of Roman-‐Dutch law, especially as concerns the common law of contract, which has been examined as part of this study. There is no doubt that poverty and inequality are a central concern of the Constitution. The Preamble to the
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Constitution sets out social justice as a national objective, and SERs provide more substantive meaning. Pre-‐1994 rights as defined in both the common law and in customary law, as in all law, are explicitly subject to change to render them consistent with constitutional values and rights.
Many respondents identified implementation of court decisions as an important area where the courts can make a stronger contribution to transformation by providing effective remedies. With regard to a substantive definition of the minimum core content of SERs and the implementation of court decisions, the HSRC will reflect suggestions by key informants in recommendations in the final report.
It was remarked that people are trying to access social justice in lower courts. In one instance, a magistrate did not know or understand customary law but had at least taken time to learn. This will not always happen. Sensitivity to context can be an issue in lower courts. Other participants suggested that SER litigation should be seen as a last resort and that it is important to clarify the exact meaning of “meaningful engagement” between government and potential litigants. Respondents who made the point about lower courts said that it is “increasingly reasonable” to be able to expect to find justice in SER matters in the High Courts, especially in urgent matters. It wasn’t suggested that this applies to all High Courts equally and in all instances, nor in the Magistrate’s Courts. The field research has elicited suggestions as to how the High Court bench can be strengthened – such as by increasing the size of the bench to 2 or 3 judges in constitutional matters, and especially in complex SER matters.
The educative impact on judges of litigating SER matters through the hierarchy of courts was mentioned again. Although the HSRC research hasn’t permitted the inclusion of an analysis of the transformative contribution by either the High Courts or the Magistrate’s Courts, Parliament’s justice portfolio committee and several respondents, as well as many participants in the first colloquium, have said that the work of these courts could be an important and welcome next phase of the research.
Comparative jurisprudence from India, Brazil etc. brought the question of minimum core back onto the agenda. There is a need to establish what the perception is in SA – it was dismissed in Grootboom but was revived in argument in Mazibuko and Nokotyana. HRC and SPII are not aiming to identify the substantive content of SERs, only to track their progressive realisation. However, tracking progress is not possible without identifying some substantive content of rights, i.e. a target. There remains a need for research on what constitutes a minimum core and then a move on to how these rights are realised.
With regard to the lack of litigation on food security, participants differed with a comment by one judge on social grants catering for food. Recipients of grants set aside a
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minimum amount for food, with most expenditure allocated to meeting other needs. Do we need to litigate on food in the view that many people are going to bed hungry? When do we do this? It appeared that the judge who was interviewed wasn’t offering a scientifically valid conclusion; rather, she was wondering to what extent social grants might be meeting the need for food. The issue is also dealt with through the rights of children to access schools feeding schemes. Usually the Department of Education acts only when litigation is imminent. Regarding the issue of litigating the right to food, perhaps it would be helpful to consider the broad mobilisation model used to good effect by the TAC to complement ultimately successful litigation. Several analysts and commentators, as well as judges, have referred to it as a good example. TAC researched the issues and options carefully, and pursued an inclusive mobilisation and public awareness strategy. It started by working closely with those affected in order to thoroughly understand their needs and to identify an optimal solution. It then mobilised media support and public opinion in order to strengthen broad support for the move to bring right to food issues to litigation.
It was observed that the separation of powers debate is mostly discussed in a negative way. It should rather be framed from a less defensive perspective and focussed on how stakeholders can work together in a complementary way, with each branch of the state playing their part. Government departments are sometimes willing to settle, rather than to litigate by reflex, or even to await attachment of their assets in execution of judgment before complying with a court order upholding SERs.
Direct Access to the Constitutional Court a. Direct and indirect access to the CC
It has been argued that the limitations on direct access have largely excluded the disadvantaged from bringing matters to the CC. This is in contrast to states, such as Brazil, India and Colombia, where direct access to the apex courts is actively solicited and procedures simplified.
At the first colloquium (Feb 2014) the main arguments in favour of direct access included the assertion that it provides easier access to the CC as the ultimate authority in these matters; reduces the cost and duration of proceedings; and lowers emotional and other indirect costs.
The first colloquium’s main arguments against direct access included that direct access might flood the CC; issues might not be properly ventilated if lower courts were bypassed; direct access to the CC could contradict the traditional rules of precedent and
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thereby hinder the transformation of jurisprudence across the court system; and it will not necessarily decrease costs. On the other hand, it makes sense to go directly to the court that has extensive experience in constitutional issues.
Direct access has implications for the rule of law as it reduces tensions and pressures from the populace who want more rights to be advanced more quickly, whereas in the words of one respondent “service delivery is slowing down”. Protests are an indication that rights have been infringed or at least not respected and upheld.
On the other hand, according to a former judge, the CC’s main function is to give guidance on questions of principle, whereas advising on particular cases is more appropriately the task of “the ordinary courts”. The CC leaves it to the lower court or the appeal court to collect all the evidence, then it reflects on the evidential findings and the more focused and refined arguments.
b. Summary of preliminary findings and main trends
Several experienced public interest litigators agreed that the need for direct access is over-‐emphasised. Constitutional matters should preferably “be heard locally” as it’s quicker and more cost-‐effective. Justice can increasingly be obtained in the high courts, especially in urgent matters, while the availability of one or more appeal avenues is an added advantage of indirect access. First hearing cases before lower courts also has educative value for legal representatives and for judges in these courts and ultimately the CC, as successive hearings “narrow” and clarify the issues and improve the quality of arguments. Some respondents suggested revisiting the idea of provincial or regional divisions of the CC or the CC functioning as a “circuit court”. Another option is to increase to 2 or 3, the number of High Court judges presiding in constitutional matters and to provide them with research capacity. Lastly, it was widely agreed that strengthening implementation of decisions is a greater priority than granting more direct access to the CC.
A senior advocate noted that the passage of the Constitution 17th Amendment Act means the CC will be even more protective of its jurisdiction as it will be swamped by non-‐constitutional applications for leave to appeal.
Most practitioners had reservations about the benefits of direct access to the CC. They agreed that direct access is valuable for exceptional and urgent matters, and where the decision will have broad relevance and application. Possible cost and time savings to clients were outweighed by most lawyers’ and all judges’ perceptions concerning the strategic jurisprudential and tactical value of indirect access -‐ “dress rehearsals” and availability of further appeals.
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The need to transform the judiciary (and the legal profession) suggests that encouraging and requiring judges in the high courts and the SCA to consider constitutional claims, including the more complex SER matters, is necessary in order to ensure that the Constitution “lives” in every courtroom. Most respondents were of the view that it is increasingly reasonable to expect to achieve “just” outcomes in the high courts, including the realisation of SERs.
Comparative experiences of broadened direct access (for example, in Brazil, India and Germany) indicate that significantly larger portions of apex judges’ time is spent in sifting out the overwhelmingly larger percentage of cases that will not be heard – which is not likely to enhance perceptions concerning access to justice. There is thus a need to identify more efficient and effective ways to administer and assess more informal direct access applications.
c. Discussion
One participant remarked that the key concept in this research is transformation, but the Fieldwork Report has different perspectives on transformation. It was pointed out that an agreed definition is set out in the Concept Report. The research team accepts the view that transformation is a continuous process towards the Constitution’s goals of social justice and substantive equality.
Rather than promoting direct access, according to one participant, it will make more sense to strengthen the lower courts to which the poor can have easier access. Perhaps direct access to the CC will benefit only the rich who want to have quicker access? The desktop research on comparative experiences of enhanced direct access identified a concern that those with the “fattest wallets and the sharpest elbows” tend to enjoy more opportunities for direct access. Also, apex court judges in countries where direct access is easier, have tended to spend much time on screening and excluding many of the large number of informal applications (which don’t make out a clear case), which doesn’t enhance impressions of access to justice. In this context, case administration becomes important, as more efficient and responsive screening systems need to be developed.
The question ofwhether High Courts have, in reality, not been transformed, was raised. The CC has made decisions that establish precedent and it has issued practice directions that are available to High Courts to enable the transformation of their jurisprudence. Probably, legal representation is where transformation needs to take place. Knowledge, training and financing are not necessarily available. In India, the head of the equivalent of our HRC reports back to courts on the implementation of their decisions and the impact on human rights outcomes. This role could be undertaken by
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Chapter 9 institutions in SA. Lawyers are too adversarial and so the High Courts have created special spaces for mediation but this is not used – how do we get to enable courts to use these spaces better? In response, the question was asked whether the focus on transformation is sufficiently on the legal profession; and whether pro-‐bono work is effectively used for training and furthering the transformation agenda. The field research has suggested that the legal profession isn’t committed to supporting the work of transformation through the courts, in that the professions do not encourage attorneys and advocates to undertake more such work. Nor do the governing bodies adequately monitor whether their members properly meet their existing modest obligations.
Focusing too much on the CC may not be wise, it was suggested. If the objective is access to justice, direct access to the CC pales into insignificance next to other avenues. The Gender Commission, SAHRC and the Public Protector need be utilised better (and strengthened) so that SER cases don’t even need to go to court. The Public Protector handled 40 000 cases in 2014, which suggest the value of alternative avenues for the administration of justice. Relationships between institutions – strengthening Chapter 9 institutions – and the admission of amici also play a role in finding appropriate solutions in SER matters. Mediation as a form of alternative dispute resolution (“ADR”) is now being explored as a DoJ&CD pilot project, although this is currently limited to the Magistrate’s Courts. Respondents indicated that mediation in the higher courts entails risks, such as uneven skills and the need to pay one’s own costs. As a result, mediation needs to be court-‐supervised so that there is some quality assurance. Even so, costs of mediators are not necessarily covered.
A remark was made about conservatism in the judiciary, sustained by the legal positivism taught at universities; and the issue of legal precedent – to what extent do pre-‐‘94 decisions still undermine the transformative potential of current court decisions? In response, it was pointed out that alternative legal theories and approaches, such as realism, have been taught in some SA universities for many years. One can only hope that students have the ears and heart to hear. There are rigidities inherent in the system of precedent, but all law is subject to review and redesign – and potential transformation -‐ to meet constitutional values and principles. All work of the CC, including consideration of direct access applications in SER matters, is impacted by the broader appeal jurisdiction of the CC in terms of the Constitution Seventeenth Amendment Act. This means that, in terms of the Constitution, a minimum of 8 judges must consider each matter. This is unlike the SCA where 2 judges can consider an appeal or application. However, one CBO representative interviewed said that there is an advantage to the rigid requirement of 11 Constitutional Court judges – while someone can successfully control one High Court Judge, no-‐one can buy all 11 CC judges!
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Implementation of Decisions by the Apex Courts
Theme 2 conducted empirical research on 15 landmark cases including those dealing with housing, water and sanitation, electricity, education, health, environment, social services and customary practices. Findings show that there are few cases where full implementation has occurred while a significant number of the cases were either partially or not implemented at all. Certain cases did not require implementation by the state departments but they still had a bearing on the communities which brought them before the apex courts.
There are varied reasons for the non-‐implementation and partial implementation of court judgments that range from bureaucratic inefficiencies to resistance by the affected communities. Inadequate implementation results in high levels of frustration among affected individual communities.
a. Housing, Water, Sanitation and Electricity
Respondents argued that the availability of resources and willingness to communicate determine the ability of a state to effectively meet housing needs. According to one informant, the state tends to prefer relocating communities instead of upgrading in situ. However, the affected communities prefer in situ upgrading because it situates them conveniently with regard to workplace and schools.
In the Nokotyana case there was a delay by the MEC of Housing to declare whether the area could be upgraded to township status and delays in conducting a social audit to determine the authenticity and eligibility of RDP housing claims.
Communities have also been blamed for stalling the implementation because they have their own preferences on how upgrading must be done. Officials within the GDOHS indicated that there was funding allocated to conducting feasibility studies for upgrading of the Harry Gwala informal settlement in line with the CC judgment, however this could not be utilised due to a deadlock in discussions with the concerned community. Community members argued that the GDOHS had proposed to build high-‐rise flats, which was unacceptable to the community due to cultural and social practices.
The Chiawelo community was the victim of electricity disconnection due to intergovernmental failures to include the tenants into meaningful citizen engagement process. Public officials admitted that it is difficult to implement court decisions due to lack of communication between state departments, municipalities and the affected communities and this continues to create a distance between the state and the society. Although the residents of Phiri received notice that a pre-‐paid water system would be
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put in place, Lindiwe Mazibuko did not receive such a notice and lived without water on her property for approximately 6 months.
b. Access to Education
Gauteng HOD for Education in the Rivonia case lamented the way in which the SGBs of privileged former model C schools used their admissions policies to exclude other races and classes. The HOD was put to the test on the question of who had the final say as far as admission was concerned in public schools. Departmental inaction would have created a precedent amongst SGB’s across the country to make decisions which were actually the responsibility of the department.
In the case of Juma Musjid Primary School, a social activist argued that the HOD and the MEC of Basic Education did not really apply their minds as to why they closed a public school without proper consultation of the affected parties, including learners and their parents. The closure and re-‐opening of schools negatively impact on learners’ performance.
c. Environmental issues
Environmental issues came to the fore in the case of the Director: Mineral Development, Gauteng Region & Another v Save the Vaal. A senior public official cautioned that although pressure groups such as Save the Vaal play a significant role in terms of highlighting community or environmental concerns, there is a need to balance the environmental and commercial interests.
In the Fuel Retailers Association v DG, Environmental Management, Mpumalanga (2006), the Deputy Director, Mpumalanga Department of Environmental Affairs argued that there are no uniform policies about environmental issues among the provinces which limit effective provincial decision making.
d. Primary Health Care
The landmark case of the Treatment Action Campaign v Minister of Health is one that has enjoyed relative success in implementation under the Zuma administration as opposed to Mbeki’s epoch of denialism. Today, South Africa has the largest anti-‐retroviral treatment programme in the world — resulting to a great extent, from the case. One of the TAC members argued that their united approach towards lobbying for free treatment was the reason behind their success during the legal battle with unsympathetic Ministers. Under the current Health Minister Dr Aaron Motsoaledi, babies born HIV
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positive are now about 8,000 in contrast with 70,000 in the past and this is met with merited treatment programme rollout success despite limited available resources.
e. Social welfare services
Interviews with some of the beneficiaries of the Khosa case revealed that the CC judgment made it possible for community members in Bushbuckridge to access social assistance and most people are receiving pensions, child support and disability grants. However, some permanent residents have been waiting for so many years for their South African ID documents without success. Without the IDs they cannot be registered for social assistance and now face a different kind of exclusion which is rather technical in nature.
f. Customary practices
According to a senior official from DTA, the Shilubane case had minimal impact on the role and functions of the DTA. There have been no other cases brought before the courts by women in traditional communities who might be in a similar situation as Mrs Shilubane. With regard to implementation of the court decision, there was no resistance from those in the Nwamitwa community who had initially opposed the installation of a female as traditional leader. The community informants expressed gratitude for the changes that Mrs Shilubane now known as Hosi Nwamitwa II has implemented including development projects to empower women and youth, and the inclusion of more women in the Traditional Council, and a new Stakeholders’ Council was established which includes community interest groups that can interact with the traditional leadership on matters of concern. One interesting lesson for most community members was that they learnt a lot about the functioning of South Africa’s court system.
g. Cross-‐cutting issues
Frustration is very high among communities that received favourable judgements yet inadequate or non-‐implementation. Intergovernmental relation failures often emerged due to the interplay of the national provincial and local spheres of government with different competencies/mandates. The accountability, oversight and monitoring mechanisms are largely questionable which frustrates the implementation of the court decisions. State officials sometimes show complacency and lack of work ethics. There is a need to maximise bureaucratic efficiencies and expediencies in the delivery of services with optimal utilisation of resources, be it financial, material and human capital.
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There is a need for the civic education that empowers communities to understand how the state machinery functions especially bureaucratic structures, systems and functions. This will enable communities to ensure the state engages with them and remains accountable.
d. Discussion
A comment was made about the lack of information on why government projects were not implemented at once, but only, e.g. 5 years later. This may be because government operates on yearly budgets within a 3 year Mid-‐Term Budget Framework and may not have sufficient funds to implement additional projects. A serious problem for government is that NGOs often take cases to court without taking into account whether the court order is implementable. It is a waste of time to take matters to court without making sure that the budget is sufficient to cover the costs.
It is important to express that the state operates on an approved tight budget by National Parliament, Provincial Legislatures or Municipal Councils. A state department must operate within the limits of the approved budget. Any action which is not budgeted for is illegal and is therefore generally called an unauthorized expenditure. In terms of the PFMA or MFMA, any such expenditure exceeding 2% of the budget of the said department is a crime punishable by a 5 year prison term. This could also mean that officials become extremely careful not to under or overspend as doing so will put them in trouble with PFMA/MFMA and this extra carefulness makes them oversensitive to delay in implementing court decisions.
With regard to issues around Department of Home Affairs (“DHA”) delivery on ID documents for refugees and asylum seekers, an official from DHA commented that DHA does issue enabling documents to refugees (awaiting IDs) which may be used to obtain SA social services. There will be an endorsement in their passports which allows them to obtain social services. The backlog in the issuing of IDs is due to legacy issues, e.g. corruption regarding the processing of documents. Furthermore, all applications for SA documents are subjected to scrutiny which is time consuming. The changing of status from asylum-‐seeker to refugee also has to be taken into account, as it impacts on access to correct data in the processing of applications. DHA does not want to deny non-‐citizens their rights. The interview with SASSA revealed that according to the SASSA Act, permanent residents who await their IDs may not be excluded from social grants. However, amnesty to Mozambicans was already granted in 1998, so if the issuing of IDs is still outstanding, the matter has to be investigated. Nevertheless, although the process of obtaining IDs is clear to officials and local government, the community’s level of understanding differs. Government communication to communities has to be clear and
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civic education has to be done on this matter as communities may not understand how the state operates. Interplay between the DHA and DSD has to be interfaced and clearly communicated to avoid affected individuals sent pillars to post.
The project’s research is important for the broader question: To what extent has the judiciary taken into account issues such as the multiple level of state dysfunction, lack of resources and incapacity to implement court orders which are not likely to change in future? It is important to distinguish between implementation and general state departments’ problems. Does the state have problems rolling out deliverables or does the state simply ignore court orders? Or do they have problems with the interpretation of the wording of the court orders? In response it was pointed out in the colloquium held that these questions are important. To what extent can one say the state is willing to implement if it takes 5-‐10 years to implement a court order? In some instances the state is seemingly ignoring court orders, for example in Ekurhuleni, people were illegally moved from land, judgment was passed that they have to be restored, but the court order was not implemented, and the reason given was that the state lawyers were moving offices so papers were displaced. Sometimes the state lacks resources and capacity to fulfil the needs and interest of the society. In all these cases frustration levels are high as people cannot wait 20 years for implementation of court orders. The colloquium presentation was limited to the fieldwork report, and more detail will follow in the Final Report.
The constitution refers to specific rights in different ways, e.g. housing and education.
One participant pointed to the fact that some critical areas are not articulated by respondents, e.g. service delivery response on municipal level where people pay for services. How do municipalities provide for those services? The state has a policy to implement all court orders whether they agree or not since they cannot be seen as ignoring court orders. However, lack of implementation of court orders is sometimes closely related to lack of capacity of government officials to implement court decisions, due to poor skills and ignorance. One cannot blame the entire state department for non-‐implementation if some officials do not implement court decisions. Importantly, people are not interested to know the interplay of local/provincial/national spheres of government when they complain about services, but expect the state as a whole to take responsibilities without being bothered by internal bureaucratic and intergovernmental institutional arrangements. Sometimes there is willingness on the part of local government to implement court decisions, but this willingness is not present in provincial and national spheres of government.
Access to the Justice – Process, Costs and Duration
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The access to justice part of the research needs to be located in the context of the overarching research question for this study, “What has been the impact of the decisions of the SCA and CC on the transformation of society?” SCA and CC decisions are at least partially dependent on access to justice issues i.e. the degree to which SA citizens are able to bring SER cases before the courts. Self-‐evidently if there was no access to justice there would be no decisions that could impact on the transformation of society. Therefore this part of the research looked at the transformative potential of access to justice, which it is argued, relates to the creation of space for citizens to claim rights, to acquire agency in a context of marginalisation and socio-‐economic deprivation.
a. Methodology
This was a qualitative study in which interviews with litigants were not a representative sample but focus groups were held with litigants from most landmark cases. Qualitative research makes it possible to understand context and meaning, values, norms and beliefs of litigants. Indeed, very little research has been conducted on the experience of litigants in SA. The fieldwork provided insight into SCA and CC litigants’ experience of the court system and more broadly, the meaning of the Law for them. The research also provided insight into the opinion of various stakeholders on the issues identified as key problems in the civil justice system: cost, duration, alternative mediation, rules and procedures. Although the findings do not represent the views of all stakeholders in the cases, most major NGOs/law clinics conducting Public Interest Litigation were represented.
b. A lawful society
In 1994-‐South Africa put law at the centre of its constitutional democracy, although today a considerable gap remains with informality and illegality at local level. Nevertheless, the fieldwork shows a significant faith among respondents in the notion of the Law, as articulated by a litigant from the Abahlali case, “We can have meetings and make decisions in different ways, but then the Courts and the Law is left standing.” Therefore the realisation of the rule of law is not simply about institutions but about creating particular types of citizens who see themselves as judicial subjects and makers of law.
c. Awareness of rights
Access to justice does not only refer to the actual court process but a prior process in which citizens become aware of their rights. A respondent from the Nokotyana case
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explained, “There is no greater frustration than being born in a place, and to grow up and [get] old still without rights.” It became evident in the empirical research that through the process of litigation, some respondents gained an increasing awareness of the law as a means to secure rights through litigation, e.g. through social movements like Abahlali. Nevertheless it is important to note that most litigants were compelled into the legal system through immediate challenges to their life circumstances e.g. evictions, and developed sense of agency as a result of this process.
d. Procedural justice
As Tyler argues, the judicial process is as important as outcome-‐fairness, respect, dignity, transparency, voice, and participation are all important. Procedural justice emerged as critically important in the fieldwork. Litigants began to constitute themselves as full citizens, judicial agents who could claim rights through the process of litigation. Despite the fact that the outcome of many cases was ambiguous, litigants appeared to remain convinced of the value of the process of litigation. However, it is important to note that the “gratitude” of litigants, speaks not only to the successes of the judicial process but also to their extreme sense of subjection, which in turn relates to the daily misrecognition and disempowerment of citizens in South Africa.
The mere fact of being acknowledged and recognised in the courts was significant for many litigants. It created a levelling effect and a sense of dignity and equality: “our feeling was that we were of course too inferior to challenge the Government to the highest court of all the land… we are actually human beings that counts the same in the eyes of the law, especially that the ConCourt took us seriously.” (Joe Slovo). The process of recognition enabled citizens to claim the rule of law as their own, it is no longer abstract, “now the [litigant] has a place to say, ‘that was ruled by the court of law’”(Modder East).
Procedural justice was also seen as critical so that citizens, “resist within the premises of the law but also with confidence that the law is on our side. They are not just making noise, but as a law-‐abiding citizens.” (Abahlali).
For litigants the legal process is also about reclaiming a broader principle of procedural justice in society as a whole that could protect citizens against arbitrary abuse of power: “all the challenges that we are facing are very political, [rather than the government] following the processes that are in place. So, in order to reclaim those processes and those procedures you have to go to Court then they will be followed.” (Abahlali). Litigants from Modder East also felt that the Modder East decision had established an important procedural principle that the state has to engage with communities they plan to evict.
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e. Outcome
The outcome did not satisfy expectations in many instances. Litigants from Modder East felt that the outcome was unfair because they were also expecting that when the court ruled in their favour it would also order the municipality to provide them with basic amenities, sanitation and clean running water. In other words: “… justice only happened inside the Courtroom but outside, no…the lesson out of that is that you can win in Court but still fail in reality.” (Abahlali).
f. Costs
The vast majority of SER cases are taken up by Public Interest Law (“PIL”) firms who do not charge applicants fees directly. However, costs are a disincentive to PIL firms to pursue SER cases especially when their own funding is not secure. Lack of resources means a focus on cases that will have the most strategic impact. Costs means ordinary citizens cannot pursue these cases independently. In addition, many litigants struggle to pay for ancillary costs e.g. transport to consultations and accommodation during court days. Furthermore, litigants lost work days and pay by attending court. Measures to ameliorate costs for SER cases in the CC include the rule of no cost award if a party loses.
g. Duration
There are mixed views on the question of duration. While a member of the Wits Law Clinic argued that, “Duration is a huge issue and the Chief Justice has been very critical about that” an advocate argued that duration does not stop poor people from entering the legal process. A former justice argued that duration is an unavoidable aspect of the legal process and that “there is no magical formula that can deal with duration.” The requirement of quality of the legal process means that “with litigation there is no shortcut. It has to be done properly, and that takes time” as one advocate stated. One respondent stated that there is a critical deficit in the limited number of judges to adjudicate SER matters at SCA level. It was argued therefore that there is no will to enforce compliance with time limits as a result of the work load at SCA courts. The government itself was identified as contributing to the problem of duration in SER cases in particular because it “will defend any matter, regardless of the merits and pursue it up to the CC rather than settling.”
h. Expanding the mandate of the LAB
The Legal Aid Board (now Legal Aid South Africa) is the key avenue for access to state funded legal representation. However, their primary focus has been criminal cases. Most
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interviewees, including legal NGOs, civil society, advocates, attorneys, judges and legal academics indicated that the LAB focus on SER litigation needs to be extended. The state has recognised this by establishing the Impact Litigation Unit within Legal Aid South Africa.
However, some respondents expressed concerns about the quality of the legal process if the LAB mandate is expanded to include more SER litigation. This led one advocate to argue that funds should be directed to existing legal NGOs with PIL experience. Other respondents raised the issues of “independence” and “objectivity” should a state institution such as the LAB take up SER cases when the state is often the defendant in these cases. It was suggested at an HSRC colloquium and by respondents that the SAHRC as well as other Chapter 9 institutions are the primary institutional bodies tasked with ensuring the realisation of socio-‐economic rights and therefore they could play a more pro-‐active role to ensure the adequate funding of SER litigation.
i. Pro Bono legal representation
The recently passed Legal Practice Bill (March 2014) aims to create a greater responsibility on the part of lawyers in private practice to devote a portion of their time to pro bono work. There was widespread support for the idea of pro bono work among interviewees. One academic described it as ethical obligation, “soul food for lawyers”. However, a number of concerns were raised about the way in which the current system is functioning. First, some respondents stated that there is resistance among some legal professionals to meet the current obligation of 24 pro bono hours per annum. There is also ambiguity about what constitutes “Pro Bono” work, which may lead to box-‐ticking that is detrimental to citizens. One example is a legal professional starting a consultation process and leaving it when the requisite number of hours has been completed, regardless of the progress of the case. Some private firms have established Pro Bono departments to try and address these problems but these are the exception. Generally it was stated by respondents that there is a lack of monitoring of Pro Bono hours and a lack of sanctions and accountability for non-‐compliance. It was argued by one advocate that there is a need for more active management of Pro Bono work, by Law societies and Bar Councils. Some respondents cautioned that it is important to ensure that those who deal with complex socio-‐economic cases have the necessary skills. Self-‐evidently, not all legal professionals who do Pro Bono work are equipped for these type of cases.
j. Alternative Dispute Resolution (“ADR”)
As was stated at the previous colloquium, the formalistic and adversarial nature of South African law drives up costs. Respondents in the fieldwork showed general support for the
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idea of mediation but there is a lack of clarity about what it might mean in SER cases in particular. The civil reform project emphasises court-‐annexed civil mediation, but it is important to ask if it is appropriate for SER cases. Thus far there has been a focus on “meaningful engagement” at the CC level. In general there appears to be agreement that any “alternative” processes would need to be court-‐supervised rather than independent arbitration.
A problem raised with regard to traditional arbitration is that there is no opportunity for appeal and all due process rights are locked into the system. Another concern is that arbitration can lead to the development of a parallel private system that doesn’t develop the law. It was also noted that the quality of mediators can be a challenge and the cost of mediation should not be underestimated. In SER cases there is a particular tension between the need to set precedent for classes of people and the possibility that a mediated settlement might best serve the immediate interests of litigants. “As lawyers you want precedent because a precedent would be standing there as a guide. On the other hand, for the people … What they want is: did I get access to housing, did I get access to water and lights...” (LASA)
k. Rules and procedures
The Superior Courts Bill (2013) recently integrated the system of court governance including the integration and rationalisation of the rules of procedure in courts. Interviewees indicated that current rules and procedures are very complex and a barrier to accessing justice. Rules are described as “archaic” and “limiting”, from a “bygone age”. It was argued, for example that SCA rules make it harder to get an urgent appeal therefore many SER cases go straight to the CC from the High Court. Another example of problematic rules is that you must make 5 attempts to uplift a lost file before a duplicate is made. Pleadings, time frames and rules for services need to be more user-‐friendly (ProBono.org), and one attorney suggested we should do away with orders for condonation. CALS stated that there is a need to consult communities on changes to rules. A former justice emphasised the need for judicious change to rules.
l. Discussion
It was mentioned that there are a significant number of Civil Justice Reform programmes. The question is whether we should not rather focus on doing our jobs properly.
Equality courts, which were established in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act No 4 of 2000 (“PEPUDA”), have not been
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mentioned in the research. More information is available on the DOJ&CD website: http://www.justice.gov.za/docs/articles/201103_pepuda.html#sthash.I11FPBRG.dpufare
These courts could help in advancing some of these issues the research has addressed. The final report should acknowledge it as a gap in the research.
Questions were raised on the methodology, which is clearly qualitative. Firstly, a rational for the selection of specific methodology should be provided in the report. There is also a need for more quantitative data on the subject. However, the budget did not allow for such an approach which would include a survey. However, the HSRC’s South African Social Attitudes Survey (SASAS) 2015 includes a number of questions for this project, which will be analysed and expanded upon in the final report.
Access, costs and duration relate to lower courts. It was suggested that the project also be linked to the 7 point plan on criminal justice reform emphasised in the National Development Plan.
One participant remarked that lawyers and legal support organisations tend to take away the agency of people and treat them as victims. Should lawyers deal differently with their clients, and if so, what type of approach should be adopted?
Justices Kriegler and Sachs
Former Justice Kriegler started by congratulating the research team for the solid research work. He acknowledged that he was initially sceptical over the project but increasingly agreed to the subject and approach towards the research. He mentioned that the Constitutional Court was complicated as it dealt with a range of complex issues that ranged from jurisprudence to those in socio-‐political theory. There were no easy answers coming from proceedings in the Constitutional Court. Trials in the Constitutional Court are intricate, unless the case is direct and clear. The latter offers opportunities for direct access.
Justice Kriegler suggested that cases should not only apply or be submitted to the Constitutional Court. Lower courts such as district courts could often provide judgments. Responsibilities from the Bill of Rights and the Constitution should go beyond the judiciary, the CC, SCA or the High Court, and should be the responsibility of all organs of state. State departments that don’t implement court orders disobey the Constitution, don’t respect their mandate to adhere to court orders and undermine the right for protection and security of citizens. On the other hand, judges should know their limits, powers and capacity. The judiciary cannot solve all the problems that exist. Mere punitive application of law by judges is detrimental to the Constitutional rights of citizens.
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Justice Kriegler highlighted the reality that there was still a long way to go as socio-‐economic problems cannot be resolved overnight. There was a need to be weary of consequences to judgements, thus taking time to ensure that assessments and judgements are done right remained crucial. In addition, Justice Kriegler pointed to the high expectations communities and litigants raised from the judiciary, while most duties remained the responsibility of the executive and the legislature. Socio-‐economic challenges cannot be solved solely through the judiciary. Courts have a limited role, capacity and authority. To use courts to solve all problems would be disastrous. Two examples were significant. The TAC leaders achieved their objectives beyond the role of the CC, and the most significant impact came from society and the influence of the media. The role of the community in the Shilubane case was decisive and its dedication and commitment to the cause illustrated community potential beyond the courts.
For Justice Albie Sachs, the greatest challenge to the judiciary was not bullying, crime or rape cases, but those around human rights issues. He concurred with Justice Kriegler that it is the duty of all organs of state to respect the CC and implement court orders as well as their mandates to deliver services and protect rights. The function of courts remains to settle disputes, and the courts shouldn’t be seen as an alternative to the executive and the legislature. The protection of citizens’ rights often depends on availability of information, and freedom of information has been fundamental and continues to be a crucial aspect of maintaining human rights. Justice Sachs quoted former Chief Justice Sandile Ngcobo’s statement that “in a constitutional state, the hands of the law are never tied”.
The difference between the Supreme Court of Appeal and the CC was made clear in the Joseph case, when the SCA found that the community should sue the landlord in order to recover their money. This order could not be implemented as the community did not have the necessary resources. The CC then restored the community’s rights by making the Johannesburg City Power responsible for resolving the matter.
The CC has provided solutions to cases which were complex and not just related to existing legislation. In such cases it remains important to include the people who are affected through meaningful engagement. In this regard Justice Sachs referred to the Grootboom case as it illustrated that the communities that apply and bring their cases to attention of the CC are ordinary people. The lesson from the TAC case was the importance of the impact that grassroots communities can have on the solution of problems. Furthermore, the interdependence of human rights should be acknowledged.
Lastly, it must be remembered that the government is not the enemy, therefore we need not rub it in when victories are won. We should rather liaise through meaningful engagement as was done in the TAC case.
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Conclusion
The project team is of the view that the Fieldwork Report colloquium was worthwhile as it brought together relevant stakeholders whose inputs and comments will add much value to the outcome of the research project. The colloquium provided a platform for the researchers to interact with former CC judges, members of the South African legal profession, academia, civil society and other research institutes. The occasion enabled the team to share their perspectives on the main themes of the project and, perhaps more importantly, to be able to obtain the input of external role-‐players and thereby further refine research content and approaches. The discussions yielded new insights and broader perspectives which otherwise may have been lost to the researchers. The mix of disciplines in the room added significant value to the exercise and confirmed the value of the multi-‐disciplinary approach adopted by the project team.
The conversations which were shared during the plenary discussions were conducted in a respectful and constructive manner, and it appears that the initial concerns expressed at the first colloquium relating to the “politicised” nature of the research are no longer an issue. Many delegates expressed the view that the project was of critical importance in relation to the building of the South African constitutional democracy.
Delegates confirmed the need for further research on a number of areas (e.g. High Courts and other rights) is necessary.
The project team would like to thank all the delegates for giving their time and insights and would invite them to remain in contact with the team as the process comes to a conclusion. In this regard we would encourage participants to communicate with Prof Narnia Bohler-‐Muller or make written submissions.
The team would specifically wish to thank the Department of Justice and Constitutional Development for partnering with us on this initiative and for their assistance in the hosting of this Colloquium.
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ANNEXURE E: Constitutional Justice Project: Attitudes towards the Courts
DOJ Attitudes towards the Courts Tabulation Report based on the 2014 round of the South African Social Attitudes Survey (SASAS)
Prepared for
Democracy Governance and Service Delivery (DGSD)
by
Benjamin Roberts, Jarè Struwig, Mercy Ngungu and Steven Gordon Democracy, Governance & Service Delivery (DGSD) research programme
Human Sciences Research Council (HSRC)
04 June 2015
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Contents 1.Background to the study ................................................................................................................... 69
1.1.Introduction ................................................................................................................................... 69
1.2.The Research Universe .................................................................................................................. 70
1.3.Sample Design ............................................................................................................................... 70
1.4.Data Weighting .............................................................................................................................. 71
2.National Level Results (Weighted %, Unweighted N) ....................................................................... 72
2.1.The courts ...................................................................................................................................... 72
2.2.Social-‐ Economic rights .................................................................................................................. 75
2.3.Frequency of being unlawful ......................................................................................................... 77
3.Results Disaggregated by Province (Weighted %, Unweighted N) ................................................... 78
3.1.The courts ...................................................................................................................................... 78
3.2.Social-‐ Economic rights .................................................................................................................. 83
3.3.Frequency of being unlawful ......................................................................................................... 86
4.Results Disaggregated by Geographic Type (Weighted %, Unweighted N) ...................................... 87
4.1.The courts ...................................................................................................................................... 87
4.2.Social-‐ Economic rights .................................................................................................................. 91
4.3.Frequency of being unlawful ......................................................................................................... 92
5.Results Disaggregated by Age Group (Weighted %, Unweighted N) ................................................ 94
5.1.The courts ...................................................................................................................................... 94
5.2.Social-‐ Economic rights .................................................................................................................. 98
5.3.Frequency of being unlawful ......................................................................................................... 34
6.Results Disaggregated by Sex (Weighted %, Unweighted N) .......................................................... 102
68
6.1.The courts .................................................................................................................................... 102
6.2.Social-‐ Economic rights .................................................................................................................. 40
6.3.Frequency of being unlawful ....................................................................................................... 106
7.Results Disaggregated by Population Group (Weighted %, Unweighted N) ................................... 108
7.1.The courts .................................................................................................................................... 108
7.2.Sour Social-‐ Economic rights ........................................................................................................ 112
7.3.Frequency of being unlawful ....................................................................................................... 113
8.Results Disaggregated by Educational Attainment (Weighted %, Unweighted N) ......................... 114
8.1.The courts .................................................................................................................................... 114
8.2.Social-‐ Economic rights ................................................................................................................ 119
8.3.Frequency of being unlawful ....................................................................................................... 121
9.Appendix: South African Social Attitudes Survey (SASAS) 2014 DOJ Attitudes towards the Courts123
69
1. Background to the study 1.1 Introduction
This report is one of the outputs associated with the HSRC Democracy Governance and Service Delivery programme’s ongoing work on the “Attitudes towards the Courts in the country”. This includes not only criminal courts but all courts including magistrates’ courts, chiefs' and headmen's courts, higher courts such as the Constitutional Court, and other specialist courts. A module of 13 questions capturing different aspects of “Attitudes towards the Courts in the Department of Justice (DOJ)” was developed and fielded as a special thematic focus alongside a broader DOJ module in the 12th twelfth round of the South African Social Attitudes Survey (SASAS), conducted in the last quarter of 2014. The SASAS series has been administered by the HSRC on an annual basis since 2003. It is a nationally representative sample survey of adults aged 16 and older, that investigates public’s attitudes, beliefs, behaviour patterns and values in the country. The long term aim of this survey programme is to construct an empirical evidence base that will enable analysts to track and explain the attitudes, beliefs and behaviour patterns of the country’s diverse populations.
The concepts underlying the DOJ module “Attitudes towards the Courts in South Africa” are provided in the table below:
Overview of the primary indicators included in the DOJ Attitudes towards the Courts module
CONCEPT QUESTION NUMBER The courts (Service delivery) Q 112 -‐ Q 117 Social-‐ Economic rights Q 118 -‐ Q 121 Frequency of being unlawful Q 122 -‐ Q 124
This tabulation report provides frequencies of all the questions asked in the module as well as cross tabulations of all the questions by age group, sex, population group, educational attainment, province and geographic subtype.
70
1.2 The Research Universe
The target population for the survey is individuals aged 16 and over who live in private residence (households, hostels and other structures). People living in special institutions such as hospitals and prisons were excluded from the sample. The inclusion of people from these institutions would have compromised the random selection procedure. Also, past experience has shown that access to people in these institutions is extremely difficult, since obtaining permission can be cumbersome and complex.
1.3 Sample Design
The survey has been designed to yield a representative sample of adults aged 16 and older. The sampling frame used for the survey is based on Statistics South Africa’s 2011 Population Census and a set of small area layers (SALs). Estimates of the population numbers for various categories of the census variables were obtained per SAL. In this sampling frame special institutions (such as hospitals, military camps, old age homes, schools and university hostels) as well as recreational areas, industrial areas and vacant SALs were excluded prior to the drawing of the sample.
In the sampling, small area layers (SALs) were used as primary sampling units (PSUs) and the estimated number of dwelling units (taken as visiting points) in the SALs as secondary sampling units. In the first sampling stage PSUs (SALs) were drawn with probability proportional to size, using the estimated number of dwelling units (DUs) in a SAL (PSU) as measure of size (MOS). The DU as secondary sampling unit has been defined as “separate (non-‐vacant) residential stands, addresses, structures, flats, homesteads, etc.” In the second sampling stage a predetermined number of individual dwelling units (or visiting points) were drawn with equal probability in each of the SALs. Finally, in the third sampling stage a person was drawn with equal probability from all 16 years old and older persons at the visiting point using a Kish Grid.
71
Three explicit stratification variables were used in the sampling, namely province, geographic type and majority population group. Within each stratum, the allocated number of PSUs (which could differ between different strata) was drawn using proportional to size probability sampling with the estimated number of dwelling units in the PSU as measure of size (MOS). In each of these drawn PSUs, 7 dwelling units were drawn.
1.4 Data Weighting
A total of 3 108 people were interviewed during this study. The final data set was given to the statistician for benchmarking and weighting purposes. When weighted, this number represents 36 778 675 South Africans of 16 years and older. The data was weighted to the 2011 census population estimates.
72
2. National Level Results (Weighted %, Unweighted N) 2.1 The courts
N Col %
Q112. Since 1994 have you had any experience with a South African
court about your own situation, or to help friends or family?
Yes 521 16.6
No 2531 82.4
Do not know 38 1.0
Total 3090 100.0
Multiple response table
Col % N Q113 Which courts did you, the family member, or friend go to?
113.a. Constitutional Court 12.5 53
113.b. Supreme Court of Appeal 5.0 23
113.c. High Courts 18.5 77
113.d. Special Income Tax Courts 3.8 5
113.e. Labour Courts and Labour Appeal Courts 2.7 15
113.f. Divorce Courts 5.4 37
113.g. Land Claims Court 3.8 7
113.h. The Water Tribunal .4 2
113.i. Truth and Reconciliation Commission (TRC) .9 2
113.j. Magistrate’s Courts 41.2 207
113.k. Small Claims Courts 7.6 47
113.l. Community Courts / District Courts 4.8 23
113.m. Equality Courts .9 5
113.n. Child Justice Courts 1.2 11
113.o. Maintenance Courts 6.4 37
73
Col % N
113.p. Sexual Offences Courts 2.7 12
113.q. Children’s Courts 3.4 14
113.r. Courts for Chiefs and Headmen .0 0
113.s. Commission for Conciliation Mediation &
Arbitration ( 1.4 9
113.t. Other (Specify) 1.5 10
113.u. Do not know 2.0 15
Total 100.0 521
N Col %
Q114. How satisfied or dissatisfied are you with the way you were
treated the last time you visited a court?
Very satisfied 73 20.4
Satisfied 261 45.7
Neither nor 72 13.1
Dissatisfied 74 14.3
Very dissatisfied 39 6.2
Do not know 4 .3
Total 523 100.0
Case Processing Summary
Cases
Included Excluded Total
N Percent N Percent N Percent
Q115. In your opinion, how easy or difficult would it be for you to get legal help if
you needed it? 3089 99.4% 19 0.6% 3108 100.0%
74
Mean Report
Q 115. In your opinion, how easy or difficult would it be for you to get legal help if you needed it?
Mean N
8.29 3089
Multiple response table Col % N Q 116 What are the most important reasons that might make it difficult for someone like you to get access to justice from the courts in South Africa in times of need?
116.a. Lack of funds to pay expenses 59.0 1750
116.b. Lack of general education 19.4 555
116.c. Lack of knowledge about laws and legal rights 26.5 746
116.d. Lack of knowledge about where my court is 6.8 194
116.e. The time it would take for the case to end 12.5 403
116.f. It would be hard to get a lawyer to help me 14.2 377
116.g. The courts would not be fair to someone like me 6.4 182
116.h. The distance to the courts is too far 6.5 164
116.i. Living in a rural area 6.0 175
116.j. It would be dangerous for someone like me and my
family 4.8 166
116.k. Other (Specify) 2.3 68
116.l. Do not know 6.7 269
Total 100.0 3065
N Col %
Q117. Given everything we must do in society, do you favour or oppose
the government using taxpayer money to provide lawyers?
Strongly favour 1190 40.9
Somewhat favour 1120 35.7
Somewhat oppose 403 12.5
Strongly oppose 216 6.7
75
N Col %
Do not know 157 4.2
Total 3086 100.0
2.2 Social-‐ Economic rights
N Col %
Q 117. Given everything we must do in society, do you favour or oppose the government using taxpayer
money to provide lawyers?
Strongly favour 1190 40.9
Somewhat favour 1120 35.7
Somewhat oppose 403 12.5
Strongly oppose 216 6.7
Do not know 157 4.2
Total 3086 100.0
Q 118. How satisfied or dissatisfied are you with the way that the government is handling the delivery of
basic services?
Very satisfied 190 6.2
Satisfied 1033 33.5
Neither nor 604 20.9
Dissatisfied 650 21.5
Very dissatisfied 574 17.1
Do not know 33 .7
Total 3084 100.0
Q 119. How fast or slow do you feel government officials are in responding to and resolving service delivery
issues for you?
Very fast 117 3.2
Fast 474 16.0
Neither fast nor slow 795 25.6
Slow 827 27.2
Very slow 820 26.8
Do not know 53 1.1
76
N Col %
Total 3086 100.0
Q120. To what extent do you agree or disagree that government
departments including municipalities successfully implement?
Strongly agree 91 3.1
Agree 894 29.5
Neither agree nor disagree 963 31.1
Disagree 577 18.8
Strongly disagree 272 7.9
Do not know 291 9.6
Total 3088 100.0
Q121. And how much do you agree or disagree that government
departments and municipalities have the capacity to be successful?
Strongly agree 176 5.0
Agree 947 31.3
Neither agree nor disagree 948 30.6
Disagree 484 16.1
Strongly disagree 230 6.5
Do not know 300 10.5
77
2.3 Frequency of being unlawful
N Col %
Q122. How often have you made an exaggerated or false insurance claim in the last 5
years?
Never 3025 96.6
Once 39 2.0
Twice 13 1.0
3-‐4 times 3 .2
5 times or more 1 .0
Do not know 7 .2
Total 3088 100.0
Q123. How often have you bought something you thought might be stolen in the last
5 years? How often have you bought something that you thought might be stolen?
Never 2831 88.3
Never 2831 88.3
Once 154 7.5
Twice 48 2.1
3-‐4 times 22 .8
5 times or more 8 .6
Do not know 24 .7
Total 3087 100.0
Q 124. How often have you committed a traffic offence like speeding or crossing a
red robot in the last 5 years?
Never 2770 89.2
Once 142 6.1
Twice 70 1.9
3-‐4 times 34 1.0
5 times or more 46 1.3
Do not know 26 .6
Total 3088 100.0
78
3 Results Disaggregated by Province (Weighted %, Unweighted N) 3.1 The courts
Province
WC EC NC FS KZN NW GT MP LP Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % Q 112. Since 1994 have you had any experience with a South African court about your own situation, or to help friends or family?
Yes 41 8.4 77 21.0 57 28.8 20 6.5 123 15.9 32 12.8 81 20.7 42 15.7 48 17.4 521 16.6
No 345 90.0 304 76.3 162 70.3 219 93.0 455 83.5 187 85.0 412 78.6 205 83.7 242 82.6 2531 82.4
Don’t know
9 1.6 9 2.8 2 .8 2 .5 5 .6 4 2.2 5 .7 2 .6 0 0.0 38 1.0
Total 395 100.0 390 100.0 221 100.0 241 100.0 583 100.0 223 100.0 498 100.0 249 100.0 290 100.0 3090 100.0
Multiple response table
Province
WC EC NC FS KZN NW GT MP LP Total Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Q 113 Which courts did you, the family member, or friend
113.a. Constitutional Court
2.7 2 4.9 9 17.4 5 8.4 2 12.4 11 0.0 0 23.3 18 8.2 4 3.1 2 12.5 53
113.b. Supreme Court of Appeal
0.0 0 12.5 5 1.9 2 0.0 0 4.8 10 1.1 1 5.9 4 0.0 0 2.0 1 5.0 23
79
Province
WC EC NC FS KZN NW GT MP LP Total Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
go to? 113.c. High Courts
6.3 3 9.9 10 16.2 12 .8 1 15.6 20 1.8 1 36.5 24 7.4 3 6.2 3 18.5 77
113.d. Special Income Tax Courts 0.0 0 0.0 0 0.0 0 0.0 0 .6 2 0.0 0 11.1 3 0.0 0 0.0 0 3.8 5
113.e. Labour Courts and Labour Appeal Courts
2.9 1 0.0 0 .6 1 0.0 0 4.3 7 14.5 2 3.0 4 0.0 0 0.0 0 2.7 15
113.f. Divorce Courts
0.0 0 10.3 8 2.7 4 11.4 3 6.3 7 1.4 2 3.3 5 6.4 4 8.0 4 5.4 37
113.g. Land Claims Court
0.0 0 0.0 0 0.0 0 0.0 0 .2 1 0.0 0 11.4 6 0.0 0 0.0 0 3.8 7
113.h. The Water Tribunal
0.0 0 0.0 0 0.0 0 2.1 1 0.0 0 0.0 0 0.0 0 0.0 0 3.4 1 .4 2
113.i. Truth and Reconciliation Commission (TRC)
0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 5.1 1 1.8 1 0.0 0 0.0 0 .9 2
113.j. Magistrate’s Courts 58.6 25 41.0 28 71.2 34 49.5 9 33.8 39 61.3 16 37.5 20 52.1 22 25.9 14 41.2
207
113.k. Small Claims Courts 11.3 3 12.0 11 2.6 2 3.0 1 12.5 12 6.7 4 2.8 5 6.7 4 9.5 5 7.6 47
113.l. Community Courts / District Courts
0.0 0 0.0 0 0.0 0 12.8 2 2.0 6 8.9 4 3.8 4 0.0 0 23.2 7 4.8 23
113.m. Equality Courts
0.0 0 0.0 0 0.0 0 0.0 0 1.1 1 0.0 0 1.2 1 0.0 0 3.4 3 .9 5
113.n. Child Justice Courts 0.0 0 0.0 0 1.8 1 10.8 1 1.6 5 9.9 2 0.0 0 0.0 0 .9 2 1.2 11
80
Province
WC EC NC FS KZN NW GT MP LP Total Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
113.o. Maintenance Courts
4.3 3 3.3 1 6.1 4 12.8 2 4.8 6 7.9 4 7.6 9 19.3 7 .7 1 6.4 37
113.p. Sexual Offences Courts
1.9 1 2.0 1 0.0 0 0.0 0 1.6 3 0.0 0 1.8 2 0.0 0 13.5 5 2.7 12
113.q. Children’s Courts
0.0 0 2.3 2 6.0 5 0.0 0 1.2 2 0.0 0 8.1 5 0.0 0 0.0 0 3.4 14
113.r. Courts for Chiefs and Headmen
0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0
113.s. Commission for Conciliation Mediation & Arbitration (
3.8 2 0.0 0 2.5 4 0.0 0 5.7 2 .9 1 0.0 0 0.0 0 0.0 0 1.4 9
113.t. Other (Specify)
10.1 2 0.0 0 0.0 0 0.0 0 .5 3 0.0 0 1.0 2 5.8 2 .2 1 1.5 10
113.u. Do not know
4.2 2 8.6 6 4.8 3 2.9 1 .1 2 0.0 0 .7 1 0.0 0 0.0 0 2.0 15
Province
WC EC NC FS KZN NW GT MP LP Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col %
Q 114. How satisfied or dissatisfied are you with the way you were treated the last time you visited a court?
Very satisfied 10 24.3 15 20.1 7 10.5 2 4.6 12 13.6 6 29.7 7 26.8 9 18.4 5 14.1 73 20.4
Satisfied 17 39.3 45 58.3 22 42.0 11 46.0 61 47.4 15 47.0 39 31.8 19 50.0 32 71.3 261 45.7
Neither nor 7 21.5 6 9.6 15 25.9 0 0.0 14 9.0 4 6.4 17 19.6 5 6.4 4 5.3 72 13.1
Dissatisfied 6 12.1 10 8.0 4 3.4 1 9.3 27 25.3 4 11.9 14 16.1 4 10.1 4 8.7 74 14.3
Very dissatisfied
1 2.7 2 4.0 8 15.4 5 37.4 10 4.7 2 5.0 4 5.5 5 15.1 2 .6 39 6.2
Do not know 0 0.0 0 0.0 2 3.0 1 2.7 0 0.0 0 0.0 1 .3 0 0.0 0 0.0 4 .3
81
Total 41 100.0 78 100.0 58 100.0 20 100.0 124 100.0 31 100.0 82 100.0 42 100.0 47 100.0 523 100.0
Case Processing Summary
Cases
Included Excluded Total
N Percent N Percent N Percent
Q115. In your opinion, how easy or difficult would it be for you to get legal help if you needed it? 3089 99.4% 19 0.6% 3108 100.0%
Report
115. In your opinion, how easy or difficult would it be for you to get legal help if you needed it?
Province Mean N
WC 12.40 395
EC 10.96 390
NC 9.81 222
FS 5.79 239
KZN 7.21 583
NW 9.58 223
GT 6.22 498
MP 7.28 249
LP 5.55 290
Total 8.29 3089 Multiple response table
Province
WC EC NC FS KZN NW GT MP LP Total
Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N
82
Province
WC EC NC FS KZN NW GT MP LP Total
Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N
Q 116 What are the most important reasons that might make it difficult for someone like you to get access to justice from the courts in South Africa in times of need?
116.a. Lack of funds to pay expenses
56.8 224 60.0 241 61.2 142 46.8 119 60.8 341 63.1 126 61.0 272 52.4 116 60.4 169 59.0 1750
116.b. Lack of general education
19.0 70 17.9 63 13.7 33 21.2 52 24.2 105 19.9 47 15.5 70 22.1 46 21.1 69 19.4 555
116.c. Lack of knowledge about laws and legal rights
17.4 71 25.4 114 27.8 68 20.6 33 36.5 164 29.2 53 24.6 105 27.1 70 25.3 68 26.5 746
116.d. Lack of knowledge about where my court is
3.4 14 2.1 9 9.1 18 10.7 26 7.3 30 2.8 7 8.1 45 12.1 22 8.0 23 6.8 194
116.e. The time it would take for the case to end
14.1 48 8.1 30 10.2 36 9.4 22 9.4 86 11.4 25 19.4 101 4.9 15 11.6 40 12.5 403
116.f. It would be hard to get a lawyer to help me
5.3 20 12.5 45 16.8 31 24.2 42 13.7 65 13.5 29 16.9 69 10.9 25 17.3 51 14.2 377
116.g. The courts would not be fair to someone like me
1.7 5 1.6 5 8.0 17 12.1 25 7.1 39 4.3 11 7.9 35 6.9 19 9.4 26 6.4 182
116.h. The distance to the courts is too far
1.9 6 3.2 14 6.2 15 9.4 19 8.5 38 6.0 13 7.6 27 8.4 20 6.5 12 6.5 164
116.i. Living in a rural area
.9 2 5.1 20 10.8 23 8.3 20 10.7 41 8.0 20 2.1 7 8.8 18 8.8 24 6.0 175
83
Province
WC EC NC FS KZN NW GT MP LP Total
Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N
116.j. It would be dangerous for someone like me and my fam
6.3 24 4.8 19 8.7 27 3.9 9 4.2 35 2.0 6 5.4 20 7.8 19 2.1 7 4.8 166
116.k. Other (Specify)
2.3 7 2.0 8 .4 2 0.0 0 1.8 14 .4 1 4.4 27 2.4 8 .4 1 2.3 68
116.l. Do not know
7.6 41 19.5 71 13.6 23 9.1 29 3.3 21 8.7 21 3.1 24 7.0 31 2.7 8 6.7 269
Province
WC EC NC FS KZN NW GT MP LP Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col %
117. Given everything we must do in society, do you favour or oppose the government using taxpayer money to provide lawyer
Strongly favour
116 34.9 156 41.6 135 66.0 66 27.2 209 33.6 54 27.1 213 46.0 96 47.8 145 52.7 1190 40.9
Somewhat favour
179 41.6 174 41.5 49 22.3 78 32.3 218 39.7 90 42.0 214 39.0 74 26.5 44 13.5 1120 35.7
Somewhat oppose
76 18.5 24 7.8 17 5.8 65 30.7 82 13.7 36 14.7 46 9.6 32 11.3 25 7.7 403 12.5
Strongly oppose
13 2.6 16 3.9 6 2.4 18 7.4 36 5.5 30 12.3 19 4.4 22 8.1 56 19.4 216 6.7
Do not know
11 2.4 18 5.2 15 3.5 12 2.3 38 7.6 13 3.9 6 1.1 24 6.4 20 6.7 157 4.2
Total 395 100.0 388 100.0 222 100.0 239 100.0 583 100.0 223 100.0 498 100.0 248 100.0 290 100.0 3086 100.0
3.2 Social-‐ Economic rights
84
Province
WC EC NC FS KZN NW GT MP LP Total
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
Q 118. How satisfied or dissatisfied are you with the way that the government is handling the delivery of basic services
Very satisfied
19 6.8 22 6.1 16 7.6 22 6.5 23 4.1 14 5.7 44 8.2 19 6.8 11 4.1 190 6.2
Satisfied 233 58.7 129 28.1 55 24.8 86 31.7 170 24.8 51 24.4 165 39.7 83 31.3 61 19.7 1033 33.5
Neither nor
101 25.1 58 15.7 33 16.3 49 23.8 160 32.5 33 10.3 86 20.0 37 13.2 47 14.9 604 20.9
Dissatisfied
24 5.3 91 26.6 55 18.1 37 15.0 131 23.4 64 34.9 122 20.4 47 21.9 79 29.5 650 21.5
Very dissatisfied
13 3.3 84 22.1 61 33.0 44 22.6 94 15.2 56 23.9 75 10.7 55 25.0 92 31.8 574 17.1
Do not know
5 .7 5 1.4 2 .2 2 .4 3 .1 4 .7 5 .9 7 1.9 0 0.0 33 .7
Total 395 100.0
389 100.0
222 100.0
240 100.0
581 100.0
222 100.0
497 100.0
248 100.0
290 100.0
3084 100.0
Q 119. How fast or slow do you feel government officials are in responding to and resolving service delivery issues in you?
Very fast 19 5.6 9 2.1 8 4.6 14 3.6 10 1.6 9 2.8 27 3.9 11 3.8 10 2.2 117 3.2
Fast 96 26.6 56 17.0 22 12.6 49 18.0 54 5.1 20 12.7 96 21.1 47 15.5 34 10.9 474 16.0
Neither fast nor slow
176 42.3 86 17.9 40 13.7 52 18.5 170 32.2 48 16.4 117 25.3 49 22.7 57 18.2 795 25.6
Slow 74 17.6 118 26.9 66 28.1 60 32.4 188 34.4 52 31.0 119 24.0 61 24.6 89 31.0 827 27.2
Very slow 22 6.9 110 33.0 81 39.7 62 26.9 151 26.3 88 36.1 132 24.8 75 32.0 99 37.1 820 26.8
Do not know
8 .9 10 3.2 5 1.3 3 .6 9 .5 6 1.0 6 .9 5 1.4 1 .6 53 1.1
Total 395 100.0
389 100.0
222 100.0
240 100.0
582 100.0
223 100.0
497 100.0
248 100.0
290 100.0
3086 100.0
Q 120. To what extent do you
Strongly agree
8 2.0 3 1.2 16 8.6 15 3.1 6 1.3 6 3.0 26 6.1 8 2.2 3 1.8 91 3.1
Agree 181 46.6 65 15.2 63 27.7 66 26.2 116 20.1 62 30.2 141 31.3 110 42.7 90 29.5 894 29.5
85
Province
WC EC NC FS KZN NW GT MP LP Total
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
agree or disagree that government departments including municipalities successfully implement
Neither agree nor disagree
112 24.2 175 48.2 57 24.5 80 36.4 234 40.6 48 19.2 136 29.1 56 22.5 65 20.3 963 31.1
Disagree 44 15.2 41 9.2 26 9.6 39 17.9 112 17.2 55 27.4 116 17.5 40 19.7 104 36.9 577 18.8
Strongly disagree
3 .9 31 8.4 31 15.9 33 15.0 46 8.4 35 15.0 50 7.1 20 7.4 23 7.6 272 7.9
Do not know
47 11.1 75 17.9 29 13.7 7 1.3 68 12.4 17 5.3 28 8.9 15 5.5 5 3.9 291 9.6
Total 395 100.0
390 100.0
222 100.0
240 100.0
582 100.0
223 100.0
497 100.0
249 100.0
290 100.0
3088 100.0
Q 121. And how much do you agree or disagree that government departments and municipalities have the capacity to successful
Strongly agree
13 5.0 3 .5 14 5.7 29 10.0 30 3.6 19 12.2 36 4.8 19 7.1 13 3.9 176 5.0
Agree 185 48.4 66 15.1 70 35.6 69 24.4 152 28.2 60 28.6 160 34.3 106 39.8 79 25.6 947 31.3
Neither agree nor disagree
113 28.7 183 48.6 54 24.4 74 36.9 222 38.7 57 22.0 116 24.3 60 23.4 69 23.4 948 30.6
Disagree 33 5.8 36 9.4 27 9.7 39 16.6 73 9.8 41 20.8 115 21.2 26 14.6 94 33.9 484 16.1
Strongly disagree
0 0.0 27 7.9 30 14.2 21 9.1 38 6.3 23 6.9 39 5.8 23 8.8 29 9.9 230 6.5
Do not know
51 12.2 74 18.5 26 10.4 8 3.1 66 13.5 23 9.5 31 9.7 15 6.4 6 3.2 300 10.5
Total 395 100.
0 389 100.
0 221 100.
0 240 100.
0 581 100.
0 223 100.
0 497 100.
0 249 100.
0 290 100.
0 3085 100.
0
86
3.3 Frequency of being unlawful
Province
WC EC NC FS KZN NW GT MP LP Total
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
Q 122. How often have you made an exaggerated or false insurance claim in the last 5 years?
Never 384 97.8 389 99.8 221 99.6 237 99.0 574 99.1 217 96.9 471 90.4 245 98.9 287 99.3 3025 96.6
Once 11 2.2 1 .2 0 0.0 1 .3 5 .6 3 1.9 14 5.4 3 .8 1 .1 39 2.0
Twice 0 0.0 0 0.0 0 0.0 0 0.0 2 .2 2 1.0 9 3.4 0 0.0 0 0.0 13 1.0
3-‐4 times 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 2 .6 0 0.0 1 .5 3 .2
5 times or more
0 0.0 0 0.0 1 .4 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 1 .0
Do not know
0 0.0 0 0.0 0 0.0 2 .7 0 0.0 1 .2 2 .3 1 .3 1 .1 7 .2
Total 395 100.0
390 100.0
222 100.0
240 100.0
581 100.0
223 100.0
498 100.0
249 100.0
290 100.0
3088 100.0
Q 123. How often have you bought something you thought might be stolen in the last 5 years?
Never 373 94.9 362 90.7 201 89.0 230 95.9 534 86.9 211 93.9 427 79.9 218 89.3 275 94.0 2831 88.3
Once 14 3.8 23 6.3 12 7.8 5 1.7 23 6.3 8 3.9 44 14.1 15 5.2 10 4.8 154 7.5
Twice 5 .8 4 3.0 2 .3 1 .5 9 2.5 2 1.5 17 3.6 4 .9 4 .8 48 2.1
3-‐4 times 1 .1 1 .1 2 .5 2 1.2 10 2.3 1 .5 2 .6 2 .5 1 .4 22 .8
5 times or more
0 0.0 0 0.0 0 0.0 0 0.0 5 2.1 0 0.0 2 .7 1 .4 0 0.0 8 .6
Do not know
2 .4 0 0.0 5 2.4 2 .7 0 0.0 1 .2 5 1.1 9 3.7 0 0.0 24 .7
Total 395 100.0
390 100.0
222 100.0
240 100.0
581 100.0
223 100.0
497 100.0
249 100.0
290 100.0
3087 100.0
Q 124. How often have you committed a traffic offence like speeding
Never 334 80.8 367 92.0 176 86.1 224 94.7 533 95.2 211 96.8 431 82.5 218 90.9 276 93.5 2770 89.2
Once 33 11.0 15 3.5 6 1.5 3 .4 21 1.9 4 .7 39 12.2 16 5.6 5 3.0 142 6.1
Twice 15 3.0 3 2.4 11 2.0 2 .4 9 1.5 6 1.8 8 1.4 10 2.6 6 1.9 70 1.9
3-‐4 times 4 2.0 1 .0 7 2.1 4 1.1 9 1.0 1 .5 6 1.5 2 .3 0 0.0 34 1.0
5 times or 6 1.8 3 1.1 11 4.6 5 2.6 8 .2 0 0.0 9 1.9 2 .4 2 1.6 46 1.3
87
or crossing a red robot in the last 5 years?
more
Do not know
3 1.4 1 1.0 11 3.7 2 .9 2 .1 1 .2 4 .4 1 .2 1 .1 26 .6
Total 395 100.0
390 100.0
222 100.0
240 100.0
582 100.0
223 100.0
497 100.0
249 100.0
290 100.0
3088 100.0
4 Results Disaggregated by Geographic Type (Weighted %, Unweighted N) 4.1 The courts
Geographic Location Urban,formal Urban,informal Tribal Rural,formal Total N Col % N Col % N Col % N Col % N Col %
112. Since 1994 have you had any experience with a South African court about your own situation, or to help friends or f
Yes 387 17.7 20 11.3 91 14.9 23 16.8 521 16.6 No 1769 81.3 110 86.9 528 84.3 124 82.3 2531 82.4 Do not know 29 1.0 3 1.8 4 .9 2 .9 38 1.0 Total 2185 100.0 133 100.0 623 100.0 149 100.0 3090 100.0
Multiple response table
Geographic Location
Urban,formal Urban,informal Tribal Rural,formal Total
Col % N Col % N Col % N Col % N Col % N
Q 113 Which courts did you, the family member, or friend go to?
113.a. Constitutional Court 16.0 46 11.3 2 3.0 5 0.0 0 12.5 53
113.b. Supreme Court of Appeal 5.0 19 0.0 0 7.0 4 0.0 0 5.0 23
113.c. High Courts 20.7 62 31.7 5 9.1 8 11.6 2 18.5 77
113.d. Special Income Tax Courts 5.3 5 0.0 0 0.0 0 0.0 0 3.8 5
113.e. Labour Courts and Labour Appeal Courts
3.6 14 0.0 0 .7 1 0.0 0 2.7 15
88
Geographic Location
Urban,formal Urban,informal Tribal Rural,formal Total
Col % N Col % N Col % N Col % N Col % N
113.f. Divorce Courts 3.8 28 3.9 1 11.0 7 6.6 1 5.4 37
113.g. Land Claims Court 4.6 6 0.0 0 0.0 0 13.2 1 3.8 7
113.h. The Water Tribunal .1 1 0.0 0 1.7 1 0.0 0 .4 2
113.i. Truth and Reconciliation Commission (TRC)
.8 1 0.0 0 1.2 1 0.0 0 .9 2
113.j. Magistrate’s Courts 39.2 152 69.6 9 42.0 33 39.5 13 41.2 207
113.k. Small Claims Courts 8.9 36 3.4 2 5.2 9 0.0 0 7.6 47
113.l. Community Courts / District Courts 4.5 14 0.0 0 7.5 9 0.0 0 4.8 23
113.m. Equality Courts .9 3 0.0 0 1.4 2 0.0 0 .9 5
113.n. Child Justice Courts 1.4 8 0.0 0 .6 2 1.2 1 1.2 11
113.o. Maintenance Courts 6.5 28 4.8 1 4.9 6 16.0 2 6.4 37
113.p. Sexual Offences Courts 1.4 5 2.5 1 6.4 5 8.2 1 2.7 12
113.q. Children’s Courts 4.7 13 0.0 0 0.0 0 3.3 1 3.4 14
113.r. Courts for Chiefs and Headmen 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0
113.s. Commission for Conciliation Mediation & Arbitration (
1.2 8 0.0 0 2.4 1 0.0 0 1.4 9
113.t. Other (Specify) 1.9 8 0.0 0 .7 1 .5 1 1.5 10
113.u. Do not know 1.8 12 4.5 1 2.7 2 0.0 0 2.0 15
Geographic Location Urban,formal Urban,informal Tribal Rural,formal Total N Col % N Col % N Col % N Col % N Col %
Q 114. How satisfied or dissatisfied are you with the way you were treated
Very satisfied 54 22.0 4 31.5 11 13.5 4 15.1 73 20.4 Satisfied 190 43.2 11 42.3 47 53.0 13 57.5 261 45.7 Neither nor 56 14.3 2 13.8 12 10.5 2 4.5 72 13.1
89
the last time you visited a court?
Dissatisfied 56 14.0 2 7.6 14 17.8 2 8.8 74 14.3 Very dissatisfied 31 6.2 1 4.8 5 4.9 2 14.1 39 6.2 Do not know 3 .3 0 0.0 1 .2 0 0.0 4 .3 Total 390 100.0 20 100.0 90 100.0 23 100.0 523 100.0
Case Processing Summary
Cases
Included Excluded Total
N Percent N Percent N Percent
115. In your opinion, how easy or difficult would it be for you to get legal help if you
needed it? 3089 99.4% 19 0.6% 3108 100.0%
Report
115. In your opinion, how easy or difficult would it be for you to get legal help if you needed it?
Geographic Location Mean N
Urban,formal 8.51 2185
Urban,informal 10.19 133
Tribal 6.95 622
Rural,formal 8.90 149
Total 8.29 3089
Multiple response table
Geographic Location
Urban,formal Urban,informal Tribal Rural,formal Total
Col % N Col % N Col % N Col % N Col % N
90
Geographic Location
Urban,formal Urban,informal Tribal Rural,formal Total
Col % N Col % N Col % N Col % N Col % N Q 116 What are the most important reasons that might make it difficult for someone like you to get access to justice from the courts in South Africa in times of need?
116.a. Lack of funds to pay expenses 57.9 1213 54.9 71 63.9 382 55.3 84 59.0 1750
116.b. Lack of general education 16.0 332 30.5 37 25.7 157 20.7 29 19.4 555
116.c. Lack of knowledge about laws and legal rights
24.9 497 23.7 31 32.3 188 23.8 30 26.5 746
116.d. Lack of knowledge about where my court is
7.0 136 4.2 6 6.5 40 9.0 12 6.8 194
116.e. The time it would take for the case to end
14.9 325 7.9 13 7.1 51 9.8 14 12.5 403
116.f. It would be hard to get a lawyer to help me
14.8 260 9.8 16 13.1 84 17.2 17 14.2 377
116.g. The courts would not be fair to someone like me
5.8 118 10.4 11 7.1 43 4.5 10 6.4 182
116.h. The distance to the courts is too far
5.5 101 8.4 5 8.4 44 8.4 14 6.5 164
116.i. Living in a rural area 2.9 66 9.1 12 12.6 76 14.5 21 6.0 175
116.j. It would be dangerous for someone like me and my fam
4.4 110 9.8 11 4.5 38 4.4 7 4.8 166
116.k. Other (Specify) 2.9 58 1.2 4 .8 5 2.3 1 2.3 68
116.l. Do not know 6.9 201 4.4 7 7.1 48 6.1 13 6.7 269
Geographic Location Urban,formal Urban,informal Tribal Rural,formal Total
N Col % N Col % N Col % N Col % N Col % Q 117. Given everything we must do in society, do you favour or oppose the government using taxpayer money to provide lawyer
Strongly favour 808 39.9 58 47.7 267 42.4 57 34.8 1190 40.9 Somewhat favour 858 38.9 39 25.6 164 28.9 59 40.6 1120 35.7 Somewhat oppose 292 12.2 21 18.9 72 11.0 18 15.9 403 12.5 Strongly oppose 117 5.3 11 5.8 78 11.4 10 5.7 216 6.7 Do not know 108 3.7 4 2.0 41 6.3 4 3.0 157 4.2
91
Total 2183 100.0 133 100.0 622 100.0 148 100.0 3086 100.0
4.2 Social-‐ Economic rights
Geographic Location Urban,formal Urban,informal Tribal Rural,formal Total
N Col % N Col % N Col % N Col % N Col % Q 118. How satisfied or dissatisfied are you with the way that the government is handling the delivery of basic services
Very satisfied 160 7.4 10 8.6 13 2.6 7 2.7 190 6.2 Satisfied 822 38.3 30 22.0 124 22.4 57 38.1 1033 33.5 Neither nor 452 22.8 27 18.8 94 15.4 31 25.3 604 20.9 Dissatisfied 422 19.1 25 24.1 177 28.4 26 17.9 650 21.5 Very dissatisfied 300 11.6 39 25.0 210 31.1 25 14.5 574 17.1 Do not know 25 .8 2 1.5 3 .1 3 1.5 33 .7 Total 2181 100.0 133 100.0 621 100.0 149 100.0 3084 100.0
Q 119. How fast or slow do you feel government officials are in responding to and resolving service delivery issues in you?
Very fast 96 3.5 7 6.7 7 1.4 7 3.3 117 3.2 Fast 394 19.7 13 6.9 45 7.9 22 15.5 474 16.0 Neither fast nor slow
639 29.2 27 18.5 106 18.9 23 17.2 795 25.6
Slow 549 25.5 41 33.6 189 28.7 48 38.4 827 27.2 Very slow 464 21.0 42 32.4 271 42.5 43 22.7 820 26.8 Do not know 39 1.1 3 2.0 5 .6 6 2.9 53 1.1 Total 2181 100.0 133 100.0 623 100.0 149 100.0 3086 100.0
Q 120. To what extent do you agree or disagree that government departments including municipalities successfully implement
Strongly agree 72 3.2 6 8.5 8 1.2 5 2.7 91 3.1 Agree 663 30.8 28 22.8 150 25.7 53 41.4 894 29.5 Neither agree nor disagree
714 33.1 41 28.3 173 27.7 35 22.1 963 31.1
Disagree 363 16.3 26 19.2 160 25.8 28 20.0 577 18.8 Strongly disagree 162 6.7 15 9.0 79 11.7 16 4.8 272 7.9 Do not know 210 9.9 17 12.2 52 7.8 12 9.0 291 9.6 Total 2184 100.0 133 100.0 622 100.0 149 100.0 3088 100.0
92
4.3 Frequency of being unlawful
Geographic Location Urban,formal Urban,informal Tribal Rural,formal Total
N Col % N Col % N Col % N Col % N Col % Q 121. And how much do you agree or disagree that government departments and municipalities have the capacity to successful
Strongly agree 126 4.5 9 5.9 35 6.5 6 2.2 176 5.0 Agree 722 34.0 40 31.6 140 23.8 45 29.5 947 31.3 Neither agree nor disagree
674 30.8 41 32.5 191 29.2 42 32.9 948 30.6
Disagree 302 14.0 19 14.9 133 21.8 30 20.9 484 16.1 Strongly disagree 137 5.1 10 6.7 70 10.5 13 5.9 230 6.5 Do not know 221 11.6 13 8.5 53 8.2 13 8.5 300 10.5 Total 2182 100.0 132 100.0 622 100.0 149 100.0 3085 100.0
Q 122. How often have you made an exaggerated or false insurance claim in the last 5 years?
Never 2136 95.7 131 97.0 613 98.9 145 97.4 3025 96.6 Once 29 2.6 1 .4 5 .7 4 2.6 39 2.0 Twice 11 1.2 1 2.6 1 .1 0 0.0 13 1.0 3-‐4 times 2 .2 0 0.0 1 .2 0 0.0 3 .2 5 times or more 1 .0 0 0.0 0 0.0 0 0.0 1 .0 Do not know 5 .2 0 0.0 2 .1 0 0.0 7 .2 Total 2184 100.0 133 100.0 622 100.0 149 100.0 3088 100.0
Q 123. How often have you bought something you thought might be stolen in the last 5 years?
Never 1999 86.7 117 87.3 577 92.9 138 90.0 2831 88.3 Once 107 8.3 10 8.2 31 5.1 6 5.9 154 7.5 Twice 36 2.4 2 2.4 8 1.2 2 3.5 48 2.1 3-‐4 times 14 .7 2 1.5 5 .9 1 .4 22 .8 5 times or more 7 .9 1 .4 0 0.0 0 0.0 8 .6 Do not know 20 1.0 1 .3 1 .0 2 .2 24 .7 Total 2183 100.0 133 100.0 622 100.0 149 100.0 3087 100.0
Q 124. How often have you committed a traffic offence like speeding or crossing a red robot in the
Never 1905 85.8 125 96.5 602 96.3 138 90.9 2770 89.2 Once 122 7.8 4 1.7 13 2.8 3 3.8 142 6.1 Twice 64 2.5 1 .9 4 .5 1 .1 70 1.9 3-‐4 times 28 1.3 2 .6 0 0.0 4 2.6 34 1.0
93
last 5 years? 5 times or more 44 1.8 0 0.0 1 .3 1 2.2 46 1.3 Do not know 21 .8 1 .3 2 .1 2 .3 26 .6 Total 2184 100.0 133 100.0 622 100.0 149 100.0 3088 100.0
94
5 Results Disaggregated by Age Group (Weighted %, Unweighted N) 5.1 The courts
Age Group
16-‐19 years 20-‐29 years 30-‐39 years 40-‐49 years 50-‐59 years 60-‐69 years 70+ years Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col %
Q 112. Since 1994 have you had any experience with a South African court about your own situation, or to help friends or f
Yes 19 11.1 107 15.0 125 17.4 92 19.5 94 20.6 60 19.9 24 7.9 521 16.6
No 126 87.2 601 83.9 476 82.0 396 79.4 356 78.2 340 79.6 232 90.5 2527 82.4
Do not know 5 1.8 9 1.0 6 .6 5 1.0 3 1.2 4 .5 6 1.7 38 1.0
Total 150 100.0 717 100.0 607 100.0 493 100.0 453 100.0 404 100.0 262 100.0 3086 100.0
Multiple response table
Age Group
16-‐19 years 20-‐29 years 30-‐39 years 40-‐49 years 50-‐59 years 60-‐69 years 70+ years Total
Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N
Q 113 Which courts did you, the family member, or friend go to?
113.a. Constitutional Court 9.5 2 9.3 9 22.6 11 8.5 10 12.9 11 9.9 7 8.1 3 12.5 53
113.b. Supreme Court of Appeal .7 1 3.2 3 6.6 5 .4 3 11.2 7 8.1 3 1.7 1 5.0 23
113.c. High Courts 22.8 2 23.1 16 16.5 22 10.0 13 17.8 13 23.0 7 20.7 4 18.5 77
113.d. Special Income Tax Courts 0.0 0 2.1 1 5.7 2 11.2 1 0.0 0 0.0 0 1.7 1 3.8 5
113.e. Labour Courts and Labour Appeal Courts 0.0 0 2.2 2 3.2 3 5.8 6 0.0 0 3.6 3 1.7 1 2.7 15
113.f. Divorce Courts 0.0 0 1.6 2 8.6 10 5.6 8 12.0 13 3.1 4 0.0 0 5.4 37
113.g. Land Claims Court 0.0 0 1.6 1 5.3 1 11.9 2 .4 2 .6 1 0.0 0 3.8 7
95
Age Group
16-‐19 years 20-‐29 years 30-‐39 years 40-‐49 years 50-‐59 years 60-‐69 years 70+ years Total
Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N
113.h. The Water Tribunal 0.0 0 0.0 0 1.7 1 0.0 0 0.0 0 0.0 0 1.7 1 .4 2
113.i. Truth and Reconciliation Commission (TRC) 0.0 0 3.0 2 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 .9 2
113.j. Magistrate’s Courts 9.8 2 53.9 57 34.5 50 52.8 40 24.2 30 42.3 19 41.9 9 41.2 207
113.k. Small Claims Courts 1.6 1 1.9 8 4.1 9 11.8 5 17.3 10 10.3 10 11.7 4 7.6 47
113.l. Community Courts / District Courts 14.9 2 3.0 3 6.3 5 2.7 4 7.2 6 0.0 0 8.4 3 4.8 23
113.m. Equality Courts 0.0 0 .7 1 0.0 0 4.0 3 0.0 0 0.0 0 2.6 1 .9 5
113.n. Child Justice Courts 10.5 3 0.0 0 1.1 4 .3 1 1.6 2 .5 1 0.0 0 1.2 11
113.o. Maintenance Courts 12.4 2 1.9 3 8.4 13 8.6 7 8.0 5 6.5 6 1.7 1 6.4 37
113.p. Sexual Offences Courts 13.4 1 4.8 5 1.6 3 0.0 0 .3 1 2.7 2 0.0 0 2.7 12
113.q. Children’s Courts 4.2 3 4.6 4 .9 2 .3 1 .1 1 17.8 3 0.0 0 3.4 14
113.r. Courts for Chiefs and Headmen 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0
113.s. Commission for Conciliation Mediation & Arbitration ( 3.7 1 0.0 0 2.6 2 .3 3 3.3 2 .5 1 0.0 0 1.4 9
113.t. Other (Specify) 0.0 0 .1 1 .7 1 1.6 1 5.1 4 2.2 3 0.0 0 1.5 10
113.u. Do not know 1.3 1 2.9 4 1.7 2 0.0 0 1.6 3 .7 1 18.8 4 2.0 15
96
Age Group
16-‐19 years 20-‐29 years 30-‐39 years 40-‐49 years 50-‐59 years 60-‐69 years 70+ years Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col %
Q 114. How satisfied or dissatisfied are you with the way you were treated the last time you visited a court?
Very satisfied 5 43.7 8 18.1 21 18.9 14 21.8 16 17.2 7 23.6 2 8.6 73 20.4
Satisfied 7 37.4 64 52.2 60 41.7 46 44.3 42 44.4 29 39.4 13 64.6 261 45.7
Neither nor 5 16.6 16 10.5 18 15.9 7 9.9 11 13.9 11 18.1 4 10.5 72 13.1
Dissatisfied 1 .7 14 16.2 19 19.3 15 15.5 13 8.8 9 13.1 3 11.8 74 14.3
Very dissatisfied 0 0.0 4 2.5 9 4.2 9 8.4 11 15.8 5 5.8 1 2.2 39 6.2
Do not know 1 1.6 2 .4 0 0.0 0 0.0 0 0.0 0 0.0 1 2.4 4 .3
Total 19 100.0 108 100.0 127 100.0 91 100.0 93 100.0 61 100.0 24 100.0 523 100.0
Case Processing Summary
Cases
Included Excluded Total
N Percent N Percent N Percent
Q 115. In your opinion, how easy or difficult would it be for you to get legal
help if you needed it? 3085 99.3% 23 0.7% 3108 100.0%
Report
Q 115. In your opinion, how easy or difficult would it be for you to get legal help if you needed it?
Age Group Mean N
16-‐19 years 9.92 150
20-‐29 years 8.28 718
30-‐39 years 7.87 607
40-‐49 years 7.72 492
50-‐59 years 7.88 451
97
Report
Q 115. In your opinion, how easy or difficult would it be for you to get legal help if you needed it?
60-‐69 years 7.47 405
70+ years 11.42 262
Total 8.29 3085 Multiple response tables
Age Group
16-‐19 years 20-‐29 years 30-‐39 years 40-‐49 years 50-‐59 years 60-‐69 years 70+ years Total Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Q 116 What are the most important reasons that might make it difficult for someone like you to get access to justice from the courts in South Africa in times of need?
116.a. Lack of funds to pay expenses 66.7 96 58.7 424 58.4 341 57.3 262 60.2 262 61.8 231 48.7 133 59.0 1749
116.b. Lack of general education 22.1 30 17.4 120 19.5 106 19.9 87 20.5 89 21.8 76 20.1 46 19.4 554
116.c. Lack of knowledge about laws and legal rights
30.6 46 27.9 172 25.1 142 27.7 124 21.1 105 29.9 99 21.5 58 26.5 746
116.d. Lack of knowledge about where my court is
7.2 10 5.7 44 6.0 39 11.2 41 6.3 26 4.7 23 7.1 11 6.8 194
116.e. The time it would take for the case to end
13.2 17 10.9 84 15.4 90 14.4 77 11.3 57 9.8 43 10.9 35 12.5 403
116.f. It would be hard to get a lawyer to help me
15.0 24 16.8 105 14.1 85 13.4 47 11.9 48 11.4 40 7.9 27 14.2 376
116.g. The courts would not be fair to someone like me
1.9 5 8.8 55 5.2 34 6.9 31 4.1 22 6.3 23 7.4 12 6.4 182
116.h. The distance to the courts is too far
3.2 4 8.0 45 6.5 28 7.3 29 3.8 19 8.9 26 3.6 13 6.5 164
116.i. Living in a rural area 8.8 12 6.8 44 5.8 35 3.6 19 5.4 25 5.1 24 7.7 16 6.0 175
116.j. It would be dangerous for someone like me and my fam
3.0 8 5.0 40 5.2 38 4.9 23 2.5 17 8.1 24 6.1 16 4.8 166
116.k. Other (Specify) 1.8 3 1.7 7 .9 7 1.9 12 4.7 18 2.7 10 5.9 10 2.3 67
98
Age Group
16-‐19 years 20-‐29 years 30-‐39 years 40-‐49 years 50-‐59 years 60-‐69 years 70+ years Total Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
Col % N
116.l. Do not know 3.6 9 5.9 55 7.6 46 5.5 44 9.1 43 6.6 33 11.8 38 6.7 268
Age Group
16-‐19 years 20-‐29 years 30-‐39 years 40-‐49 years 50-‐59 years 60-‐69 years 70+ years Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % Q 117. Given everything we must do in society, do you favour or oppose the government using taxpayer money to provide lawyer
Strongly favour 64 46.5 278 40.1 238 41.6 199 43.8 173 41.4 150 34.8 88 32.4 1190 40.9
Somewhat favour 49 36.1 260 36.5 217 35.1 178 33.1 175 36.3 152 37.9 89 36.2 1120 35.7
Somewhat oppose 21 8.9 89 13.1 80 12.4 56 12.8 63 10.2 57 17.5 35 12.2 401 12.5
Strongly oppose 10 6.0 54 6.6 45 7.3 37 6.7 23 6.3 23 5.4 24 10.2 216 6.7
Do not know 6 2.6 36 3.8 26 3.6 22 3.7 19 5.7 21 4.4 25 9.0 155 4.2
Total 150 100.0 717 100.0 606 100.0 492 100.0 453 100.0 403 100.0 261 100.0 3082 100.0
5.2 Social-‐ Economic rights
Age Group
16-‐19 years 20-‐29 years 30-‐39 years 40-‐49 years 50-‐59 years 60-‐69 years 70+ years Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % Q 118. How satisfied or dissatisfied are you with the way that the government is
Very satisfied
9 7.2 41 5.6 39 8.0 27 3.5 34 6.5 22 9.7 18 4.3 190 6.2
Satisfied 42 29.3 222 29.0 194 34.2 174 40.1 162 37.9 142 36.3 95 30.7 1031 33.5
Neither nor 36 22.9 152 23.3 126 16.9 87 19.8 75 19.9 80 19.9 46 24.5 602 20.9
Dissatisfied 29 20.9 141 22.4 135 23.8 110 20.2 92 18.5 84 19.5 59 23.3 650 21.6
Very 30 18.0 153 19.0 107 16.8 88 16.1 88 17.1 72 14.1 36 13.4 574 17.1
99
Age Group
16-‐19 years 20-‐29 years 30-‐39 years 40-‐49 years 50-‐59 years 60-‐69 years 70+ years Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % handling the delivery of basic services
dissatisfied
Do not know 4 1.7 7 .7 4 .3 6 .3 2 .2 3 .5 7 3.7 33 .7
Total 150 100.0 716 100.0 605 100.0 492 100.0 453 100.0 403 100.0 261 100.0 3080 100.0
Q 119. How fast or slow do you feel government officials are in responding to and resolving service delivery issues in you?
Very fast 5 4.0 28 3.0 21 3.4 17 2.8 16 3.5 15 2.8 14 3.4 116 3.2
Fast 19 17.1 97 13.2 81 14.3 88 20.5 75 15.2 60 19.9 54 21.1 474 16.0
Neither fast nor slow
38 24.3 162 24.5 181 26.4 111 21.9 121 31.0 113 30.1 68 22.3 794 25.6
Slow 48 27.2 210 30.1 172 28.8 121 25.0 109 22.2 106 25.1 60 25.5 826 27.2
Very slow 34 24.2 204 27.9 145 26.6 148 29.4 125 27.2 105 21.6 59 24.4 820 26.9
Do not know 6 3.2 16 1.3 6 .4 8 .4 7 .8 4 .4 6 3.3 53 1.1
Total 150 100.0 717 100.0 606 100.0 493 100.0 453 100.0 403 100.0 261 100.0 3083 100.0
Q 120. To what extent do you agree or disagree that government departments including municipalities successfully implement
Strongly agree
6 4.5 14 1.2 19 4.7 14 3.4 16 3.1 9 4.3 12 3.8 90 3.1
Agree 38 28.1 198 28.2 190 31.1 150 30.7 130 31.1 119 32.1 69 21.4 894 29.5
Neither agree nor disagree
42 27.1 230 32.7 185 30.1 156 31.8 136 29.1 129 27.4 84 40.1 962 31.1
Disagree 31 20.5 148 19.1 114 19.6 87 17.7 76 16.6 70 20.2 50 17.8 576 18.8
Strongly disagree
12 6.6 57 7.5 52 8.3 43 8.8 53 9.7 39 7.2 16 5.5 272 7.9
Do not know 21 13.2 71 11.2 45 6.1 43 7.6 42 10.4 37 8.7 31 11.5 290 9.6
Total 150 100.0 718 100.0 605 100.0 493 100.0 453 100.0 403 100.0 262 100.0 3084 100.0
Q 121. And how much do you agree or disagree that government departments
Strongly agree
8 6.8 43 5.0 34 5.3 25 3.5 23 4.1 21 6.6 21 4.7 175 5.0
Agree 37 24.5 214 29.5 194 35.2 158 33.9 147 33.6 123 28.8 74 28.7 947 31.3
Neither agree nor disagree
49 25.8 220 33.1 170 25.2 154 28.6 135 32.8 132 35.1 87 37.9 947 30.6
100
Age Group
16-‐19 years 20-‐29 years 30-‐39 years 40-‐49 years 50-‐59 years 60-‐69 years 70+ years Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % and municipalities have the capacity to be successful?
Disagree 23 21.3 114 15.5 114 20.4 74 14.8 66 11.6 57 13.9 35 13.9 483 16.1
Strongly disagree
8 3.2 55 6.4 47 6.9 38 10.3 35 5.1 30 4.9 17 5.6 230 6.5
Do not know 25 18.3 72 10.6 46 7.0 43 8.8 46 12.8 39 10.7 28 9.2 299 10.5
Total 150 100.0 718 100.0 605 100.0 492 100.0 452 100.0 402 100.0 262 100.0 3081 100.0
5.3 Frequency of being unlawful
Age Group
16-‐19 years 20-‐29 years 30-‐39 years 40-‐49 years 50-‐59 years 60-‐69 years 70+ years Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % Q 122. How often have you made an exaggerated or false insurance claim in the last 5 years?
Never 148 97.4 697 96.9 585 94.1 486 97.1 450 99.5 398 96.1 257 95.3 3021 96.6
Once 1 2.1 11 2.0 16 4.5 5 .7 1 .2 3 2.2 2 .9 39 2.0
Twice 0 0.0 6 .7 2 1.1 1 2.2 2 .3 1 .4 1 3.3 13 1.0
3-‐4 times 1 .6 1 .2 0 0.0 0 0.0 0 0.0 1 1.2 0 0.0 3 .2
5 times or more 0 0.0 0 0.0 1 .0 0 0.0 0 0.0 0 0.0 0 0.0 1 .0
Do not know 0 0.0 2 .3 2 .3 1 .1 0 0.0 0 0.0 2 .5 7 .2
Total 150 100.0 717 100.0 606 100.0 493 100.0 453 100.0 403 100.0 262 100.0 3084 100.0
Q 123. How often have you bought something you thought might be stolen in the last 5 years?
Never 136 85.1 635 87.4 539 84.3 461 93.7 427 89.4 379 90.4 253 93.8 2830 88.3
Once 10 12.4 52 7.7 38 9.7 20 4.2 14 5.6 11 6.2 6 5.2 151 7.4
Twice 2 2.1 15 2.8 13 2.1 5 .5 7 3.2 6 2.1 0 0.0 48 2.1
3-‐4 times 0 0.0 10 1.5 5 1.1 2 .1 3 .4 0 0.0 2 .8 22 .8
101
5 times or more 1 .2 1 .3 2 1.3 1 .1 1 1.3 2 .8 0 0.0 8 .6
Do not know 1 .2 4 .4 9 1.6 4 1.3 1 .1 4 .5 1 .2 24 .7
Total 150 100.0 717 100.0 606 100.0 493 100.0 453 100.0 402 100.0 262 100.0 3083 100.0
Q 124. How often have you committed a traffic offence like speeding or crossing a red robot in the last 5 years?
Never 141 93.2 644 90.6 539 89.6 440 89.5 397 84.6 364 87.0 244 85.7 2769 89.2
Once 7 6.3 36 4.8 28 6.1 25 7.0 24 8.7 14 6.7 7 3.8 141 6.1
Twice 1 .3 14 1.8 15 2.1 9 .6 14 4.0 11 2.0 4 2.0 68 1.9
3-‐4 times 1 .1 7 .4 4 .4 3 .4 8 .9 6 2.7 5 8.1 34 1.0
5 times or more 0 0.0 11 1.7 13 .9 9 1.9 7 1.6 5 1.5 1 .2 46 1.3
Do not know 0 0.0 6 .8 7 .9 7 .6 3 .2 2 .1 1 .2 26 .6
Total 150 100.0 718 100.0 606 100.0 493 100.0 453 100.0 402 100.0 262 100.0 3084 100.0
102
6 Results Disaggregated by Sex (Weighted %, Unweighted N) 6.1 The courts
Sex of respondent
Male Female Total
N Col % N Col % N Col % Q112. Since 1994 have you had any experience with a South African court about your own situation, or to help friends or family?
Yes 226 17.1 295 16.1 521 16.6
No 949 82.8 1582 82.0 2531 82.4
Do not know 6 .2 32 1.8 38 1.0
Total 1181 100.0 1909 100.0 3090 100.0
Multiple response table
Sex of respondent
Male Female Total
Col % N Col % N Col % N Q 113 Which courts did you, the family member, or friend go to?
113.a. Constitutional Court 12.3 24 12.7 29 12.5 53
113.b. Supreme Court of Appeal 8.1 14 1.9 9 5.0 23
113.c. High Courts 13.1 31 23.8 46 18.5 77
113.d. Special Income Tax Courts .2 2 7.2 3 3.8 5
113.e. Labour Courts and Labour Appeal Courts 2.2 7 3.1 8 2.7 15
113.f. Divorce Courts 5.2 12 5.6 25 5.4 37
113.g. Land Claims Court 1.2 2 6.3 5 3.8 7
113.h. The Water Tribunal .8 2 0.0 0 .4 2
113.i. Truth and Reconciliation Commission (TRC) 0.0 0 1.7 2 .9 2
113.j. Magistrate’s Courts 39.7 100 42.6 107 41.2 207
113.k. Small Claims Courts 8.4 20 6.8 27 7.6 47
113.l. Community Courts / District Courts 4.9 9 4.7 14 4.8 23
103
Sex of respondent
Male Female Total
Col % N Col % N Col % N 113.m. Equality Courts 1.3 2 .6 3 .9 5
113.n. Child Justice Courts 1.1 3 1.2 8 1.2 11
113.o. Maintenance Courts 5.6 13 7.2 24 6.4 37
113.p. Sexual Offences Courts 3.0 4 2.5 8 2.7 12
113.q. Children’s Courts 5.3 7 1.6 7 3.4 14
113.r. Courts for Chiefs and Headmen 0.0 0 0.0 0 0.0 0
113.s. Commission for Conciliation Mediation & Arbitration (
1.6 5 1.1 4 1.4 9
113.t. Other (Specify) 1.4 5 1.6 5 1.5 10
113.u. Do not know 1.7 7 2.3 8 2.0 15
Sex of respondent
Male Female Total
N Col % N Col % N Col % Q 114. How satisfied or dissatisfied are you with the way you were treated the last time you visited a court?
Very satisfied 23 16.2 50 24.5 73 20.4
Satisfied 115 47.4 146 44.1 261 45.7
Neither nor 39 18.5 33 8.0 72 13.1
Dissatisfied 34 13.0 40 15.6 74 14.3
Very dissatisfied 13 4.5 26 7.8 39 6.2
Do not know 3 .4 1 .1 4 .3
Total 227 100.0 296 100.0 523 100.0
104
Case Processing Summary
Cases
Included Excluded Total
N Percent N Percent N Percent
Q 115. In your opinion, how easy or difficult would it
be for you to get legal help if you needed it? 3089 99.4% 19 0.6% 3108 100.0%
Report
Q 115. In your opinion, how easy or difficult would it be for you to get legal help if you needed it?
Sex of respondent Mean N
Male 8.24 1181
Female 8.31 1908
Total 8.29 3089
Multiple response table
Sex of respondent
Male Female Total
Col % N Col % N Col % N Q 116 What are the most important reasons that might make it difficult for someone like you to get access to justice from the courts in South Africa in times of need?
116.a. Lack of funds to pay expenses 56.0 626 61.8 1124 59.0 1750
116.b. Lack of general education 19.1 207 19.7 348 19.4 555
116.c. Lack of knowledge about laws and legal rights 28.0 304 25.1 442 26.5 746
116.d. Lack of knowledge about where my court is 5.6 64 7.9 130 6.8 194
116.e. The time it would take for the case to end 12.1 161 12.8 242 12.5 403
116.f. It would be hard to get a lawyer to help me 12.8 142 15.4 235 14.2 377
116.g. The courts would not be fair to someone like me
5.8 64 6.8 118 6.4 182
116.h. The distance to the courts is too far 7.6 68 5.5 96 6.5 164
116.i. Living in a rural area 6.2 66 5.8 109 6.0 175
105
Sex of respondent
Male Female Total
Col % N Col % N Col % N 116.j. It would be dangerous for someone like me and my fam
4.3 58 5.3 108 4.8 166
116.k. Other (Specify) 2.7 32 1.8 36 2.3 68
116.l. Do not know 6.5 95 7.0 174 6.7 269
Sex of respondent
Male Female Total
N Col % N Col % N Col % 117. Given everything we must do in society, do you favour or oppose the government using taxpayer money to provide lawyer
Strongly favour 444 41.4 746 40.3 1190 40.9
Somewhat favour 432 33.9 688 37.4 1120 35.7
Somewhat oppose 171 13.0 232 12.0 403 12.5
Strongly oppose 88 7.9 128 5.7 216 6.7
Do not know 44 3.8 113 4.6 157 4.2
Total 1179 100.0 1907 100.0 3086 100.0
6.2 Social-‐ Economic rights
Sex of respondent
Male Female Total
N Col % N Col % N Col % 118. How satisfied or dissatisfied are you with the way that the government is handling the delivery of basic services
Very satisfied 79 7.2 111 5.4 190 6.2
Satisfied 410 33.5 623 33.5 1033 33.5
Neither nor 234 20.5 370 21.2 604 20.9
Dissatisfied 235 20.7 415 22.4 650 21.5
Very dissatisfied 214 17.8 360 16.5 574 17.1
Do not know 7 .3 26 1.0 33 .7
106
Total 1179 100.0 1905 100.0 3084 100.0
119. How fast or slow do you feel government officials are in responding to and resolving service delivery issues in you?
Very fast 55 3.8 62 2.7 117 3.2
Fast 196 16.9 278 15.1 474 16.0
Neither fast nor slow 290 22.2 505 28.8 795 25.6
Slow 310 29.0 517 25.6 827 27.2
Very slow 311 27.3 509 26.4 820 26.8
Do not know 16 .9 37 1.4 53 1.1
Total 1178 100.0 1908 100.0 3086 100.0
120. To what extent do you agree or disagree that government departments including municipalities successfully implement
Strongly agree 35 2.9 56 3.3 91 3.1
Agree 356 29.8 538 29.1 894 29.5
Neither agree nor disagree 377 31.2 586 31.1 963 31.1
Disagree 214 19.4 363 18.2 577 18.8
Strongly disagree 93 7.7 179 8.2 272 7.9
Do not know 105 9.0 186 10.1 291 9.6
Total 1180 100.0 1908 100.0 3088 100.0
121. And how much do you agree or disagree that government departments and municipalities have the capacity to successful
Strongly agree 64 4.5 112 5.4 176 5.0
Agree 383 32.1 564 30.5 947 31.3
Neither agree nor disagree 351 29.7 597 31.5 948 30.6
Disagree 186 17.7 298 14.7 484 16.1
Strongly disagree 88 6.1 142 6.9 230 6.5
Do not know 107 9.9 193 11.0 300 10.5
Total 1179 100.0 1906 100.0 3085 100.0
6.3 Frequency of being unlawful
107
Sex of respondent
Male Female Total
N Col % N Col % N Col %
122. How often have you made an exaggerated or false insurance claim in the last 5 years?
Never 1154 96.6 1871 96.5 3025 96.6
Once 19 2.6 20 1.5 39 2.0
Twice 5 .6 8 1.4 13 1.0
3-‐4 times 1 .1 2 .3 3 .2
5 times or more 1 .0 0 0.0 1 .0
Do not know 0 0.0 7 .3 7 .2
Total 1180 100.0 1908 100.0 3088 100.0
123. How often have you bought something you thought might be stolen in the last 5 years?
Never 1047 85.5 1784 90.9 2831 88.3
Once 88 10.0 66 5.1 154 7.5
Twice 22 2.3 26 2.0 48 2.1
3-‐4 times 11 .6 11 .9 22 .8
5 times or more 3 1.0 5 .2 8 .6
Do not know 9 .6 15 .8 24 .7
Total 1180 100.0 1907 100.0 3087 100.0
124. How often have you committed a traffic offence like speeding or crossing a red robot in the last 5 years?
Never 987 86.1 1783 92.0 2770 89.2
Once 74 7.2 68 5.1 142 6.1
Twice 46 2.8 24 1.0 70 1.9
3-‐4 times 27 1.4 7 .6 34 1.0
5 times or more 34 1.9 12 .8 46 1.3
Do not know 12 .5 14 .6 26 .6
Total 1180 100.0 1908 100.0 3088 100.0
108
7 Results Disaggregated by Population Group (Weighted %, Unweighted N) 7.1 The courts
Race of the respondent Black African Coloured Indian/Asian White Total
N Col % N Col % N Col % N Col % N Col % Q 112. Since 1994 have you had any experience with a South African court about your own situation, or to help friends or Family?
Yes 293 17.0 110 16.6 57 11.6 61 14.5 521 16.6 No 1487 82.0 433 81.5 265 87.6 346 84.8 2531 82.4 Do not know 18 1.0 13 1.9 4 .8 3 .7 38 1.0 Total 1798 100.0 556 100.0 326 100.0 410 100.0 3090 100.0
Multiple response table
Race of the respondent
Black African Coloured Indian/Asian White Total
Col % N Col % N Col % N Col % N Col % N
Q 113 Which courts did you, the family member, or friend go to?
113.a. Constitutional Court 13.3 28 11.5 11 10.4 6 6.5 8 12.5 53
113.b. Supreme Court of Appeal 5.5 11 1.9 4 8.0 5 3.2 3 5.0 23
113.c. High Courts 19.2 41 17.5 18 20.8 9 13.0 9 18.5 77
113.d. Special Income Tax Courts 4.6 3 .8 1 0.0 0 .5 1 3.8 5
113.e. Labour Courts and Labour Appeal Courts
2.0 6 .6 1 2.6 2 11.7 6 2.7 15
113.f. Divorce Courts 4.7 21 1.6 4 1.1 2 17.5 10 5.4 37
113.g. Land Claims Court 4.0 3 .3 1 2.0 1 6.0 2 3.8 7
113.h. The Water Tribunal .5 2 0.0 0 0.0 0 0.0 0 .4 2
113.i. Truth and Reconciliation Commission (TRC)
1.1 2 0.0 0 0.0 0 0.0 0 .9 2
113.j. Magistrate’s Courts 42.9 125 39.0 47 28.4 14 30.2 21 41.2 207
109
Race of the respondent
Black African Coloured Indian/Asian White Total
Col % N Col % N Col % N Col % N Col % N
113.k. Small Claims Courts 6.7 23 9.2 12 15.5 8 12.5 4 7.6 47
113.l. Community Courts / District Courts 5.3 17 2.0 1 1.1 1 4.0 4 4.8 23
113.m. Equality Courts .9 4 2.0 1 0.0 0 0.0 0 .9 5
113.n. Child Justice Courts .6 5 6.3 4 4.3 2 0.0 0 1.2 11
113.o. Maintenance Courts 6.9 24 7.9 9 1.6 2 1.2 2 6.4 37
113.p. Sexual Offences Courts 3.3 11 .5 1 0.0 0 0.0 0 2.7 12
113.q. Children’s Courts 3.5 7 3.1 4 1.9 1 3.1 2 3.4 14
113.r. Courts for Chiefs and Headmen 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0
113.s. Commission for Conciliation Mediation & Arbitration
1.5 5 1.2 3 0.0 0 .5 1 1.4 9
113.t. Other (Specify) .5 3 7.3 2 4.9 3 3.2 2 1.5 10
113.u. Do not know 1.6 5 5.9 5 .5 2 2.2 3 2.0 15
Race of the respondent Black African Coloured Indian/Asian White Total
N Col % N Col % N Col % N Col % N Col % Q 114. How satisfied or dissatisfied are you with the way you were treated the last time you visited a court?
Very satisfied 42 21.2 17 18.8 5 6.4 9 18.1 73 20.4 Satisfied 157 46.6 51 48.9 28 50.7 25 33.1 261 45.7 Neither nor 37 11.2 16 11.8 6 8.8 13 33.6 72 13.1 Dissatisfied 39 15.2 14 11.3 14 22.1 7 8.0 74 14.3 Very dissatisfied 18 5.8 12 8.6 3 7.6 6 6.6 39 6.2 Do not know 1 .1 1 .7 1 4.5 1 .6 4 .3 Total 294 100.0 111 100.0 57 100.0 61 100.0 523 100.0
110
Case Processing Summary
Cases
Included Excluded Total
N Percent N Percent N Percent
Q 115. In your opinion, how easy or difficult would it be for you to get legal help if you needed it? 3089 99.4% 19 0.6% 3108 100.0%
Report
115. In your opinion, how easy or difficult would it be for you to get legal help if you needed it?
Race of the respondent Mean N
Black African 7.48 1796
Coloured 10.79 557
Indian/Asian 9.40 326
White 7.54 410
Total 8.29 3089 Multiple response table
Race of the respondent Black African Coloured Indian/Asian White Total
Col % N Col % N Col % N Col % N Col % N Q 116 What are the most important reasons that might make it difficult for
116.a. Lack of funds to pay expenses
61.4 1042 66.6 373 44.6 184 36.6 151 59.0 1750
116.b. Lack of general education 20.4 387 19.6 87 22.8 31 10.4 50 19.4 555
116.c. Lack of knowledge about laws and legal rights 27.9 472 25.6 146 28.3 62 15.6 66 26.5 746
111
Race of the respondent Black African Coloured Indian/Asian White Total
Col % N Col % N Col % N Col % N Col % N someone like you to get access to justice from the courts in South Africa in times of need?
116.d. Lack of knowledge about where my court is 6.8 127 4.9 25 4.0 13 9.5 29 6.8 194
116.e. The time it would take for the case to end 10.6 192 20.9 81 17.0 60 18.5 70 12.5 403
116.f. It would be hard to get a lawyer to help me
15.8 252 7.4 63 8.4 29 8.7 33 14.2 377
116.g. The courts would not be fair to someone like me
7.1 123 2.1 21 5.6 20 4.8 18 6.4 182
116.h. The distance to the courts is too far
7.4 115 4.3 26 2.2 9 2.7 14 6.5 164
116.i. Living in a rural area 7.1 142 1.7 10 1.3 7 2.4 16 6.0 175
116.j. It would be dangerous for someone like me and my fam
4.8 102 4.4 36 7.7 17 4.2 11 4.8 166
116.k. Other (Specify) 1.8 24 1.0 10 1.3 8 7.7 26 2.3 68
116.l. Do not know 5.6 133 4.3 35 9.0 22 17.8 79 6.7 269
Race of the respondent Black African Coloured Indian/Asian White Total
N Col % N Col % N Col % N Col % N Col % Q 117. Given everything we must do in society, do you favour or oppose the government using taxpayer money to provide lawyer
Strongly favour 753 43.4 202 32.7 121 29.4 114 32.2 1190 40.9 Somewhat favour 577 33.7 223 44.6 135 39.5 185 42.5 1120 35.7 Somewhat oppose 215 11.2 78 16.0 41 20.4 69 17.3 403 12.5 Strongly oppose 155 7.3 21 3.7 21 9.7 19 4.1 216 6.7 Do not know 94 4.5 32 3.2 8 1.0 23 4.0 157 4.2 Total 1794 100.0 556 100.0 326 100.0 410 100.0 3086 100.0
112
7.2 Socio-‐ Economic rights
Race of the respondent Black African Coloured Indian/Asian White Total
N Col % N Col % N Col % N Col % N Col % 118. How satisfied or dissatisfied are you with the way that the government is handling the delivery of basic services
Very satisfied 96 5.7 30 4.7 22 6.5 42 11.9 190 6.2 Satisfied 541 31.8 243 47.7 124 30.4 125 34.9 1033 33.5 Neither nor 335 19.7 120 26.3 62 24.3 87 23.7 604 20.9 Dissatisfied 402 23.6 101 12.6 69 21.4 78 14.1 650 21.5 Very dissatisfied 402 18.6 53 7.5 46 17.4 73 14.4 574 17.1 Do not know 17 .6 10 1.2 2 .1 4 1.1 33 .7 Total 1793 100.0 557 100.0 325 100.0 409 100.0 3084 100.0
119. How fast or slow do you feel government officials are in responding to and resolving service delivery issues in you?
Very fast 53 2.4 17 3.2 7 1.0 40 10.2 117 3.2 Fast 244 14.1 76 16.6 59 15.5 95 29.8 474 16.0 Neither fast nor slow 413 23.9 207 43.0 81 28.5 94 22.6 795 25.6 Slow 506 28.7 157 24.1 83 29.3 81 18.2 827 27.2 Very slow 553 29.8 88 11.9 86 24.0 93 18.1 820 26.8 Do not know 25 1.1 12 1.3 10 1.6 6 1.1 53 1.1 Total 1794 100.0 557 100.0 326 100.0 409 100.0 3086 100.0
120. To what extent do you agree or disagree that government departments including municipalities successfully implement
Strongly agree 53 3.2 17 2.9 4 2.0 17 3.0 91 3.1 Agree 522 29.1 181 32.0 79 19.0 112 32.9 894 29.5 Neither agree nor disagree
553 30.9 188 34.4 112 38.1 110 27.5 963 31.1
Disagree 349 19.3 70 15.8 75 23.0 83 16.7 577 18.8 Strongly disagree 174 8.4 19 2.1 22 4.0 57 10.9 272 7.9 Do not know 145 9.1 82 12.8 34 13.8 30 9.0 291 9.6 Total 1796 100.0 557 100.0 326 100.0 409 100.0 3088 100.0
121. And how much do you agree or disagree that government departments and municipalities have the capacity to successful
Strongly agree 111 5.3 20 2.1 22 3.7 23 5.8 176 5.0 Agree 527 29.3 203 43.4 86 38.4 131 33.5 947 31.3 Neither agree nor disagree
563 31.5 180 30.4 106 31.4 99 24.2 948 30.6
Disagree 292 16.8 58 9.3 58 11.5 76 18.4 484 16.1 Strongly disagree 147 6.8 14 1.2 23 9.8 46 8.4 230 6.5
113
Do not know 155 10.4 81 13.5 31 5.2 33 9.6 300 10.5 Total 1795 100.0 556 100.0 326 100.0 408 100.0 3085 100.0
7.3 Frequency of being unlawful
Race of the respondent Black African Coloured Indian/Asian White Total
N Col % N Col % N Col % N Col % N Col % 122. How often have you made an exaggerated or false insurance claim in the last 5 years?
Never 1742 95.8 554 99.5 324 99.5 405 99.0 3025 96.6 Once 34 2.5 2 .2 1 .1 2 .5 39 2.0 Twice 10 1.2 1 .3 1 .3 1 .3 13 1.0 3-‐4 times 3 .3 0 0.0 0 0.0 0 0.0 3 .2 5 times or more 0 0.0 0 0.0 0 0.0 1 .1 1 .0 Do not know 6 .2 0 0.0 0 0.0 1 .1 7 .2 Total 1795 100.0 557 100.0 326 100.0 410 100.0 3088 100.0
123. How often have you bought something you thought might be stolen in the last 5 years?
Never 1611 86.8 517 90.0 314 95.8 389 96.3 2831 88.3 Once 114 8.4 20 6.8 6 1.3 14 2.2 154 7.5 Twice 34 2.4 9 1.6 4 1.9 1 .8 48 2.1 3-‐4 times 16 .9 4 .5 1 .3 1 .2 22 .8 5 times or more 7 .8 1 .1 0 0.0 0 0.0 8 .6 Do not know 13 .7 5 1.0 1 .6 5 .6 24 .7 Total 1795 100.0 556 100.0 326 100.0 410 100.0 3087 100.0
124. How often have you committed a traffic offence like speeding or crossing a red robot in the last 5 years?
Never 1662 91.1 506 92.0 285 86.3 317 71.9 2770 89.2 Once 76 6.0 18 4.0 23 10.0 25 7.4 142 6.1 Twice 25 1.2 11 1.7 5 1.7 29 7.4 70 1.9 3-‐4 times 11 .5 7 .6 5 .9 11 4.7 34 1.0 5 times or more 13 .8 9 1.1 7 1.1 17 5.2 46 1.3 Do not know 9 .2 5 .5 1 .1 11 3.4 26 .6 Total 1796 100.0 556 100.0 326 100.0 410 100.0 3088 100.0
114
8 Results Disaggregated by Educational Attainment (Weighted %, Unweighted N) 8.1 The courts
Highest education level
No schooling Primary
Some secondary, excluding matric
Matric or equivalent
Tertiary education
Other/Dont know No answer Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % Q 112. Since 1994 have you had any experience with a South African court about your own situation, or to help friends or family?
Yes 14 18.2 68 17.9 201 16.3 159 14.5 73 24.1 2 1.3 4 13.3 521 16.6
No 125 77.3 349 80.6 948 82.8 794 84.8 274 74.8 21 98.7 20 86.5 2531 82.4
Do not know 3 4.5 7 1.5 15 .9 9 .7 3 1.0 0 0.0 1 .2 38 1.0
Total 142 100.0 424 100.0 1164 100.0 962 100.0 350 100.0 23 100.0 25 100.0 3090 100.0
Multiple response table
Highest education level
No schooling Primary
Some secondary,
excluding matric Matric or equivalent
Tertiary education
Other/Dont know No answer Total
Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Q 113 Which courts did you, the family member, or friend go to?
113.a. Constitutional Court
36.1 3 11.8 8 15.9 21 7.8 13 7.3 7 0.0 0 15.9 1 12.5 53
113.b. Supreme Court of Appeal
2.9 1 11.9 5 6.2 8 1.4 6 3.8 3 0.0 0 0.0 0 5.0 23
113.c. High Courts 5.8 1 15.1 11 14.5 24 28.9 28 14.2 12 43.6 1 0.0 0 18.5 77 113.d. Special Income Tax Courts
27.9 1 0.0 0 0.0 0 6.8 3 4.3 1 0.0 0 0.0 0 3.8 5
113.e. Labour Courts and Labour Appeal Courts
0.0 0 1.1 1 .7 4 7.4 9 .2 1 0.0 0 0.0 0 2.7 15
113.f. Divorce Courts
0.0 0 10.6 4 4.1 11 4.2 10 8.4 11 43.6 1 0.0 0 5.4 37
113.g. Land Claims 27.9 1 0.0 0 .3 3 6.5 1 4.2 2 0.0 0 0.0 0 3.8 7
115
Highest education level
No schooling Primary
Some secondary,
excluding matric Matric or equivalent
Tertiary education
Other/Dont know No answer Total
Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Court 113.h. The Water Tribunal
9.2 1 0.0 0 .1 1 0.0 0 0.0 0 0.0 0 0.0 0 .4 2
113.i. Truth and Reconciliation Commission (TRC)
0.0 0 0.0 0 .7 1 0.0 0 4.3 1 0.0 0 0.0 0 .9 2
113.j. Magistrate’s Courts
41.8 6 34.1 24 37.3 77 51.7 72 33.9 24 100.0 2 84.1 2 41.2 207
113.k. Small Claims Courts
0.0 0 15.2 9 4.3 17 4.7 10 17.8 11 0.0 0 0.0 0 7.6 47
113.l. Community Courts / District Courts
1.1 1 3.3 3 5.3 7 6.9 9 1.2 3 0.0 0 0.0 0 4.8 23
113.m. Equality Courts
0.0 0 0.0 0 2.5 5 0.0 0 0.0 0 0.0 0 0.0 0 .9 5
113.n. Child Justice Courts
0.0 0 1.6 1 2.0 6 .6 4 0.0 0 0.0 0 0.0 0 1.2 11
113.o. Maintenance Courts
0.0 0 8.1 7 8.3 14 4.5 12 5.8 4 0.0 0 0.0 0 6.4 37
113.p. Sexual Offences Courts
0.0 0 5.2 4 3.7 5 2.2 3 0.0 0 0.0 0 0.0 0 2.7 12
113.q. Children’s Courts
0.0 0 0.0 0 3.9 6 6.3 7 .1 1 0.0 0 0.0 0 3.4 14
113.r. Courts for Chiefs and Headmen
0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0
113.s. Commission for Conciliation Mediation & Arbitration
0.0 0 0.0 0 .2 2 .7 1 7.7 5 43.6 1 0.0 0 1.4 9
113.t. Other 4.0 2 0.0 0 .3 2 2.1 4 4.0 2 0.0 0 0.0 0 1.5 10
116
Highest education level
No schooling Primary
Some secondary,
excluding matric Matric or equivalent
Tertiary education
Other/Dont know No answer Total
Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col % N (Specify) 113.u. Do not know 5.0 1 0.0 0 2.4 8 3.0 6 0.0 0 0.0 0 0.0 0 2.0 15
Highest education level
No schooling Primary
Some secondary, excluding matric
Matric or equivalent
Tertiary education
Other/Dont know No answer Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col %
Q 114. How satisfied or dissatisfied are you with the way you were treated the last time you visited a court?
Very satisfied 1 2.1 8 12.3 23 15.6 32 35.6 9 14.4 0 0.0 0 0.0 73 20.4
Satisfied 4 20.9 39 59.8 99 47.7 81 38.6 35 48.8 1 43.6 2 64.9 261 45.7
Neither nor 7 50.0 7 10.6 27 11.9 15 7.6 14 19.6 1 56.4 1 22.7 72 13.1
Dissatisfied 2 26.6 10 11.5 29 15.5 20 13.8 12 11.7 0 0.0 1 12.3 74 14.3
Very dissatisfied 1 .4 4 5.8 21 9.0 8 3.9 5 5.4 0 0.0 0 0.0 39 6.2
Do not know 0 0.0 0 0.0 1 .2 3 .6 0 0.0 0 0.0 0 0.0 4 .3
Total 15 100.0 68 100.0 200 100.0 159 100.0 75 100.0 2 100.0 4 100.0 523 100.0
Case Processing Summary
Cases
Included Excluded Total
N Percent N Percent N Percent
Q 115. In your opinion, how easy or difficult would it be for you to get
legal help if you needed it? 3089 99.4% 19 0.6% 3108 100.0%
Report
117
115. In your opinion, how easy or difficult would it be for you to get legal help if you needed it?
Highest education level Mean N
No schooling 10.10 143
Primary 9.74 424
Some secondary, excluding matric 8.07 1162
Matric or equivalent 7.63 961
Tertiary education 7.97 351
Other/Dont know 9.30 23
No answer 11.88 25
Total 8.29 3089 Multiple response table
Highest education level
No schooling Primary
Some secondary, excluding matric
Matric or equivalent
Tertiary education
Other/Dont know
No answer Total
Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N
Q 116 What are the most important reasons that might make it difficult for someone like you
116.a. Lack of funds to pay expenses 68.1 97 67.9 279 62.9 695 53.4 502 48.7 153 47.6 11 73.8 13 59.0 1750
116.b. Lack of general education 34.5 47 24.6 99 19.8 212 17.1 145 15.7 45 8.5 3 8.2 4 19.4 555
116.c. Lack of knowledge about laws and legal rights 37.7 40 26.0 108 28.1 297 26.8 228 15.3 61 51.7 8 7.6 4 26.5 746
116.d. Lack of knowledge about where my court is 7.8 15 5.0 27 6.1 60 8.4 70 6.2 18 2.5 2 7.8 2 6.8 194
116.e. The time it would take for the case to end 12.8 10 6.5 32 11.5 142 13.1 130 19.7 81 7.9 1 46.0 7 12.5 403
118
Highest education level
No schooling Primary
Some secondary, excluding matric
Matric or equivalent
Tertiary education
Other/Dont know
No answer Total
Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N Col %
N
to get access to justice from the courts in South Africa in times of need?
116.f. It would be hard to get a lawyer to help me 12.1 15 12.2 50 13.6 149 17.1 127 10.6 35 .7 1 0.0 0 14.2 377
116.g. The courts would not be fair to someone like me 9.9 9 4.4 20 6.0 70 7.7 64 3.7 13 6.4 1 12.1 5 6.4 182
116.h. The distance to the courts is too far 6.4 11 5.0 25 6.1 59 7.7 54 4.8 12 7.3 2 21.1 1 6.5 164
116.i. Living in a rural area 7.7 13 9.3 34 6.7 63 5.0 48 2.0 13 7.9 3 2.4 1 6.0 175
116.j. It would be dangerous for someone like me and my fam 3.0 6 4.5 30 4.9 57 4.5 51 7.3 19 1.5 2 2.4 1 4.8 166
116.k. Other (Specify) .7 1 1.1 4 1.6 19 2.5 24 6.0 18 5.5 1 1.6 1 2.3 68
116.l. Do not know 8.4 14 8.3 39 5.4 83 6.8 87 9.5 41 11.7 3 3.2 2 6.7 269
Highest education level
No schooling Primary
Some secondary, excluding matric
Matric or equivalent
Tertiary education
Other/Dont know No answer Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col %
Q117. Given everything we must do in society, do you favour or
Strongly favour 52 29.4 177 38.8 483 44.6 330 38.4 129 41.7 10 27.8 9 44.5 1190 40.9
Somewhat favour 37 24.2 140 35.0 416 35.7 362 36.5 152 37.8 7 51.3 6 31.9 1120 35.7
Somewhat oppose 20 17.1 57 14.0 138 10.2 141 13.7 38 13.1 4 18.4 5 13.1 403 12.5
119
oppose the government using taxpayer money to provide lawyer
Strongly oppose 14 16.0 27 6.0 77 6.0 80 7.6 17 4.4 0 0.0 1 5.7 216 6.7
Do not know 18 13.3 22 6.2 50 3.4 47 3.8 15 3.0 2 2.5 3 4.8 157 4.2
Total 141 100.0 423 100.0 1164 100.0 960 100.0 351 100.0 23 100.0 24 100.0 3086 100.0
8.2 Social-‐ Economic rights
Highest education level
No schooling Primary
Some secondary, excluding matric
Matric or equivalent
Tertiary education
Other/Dont know No answer Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col %
Q 118. How satisfied or dissatisfied are you with the way that the government is handling the delivery of basic services
Very satisfied 5 6.1 22 3.2 68 6.0 63 7.2 29 7.8 1 7.9 2 5.6 190 6.2
Satisfied 39 24.1 141 36.0 377 33.0 336 33.9 123 35.1 12 57.1 5 10.4 1033 33.5
Neither nor 23 19.5 73 18.1 238 21.6 201 21.4 61 21.2 4 12.4 4 10.5 604 20.9
Dissatisfied 31 24.1 96 23.9 253 20.2 175 21.2 84 22.7 4 19.1 7 49.0 650 21.5
Very dissatisfied 43 26.1 82 17.2 214 18.5 175 15.8 53 13.1 2 3.5 5 24.4 574 17.1
Do not know 1 .1 7 1.6 14 .8 9 .5 1 .1 0 0.0 1 .2 33 .7
Total 142 100.0 421 100.0 1164 100.0 959 100.0 351 100.0 23 100.0 24 100.0 3084 100.0
Q 119. How fast or slow do you feel government officials are in responding to and resolving service delivery issues in you?
Very fast 4 2.1 7 .8 49 4.1 36 3.0 16 3.2 1 4.7 4 9.4 117 3.2
Fast 16 13.7 58 12.8 169 16.6 152 14.0 74 26.2 5 17.2 0 0.0 474 16.0
Neither fast nor slow 32 35.7 107 26.3 285 23.3 266 27.9 94 22.3 7 39.5 4 13.6 795 25.6
Slow 38 20.1 121 26.8 321 27.1 254 29.3 86 23.9 3 19.0 4 25.0 827 27.2
Very slow 51 28.0 124 31.6 317 27.7 235 24.9 75 22.8 7 19.6 11 51.9 820 26.8
Do not know 1 .4 6 1.7 23 1.1 16 .9 6 1.7 0 0.0 1 .2 53 1.1
Total 142 100.0 423 100.0 1164 100.0 959 100.0 351 100.0 23 100.0 24 100.0 3086 100.0
Q 120. To what extent do you
Strongly agree 6 5.5 11 3.0 35 2.8 28 3.6 9 1.8 0 0.0 2 3.9 91 3.1
Agree 34 20.7 130 30.2 327 29.2 295 28.8 92 32.4 9 63.2 7 42.4 894 29.5
120
Highest education level
No schooling Primary
Some secondary, excluding matric
Matric or equivalent
Tertiary education
Other/Dont know No answer Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col %
agree or disagree that government departments including municipalities successfully implement
Neither agree nor disagree 43 27.5 134 32.1 368 31.2 293 31.4 113 31.5 7 20.9 5 11.3 963 31.1
Disagree 28 21.8 75 19.5 221 19.0 172 18.5 75 17.9 2 4.3 4 17.4 577 18.8
Strongly disagree 17 12.7 33 7.9 92 7.0 92 8.1 33 8.6 1 1.9 4 24.9 272 7.9
Do not know 14 11.9 41 7.4 121 10.7 81 9.5 29 7.6 4 9.7 1 .2 291 9.6
Total 142 100.0 424 100.0 1164 100.0 961 100.0 351 100.0 23 100.0 23 100.0 3088 100.0
Q 121. And how much do you agree or disagree that government departments and municipalities have the capacity to successful
Strongly agree 9 5.8 19 3.3 69 5.6 57 5.3 14 2.2 3 9.6 5 11.2 176 5.0
Agree 31 17.3 124 31.5 346 29.8 301 31.5 132 40.9 9 48.9 4 24.1 947 31.3
Neither agree nor disagree 48 37.3 131 30.0 371 31.8 298 29.5 89 30.0 6 28.1 5 10.3 948 30.6
Disagree 21 19.0 76 17.1 180 16.0 141 15.6 62 15.9 1 5.7 3 28.8 484 16.1
Strongly disagree 16 5.9 26 5.9 73 4.7 82 8.7 26 5.4 2 5.2 5 25.4 230 6.5
Do not know 17 14.6 48 12.2 124 12.1 83 9.4 25 5.5 2 2.5 1 .2 300 10.5
Total 142 100.0 424 100.0 1163 100.0 962 100.0 348 100.0 23 100.0 23 100.0 3085 100.0
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8.3 Frequency of being unlawful
Highest education level
No schooling Primary
Some secondary, excluding matric
Matric or equivalent
Tertiary education
Other/Dont know No answer Total
N Col % N Col % N Col % N Col % N Col % N Col % N Col % N Col %
122. How often have you made an exaggerated or false insurance claim in the last 5 years?
Never 139 98.7 419 98.6 1140 96.8 938 95.5 344 96.4 23 100.0 22 94.6 3025 96.6
Once 2 .9 4 .7 17 2.3 11 2.3 4 1.9 0 0.0 1 5.4 39 2.0
Twice 0 0.0 0 0.0 3 .5 8 1.9 2 1.6 0 0.0 0 0.0 13 1.0
3-‐4 times 0 0.0 1 .8 1 .1 1 .2 0 0.0 0 0.0 0 0.0 3 .2
5 times or more 0 0.0 0 0.0 0 0.0 1 .0 0 0.0 0 0.0 0 0.0 1 .0
Do not know 1 .4 0 0.0 3 .3 2 .1 1 .1 0 0.0 0 0.0 7 .2
Total 142 100.0 424 100.0 1164 100.0 961 100.0 351 100.0 23 100.0 23 100.0 3088 100.0
123. How often have you bought something you thought might be stolen in the last 5 years?
Never 133 88.6 395 91.0 1067 86.1 864 88.5 330 93.2 22 97.7 20 83.0 2831 88.3
Once 5 9.9 12 3.5 65 9.5 58 7.9 12 2.6 1 2.3 1 1.7 154 7.5
Twice 3 1.0 11 3.2 15 2.1 15 1.8 3 1.9 0 0.0 1 13.1 48 2.1
3-‐4 times 0 0.0 3 .7 6 .4 12 1.2 1 1.4 0 0.0 0 0.0 22 .8
5 times or more 0 0.0 1 .2 4 1.1 1 .3 1 .3 0 0.0 1 2.2 8 .6
Do not know 1 .5 2 1.4 7 .8 10 .4 4 .6 0 0.0 0 0.0 24 .7
Total 142 100.0 424 100.0 1164 100.0 960 100.0 351 100.0 23 100.0 23 100.0 3087 100.0
124. How often have you committed a traffic offence like speeding or crossing a red robot in the last 5 years?
Never 138 95.3 404 91.6 1090 93.4 840 88.2 261 70.2 18 94.6 19 88.6 2770 89.2
Once 3 4.4 13 7.3 31 4.1 61 7.5 30 8.8 3 3.9 1 2.1 142 6.1
Twice 1 .3 4 .6 17 1.0 22 2.0 24 7.4 1 .6 1 1.7 70 1.9
3-‐4 times 0 0.0 2 .4 10 .6 13 .7 7 4.2 1 1.0 1 5.4 34 1.0
5 times or more 0 0.0 1 .2 9 .5 16 1.1 20 7.6 0 0.0 0 0.0 46 1.3
Do not know 0 0.0 0 0.0 7 .4 9 .6 9 1.9 0 0.0 1 2.2 26 .6
Total 142 100.0 424 100.0 1164 100.0 961 100.0 351 100.0 23 100.0 23 100.0 3088 100.0
122
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9 Appendix: South African Social Attitudes Survey (SASAS) 2014 DOJ Attitudes towards the Courts
We would now like to ask a few more questions about courts in the country. This is not only about criminal courts but all courts including magistrates’ courts, chiefs' and headmen's courts, higher courts such as the Constitutional Court, and other specialist courts.
112. Since 1994 have you had any experience with a South African court about your own situation, or to help friends or family?
Yes 1 à Ask Q.113 No 2 à Go to
Q.115 (Don’t know) 8
113. Which courts did you, the family member, or friend go to?
INTERVIEWER: DO NOT READ OUT OPTIONS. MULTIPLE RESPONSES ALLOWED a. Constitutional Court 01 b. Supreme Court of Appeal 02 c. High Courts 03 d. Special Income Tax Courts 04 e. Labour Courts and Labour Appeal Courts 05 f. Divorce Courts 06 g. Land Claims Court 07 h. The Water Tribunal 08 i. Truth and Reconciliation Commission (TRC) 09 j. Magistrates’ Courts 10 k. Small Claims Courts 11 l. Community Courts / District Courts 12
m. Equality Courts 13 n. Child Justice Courts 14 o. Maintenance Courts 15 p. Sexual Offences Courts 16 q. Children’s Courts 17 r. Courts for Chiefs and Headmen 18 s. Commission for Conciliation Mediation & Arbitration (CCMA) 19 t. Other (SPECIFY) 20
124
u. (Don’t know) 88
114. [SHOWCARD SC 13] How satisfied or dissatisfied are you with the way you were treated the last time you visited a court?
Very satisfied 1 Satisfied 2 Neither satisfied nor dissatisfied 3 Dissatisfied 4 Very dissatisfied 5 (Don’t know) 8
115. [SHOWCARD SC 19] In your opinion, how easy or difficult would it be for
you to get legal help if you needed it? Choose your answer from a scale where 0 is extremely difficult and 10 is extremely easy.
Extremely difficult
Extremely easy
(Don’t know)
00 01 02 03 04 05 06 07 08 09 10 88
116. What are the most important reasons that might make it difficult for someone like you to get access to justice from the courts in South Africa in times of need?
INTERVIEWER: DO NOT READ OUT OPTIONS. MULTIPLE RESPONSES ALLOWED. CIRCLE ALL THAT APPLY.
a. Lack of funds to pay expenses 01 b. Lack of general education 02 c. Lack of knowledge about laws and legal rights 03 d. Lack of knowledge about where my court is 04 e. The time it would take for the case to end 05 f. It would be hard to get a lawyer to help me 06 g. The courts would not be fair to someone like me 07 h. The distance to the courts is too far 08 i. Living in a rural area 09 j. It would be dangerous for someone like me and my family / fear of
intimidation 10
k. Other (SPECIFY) 11 l. (Don’t know) 88
125
117. Given everything we must do in society, do you favour or oppose the government using taxpayer money to provide lawyers to represent low-‐income people?
Strongly favour 1 Somewhat favour 2 Somewhat oppose 3 Strongly oppose 4 (Don’t know) 8
I am now going to ask you some questions issues of socio-‐economic rights in South Africa. These rights are things such as the right to water, electricity, land, and housing. Please
answer based on what you have heard or your own experience.
118. [SHOWCARD SC 13] How satisfied or dissatisfied are you with the way that the
government is handling the delivery of basic services such as water, sanitation, electricity and housing in your community?
Very satisfied 1 Satisfied 2 Neither nor 3 Dissatisfied 4 Very dissatisfied 5 (Don’t know) 8
119. How fast or slow do you feel government officials are in responding to and resolving service delivery issues in your community?
Very fast 1 Fast 2 Neither fast nor slow 3 Slow 4 Very slow 5 (Don’t know) 8
[SHOWCARD SC 12] To what extent do you agree or disagree that government departments including municipalities successfully implement court decisions that improve people’s lives?
Strongly agree 1 Agree 2 Neither agree nor disagree 3
126
Disagree 4 Strongly disagree 5 (Don’t know) 8
120. [SHOWCARD SC 12] And how much do you agree or disagree that government departments and municipalities have the capacity to successfully implement court decisions that improve the lives of poor people and communities?
Strongly agree 1 Agree 2 Neither agree nor disagree 3 Disagree 4 Strongly disagree 5 (Don’t know) 8
Now some questions about things you might have done.
[SHOWCARD SC 18] Please tell me how often you have done each of these things in the last five years? How often have you …?
Never Once Twice 3-‐4 times 5 times or more
(Don’t know)
121. …made an exaggerated or false insurance claim?
1 2 3 4 5 8
122. … bought something you thought might be stolen?
1 2 3 4 5 8
123. … committed a traffic offence like speeding or crossing a red robot?
1 2 3 4 5 8
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ANNEXURE F: “Intestate Succession” in: Chuma Himonga and Elena Moore Reform of Customary Marriage, Divorce and Succession in South Africa. Cape Town: Juta. Forthcoming
CHAPTER 9
INTESTATE SUCCESSION1
1.INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
2.SOURCES: DATA SEGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
3. LOCATION OF FINDINGS IN EXISTING LITERATURE. . . . . . . . . . . . . 4. THE LIVING CUSTOMARY LAW OF SUCCESSION CONCEPTUAL
247
FRAMEWORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 5. THE BHE RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 5.1 The decision on substantive law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 5.2 To whom do the Bhe rules of intestate succession apply?. . . . . . . . . . . 254 5.3 Bhe and the new system of administration of estates . . . . . . . . . . . . . . 255 5.3.1 Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 5.3.2 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 5.3.3 Administration by person other than the executor . . . . . . . . . . 257 5.3.4 Accountability of the administrator . . . . . . . . . . . . . . . . . . . . . . 6. RESEARCH ASSUMPTION AND MEASURE OF COMPLIANCE
258
WITH THE BHE RULES IN PRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . 258 7. CONSONANCES AND DISSONANCES WITH THE BHE RULES . . . . . 259 7.1 Administration of black people’s estates by the Master . . . . . . . . . . . . 259 7.1.1 Estates of black people administered by the Master. . . . . . . . . 259 7.1.2 Appointment of primary heirs as administrators. . . . . . . . . . . . 260 7.1.3 Jurisdictional indicators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 7.1.4Beyond the appointment of the administrator . . . . . . . . . . . . . . 265
7.1.4.1 Knowledge of the legal rules and procedures . . . . . . . 7.1.4.2 Weaknesses in the interface between service points and the Master . . . . . . . . . . . . . . . . . . . . . . . . . .
265
265 7.1.4.3 Capacity to mobilise legal rules and procedures . . . . . 266 7.1.4.4 Absence of accountability. . . . . . . . . . . . . . . . . . . . . . . 267
7.1.5 Administration of estates by family members. . . . . . . . . . . . . . 268 7.2 Inheritance by beneficiaries under the Bhe rules . . . . . . . . . . . . . 268
1 Page numbers refer to the page numbers in the final book publication. They have been retained for editorial purposes.
128
7.2.1 Dissonances in the distribution of estates . . . . . . . . . . . . . . . . . 7.2.1.1 Estate not inherited but given to a family member as
269
custodian for the rest of the family. . . . . . . . . . . . . . . . 7.2.1.2 Inheritance by the deceased’s family to the exclusion
270
of the widow and children of the deceased . . . . . . . . . 276 7.2.1.3 Negotiated inheritance for extramarital children. . . . . 278
7.2.1.4 Polygamous marriage widows inherit equally with
qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.1.5 The widow inherits, but only because she is
perceived to be the care-‐giver to deceased’s children or it is believed that she will use the money for the children’s upkeep
278
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.1.6 All children of the deceased inherit in equal shares
280
but with qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . 281 7.2.1.7 Extramarital children not to inherit. . . . . . . . . . . . . . . . 281 7.2.1.8 The widow and children inherit simultaneously . . . . . 282
7.2.2 Nuanced compliance with the Bhe rules . . . . . . . . . . . . . . . . . . 282 7.3 Public knowledge of the rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 7.4 Public perceptions about Bhe rules . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 7.5 The absence of challenges in the application of the Bhe rules . . . . . . . 286 8. SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
1. Introduction
Intestate succession is the system of distribution of deceased estates when the deceased has left no will instructing how his or her estate is to be distributed. Administration is the process, by which the deceased’s assets and liabilities are ascertained, and by which the latter are discharged and the residue distributed to the deceased’s heirs. This chapter presents the findings of the study on the practical operation of the Bhe rules
of intestate succession and administration of estates (hereinafter referred to as the Bhe
rules or the rules). The Bhe rules were the result of the 2004 Constitutional Court decision in Bhe v Magistrate, Khayelitsha (hereinafter Bhe),2 which replaced the customary law of succession grounded in the principle of male primogeniture, with the application of the Intestate Succession Act 81 of 1987 (ISA). The rules were to remain in operation until Parliament enacted legislation to regulate customary succession. In 2010, Parliament enacted the anticipated legislation,3 and from that date, the rules technically ceased to exist. However, for the purposes of our study, we assumed that the new legislation would not take effect in the target population for some time. We therefore extended the cut-‐off date
2 2005 (1) BCLR 1 (CC). 3 The Reform of the Customary Law of Succession and Related Matters Act (RCLSRMA) 11 of 2009, which came into force
on 20 September 2010.
129
for the application of the Bhe rules to 2013. Estates of people who died in 2013 have therefore been included in the research findings.4 Although the Bhe rules are no longer in force, the report of the findings is narrated in the present tense for convenience. This chapter is based on the analysis of various data segments referred to as primary and
secondary data and existing literature. These sources are discussed in the next two sections.
2. Sources: Data segments
Primary data refers to the data that we consider to provide the most credible source relaying the participants’ construction and experiences of reality. This data consists of four segments:
(a) 32 cases narrated by participants whose relatives had died and had their estates ‘wound up’ — the relationship between the participant and the deceased being that of spouse, child or parent;
(b) cases narrated by key informants (two by traditional leaders and the other two by the officials at the Master’s office, who had personally handled or dealt with matters relating to administration of estates);
(c) interviews with a total of 18 officials (10 officers responsible for administration of estates in the Master’s office (including one responsible for service points), one acting high-‐court judge, three magistrates and four registrars of the High Court); and
(d) records of appointments of executors/administrators of estates at the Master’s offices in two provinces — records of 85 estates of married black South Africans were examined in one province and those of 81 estates of unmarried black South African were examined in the other province. The assumption made by the researchers was that all estates of black people were subject to customary law (see section 5.2 below).
Secondary data consists of ‘opinions’ as opposed to direct experiences of the participants. The data segments falling under this category are:
(a) Ten cases of people whose family members died and had their estates ‘wound up’ but they were narrated by non-‐family member participants in the different categories of interviewee (viz married, divorced and participants involved in succession matters). The only difference between these cases and those in category (a) of the primary data is that the former were narrated by close family members who were remotely connected to the cases they narrated while the latter were narrated by non-‐family members);
(b) opinions/views/perceptions gathered from responses to vignette 7 (see Appendix VIII) by interviewees (ie traditional leaders, succession and married and divorced participants). A total of 106 participants across all the provinces responded to this vignette. The value of this data is in providing nuanced understanding of how individuals and groups of people view and understand issues of succession and inheritance under investigation.
(c) five workshop discussions from three provinces: North West (two), Limpopo (two) and Mpumalanga (one).
4 In any case, the RCLSRMA essentially adopted the Bhe rules by applying the Intestate Succession Act 81 of 1987.
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3. Location of findings in existing literature
There is voluminous literature on the study of the customary law of succession in the country, but this study focuses primarily on recent empirical research by Budlender,5Mnisi6
and Mbatha.7 Budlender conducted a survey of 3 000 women on issues of women, land and customary law in three areas located in three of the provinces covered by our study — the Eastern Cape, KwaZulu-‐Natal and North West provinces. Her findings on issues such as the concept of homestead and widows’ access to land are important to the conceptual framework adopted by this study and to our interpretation of patterns of succession in our findings. While Budlender’s study is based on the survey of a large sample of participants, Mnisi’s is
an in-‐depth study of two villages in Mpumalanga on the interaction of state law and local law with a focus on succession. It should be noted that the analysis of the findings in this chapter does not take account of the ethnic dimension of customary law in which different tribes or ethnic groupings may have their own unique customary laws. While this dimension might yield interesting comparative findings on different ethnic groups’ responses to state intervention in the reform of their law, our study was not designed to explore inter-‐ethnic differences in response to Bhe. One of the reasons for this is that the Bhe rules are intended to apply to everyone regardless of their ethnic grouping or customary law. However, our study has benefited from Mnisi’s in-‐depth ethnic-‐group-‐focused empirical study, especially with regard to the interaction of state law with customary law in succession in rural contexts.8 Mnisi uses the customary law of succession, including the decision in Bhe, to unearth socio-‐legal phenomena from the interaction taking place between living customary law and state law — some of which are useful to our understanding of the application of Bhe rules in the administration of estates in the official enclave. It is also noteworthy that this study was located in two rural communities in Mpumalanga, which was one of the provinces in which our study was conducted. Thus it constitutes an in-‐depth micro-‐study of the living customary law of succession among the Tswana specifically, as well as providing insights into the operation of Bhe in rural contexts. Mbatha’s study was a precursor to the Bhe rules. Mbatha advocated for reform of the
customary law of succession on account of, inter alia, current socio-‐economic conditions that no longer supported official customary law, which excluded certain members of the deceased’s family, especially women, from inheritance. Her central argument was that the application of codified (official) customary succession law deprived the deceased person’s dependants of their right to inheritance, discriminated unfairly on grounds of gender and
5 Budlender et al Women, Land and Customary Law (2011). 6 Mnisi The Interaction Between Living Customary Law(s) of Succession and South African State Law (DPhil Thesis in Law,
New College, Oxford 2010). 7 Mbatha ‘Reforming the customary law of succession’ (2002) 18 South African Journal of Human Rights 259. 8 Mnisi (n 5).
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status and eroded women’s trust in the Constitution of the Republic of South Africa.9
Another important aspect of Mbatha’s study is its consideration of the application of the concept of family property against the backdrop 248
of changing social and economic conditions.10 Her findings revealed the inadequacy of customary practices or rules that seek to cast the handling of family property into a static past. This was useful for our analysis of data, in which participants use the concept of family property in constructing their inheritance rights. An important general finding of all three studies that should not be overlooked is the
existence of egalitarian inheritance practices in living customary law that are essentially Constitution-‐compliant. It will be interesting to see the extent to which the current practices of succession in our study reflect this picture. In sum, the three studies under review collectively provide dimensions that are important
to the interpretation and understanding of data in our study. They also underscore the existence of customary practices of inheritance that embody egalitarian values that comply with the values that comply with the Constitution, and therefore resonate with the Bhe
rules. The individual contributions of these studies to our study, and to this chapter in particular, are reflected in the discussion of the conceptual framework in the next section, and in the various sections of the chapter into which they are integrated.
4. The living customary law of succession conceptual framework
In this section, we briefly highlight some of the concepts from the reviewed literature that are relevant to our study. These are ekhaya, umzi, heir, succession, inheritance and family property. The study by Budlender shows that the most common word to describe the homestead is
umzi.11 This is the primary unit of social organisation, traditionally and ideally headed by a man and based on patrilineal systems of succession.12 In polygamous marriages, the homestead consists of complex property and residential arrangements in which each wife has her own separate house, field and granary from which she provides for her children and husband.13 In monogamous marriages, the property and residential set up is simple, basically a man and his wife, children and other dependant members of his extended family constitute a homestead.14 A homestead may also consist of inter-‐generational residential units as married men and their children continue to live in their parents’ homestead (some for a long time) until they move away to build their own homesteads.15 For our purposes,
9 Mbatha (n 6) at 279. 10 Mbatha (n 6) at 271.
11 Budlender (n 4) at 41. 12 Cousins ‘Women’s land rights and social change in rural South Africa: The case of Msinga, KwaZulu-‐Natal’ in Claassens & Smythe (eds) Marriage, Land and Custom: Essays on Law and Social Change in South Africa (2013) 73 at 82. 13 Ibid. 14 Ibid. 15 Ibid.
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umzi means a natal home. It is used interchangeably with ekhaya or ikhaya, and it consists of a house(s), cattle kraal (consisting of livestock independently owned by the family head and livestock from the bridewealth of children in monogamous or polygamous families)16 and gardens.17A person may move away (for example, upon marriage) from his or her parents’ umzi 249
to establish his or her own umzi. This move may terminate that person’s connection to the parents’ umzi. In other cases, the connection with the parents’ umzi is apparently not broken as members of the subsequent generation may choose one of their members to stay behind while they move away.18 Subsequent generations may succeed to this umzi through inheritance. For example, according to the principle of male primogeniture, and the concept of family property, the eldest son of the ancestor ‘inherits’ the latter’s umzi but holds it for the benefit and on behalf of other members of the deceased’s family. At a conceptual level, Mbatha’s study joins that of Mnisi in revealing the notion of living
customary law of succession that reflects fair and gender-‐sensitive inheritance of family property.19 In taking account of living customary law, both studies were able to reveal practices in the devolution of deceased estates in modern conditions in which both men and women (sons and daughters) administer and control family property upon the death of the incumbent heir. They also draw a distinction between succession and inheritance. Succession refers to the devolution of the status of the deceased in which the successor
(the heir) steps into the shoes of the deceased. This successor assumes the role of administrator of family property held by the deceased for the benefit of other family members.20 On the other hand, inheritance refers to the devolution of the deceased’s property to his or her heirs.21 This model of the devolution of estates also entails a division of the assets held by the deceased family head between family property and personal property. According to Mbatha, this division is determined by the ‘function, the property, the interests it serves (group or personal interests), and the family status of the person who has been allocated the property’.22 The constitution of family property is also conceived in relative terms. ‘Fields and livestock in the hands of an heir may be either family or personal property. They are family property because of their production function and the fact that they may serve family interests more than those of an individual.’23 What is not clear from this definition of family property is whether property obtained by an individual without the contribution of family members can become family property merely because it serves family interests more than the interests of the individual. It is arguable that such a definition of 16 Ibid. 17 Budlender (n 4) at 40. 18 Ibid. 19 Mbatha (n 6) at 271, 283; Mnisi (n 5) at 125. 20 Mnisi (n 5) at 125. 21 Mnisi (n 5) at 125, 138–9, citing Bennett Human Rights and Customary Law under the South African Constitution (1995) at 130. 22 Mbatha (n 6) at 262. 23 Ibid.
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family property would restrain the individual from disposing of it — for example, by testamentary disposition to members of the family, such as daughters, who may be excluded from inheriting family property by archaic customary practices that prefer men over women as ‘heirs’to such property. It should therefore be resisted.
Family property is not inherited in the same way as personal property is inherited.24 This property belongs to the family and is for the use of everyone in need, not just the 250
nuclear family of the deceased who administered it during his or her lifetime.25 Therefore, whoever succeeds to this kind of property has no right of control of the property to the exclusion of others who are entitled to it. He or she succeeds to it on condition that other members of the family can access and use it when in need.26 Thus, a distinction is drawn between control of family property and responsibility for its administration. Official customary law failed to make this distinction with the result that the person allocated family property and administering it was considered to be the owner in the same way as he owned personal property.27 Related to the concept of family property are the values that underpin customary
succession norms, described by Mnisi as: ‘the perpetuation of family and kinship and the provision for posterity by ensuring [that] property remains in the family. . . . Need is the primary determinant of benefit from family property.’28 The following statement by Mbatha underlines the basic concept of family property
relevant to our study: In practice, customary property rights are not held individually. The courts’ approach,[29] which construes family property as individual property . . . creates enormous social problems. The rights of widows and other dependants entitled to protection using the property are not emphasised and the practice of providing social security to the old and sick by family members is thus discouraged. It also causes panic among old people, especially those who would like succession to family property to be compensatory and on the basis of need. The practice of awarding family property to individual heirs by courts has interfered with the customary practice of siblings closing the gap created by the heir’s failure to discharge his customary obligations, including responding to need. As a result parents are afraid of being abandoned by their children who are not heirs in times of need since there is no incentive by them. Parents in these circumstances say they would like to leave their property to all the children regardless of sex and status in the family.29
On the one hand, this statement provides a framework for understanding the resistance or negative assessment of the Bhe rules, considered by some to erode the integrity of family property. On the other hand, the statement, especially the emphasised part, may explain changing patterns of succession in which both sons and daughters inherit property. It also explains why some family members were not supported from the family property despite their apparent need for support. Thus, participants’ views about the Bhe rules in our study 24 Mbatha (n 6) at 269. 25 Mbatha (n 6) at 269, Mnisi (n 5) at 127. 26 Mbatha (n 6) at 269. In this context we define need simply as a situation in which a person has no ready, individual source of livelihood and requires support, for example from his or her extended family, based on mutual and reciprocal social values. 27 Mbatha (n 6); Mnisi (n 5) at 134. 28 Mnisi (n 5) at 135–6, citing Mbatha (n 6). 29 Including, implicitly, the majority judgment in Bhe, as evident from its imposition of a law that does not recognise the concept of family property. 29 Mbatha (n 6) at 268 (our own emphasis).
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may be understood against the backdrop of the role that family property plays, or ought to play, in securing the livelihoods and well-‐being of the deceased’s family members. In this respect, it needs to be emphasised that while the Bhe rules enhance and protect the rights of the nuclear family of the deceased, they 251
do not recognise the concept of family property, which, according to the above statement, is of value to a wider group of the deceased’s family than just the nuclear family. This brings us, in concluding the conceptual framework, to the minority judgment’s view on family property in Bhe. The minority judgment of Ngcobo J acknowledged, among other things, that the
application by the majority judgment of the ISA to all estates would bring about uniformity in the administration of intestate estates for all races, and that this approach recognised ‘that African communities have been transformed from their traditional settings in which the indigenous law developed into modern and urban communities’. However, it pointed out that this was not true of all communities. Justice Ngcobo argued that: ‘[E]ven within this transformative process, a majority of Africans have not forsaken their traditional cultures. These have been adapted to meet the changing circumstances. The law must recognise this.’30 Furthermore, he identified a number of factors that militated against the application of the ISA to all estates. One of these was the issue of family property, and the injustices that may result from the application of the ISA in respect of this kind of property. Because this point has become critical to the implementation of the ISA, as shown in existing literature and our findings, it is necessary to highlight the injustices as Ngcobo J saw them.
In the first place, injustice would arise in the following circumstances for example: [B]oth parents die simultaneously leaving a number of children, including minor children and other persons who were dependent upon the deceased for maintenance and support. . . . [A]ssume that the major asset in the estate is an immovable property which is a family home. Each child will be entitled to a share in the estate. . . . [A]ssume that one or two children insist on getting their share and they cannot be bought out. This will require the family property to be sold and the proceeds to be divided equally amongst the children. Once the house is sold, there will be no shelter for the minor children and other dependants of the deceased. There is no duty on any of the other heirs to provide such shelter.31
Secondly, Ngcobo J agreed with the position of the South African Law Commission that: [D]espite westernisation, the typical African traditional family home still exists; in polygynous unions, distribution of assets in an estate is quite impractical; and many family homes constitute the only means of livelihood and the only homes for family members. If the property concerned should devolve in terms of common law, the family members concerned will be left without a home and livelihood.32
These situations led the minority to the conclusion that indigenous law still had a role to play in the devolution of estates and that there was a ‘need to have both indigenous law and the ISA apply subject to the requirements of fairness, justice and equity’. He furthermore agreed with the recommendation of the South African Law Commission that the institution of family property should be preserved, and that the destination of family property must be made the subject of an enquiry by a magistrate in appropriate 252 30 Bhe (n 1) para 228. 31 Bhe (n 1) para 232. 32 Bhe (n 1) para 233.
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circumstances. The enquiry must take into consideration the best interest of the family and the equality of spouses in customary and civil marriages. 33 This chapter will seek to reveal how family property affects different categories of the
deceased’s family members.
5. The Bhe rules
This section discusses the Bhe legal framework consisting of the decision, choice of law rules determining who the decision applies to and the new system of administration of estates that it introduced.
5.1 The decision on substantive law The Constitutional Court invalidated s 23 of the Black Administration Act 38 of 1927 (BAA), which applied the principle of male primogeniture to estates subject to customary law. The court held that s 1 of the ISA (the common law) would apply to estates of black people as well until the legislature enacted legislation giving effect to the principle of equality and non-‐discrimination in customary succession law. The court also amended the ISA, especially to accommodate polygyny. However, it held that the application by the court of relevant provisions of the ISA to
estates previously regulated by customary law did not exclude the possibility of agreement by all interested parties that the estate should devolve in a different way — provided that the agreement was consistent with the provisions of the ISA. In this respect, the court was careful to ensure that such agreements did not result in the exploitation of vulnerable members of the deceased’s family. Therefore, it placed a special duty on the Master of the High Court, the magistrates and other officials responsible for the administration of estates to ensure that no one is prejudiced in discussions leading to the purported agreements. The Court incorporated agreements in order to ensure that living customary law would continue to develop spontaneously, albeit within the broad framework of the ISA.34 What, it may be asked, does this concession on family agreements mean in actual
practice? What is the extent to which interested parties can deviate from the ISA without being guilty of flouting the decision and the ISA if, in fact, the agreement is required to be consistent with the ISA? This ambiguity creates difficulties for the interpretation of the research data. For example, does the fact that the applicant for the letter of authority is supported by a family member(s) in his or her application signify an agreement by the deceased’s family for the applicant to administer and distribute the estate as he or she sees fit? In this case, if he or she distributes the estate as he or she sees fit without further consultation with the deceased’s family members, would his or her actions still be within the Bhe agreement framework? Or does this framework require him or her to consult with and seek family members’ consensus at every stage of the administration and distribution of the estate? Put differently, does the family’s agreement to have a particular member appointed 33 Ibid. 34 Bhe (n 1) para 130.
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to hold the letter of authority extend to the manner in which he or she administers and distributes the 253
estates as well, so that whatever the outcome of the administration it is taken to have been done by agreement and therefore in compliance with Bhe? The implications of this ambiguity in the measurement of compliance with the Bhe rules in
their practical implementation may be outlined as follows: if the support of the family member(s) for appointment is sufficient compliance with Bhe’s agreement framework then, once the applicant’s application is supported by a family member(s), there is no obligation on state officials (the Master and his staff) to ensure that the person who is appointed also distributes the estate with the agreement of the family members. The role of the Master, and therefore the state, in implementing Bhe ends with the appointment of the administrator. What happens thereafter with regard to how the estate is distributed in practice is not the concern of the state. If, on the other hand, the agreement framework requires the agreement of the family throughout the entire process of administration and distribution, then the state is obliged to ensure that the administrator is accountable to the family of the deceased for the entire administration and distribution of the estate. We submit that the latter position is more consistent with the objectives of the Bhe rules and is therefore preferable. If the Master did not require accountability for the administration of the estate beyond the point of appointment of the administrator, it would be impossible for him or her to ensure that the family agreement did not deviate from the condition set by the Bhe decision that it comply with the provisions of the ISA. Another question that we pose is whether the family that reaches an agreement about
the administration of the estate requires a letter of authority to administer the estate? We argue that the family still requires the letter of authority or executorship. Otherwise it would be impossible for the Master to safeguard the interests of vulnerable members of the family placed upon him or her by the court’s decision. With regard to the broad scheme of devolution of the estate, the Bhe rules may be
summarised as follows:
(a) Priority in the order of heirs is that of immediate (nuclear) members of the family — surviving spouse and children — but excluding parents and siblings of the deceased.
(b) In the case of polygyny, each widow would receive a child’s portion of the estate or the amount of R125 000, whichever is greater.
(c) Children of the deceased all inherit regardless of their status connected to their birth, age or sex.
(d) The family can agree on how the estate is to be administered and distributed subject to conditions of compliance with the ISA.
(e) The estate must now be administered by the Master of the High Court, including the service points operating at the magistrates’courts level.
In discussing the devolution of estates to which the Bhe rules apply, we must not lose sight of the relationship between these rules and the matrimonial property regimes introduced
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by the Recognition of Customary Marriages Act 120 of 1998 (RCMA). Subsections 7(1) and (2) of the RCMA, as amended,35 make a marriage in community 254
of property the default position whenever parties to a monogamous marriage have not excluded this system of property by an antenuptial contract. This property system pools all the property of the parties at the time of marriage and property acquired during matrimony into a joint estate. This would, apparently, include family property that had been inherited by the husband under the official customary-‐law principle of male primogeniture. This principle invested the heir with ownership rights in the family property held by the deceased as well.36 Because the rules for distribution of the matrimonial property of spouses take precedence over the rules of succession, upon the death of one spouse, the surviving spouse would be entitled to half of the matrimonial property. This naturally would include the family property incorporated into the joint estate at the time of marriage. Upon application of the Bhe rules, the surviving spouse would also be entitled to the remaining half of the estate along with the deceased’s heirs. The following example illustrates the point: Oliver and Nobunto married in 2001. Oliver is
the eldest in his family. In 2003, Oliver’s parents passed away and, as the eldest male, Oliver inherited the family property, the house in which his parents lived. In 2008, Oliver died without leaving a will and was survived by Nobunto and a disabled niece who depended on him for support. Nobunto would be entitled to half of the matrimonial property, which would include Oliver’s share in the family’s property, and to the entire half of the deceased’s share of the matrimonial property due to heirs, thereby leaving nothing for the disabled family member.
5.2 To whom do the Bhe rules of intestate succession apply? The Bhe rules apply to those estates of black people that were previously regulated by customary law. The determination of specific which estates of black people were subject to customary law before Bhe was, however, the subject of complex choice of law rules under the BAA and its regulations.37 The main choice of law rule was that the law that regulated the proprietary consequences of the marriage also regulated the devolution of the spouses’ estates. According to these rules, customary law regulated the administration and devolution of the following intestate estates of black South Africans:
(a) estates of black South Africans married according to customary law; (b) estates of spouses of a civil marriage that did not produce the legal consequences of a
marriage in community of property;38 (c) estates of parties who, at the time of death, lived with each other as putative spouses;
35 See the Gumede case (Gumede (born Shange) v President of the Republic of South Africa [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC)) on the amendment it made to this and other sections of the relevant law. 36 See generally, Mbatha (n 6). 37 See Regulations for the Administration and Distribution of the Estates of Deceased Black Persons of 1987 (GN R200 of 1987, promulgated in terms of s 23(10) of the BAA). They determined whether customary law or the common law regulated the administration and distribution of intestate estates of deceased black persons. 38 This category of matrimonial property was regulated by s 22(6) of the BAA (now repealed).
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(d) estates of unmarried black people; and 255
(e) the estate of a man who was, during his lifetime, married simultaneously to two women under customary law and civil law.39
One exception to the application of customary law should be mentioned. According to the BAA, some intestate estates that would normally devolve in terms of customary law were to devolve in terms of the common law. 40
For purposes of this research, the Bhe rules apply to all estates of black people except those married under civil law. Although the exception in respect of choice-‐of law rules above means that some estates of black people could be exempt from customary law and, therefore, the Bhe rules, we assumed that estates falling under this exception were very few,41 and of no significance to the results of the research.
In terms of the cut-‐off date, the Bhe judgment has limited retrospective application. The court invalidated the principle of male primogeniture retrospectively to 27 April 1994. However, this did not apply ‘to any completed transfer of ownership to an heir who had no notice of a challenge to the legal validity of the statutory provisions and the customary law rule in question.’42 Furthermore, the decision did not affect anything done pursuant to the winding-‐up of an estate in terms of the BAA and its regulations.43 Thus, the rules generally apply to estates of black people who died intestate after 27 April
1994 but before the coming into operation of the Reform of the Customary Law of Succession and Related Matters Act 11 of 2009 on 20 September 2010. For the purposes of this study, the date of the decision — 2004 — was used to select participants. We assumed that this would be the date with which most people would associate the Bhe rules.
5.3 Bhe and the new system of administration of estates With regard to the administration of estates, Bhe held that the Master was no longer precluded from dealing with intestate estates that were formerly governed by s 23 of the BAA, since they would now fall under the terms of this judgment and not customary law.44
39 According to s 22(7) of the BAA, the civil marriage was regarded as a customary marriage for the purposes of succession. It seems that the marriage created a house to which the rule of male primogeniture applied to determine how its property had to devolve as in other houses a customary marriage created (see Mayekiso v Mayekiso 1944 NAC (C & O) 81; Tonjeni v Tonjeni 1947 4 NAC (C & O) 8); Nkambula v Linda 1951 (1) SA 372 (A)). This legal scenario existed from 1 January 1929 to 2 December 1988 when the Marriage and Matrimonial Property Law
Amendment Act of 1988 came into operation. This Act removed the capacity of a person already married by customary rites to contract another marriage by civil rites, but s 7(2) of the RCLSA of 2009 has continued to offer the customary wife in these marriages the same protection. 40 See regs 2(b), (c) and (d) in GN R200 of 1987. 41 Historically, this exception was intended to cater for so-‐called ‘civilised’ Africans who were considered to have adopted a Western mode of life (see Bennett (n 20)). 42 Bhe (n 1) para 129. 43 Ibid. 44 Until the Constitutional Court decision in Moseneke v The Master (2007 (3) SA 18 (CC)), s 23(7)(a) of the Black Administration Act excluded the jurisdiction of the Master from the adminis-‐
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This led to the establishment of a new system of administering estates.45 Various aspects of this system are discussed in this section. 256 5.3.1 Jurisdiction The new approach provides a uniform system for the administration of estates, which applies to all races. It has taken away the exclusive jurisdiction that magistrates had over the estates of black people. However, magistrates’courts have been designated as service points, with limited jurisdiction to administer estates under the value of R50 000,46 but they have no jurisdiction at all over estates, among others, where one or more of the beneficiaries are minors who are not assisted by a legal guardian. Estates involving minors or those above the jurisdiction of the service point must be transferred to, or brought before, the Master of the High Court.47
5.3.2 Procedure Interviews with officials at the Master’s offices at the High Court revealed that the Justice College, which is responsible for training judicial officers where necessary, issued a procedural manual to direct judicial officers responsible for the appointment of administrators of deceased estates at service points on how to apply the new rules of administration and distribution of estates.48 Among the things to be presented to the service point by the applicant for a letter of
authority to administer the estate under this procedure is the deceased’s marriage certificate (in relevant cases). This requirement is, however, problematic. It plays a ‘gate-‐keeping’ role that is not justified by the law of marriage. The absence of a marriage certificate does not indicate the absence of a valid marriage, since the RCMA does not provide for registration of the marriage and the issue of a marriage certificate as a requirement for a valid marriage. This means that the existence of a marriage can be proved in other ways. If the production of a certificate of marriage imposed by the Master’s officials is widespread and strictly insisted upon, it unjustifiably closes the gate for the administration of estates of people whose marriages would not have been registered. It should be remembered that the magistrates’courts are more accessible to most people, especially in rural areas, than the Master’s office at the High Court. Therefore, the more cases dealt with at the magistrates’ courts’ level, the better the prospects of the implementation of the Bhe rules in practice. Recognising the problem of unregistered marriages, some administration of estates officials employ the family meeting or ‘lobola
letter’ to prove the existence of customary marriages.
tration of all intestate estates of black people. These estates were administered by a magistrate of the district in which the deceased was resident (see reg 3(1) in GN R200 of 1987). The Master’s jurisdiction was restricted to intestate estates of whites, Indians and coloureds. In Moseneke, the Constitutional Court declared discrimination in administration of estates unconstitutional as it constituted unfair discrimination on the grounds of race, ethnic origin and colour (see s 9 of the Constitution, 1996).
45 See also Rautenbach & Paleker ‘Intestate succession’ in Jamneck et al (eds) The Law of Succession in South Africa (2012) at 261–2.
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46 See s 2A of the Administration of Estates Act 66 of 1965, which was the result of an amendment in 2002. 47 Section 3(2) of the Administration of Estates Act. This was confirmed in interviews with officials who administer estates.
48 We were not able to access this document, but Mnisi also makes reference to it: ‘Policy and Procedure Manual: Administration of intestate deceased estates at service points’ (DoJaC Development, Justice College, as cited by Minsi (n 5) at 305).
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According to this practice, both the family of the deceased and the surviving spouse are called to a meeting at the Master’s office to establish the existence of the marriage. Alternatively, or along with this meeting, the officials dealing with the administration of estates require the families to produce a ‘lobola letter’ to prove that lobola was paid at the time of the marriage. In chapter 3 we saw that the payment of lobola is a core requirement for a valid marriage. However, these methods of proving customary marriages are used only if there is no dispute about the existence of the marriage. Where the existence of the marriage is disputed, the payment of lobola is also often disputed by those seeking to set the marriage aside. If such a dispute arises, the parties are referred to courts with relevant jurisdiction to adjudicate over these matters. As shown in chapters 2 and 10, this study found a few instances in which parties filed matters in the High Court for determination of the existence of a customary marriage which had not been registered before the death of one of the spouses. This notwithstanding, the officials at the Master’s office speculated that few people referred to the courts to resolve their disputes actually went to the courts, since none of these people went back to the Master’s office to complete the administration of the estate they had registered. We will return to the issue of proving unregistered marriages in section 7.5 of this chapter.
5.3.3 Administration by person other than the executor In terms of s 18(3)45 of the Administration of Estates Act of 1965 (as amended), estates less in gross value than a prescribed amount may be administered by a person other than an executor. The section states that ‘if the value of any estate does not exceed an amount determined by the Minister by notice in the Gazette, the Master may dispense with the appointment of an executor and give directions as to the manner in which any such estate shall be liquidated and distributed’. The current value of affected estates is less than R125 000.46 The s 18(3) procedure of administration facilitates a speedy administration and winding-‐up of estates, and is suitable for small estates. In addition, there is no need for the person appointed under this procedure to provide a liquidation and distribution account in respect of the estate, which reduces the cost of administration. Currently these estates are administered under a letter of authority, the format of which
is contained in form J170.47 An important observation about the wording of the letter of
45 Read with s 13 of the Administration of Estates Act 66 of 1965 and GN R1318 in GG R25456 of 19 September 2003. 46 See GN R1318 in GG 25456 of 19 September 2003. 47 The letter of authority certifies that the named holder is ‘duly authorised to take control of the assets of the late [named person] identity no [specified] who died on [date], as reflected in the inventory filed with me, to pay the debt, and to transfer the residue of the Estate to the heir/heirs entitled thereto by law. Assets [amount stated, and by who held].
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authority is that it merely states that the residue of the estate must be transferred to heirs entitled thereto by law. Although this provision is acceptable for a uniform system of succession and inheritance, it might be problematic in the context of law reform where the rules for distribution of estates are new and where they 258
replace another more system of law, as is the case with the Bhe rules. Unless the holder of the letters is well informed about the new laws, he or she may assume that the estate is to be distributed in accordance with the previous law (ie customary law). This kind of problem has been noted in Zambia where a study of legislation reforming the customary law of succession revealed that some estates continue to be administered under the repealed customary law48 either out of ignorance or in order to prevent the new statutory heirs from inheriting the estate. Also of importance is the statement in the letter of authority on the inventory of the
deceased’s estate. The Master’s Office at the High Court (when making appointments under s 18(3)) relies solely on the declaration of the value of the estate by the person reporting the death to the Master’s office. There are no mechanisms for this office to verify the content and accuracy of the estate presented by the person who reports the estate. This means that the value of the estate be undervalued for purposes of jurisdiction for the appointment of the executor. It also makes it possible for parties interested in the estate to keep some assets out of the jurisdiction and control of the Master.
5.3.4 Accountability of the administrator Liquidation and distribution accounts are important methods of accountability by executors of estates in two ways. First, the distribution account indicates the balance of the money due for distribution among beneficiaries, as well as details on how the distribution was made. Secondly, the executor gives a certificate in which he or she declares that he or she has rendered a true and proper account of liquidation and distribution.53 These procedures ensure that the administrator is accountable for proper administration, but most importantly, in the case of estates to which the Bhe rules apply, they ensure that the residue of the estate is given to the heirs under the reformed law as opposed to it being distributed under customary law.49 As already stated, administrators appointed under letters of authority are not required to
submit liquidation and distribution accounts. It will be shown in the next section that this exemption is a point of weakness of the implementation of the Bhe rules in practice. Master of the High Court [signature]. PS: in cases involving immovable property, it must be borne in mind that transfer must be registered in the Deeds Office. Firearms must be (sic) properly licensed.’ 48 Himonga ‘Taking the gap — ‘‘Living law land grabbing’’ in the context of customary succession laws in southern Africa’ 2012 Acta Juridica 114–139; Himonga ‘Zambia: Protecting the minor child’s inheritance rights’ in Bainham (ed) International Survey of Family Law (2001) 457. 53 See generally, Jamneck and Rautenbach (eds) The Law of Succession in South Africa (2012) 271–7. 49 This has been found to happen in Zambia, where customary law of succession had been reformed and replaced by a system of succession which introduced different heirs from those previously entitled to inherit under customary law (see Himonga ‘Taking the gap — ‘‘Living law land grabbing’’’ (n 52) and ‘Zambia: Protecting the minor child’s inheritance rights’(n 52)).
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6. Research assumption and measure of compliance with the Bhe rules in practice
In this section, we state the research assumption that informed the study and measures of compliance with the Bhe rules in and outside the official enclaves in practice.
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The research sought to examine whether the Bhe rules were applied, as intended, to the devolution of estates in practice. The assumption of the investigation into the operation of the Bhe rules was that since these Bhe rules had been in operation for nearly seven years, their effect would have filtered down to the practices and perceptions of citizens, and that they were complied with. The measures of compliance with Bhe adopted in the research and analysis of the data
were:
(a) estates of black people are administered by the Master’s office (whether at the High Court or the service points);
(b) beneficiaries under the Bhe rules have control of, and inherit the estates; (c) the Master’s office ensures that people who are appointed to administer estates
applied the Bhe rules by giving them appropriate advice and requiring accountability for the administration and distribution of estates;
(d) the public knows about the Bhe rules; (e) the perceptions of the public affirm or support the application of Bhe; and (f) there are no challenges in the application of the rules that undermine their operation in
practice. The findings relating to each of these measurements are discussed under separate headings in the next section.
7. Consonances and dissonances with the Bhe rules
This section brings to view the consonances and dissonances with the Bhe rules in practice. It is divided into the implementation of the rules within the official enclave by the Master of the High Court and outside of this enclave by the families of deceased persons.
7.1 Administration of black people’s estates by the Master The examination of records of estates administered by the Master in two provinces show that the Master administers estates of black people in accordance with Bhe in certain respects. Additionally, the testimony of one participant shows awareness among some members of the rural communities of the new system of administration of estates in the official enclave of the Master. In what follows, indicators of compliance or disjuncture with the Bhe rules in this official enclave are discussed. Before we discuss these indicators, it should be mentioned that all the estates of black people examined at the Master’s offices were dealt with under a letter of authority as opposed to a letter of executorship, which means that they were dealt with in terms of the cheap procedure under s 18(3). No records
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of black estates administered under a letter of executorship were found in the samples examined. This somewhat strange scenario was also confirmed by officials interviewed at the Master’s offices. Four indicators that the Master’s offices comply with the Bhe rules may be noted. These
are discussed separately in the following sections.
7.1.1 Estates of black people administered by the Master
The first indicator of compliance by the Master is that, unlike the previous situation, where black estates were not administered by the Master, the records (see figures in 260
the section ) show that estates of deceased black persons do come before the Master’s offices in the form of applications for letters of authority, and that these applications are granted. The researcher who conducted the interviews with officials at the Master’s offices also observed large numbers of black people whose estates were being administered by the Master waiting to be attended to. Additionally, large posters displaying the content of the Bhe decision in vernacular languages were sighted in the foyers of the Master’s offices visited — obviously aimed at the education of the public about the new role of the Master in the administration of estates of black people, as well as the new system of distribution of estates. However, it was impossible for this study to determine whether all estates of black people
were, in fact, administered in accordance with the procedure set up for administration of estates by Bhe. This would have required following up with the families of deceased persons for interviews, but this was too costly to undertake. Nevertheless, we infer from the widespread ignorance of the Bhe rules among participants in this study, discussed later, that most estates were administered by agreement among family members without resort to the Master’s office. For the same reason, we infer that if, in fact, estates are taken to the Master for administration at all, in most cases, and this would have been done part from Bhe rules.
7.1.2 Appointment of primary heirs as administrators
The second indicator of the Master’s compliance with Bhe is that in the overwhelming majority of cases examined, the persons appointed as administrators of estates are the same as the heirs under the Bhe rules, or are persons who would be predisposed to protecting the interests of the heirs under these rules. The appointment of the heirs under the Bhe rules as administrators promotes the implementation of the new rules in the sense that the estate and its distribution are placed under the power and control of persons who stand to benefit from the enforcement of the rules. Thus, who got appointed by the Master as administrator of the estate provides a positive
indicator or measure of the implementation of the Bhe rules. Whether or not the new rules are, in fact, enforced beyond the process of appointment is a different question, which is
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the subject of section 7.1.4 below. Against this backdrop, we analyse the records of appointment of administrators by the Masters in two provinces.50. The indicator that the Master appoints primary heirs or persons close to them as
administrators emerged from the analysis of records of appointment of administrators in the Master’s offices in two provinces. In one province, the study examined the 261
appointment of administrators in respect of estates of black people in which the deceased had been married (2007). In the other province, the study focused on appointments in respect of estates of unmarried black people (2006 and 2007). The study of the married sample found that 85 estates of married black people were
brought to the Master’s office. According to the Bhe rules, spouses are the first in the order of succession in the case of a deceased person who had been married. Of the total estates, 14 were estates of persons who had been married under customary law. The rest did not specify the kind of marriage — they could have been civil or customary marriages. Of the 14 customary marriages, 13 had surviving spouses,51 11 of whom were appointed as administrators while sons were appointed in the remaining two cases.52 There was no information to explain why sons were appointed to these estates instead of the surviving spouses. Thus, in the majority of cases the persons appointed to administer estates of deceased
persons who had been married under customary law were the same as the heirs under the Bhe rules.53 The examination of the unmarried/widowed sample of men and women for 2007 revealed
that the heirs according to the Bhe rules (in this case the deceased’s children — both males and females) were appointed as administrators of estates in the majority of cases. The study also found that the pattern of appointment of administrators in estates involving minor children lent itself to the protection of minority interests in the estate. In this sample, 87 estates of men and women were brought to the Master. In 67 of these,
the deceased was survived by children who were the first in line to inherit, and, therefore,
50 It is necessary to note that the maintenance of records in the Master’s office did not facilitate collection of statistical data of estates of black people administered by the Master annually since the Bhe rules came into operation. This is because the estates of black people are not registered separately from other estates or with appropriate information, and their files are mixed with others. The only way to obtain statistical information would have been to go through and examine thousands of records in each year for relevant information. This could not be done. Instead two years, 2006 and 2007, were selected (see section 4.10 of chapter 2) for examination. For each year, researchers examined as many records on the shelves as could be examined in numerical order for the number of days they were at the site. The selection of files for examination was by reference to the name of the deceased. In other words, estates bearing African names were selected. 51 One estate had no surviving spouse but had four surviving children, all of whom were majors and the second oldest son was appointed instead of the oldest daughter. 52 Of the 11 estates in which spouses were appointed five had a combination of minor children and spouse surviving, four had no children but only spouses surviving and one had a surviving child and spouse but the age of the child was not specified. 53 However, there was no information on the gender of the deceased or surviving spouse appointed, so it cannot be established whether widows inherited along with widowers.
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primary heirs for our purposes. In 22 of these estates the children were all majors54 and in 20 estates children (either all or one of them) were appointed. Three of these (20) estates had surviving parents as well, but in none of them were the surviving parents appointed. Only in two of the 22 estates where children were majors were the mothers of the deceased appointed instead of the children. There was no information to explain why children were passed over in these cases. In 11 of the 67 estates with minor children there was a mixture of major and minor children. Children who were majors were appointed in nine of the estates,55 and in three of them this was done to the exclusion of the surviving parents of the deceased. In two of the (mixed age) estates, an attorney and the mother of the children were appointed (respectively). Finally, in 24 of the 67 estates with children, all the children were minors.56 In these 262
cases, the following people were appointed as administrators: deceased’s brother (one); children’s mother and brother of deceased jointly (one); grandmothers (11); curator (two); grandmother and oldest minor child jointly (one); grandfather (over grandmother) (one); mother of child (over grandparents) (three); mother of child (where there are no grandparents (2); sister of deceased (no surviving grandparents) (one); and oldest minor child (one). 57 The above figures show that in the majority of estates with adult children (29 out of 67
altogether), the heirs were appointed as administrators, and in the majority of cases of minor heirs, their close family members (mothers and grandparents) were appointed along with curators. The 2006 sample of unmarried deceased estates yielded similar results. A total of 50
estates were brought to the Master. Eight of these were estates in which the deceased was survived by adult children, and these children (male and females) were appointed in all but one case in which the sister of the deceased was appointed. Twelve estates had a mixture of major and minor children, and in six of them children (presumably adult children) were appointed while parents and siblings were appointed in others. Thus, out of 20 estates with adult children, children (the primary heirs), were appointed in 13 of them. In 15 estates in which all the children were minors, ten had grandparents of the children (males and females) as administrators. The remaining five had sisters of the deceased (three), attorney (one), and niece of the deceased (one) as administrators. In nine estates, the deceased was not survived by parents and children, and nieces (two), siblings (males and females — 5), brother-‐in-‐law of the deceased man (one) and grandson of the deceased (one) were
54 That is, over the age of 21. The age of 21 was used instead of 18 years on the assumption that some appointing officials might not have known that the age of majority had changed in 2005 since 2007 when the appointments were made was only two years after the change in the age of majority. 55 In one of these the major child was appointed together with the mother of the minor child as curator of the minor. 56 The age of children was not stated in two of the 67 estates with children. 57 In the two cases without information on age of children, a brother of the deceased was appointed in one case and it was not clear who was appointed in the other case.
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appointed. The parents of the deceased were appointed in all four estates in which the deceased was not survived by children.58 These figures show that 34 per cent of the estates were administered by primary heirs
(children or parents of the deceased), and 86 per cent of estates with minor children were administered by close relatives of the children (grandparents and siblings). In sum, the figures from the three sets of samples show that in a large majority of cases,
primary heirs are in charge of the administration of estates. Furthermore, there is no apparent gender discrimination in the Master’s appointments; female and male relatives of the deceased — daughters and sons, grandfathers and grandmothers and brothers and sisters of the deceased — were appointed as administrators alongside each other. Although, in the samples from the Master of the High Court, the appointment of heirs
(such as surviving spouses, children and parents) as administrators of estates did not guarantee that they would inherit the estate in practice as well,59 it placed the control of the administration and its distribution under them, as already intimated. At the very least, the appointment of the heir as administrator places him or her in a position of power to avoid or resist his or her exclusion from the distribution of the estate by, for example, customary law heirs under the previous regulatory framework. 263
Needless to say, the power of the heir in this context would depend on his or her knowledge of the Bhe rules. The appointment of close family members or curators as administrators has the same potential effect of strengthening the position of children as beneficiaries against other members of the family contending for inheritance. It is also noteworthy that some participants in rural areas are aware of the system of
administration of estates in the official enclave, and could advise other people faced with administration of estates matters in hypothetical cases. The interview with a 58-‐year-‐old female from Kwazulu-‐Natal depicts this scenario. When asked what the characters in vignette 7 should do about the money left by the deceased (see section 7.4 below where the vignette is described), she advised the deceased’s wife to obtain a letter of authority.
I can say to her, mama must stand up, you can go to court. There’s a letter which they write, they say it’s a letter of authority. They write that letter and when they are done you take this letter of authority. In this letter of authority there at the bottom it shows the money which is on your husband’s name, then you take the letter to the bank. They would take this money and put it under your name. . . . That’s how [I] managed to get [my late] husband’s money which he had in his bank card.
In sum, Bhe is applied in a significant number of the cases that are taken to the Master — to the extent that the latter appoints as administrators heirs to deceased estates, and persons who are naturally best placed to protect or guard the interests of family members who require assistance to claim their inheritance.
58 Two estates were not analysed due to insufficient information. 59 Other factors are relevant here; they are discussed under section 7.1.4.
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7.1.3 Jurisdictional indicators
The right exercise of jurisdiction by the Master is important to ensure that appropriate controls designed by the regulatory framework are exerted over the administration of estates process. For instance, it would undermine the enforcement of Bhe, as well as disadvantage the beneficiaries, if estates worth one million rand were in practice administered under the s 18(3) procedure which, as already stated, does not require the submission of liquidation and distribution accounts by the administrator. It is, therefore, an important measure of compliance with Bhe that the administration of estates subject to Bhe
are administered within the relevant jurisdiction of the service points and Master’s office. Four participants responsible for appointment of administrators in the Master’s offices
confirmed that the administration of estates takes place at both the service points in magistrates’ courts and the Master’s office at the High Court, thereby complying with the new system of administration of estates by the Master. Service points act only as ‘agents’ of the Master’s office. They also confirmed that the jurisdiction of the magistrates’ courts is limited to estates valued at R50 000 and that black people have a choice to have their estate administered at either the service point or High Court. The following statement by one of them is typical of their responses on this point: Service points deal with all estates that are [valued at] R50 000 and anything above that gets referred to the Master of the High Court. People can choose whether to go [to] the Master’s offıce or service point initially [even if their estate is less than R 50 000].
Furthermore, some participants confirmed that estates with minor children who are 264
not assisted by their guardians are transferred to the Master of the High Court. In contrast, however, one participant reported that the requirement concerning the administration of estates of minors is not strictly complied with in practice. He explained that although the law requires that all persons, including grandmothers of the children concerned, must produce a guardianship court order for the purposes of administration of estates, there is a practice in the Master’s office of using ‘declarations of guardianship’. Under this practice, a person makes a sworn statement that he or she is living with the child in question. In some cases, the declaration must be accompanied by a confirmation from the social workers that the applicant for the letter of authority lives with the child or children in question. He stated: The magistrates accept these declarations as long as there is suffıcient proof that this person is actually the one taking care of the children and provided there are no disputes, but it’s preferable for magistrates to refer all matters with minor children to the Master of the High Court. Although this practice appears to be contrary to the new system of administration
instituted by Bhe, we submit that it positively reflects the enforcement of the spirit and objectives of the Bhe rules of safeguarding minor children’s inheritance rights. It would make no sense to require grandmothers, for example, and other relatives taking care of minor children of deceased relatives in villages to go through expensive and complicated court procedures for the grant of guardianship orders for purposes of the administration of
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small estates of minors. As shown above, grandparents sought appointment in the majority of estates involving minors. Were it not for the modification of the rules requiring the appointment of guardians in practice, these grandparents would have had to seek court appointments as guardians in order to represent the interests of minors. The counter-‐argument is that the use of non-‐legal methods of conferring guardianship of children may encourage contests among family members for the guardianship of children with a view to accessing the children’s share of the estate to supplement their own sources of livelihood. However, the benefits of the non-‐legal methods seem to outweigh the potential cost of the legal route. The Master’s lack of control over the content of the inventory of the estate mentioned
above has created loopholes that have potential to undermine the implementation of the Bhe rules. Mnisi’s study found that with regard to estates wound up at service points, the inventory covers all property held by the deceased, and that no exception is made for property (such as family property) that he or she might have held under customary succession arrangements.60 This practice has the potential to heighten tensions within the family concerning the administration of family property in the unofficial enclave of administration of estates discussed later in this chapter. Furthermore Mnisi’s study reported that some people undervalue the estate in order to have a speedy appointment of the administrator66 while our study found that assets that are considered by the deceased’s family to constitute family property are left out of the inventory or not reported to the Master for administration purposes.
Two other practices negatively affect the jurisdictional indicator of compliance with Bhe rules. The first is under-‐valuing of estates in order to take advantage of speedy 265
procedures of administering estates alluded to above. The second is the exclusion of property, especially property that participants regard as family property, from the estate’s inventory submitted to the Master. Both these practices undermine the jurisdiction of the Master’s office in administering estates in that they reduce the value of the estate for purposes of jurisdiction.
7.1.4 Beyond the appointment of the administrator
Other potential dissonances at the official level arise from the point of appointment of the administrator onwards. It was shown above that the appointment by the Master of primary heirs (that is, surviving spouses and children, and close family members in the case of minor children), enhanced the enforcement of the Bhe rules at the level of appointments. However, whether the Bhe rules are also followed beyond this point — that is, the distribution of the estate — is another question that depends on a number of factors. These factors were not fully explored by this study and therefore require further research, but to
60 Mnisi (n 5) at 310. 66 Mnisi (n 5) at 311.
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the extent that the study engaged with them, we conclude that the Bhe rules did not determine the distribution of the estate. We examine four relevant factors in this section.
7.1.4.1 Knowledge of the legal rules and procedures
The first factor concerns the knowledge of the new rules by administrators. The administrators can only distribute the estate according to the new rules to their own benefit, or the benefit of the minors whose estates they administer, if they are aware of their rights or the rights of the beneficiaries under the new rules. Several officials responsible for the administration of estates at the Master’s office said that they explain the Bhe rules to persons who are granted letters of authority. However, unless the explanation is done consistently across the board and with sufficient detail in all cases, appointed administrators may not know or fully grasp the new distribution rules. This study, like that of Mnisi, shows that people did not know about the Bhe rules.61 We return to this issue in the section on the administration of estates outside the official enclave.
7.1.4.2 Weaknesses in the interface between service points and the Master
The second factor relating to the dissonance under consideration is the interface between the service points and the Master’s office at the High Court and the nonrequirement of the liquidation and distribution accounts. Some participants at the Master’s office spoke of the importance of the interface between
the service points and the Master of the High Court to the effective enforcement of the Bhe
rules, and of the interface’s role as a mechanism of review of the service points by the Master. Explaining the latter, one officer at the Master’s office stated that estates dealt with by the service points are sent to the Master’s office for review purposes. The Master can then deal with any problematic cases at the service points. The officer explained that the link between the service points and the Master’s office, as well as the procedure for the transfer of the estate files dealt with by service 266
points to the Master promotes the enforcement of the Bhe rules. This linkage provides a mechanism by which the Master reviews decisions about the administration of estates at the service points to ensure that the estates are administered according to the law. It also provides a good basis for holding service point officials accountable for the administration of estates.
However, the interface in question masks two fundamental problems that potentially undermine the operation of the new substantive rules of inheritance. First, the letter of authority becomes effective immediately upon issue, but it takes about three months before the file goes to the Master’s office. Essentially, the estate will have been under administration for three months by the time the files reach the Master. This would be enough time for the holder of
61 See also Mnisi (n 5) at 278, who found that in Mbuzini, one of her areas of research, ‘three years after Bhe, the councillors did not know that the customary law of male primogeniture had been overturned’.
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the letter of authority to administer the estate to the exclusion of legitimate heirs in the event that he or she decided to ignore the Bhe rules, or did not know the rules well enough to distribute the estate as prescribed. The reality of this also follows from the findings in this study, as was evident from the statement of one participant below, to the effect that there are still people who hold the perception or view that ‘the rule of rural areas’ supports male superiority with regard to property ownership. This in turn reinforces the application of the principle of male primogeniture. Speaking about what would happen to her home if she relocated to another rural area, one 44-‐year-‐old women participant from KwaZulu-‐Natal stated: Even if he’s younger than the sister a son inherits according to the law of the rural areas. Can you see I have two daughters the third child is the son. Even if I was going to change this home [to relocate to another place] when I move I would never put a girl as a beneficiary those are laws of the rural areas they [presumably authorities — traditional leaders — who allocate land] would put his name even if he’s young, not a girl because she would get married and go to someone’s home. The son will stay at home.
According to this view, a daughter would not be considered to have the right to inherit the property of the family head because she would move away from the location of the property upon marriage. Indeed, there are views to this effect in relation to the inheritance of ‘family property’. One 36-‐year-‐old man from the Eastern Cape stated:
The headship of the family is inherited by the eldest son despite the existence of older daughters. Headship entitles the son to inherit the property, but not for himself but to maintain the family. It is our custom as the Thembu’s that even if the daughter is the oldest, if there is a male child, the daughter will not be made head, she cannot be, to be frank.
This man also confirmed this view by giving an account of his own experience. He said that, before his death, his father told him to take over as heir when he died. He accordingly took control of the family property after his father’s death to the exclusion of his sister and another sibling (it was not clear from the interview whether he was older than the sister). This gendered practice of the administration and control of family property is discussed further in section 7.2.1.
7.1.4.3Capacity to mobilise legal rules and procedures The third factor inhibiting the implementation of Bhe rules beyond the appointment of the administrator are the assumptions underlying the interface between service points 267
and the Master’s office. It seems that the latter assumes that people who experience problems with the administration of the estate at the service-‐point level would immediately go to the Master’s office, an assumption that feeds on another assumption that people know that they can go to the Master to solve their problems. This latter assumption is, however, not borne out by the research findings. This research found that many people do not know about the Bhe rules. Of the 75 participants who answered the question whether they had heard about Bhe, only 23 were aware of it. Six of the latter were chiefs and one an official in the Master’s office. In some cases, even those who had heard something about it did not understand what the case was about. Without the relevant knowledge, people cannot mobilise the Master’s procedures to
protect their interests. However, it was interesting that when it was explained to them what the Bhe rules were about and then asked to give their views about these rules, many participants thought the rules represented good and desirable law. Of 72 participants, 68 (94 per cent) who responded to this question said that the Bhe rules were a good
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development in the law, especially because they promoted equal inheritance rights among children, and also prevented the oldest male from taking all the estate and squandering it to the detriment of the rest of the family. The other four people opposed the rules on the ground that they were not designed for the conditions of people in rural areas or that they undermined the concept of family property, which was important for the livelihood of people in rural areas or important to black people’s culture generally. It cannot, of course, be assumed that people who hold positive views about the Bhe rules would apply them to their situations when they arose. However, some administration of estates officials confirmed that people changed their stances on the role of customary law in the administration of estates once they knew what the Bhe new rules were about; they acted according to the rules once they got to know about them. The point of this argument is that people’s knowledge of the Bhe rules may contribute
positively to the premises underlying the interfaces between the service points and the Master and related procedures. Thus, the factor under discussion is not as serious as it appears initially. What is needed is that people are made aware of the rules.
7.1.4.4 Absence of accountability The fourth factor concerning the interface between the service points and the Master relates to the lack of liquidation and distribution accounts. As already stated, the law does not require the holder of a letter of authority to render a liquidation and distribution account. It is not beyond the realm of possibility that some administrators of estates continue to distribute estates in accordance with the replaced customary law instead of the Bhe rules. It is submitted that the absence of liquidation and distribution accounts makes heirs under the Bhe rules vulnerable to deprivation of their inheritance by customary law heirs under the old (replaced) law. However, as this study did not specifically address this issue, further research is required to support a conclusive position. In summary, taking the aforementioned four factors into account, the appointment of
primary heirs as administrators may have done little to protect the rights of the 268
primary heirs in so far as benefiting from the rules regulating the distribution of the estate is concerned. However, this study is limited on this point. It does not fully answer the question of what happens to the distribution of the estate beyond the appointment of the administrator because it did not follow up with the appointed persons to establish how they distributed the estate. There is therefore need for further study.62
7.1.5 Administration of estates by family members
In her study, Mnisi found that the family and other traditional institutions (headmen and chief) dominated the process of administration of estates, and that the courts were the last
62 There is currently ongoing study of this subject at the Chair in Customary Law, Indigenous Values and Human Rights (University of Cape Town), due to be completed in 2016.
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resort.63 Our study similarly reveals that the system of administration of estates by family members to the exclusion of the Master has not disappeared. Only one of the 32 estates64
reported by participants whose family members had died was administered by the Master. The rest were administered within the family setting. With the amount of ignorance of the Bhe rules, it can further be assumed that most
estates administered within the family did not apply the Bhe rules of distribution of estates. Thus, the law in practice, living customary law, operates differently from the Bhe system of administration of estates discussed above. This is not to suggest that all the practices of distributing property within the family administrative system are in effect not supportive of the Bhe rules or their spirit. On the contrary, it will be shown later that some of the practices reflect the aims of the Bhe rules, even though no reference was made to these rules by the people in the process of administering estates. The point here is that there is another a system of administration of estates by the family, and this in itself represents a dissonance with the system established by Bhe.
7.2 Inheritance by beneficiaries under the Bhe rules The second measure of compliance with Bhe is that beneficiaries would inherit the deceased estates according to the Bhe system of succession. The relevant order of succession under the Bhe rules is: 65
(a) If the deceased is survived by one spouse, the spouse inherits the entire estate. (b) If the deceased is survived by more than one wife, all the wives share the estate
equally.66 269
(c) Where the deceased is not survived by a spouse or spouses, but by descendant(s), the descendants inherit the entire estate. Descendants include marital and extramarital children.
(d) If the deceased is survived by spouse(s) and descendants, the surviving spouse(s) inherits a child’s portion of the estate or R125 000, whichever is the greater. If the latter, the descendants inherit the residue (if any).
(e) If the spouse was married in community of property according to the RCMA, or out of community subject to accrual, the amount to which the parties are entitled according to the community of property or the accrual is deducted first, and the balance of the estate minus the liabilities is shared according to the above intestate rules.
63 Mnisi (n 5), especially at 314ff. 64 That is, those reported by family members. 65 For a discussion of these rules see Paleker ‘Intestate succession’ in Jamneck et al (eds) The Law of Succession in South Africa (2012) at 30–9. 66 The exact order was that the estate of a deceased person who is survived by more than one spouse would devolve as follows: ‘(a) A child’s share in relation to the intestate estate of the deceased, shall be calculated by dividing the monetary value of the estate by a number equal to the number of the children of the deceased who have either survived or predeceased such deceased person but are survived by their descendants, plus the number of spouses who have survived such deceased; (b) Each surviving spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed from time by the Minister for Justice and
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(f) Where the deceased is survived by both parents, but not by a spouse(s) or descendants, they inherit in equal shares.
(g) If the deceased is survived by one parent and the descendants of the other parent, the surviving parent inherits one half of the estate while the descendants of the deceased parent inherit the other half. If the deceased parent is not survived by descendants, the surviving parent inherits the entire estate.
(h) If the deceased is not survived by a spouse(s), descendants or parents but by descendants of his or her parents (that is, the deceased’s sisters and brothers), the estate is divided in half with each half being inherited by the side of one of the deceased’s parents.
(i) Where the deceased is survived by descendants of one parent only, those descendants are the sole heirs.
(j) Where the deceased is not survived by a spouse, descendants, parents or a descendant of a parent, the nearest blood relation inherits.
Except for the last rule, these rules are characterised by narrowly defined groups of heirs, and they do not accommodate the broader concept of extended family, as this is known, under customary law. Compliance with the Bhe rules of succession should therefore feature heirs in the above order of succession. The findings in the next section reveal patterns of inheritance that reflect dissonance with the Bhe rules, while the section after that reports on findings of nuanced compliance with these rules.
7.2.1 Dissonances in the distribution of estates
This study found that the majority of estates administered outside of the official enclave of the Master’s office by the family do not comply with the new rules of succession in the sense that they do not refer to these rules at all. Out of 32 cases of administration of estates reported by participants whose family members had died, only one made passing reference to Bhe. Eleven out of the 32 cases devolved in accordance with the rules in Bhe. However, it cannot be assumed that these estates in fact followed the Bhe rules. On the contrary, they may simply reflect norms of living customary law that were in operation before the Bhe
rules. The studies by both
Constitutional Development by notice in the Gazette, whichever is the greater; and (c) Notwithstanding the provisions of subparagraph (b) above, where the assets in the estate are not sufficient to provide each spouse with the amount fixed by the Minister, the estate shall be equally divided between the surviving spouses’(see para 136). 270 Mbatha and Mnisi reported the application of egalitarian practices of inheritance in the communities they studied. Thus, we argue that the majority of estates are, in fact, not disposed of in terms of the Bhe rules, even though there may be a nuanced application of the rules in the practices people use to administer and distribute deceased estates. These nuanced devolutions of estates are discussed later below. In the remaining part of this section, we discuss patterns of inheritance under which estates devolve in ways that deviate
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from the Bhe rules.67 These dissonances include those that were drawn from actual experiences of the participants whose family members had died as well as from responses to vignette 7, which is stated fully later.
7.2.1.1 Estate not inherited but given to a family member as custodian for the rest of the family
Two cases of inheritance68 narrated by one participant illustrate this dissonance. In the first case, the participant describes inheritance as an ‘umbrella of the home’:
Case 1: My dad had about 100 goats, 90 sheep and 40 cows. He said that I [the oldest male child] should look after them after his death. He had two other children after me. The inheritance is not mine. It’s mine to look after. An inheritance is the umbrella of the home according to us as the Thembu. So we get surprised when the government says that we have to divide the inheritance and then they intervene. When my mother has a problem or isn’t well, we sell a cow or a sheep from the kraal [to help her], When one of us has a problem it’s necessary for us to go to the kraal and we all agree together: I have to call all of them, my sisters, even if they’re married and we sit together and I explain to them that this is what I’m thinking about.
Case 2: The last-‐born brother of my father just got married recently. So he was the one who remained at home taking care of the home. No one decided that my uncle should remain in the house of his parents. According to the Setswana law whoever remains behind at home especially the last born we know that he is the one who should get the house. Because it is the family home everyone feels entitled to go there any time, even unannounced. The brother who keeps the home does not stop them from visiting.
These cases allude to the concept of family property as an umbrella whose radius covers family members’ needs across generations. The property cannot be divided and shared among the members of one generation as prescribed by the Bhe rules, as this would deprive future generations of the benefit of the property. The ‘custodian’ of the property, the ‘heir’, in case 1 is under an obligation, compelled by
custom,69 to keep the property for the extended family of the deceased and not for his own use. However, it is not clear what happens if the last born is a female who is unmarried. But the use of a male pronoun in the participant’s response indicates a norm about the youngest son only.
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The second case also confirms that the family property is for the enjoyment and benefit of the deceased’s entire family, not just for the custodian ‘heir’: ‘Because it is the family home everyone feels entitled to go there any time, even unannounced. The brother who keeps the home does not stop them from visiting.’ The first case says that the deceased’s property covers the needs of females in the family,
including spouses and daughters of the deceased family head. Even when they move away from the location of the property through marriage, female members of the family are still
67 These instances do not correspond with the number of respondents because estates following the same pattern of devolution are recorded only once. 68 The two cases were narrated by the same person who described the family culture as Thembu and as Tswana in the same breath. It is not clear what this entailed. 69 In this respect, the participant stated: ‘We took it as something that usually happens and which continues.’
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within the radius of the umbrella: first, the property is used to perform their marriage rituals and, secondly, it is used as insurance — the secret bank — for any difficulties that they, like any other member of the family, experience and that can be met by, for example, selling the family property. The fact that family property is intended to provide for all members of the family who are in need and would have been taken care of by the deceased, and not just the needs of the heir, is one reason some participants opposed the Bhe rules. The following statement of one woman who disagreed with the decision in Bhe attests this:
Bhe provides too small a class of people that benefit from the estate at a time, when in fact there are a lot of the deceased’s relatives who are in need and would benefit from more widespread distribution or method of ensuring that more people benefit. I think it [Bhe decision] was a very bad law because if the head of the family dies, there are lot of people who are negatively affected.
Some participants opposed the Bhe rules on the basis that they were designed for the urban people, not for rural communities. To this effect, one man from Gauteng stated:
The court did not seem to understand the plight and the system of our customary laws and how it works. I feel that it was done for certain individuals who are living in the urban areas who mix our traditional customs and western culture of doing things. It did not assist the people living in rural areas. We cannot run away from the fact that men in rural areas are still regarded as heads of the families, they have a role of looking after the entire family financially and otherwise, of course, not taking away the right of women but we have to balance the issues. I was not happy with the principle that it was declared unconstitutional for the male to inherit the assets. I think the decision should have been made with an understanding of the role of men in rural areas; they needed to understand the culture, the value and the sentiments of those people who accept the culture that men are the head of the household and are in charge of all assets. The injustices happen only when people want to take tradition and mix it with urbanised tendencies. You will find that men want to inherit all the money, but they do not want to accept the responsibility that comes with it.
Referring specifically to the characteristic nature of the rural economy and poverty, and the underlying value of family property vis-‐à-‐vis support for needy members of the family, one man from the Eastern Cape Province stated: 272 [Bhe] is a bad decision, because its application in the village context is not practical. The decision the Court took was wrong. It made a decision for men who have something. What about the men who have nothing? What if this man has three children and one rondavel [hut]? Are you trying to tell me that that one hut is for all these three children [to share]? What about the men who live on sheep and cows? Or those who live on grant money and they have children? What do you do with those people?
Finally, it may be observed that both cases 1 and 2 above allude to the idea that the dissonance under discussion is not an isolated practice but rather widespread and commonly adhered to by the community: ‘An inheritance is the umbrella of the home according to us as the Thembu. No one decided that my uncle should remain in the house of his parents [rather it was] [a]ccording to the Setswana law.’ One of the implications of the concept of family property in the administration of estates
in practice is that assets that are regarded as family property are not brought into the official system of administration of estates. The property is not regarded as an estate for purposes of administration in the official arena. Expressing this view, and narrating how their youngest brother would take over their family house after the death of the last
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surviving parent, 70 one judicial officer stated: There is no estate that requires to be administered where family property is concerned. So this type of property cannot be reported and does not get reported at the Master’s offıce when the current holder or occupier is dead. And so Bhe cannot be applied to this type of property. Thus, any protection to vulnerable members of the family intended by Bhe are
sidestepped by the exclusion from the inheritance of what might be the most significant assets of the estate in rural areas — houses, livestock and gardens. The exclusion of female members of the family from being custodians, and in control, of
family property deserves special mention. The first two cases narrated above support the proposition that the provision of
assistance to members of the family by the custodian of family property is gender neutral. Both male and female relatives of the deceased in need may receive the support required from the estate. Case 1 furthermore implies that females are included in the management of the family property. This was confirmed by Mbatha’s findings on members of the community who not only consider the exclusion of daughters to be outdated, but also include females in the inheritance of family property.71 However, both cases emphasise the position of a man as head of the family and therefore
as custodian of the family property. The arguments made for this position by several participants was that daughters would get married and take the family property to their marriage families. In this way they deprive the natal family of their future inheritance. Even where concession was made for the daughters to inherit, sons were still favoured in terms of the amount of property they could inherit. One widow in the Eastern Cape inherited the entire estate of the husband with the support of her husband’s family. When asked how the property would devolve after her death, she 273
said that she would make an oral ‘will’ before she died and distribute the estate in such a way that her son would receive more property than her daughter, because the latter would marry and take the property to her husband while the son would stay at the family home. One participant, a man from the Eastern Cape, elaborated on this view:
In our culture, even if the daughter is old there is no way she can manage the assets or property. The person who should control all the inheritance is the son. If the son is younger, they will wait for the son to be mature enough to handle the situation. The elders would tell the son that they are waiting for him to be mature enough to handle all the matters at home.
This response is typical of the philosophy underpinning the principle of male primogeniture. Furthermore, the reference in this statement to the daughter not being able to manage the assets or property gives the impression that women are immature and incapable: Even if the
70 The father was dead and the mother, who remained in the family home with her youngest son, was very old. 71 See also Mbatha (n 6) and Minsi (n 5).
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daughter is old, there is no way she can ‘manage the assets’. . . or if the son is young, we will wait until he is ‘mature enough’.72 Thus, the exclusion of the daughter is not so much about her leaving the home as it is
about incapability and immaturity to manage and control the estate. Asked why daughters should not inherit, the participant said:
In rural areas we have livestock and flocks (sheep). It may happen that the parents didn’t have any money in the bank, so does that mean that the children will share the cows or sheep? If there is a daughter in that family she will get married and they will need them [the livestock]. Of course it’s important that the daughter gets something but in our culture here in rural areas most of the time everything will be controlled by men. As a man you’ll protect your sisters, even if she got married.
According to this statement, where a daughter is conceded the right to inherit, she receives a smaller share than the son, but she is in any case not allowed to control the estate. One of the reasons of her incapacity is her prospective marriage which will take her away from the family property. The small size of the estate the daughter receives is also attested to by one woman from
Mpumalanga who referred to instances she had observed in her community: In some instances the male child receives a bigger share of the inheritance and the female child receives a smaller share because the girl is going to get married and build a new family under her husband’s surname. Confirming this view and giving her own experience of inheritance as a married daughter,
one woman from Mpumalanga stated: In some cultures, people believe that a girl child should get a minimum share of the inheritance because she is going to leave the family and be part of another family when she gets married. I am experiencing the same situation at home, my father has cows but I do not have a right to claim his inheritance because I am a married female. From the foregoing cases, one of the major reasons for the exclusion of women from
being custodians of, or inheriting, family property is because they will get 274
married. Arguably, this view is predicated on outdated practices from a time when there were higher rates of marriage. It is important to locate these views and findings on the exclusionary practices regarding family property in the context of inheritance in contemporary marriage patterns and the constitution of households. With regard to marriage patterns, the figures reveal that for both males and females the
increase in the percentage of ‘never married’ is growing. Budlender found that there has been a greater increase in the (reported) number of ‘never married’ among females than males.73 These trends are not restricted to the younger age groups, as Budlender highlights the same trends are occurring in the 50+ age group. For example, in 2001, she found that 49 per cent of women 15 years and older had never married and 15 per cent of women of 50
72 Our own emphasis. 73 Mhongo & Budlender ‘Declining rates of marriage in South Africa: What do the numbers and analysts say?’ in Claassens & Smythe (eds) Marriage, Land and Custom: Essays on Law and Social Change in South Africa (2013) at 184, 190–6.
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years and older had never married.74 With regard to the constitution of households, women headed 38 per cent of households in 2006. These figures show that marriage is increasingly irrelevant to women’s status in law, and it
can therefore not be used to support practices that deprive them of the right of family members to succeed to the family property. In addition, as Posel & Rogin demonstrate, female-‐headed households are far more likely to be poor than maleheaded ones.75 Moreover, there is evidence in our study that the ‘umbrella’ idea of family property does
not work for some female members of the family who are chased out of the family property by male heirs to the deceased’s estate. For these women, the concept of family property masks disadvantage and unfairness while it protects the interests of male members of the family who succeed to the property. A case in point is that of a 38-‐year-‐old woman from Limpopo. This woman lives in the village with her three children and another dependant. She is separated from her husband. She described her experience of the devolution of her mother’s estate in the following conversation with the researcher:
The house belongs to my mom and dad. When my dad died my mom was left in the house. When she died then the brother wanted the house. He said it’s his. I decided to leave home. My mother’s properties are at home. There’s no one in the house. I don’t want to stay there. I can’t speak to him. [What do you plan to do?] I want my own place in the location. [What do you need to do to get it?] I must go to Tambo office and you write my name down. Since my mother died there’s been fighting at home. [My brother] doesn’t want to speak to my aunties. He avoids them.
From this case and the literature, it seems that despite the lower rate of marriage, especially among women, men consider themselves to be heads of households and therefore exclusively entitled to control and inherit family property. To maintain their position, they seek to perpetuate questionable practices governing inheritance as 275
though they remain unchanged. Yet, the actual practices and reality of survival in both urban and rural contexts reveal that men do not necessarily fulfil the wider role of head of the household when they inherit. Evidence suggests that, increasingly, women are less dependent on marriage and men. A glance at the background and socio-‐economic experience of one 36-‐year-‐old woman
reveals that women who are denied inheritance in their natal families are not always destined for security in terms of resources for their personal upkeep, and that their difficulties could have been alleviated by the inheritance they lost upon assuming their married status:
I left school in grade 10. School was very difficult; my parents did not have money to pay for my school fees. I later dropped out of school in search of employment. I worked as a domestic worker for almost two years. I am currently not employed. I have submitted my CV to various companies but I have not received any positive feedback. Most companies want people who have grade 12 and I only completed grade 10. So, I think that is the reason why I am struggling to find a job. I live with my two children and my cousin. My husband is working in Johannesburg [since 2005]. He comes home at the end of each month. I have been looking for employment but without any luck. [If
74 Ibid. 75 Posel & Rogin ‘Women, income and property: Gendered access to resources in post-‐apartheid South Africa’(2009) 23
Agenda 25 at 31.
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something were to happen] I would borrow money from the neighbours. Sometimes the child gets sick in the middle of the month and I have to take him to the doctor. I usually borrow money from my neighbours because I know my husband will pay it back at the end of the month. [If I were to advise someone who wants to get married] I would advise the couple to make sure that they have their own house before they get married. [This is because] after I got married to my husband, we moved into his family home because we did not own a house. Living with my in-‐laws was very difficult; we used to argue all the time. So I would advise people to have their own house before getting married. [Interviewer: Is it not tradition for the bride to live with her in-‐laws after the marriage ceremony?] Yes. The bride can live with the in-‐laws before the day of the wedding ceremony. After the ceremony, the bride and groom need to move into their own house. I would advise my children to have their own house before they get married.
Clearly, this woman does not rely on her relatives for money — she goes to neighbours — thereby rendering questionable the idea that the natal family (and its property) is always there to help and assist daughters. Moreover, the participant’s view that she would advise her children ‘to have their own house before they get married’ seems to attest to changing traditions. This woman (participant), based on her experience, will try to pass on to her children values about living in a separate home from the in-‐laws. The woman’s idea of passing on different values about marriage and property may be for social reasons, but it could also be motivated by economic concerns and the need to secure ‘easier’ rights to the family home through the widow’s inheritance of umzi after the husband’s death. Thus, social changes regarding the non-‐prevalence of marriage and the constitution of
women as heads of households, as well as the actual experiences of people, challenge some of the fundamental notions of family property. In the above case, the mother of three was not able to access the family property in ‘time of need’. It is 276
therefore important that the affirmation in the literature76 of the role of family property in sustaining livelihoods, and judicial pronouncements, such as that of the minority decision in Bhe, do not overshadow the need to engage critically with the reality of social change and the lived experiences of different categories of family members, especially women, in relation to inheritance of family property. Put differently, social changes challenge the cherished traditional norms and values of control of family property and men should not be permitted to hold on to them to the disadvantage of female members of the family in appropriate cases. To the extent that these norms linger on, they must be developed to align with the objects, purport and spirit of the Bill of Rights to promote more effective protection of vulnerable family members in changing conditions. The exclusion of daughters from inheritance based on their marriage prospects also runs
counter to a decision of the Ghanaian High Court that was cited by the minority decision in Bhe. That court rejected the reasons given by the paramount chief in Ghana that a daughter could not succeed, inter alia because she would take the property into her marriage. The Ghanaian court reasoned:
I consider also the reason given by the paramount chief why a woman cannot succeed to her father’s property unsound, because a successor does not acquire an absolute title which will pass to his or her issues. The successor’s title at its best is a determinable life interest, that is to say, if he died still possessed of family property, the same will go to the person appointed by the family. The danger envisaged by the paramount chief will not arise. Further in many
76 See generally Mnisi (n 5) and Mbatha (n 6).
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states in Ghana, women do succeed to family properties but no one will say by reason of their succession and their possible marriage into other families the properties they inherit or succeed to stand in jeopardy of being lost to their families.77
In other words, family property is not individual property. The daughter, like the son who inherits such property, cannot pass it on to her heir; the longest time the heir can hold such property is his or her lifetime. Moreover, the family, not the individual, has the right to decide how family property will pass on to the next generation upon the death of the current holder. There is therefore no logic to practices or rules that deny the unmarried or married
daughter the right to inherit family property. Instead, these practices seem to be relics of the principle of male primogeniture and other official customary law, such as those contained in the repealed s 11(3)(b) of the BAA, which treated married women as perpetual minors, incapable of managing or holding property or managing legal aspects of their lives without the assistance of their husbands or male relatives.
7.2.1.2 Inheritance by the deceased’s family to the exclusion of the widow and children of the deceased
This dissonance with Bhe rules is depicted in the following account: 277
I got married then he died. Then his mother went to his work alone. She told them her son had never married therefore his things were going to his mother. I never asked her. His family paid lobola after he died, but before then were just staying together. I think his kids at least should have gotten something, but they did not get anything. They shared among the family members I got a T shirt. The only hope is that when my kids are big I wish they can go to school with his father’s properties. I would like the law to assist my kids to get something at least.
Although lobola was only paid after the death of the husband, the participant considered herself to have been married to the deceased.78 This case represents clear divergence from
the Bhe rules because of the exclusion of the deceased’s widow and children from the inheritance. Even if we were to assume (from the statement that lobola was paid only after the death of her husband) that the deceased had not been married, according to Bhe, his descendant, the child, was the legitmate heir, not the deceased’s parent or other relatives. She should therefore have inherited the estate. In a similar case, the widow and children of the deceased were denied inheritance rights
in a highly contested matter. The widow described her experience as follows:
My husband died in 2007. I have four children with my husband. My husband worked for the Department of Education. After his death, I did not know what to do in order for me to claim his inheritance money. When my husband’s brother heard that I would be receiving money from his brother’s inheritance, he demanded that he also receive a share. My husband’s family became hostile towards me because of the inheritance issue, they are angry that I have power over my late husband’s money. I really do not know what to do about this problem because the principal
77 Bhe v Magistrate, Khayelitsha (n 1) para 204. 78 There is evidence in chapter 3 that some participants consider legal marriages to have been concluded without full
payment of lobola.
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who was assisting me is no longer working at the school [where her husband was employed]. We are constantly fighting with the deceased’s brothers and family. Even yesterday, we were having an argument about my husband’s second house. . . . I wanted to convert the house into a place of worship for my church members but my husband’s family is refusing to give me the title deed for the house. My brother in-‐law has re-‐registered the house under my mother in-‐law’s name. When I heard about the re-‐registration of the house, I was very upset because if my mother in-‐law should die, her children would claim the house as their inheritance. At the moment there is nothing I can do about the title deed, the process is irreversible. My brother in-‐law wanted half of the R200 000, I received from my husband’s inheritance. I told him that I have children that I need to look after. He then asked if I could loan him R100 000 but I refused. After I refused to give him the money, people who were hired to kill me. I even involved the police in the matter; there was a time when my house was guarded by police. But under unusual circumstances he received bail before the matter reached the courts. After he was released from police custody, he left a threatening voice message on my phone.
This case shows the deviation from the rules in respect of the house inherited by the deceased’s mother, and lost for good by the legitimate heirs — the inheritance would, as rightly noted by the participant, pass on to another family upon the death of her mother-‐in-‐law. According to the Bhe rules, the widow and the children are the 278
legitimate heirs, with the widow taking a child’s portion and the children sharing the residue of the estate in equal shares. Depending on the marriage she had entered into, the widow might have benefited from the matrimonial property, including the house. Given the findings in chapter 4 — that most spouses marry in community of property by default — the marriage would most likely have been in community of property, thereby entitling her to half the share of the estate before the application of the inheritance rules. Instead, the estate was inherited by the deceased’s mother and brothers under acrimonious conditions, including a death threat by the deceased’s brother against the widow. The widow also suffered from a desperate lack of legal knowledge and official procedures
for dealing with her inheritance problem: ‘I do not know who to consult about the problem. The new principal at the school told me that he does not know how the procedure works. He advised me to go to the Department of Education in Pretoria for assistance [she did not go]. I am not familiar with the surroundings in Johannesburg and Pretoria. I am afraid I would get lost.’ Another aspect of inheritance conflicts this case brings out is how widows’ legitimate
control of inherited property is militantly contested by members of their deceased husbands’ families in some cases.
7.2.1.3Negotiated inheritance for extramarital children
Dissonance with the Bhe rules in respect of extramarital children appears from cases in which the child’s rights have to be negotiated among family members. A 32-‐yearold married woman from the Eastern Cape narrated a case she knew about in her community concerning a dispute about the right of an extramarital child to inherit. At first, there was a dispute within the family about the child’s right to inherit from the father, but the dispute was resolved in the child’s favour and he inherited:
There was a son from outside the marriage, it wasn’t the daughter in this case, it was the son from outside but he was the oldest. When his father died he came to claim his father’s inheritance from the step-‐mother. That caused a quarrel
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because while some members of the deceased’ s family wanted the extra-‐marital child to succeed, others were saying he was not a child of the marriage, and that only the child of the marriage could be head of the house, [The matter ended with them sharing the inheritance with the child from outside the marriage.
This case shows that but for the successful negotiation among the deceased’s family members, the extramarital child’s position with regard to inheritance would have been in jeopardy. It will be shown in the discussion of perceptions on inheritance below that some participants also take a hard line against the inheritance rights of extramarital children in comparison with marital children.
7.2.1.4Polygamous marriage widows inherit equally with qualification
This dissonance with Bhe rules arises from situations that are not contemplated by the rules. A widow from the North West province reported the following case:
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The deceased had been married to three women [it’s not clear whether he had separated from the other two]. Two of them were reported to have lived in ‘proper’ houses while a third, who was living with the deceased at the time of his death, lived in what she described as a ‘shanty’ [a house of cheap material in an informal settlement]. Each widow inherited the house she had lived in when the husband was still alive, as well as the personal property in their respective houses. The eldest son of the deceased from one of the widows was in charge of the distribution of the estate. He shared the money in the estate amounting to R8 000 in equal shares, and ensured that the children were kept out of the estate; one of his brothers did not want the widow living in the ‘shanty’ to inherit. The reason the eldest son excluded himself and other children from inheriting the estate was that they had all moved away from their father’s homestead(s) and established themselves elsewhere, leaving the widows, especially the widow in the ‘shanty’, to take care of their ailing father. Explaining the process of devolution, the widow stated: It looked like the last born [son] was going to fight it [ie the manner in which the eldest son was distributing the estate], he thought that they were taking his money but the first born said no, you have not been taking care of our father. This lady in Huhudi [ie in the ‘shanty’] has been taking care of our father. Even myself I have been working for my own family and not taking care of him. I only took care of him when he came to see us and I gave him a bit of money. So now that they are three mothers, I am going to share it. Remember it was R8 000. I am going to share the R 8 000 among the three mothers.
In this case, we see the Bhe rules confronted by a situation which seems to reflect the adaptation of customary law in contexts of changed social and economic conditions in which family members no longer play exactly the roles they played in traditional society. The adaptation of customary law apparently reflects the following pattern: in the first place, the widows inherit some assets (cash) in equal shares. Secondly, the widows share the houses along the lines of (old) customary law in which each wife keeps the house and property of her house. Yet, the customary law applied to the inheritance of the houses is different from the (old) or official customary law according to which the eldest son in each house succeeds to that specific house.79 Instead the widows inherit the houses. According to the Bhe rules, the houses in this estate should have been sold to enable the
surviving spouses to share the proceeds equally. However, selling the houses may not have
79 Bekker Seymour’s Customary Law in Southern Africa 3 ed (1989); Rautenbach & Du Plessis ‘Customary law of succession and inheritance’ in Rautenbach et al (eds) Introduction to Legal Pluralism in South Africa 3 ed (2010) at 121.
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served the interests of the surviving families who would have to look for land elsewhere to re-‐establish their families elsewhere. This would also have taken away the one means, inheritance, through which married women access land in rural areas. Budlender found that some widows acquired land, especially fields, through inheritance,80 and that married women were not likely to lose access to land in the event of the husband’s death.81
Moreover, some of the land in rural areas is under the so-‐called communal tenure, with the result that the sale of houses to facilitate the sharing of the proceeds in accordance with the Bhe rules might not have been possible. 280 Looking at this whole scenario, there is only one instance that comes close to adherence
to the Bhe rules. This is the equal sharing of the cash by the widows. Needless to say the question of the type of matrimonial property system the parties had entered into, which would have had to be considered before apportioning inheritance benefits under the Bhe
rules, did not feature anywhere in the scenario. This case also confirms the finding by Mbatha that ‘customary law does not exist in
isolation: it responds to the conditions within which it exists’.82 This is illustrated by the fact that the widow in the ‘shanty’ was acknowledged as the care-‐giver of the deceased and, on that basis, was entitled to inherit from the deceased in place of the deceased’s sons who had moved away, to establish themselves elsewhere. This also seems to be a modification of the concept of family property held by some participants in which the son was the preferred heir for the purposes of preserving the family home. In sum, this case shows the application of an amalgam of practices to inheritance in
polygamous families that have little or no resemblance to the Bhe rules. Except for the nuanced83 application of these rules in the instance mentioned above, the estate was distributed in accordance with practices based on the customary principle of inheritance in a polygamous marriage (in which each house is left intact with its own heirs) but which discarded the principle of male primogeniture in favour of the deceased’s widows as heirs, with a measure of recognition of a widow’s role as care-‐givers to the deceased husband. The foregoing dissonance between the Bhe rules and the practices of inheritance within
the family are based on the analysis of actual instances of inheritance. The responses to the vignette 7 reveal further dissonances discussed in the remainder of this section. Vignette 7 is stated fully in section 7.4 below. For present purposes, it suffices to say that the vignette concerned the inheritance of money left by a deceased man survived by the widow and minor children. The subject of inheritance was money as opposed to other forms of assets, such as land or livestock. As a hypothetical case, the vignette represents people’s opinion of
80 Budlender (n 11) at 92. 81 Budlender (n 11) at 46. 82 Mbatha (n 6) at 274. 83 Nuanced in the sense that although the distribution of the estate supports the Bhe rules, there is no mention of these rules in the actual process of distribution of the estate by the son.
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what ought to happen as opposed to what actually happened. The dissonances with Bhe
rules that follow are, therefore, perception-‐based.
7.2.1.5 The widow inherits, but only because she is perceived to be the caregiver to deceased’s children or it is believed that she will use the money for the children’s upkeep
This divergence from the Bhe rules pattern represented a substantial number of responses from participants. The widow has no right of her own to inherit. Her perceived role is that of guardian of children’s interests Moreover, some participants not only saw the widow as the best person to safeguard the interests of the children84but saw her role (as controller of the estate) as exclusive, not to be supplanted by any other relative of the deceased. In this respect, one man from the Eastern Cape stated: 281
This money should be taken by the wife because this woman will be taking care of the children. Do his brothers or other members of the family have any claim over the money? No. It’s not their money. This money should raise his kids. What if it was more? Maybe R200 000? Even if it’s a lot it’s this family’s inheritance. Thus, the mother is placed in a position of power and control of the estate and, therefore,
in a stronger strategic position than she would have been to defend the interests of her children against the claims of the deceased’s other relatives.
7.2.1.6 All children of the deceased inherit in equal shares but with qualifications
The official customary law that was invalidated by the Bhe decision discriminated against children in inheritance on the basis of their age, sex and birth status as marital or extramarital children. The participants’ views supported the inheritance rights of children without reference to discrimination based on these attributes. Of the participants who responded to the vignette, 59 per cent were in favour of all children inheriting from the deceased parent (specifically, the father) regardless of the children’s age, sex or birth status. However, some participants (men and women) made the following conditions for the
inheritance right of extramarital children:
(a) The father should have agreed with his surviving wife that the child would inherit. (b) The child must have been recognised or acknowledged by the deceased man and
surviving wife as a child of the family. (c) The child must have lived with the father and his surviving wife in their home until the
death of the father. (d) The father must have paid lobola (most probably damages) for the child before he died. (e) The child should get a lesser share of the estate than the marital children. (f) The child
should inherit at the discretion of the widow.
84 However, there were cases in which participants restricted the interests of minors in the scenario to marital as opposed to non-‐marital children.
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These qualifications show that some participants drew a distinction between marital and extramarital children, for purposes of proving paternity only, as well as to show fairness to the widow who might be surprised by claims of inheritance in favour of children her husband had concealed. However, qualifications such as (a), (e) and (f) in actual fact limited the right of a child whose paternity may not be in dispute.
7.2.1.7Extramarital children not to inherit This divergence from Bhe represents cases in which participants took a hard line against the inheritance rights of the extramarital child in his or her father’s estate. For example in explaining why the extra-‐marital child in the vignette should not inherit, one participant from the Eastern Cape stated: She is the father’s child from outside. She belongs to her mother’s family. She is not from within the marriage. The widow can take care of her and do things for her but she doesn’t belong to this particular family. She belongs to her mother’s family. Another participant, a woman from Gauteng put herself in the position of the widow in
the vignette, and stated: She is not my child, I would never agree to her inheriting. Never. Her father is dead and our relationship is not there anymore. I am 282
not related to this child, I don’t owe her anything. I am only concerned about my children. These views are in stark contrast to the Bhe rules which draw no distinction of any kind
between classes of children.
7.2.1.8The widow and children inherit simultaneously Some participants were of the view that the widow should be entitled to inherit the whole estate when the surviving children are all independent and self-‐supporting adults, but minor children should share the inheritance with her. One induna from the North West province stated: If he hasn’t left a will what that means is that what he left is for his wife and children. If the children are adults and are working then the money is their mother’s and if they are young then it is theirs with their mother. This view contradicts the Bhe rules, in which no distinction is drawn between adult and
minor children, and in which all surviving children are entitled to inherit along with the widow. In summary, it should be noted that there is significant congruence between the way the
devolution of estates is dealt with in some of the actual cases and the perceptions of participants. Participants presented with the succession questions in the vignettes held views that corresponded with the devolution of estates in some of the actual cases. It has also been shown that while inheritance practices totally diverge from Bhe in some cases, in others there is a qualified or nuanced measure of consistency with Bhe rules or its spirit. In the next section, we consider further incidences of nuanced compliance with these rules.
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7.2.2 Nuanced compliance with the Bhe rules Contrary to generalisations that question the constitutionality of customary law on grounds, among others, of discrimination, there is clear evidence of customary practices of inheritance that promote and support gender equality and other forms of equality. However, there is also evidence in our study to the effect that daughters are still discriminated against in favour of sons. Studies by Mbatha and Mnisi both reported on practices of inheritance in living customary
law that take into account the notion of family property as it is applied in modern conditions in which both men and women (sons and daughters) administer and control family property upon the death of the incumbent heir.85 Similarly, Budlender found that some widows acquired land, especially fields through inheritance,86 and that married women were not likely to lose access to land in the event of the husband’s death.87 In this section, we discuss practices of succession that confirm and amplify these findings. These practices concern inheritance by widows and widowers. The discussion will show that the ways in which some estates devolve reflect the Bhe
rules, even though they make no reference to these rules. We refer to this phenomenon as nuanced compliance with the rules.94 However, it should be empha283
sised that although the practices result in nuanced compliance with the Bhe rules, for the purposes of this study, they are, in fact, representations of a system of living customary law that stands on its own. According to these practices, in some cases, both widows and widowers inherit without
difficulty or contestation by the deceased spouse’s family members. In others cases, widows are supported by the deceased husband’s family in claiming their inheritance of the husband’s estate. In all the following cases from the Eastern Cape, widows inherited the husband’s estate
without any difficulty. In the first case, the deceased was survived by an 80-‐year-‐old widow, an adult son who
was mentally challenged and three married daughters from his first (pre-‐deceased) wife. He left several houses in his umzi, and the widow inherited the entire umzi. She explained:
The son did not get anything, because according to Xhosa culture the child is always under the parent. The parent can never be under a child but a child is under the parent. The daughters did not inherit because they were married. If they had stayed here they would have inherited but they didn’t stay so they couldn’t get anything.
Asked who decided that the property should belong to her, she said ‘no one decided, because I built the houses with my husband.’ In the second case, the deceased was survived by his 69-‐year-‐old widow, unmarried sons
and married daughters. He left houses and sheep, which were inherited by the widow. Describing the process of inheritance, she said: 85 Mbatha (n 6) at 273, cited by Mnisi (n 5) at 136. 86 See Budlender (n 4) at 92. 87 Budlender (n 4) at 46. 94 See note 89.
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My husband had sheep and these houses belong to both of us because we built them together. I inherited the houses. No one decided that I should get the houses because I am the only adult person in the family. No one decided, it just became mine. My husband had one sister she got married and has her own home. She didn’t say anything about the inheritance of her brother, because she has her own home. She only comes to visit me. I have had no problems from other relatives about the inheritance and the house. My sons didn’t inherit anything, because they stay here. When they start working they can go and build their own homes. [Isn’t it Xhosa custom that when the father dies the eldest son inherits the property?] As long as I [am] alive the son will live with me. If he wants to have his own things he can go and have them but can’t take the property as long as I [am] alive. When I die, according to Xhosa custom, the eldest son will inherit it. [Ok. And the daughters?] According to Xhosa custom, they don’t get anything because they stay in the house. They will eat whatever is here, but they don’t get any inheritance. Even if they are old, if they start working they will go and have their own places. If they want to come home they can. I did not go to a government official to distribute the property. There was no need for that.
In terms of the Bhe rules, both cases exhibit the practice of discrimination against daughters generally, and on the basis of marriage (the first case). Other dissonances with the rules are the fact that the rights of widows to inherit the homestead is premised on their contribution to building it and the hierarchy of succession in which children only inherit after the surviving parents without any consideration of the size 284
of the estate the surviving spouse inherits. These inconsistences notwithstanding, for our present purposes, both cases demonstrate the clear rights of widows to inherit and to do so in priority to their children, including adult sons. Moreover, this normative hierarchy of inheritance seems to be recognised by the community since the rights of widows in both cases are conferred automatically. In other words, the practices appear to represent a non-‐discriminatory form of living customary law as far as widows are concerned. While not recognising the rights of children to inherit along with the widows, this normative repertoire permits them (male and female) to remain in the umzi of their father if they choose to. Budlender found in her survey that ‘about two-‐fifths of both married and widowed
women said they lived in a homestead that belonged to their partners, indicating that for some women their partners’ ‘ownership’ continued after his death.’88 It is not clear what this proposition means in the context of inheritance. Arguably, it means that the widow ‘owns’ the land in the full sense of having power over, or control of, it to the extent that the land tenure system in her community allows. If Budlender’s findings were generalised, the widows in the cases just considered were not living on the land ‘owned’ by their deceased husbands but they lived on the land they ‘owned’ and acquired through inheritance. In the third case, the deceased was survived by a 55-‐year-‐old widow, adult sons and minor
children. The widow said she inherited all the houses and other property according to Xhosa customs:
He built these three houses. He has a son, but he can only inherit when I die. This is what happens among the Xhosas. This has always been the case, that when the husband dies the widow inherits everything and only after she dies the son inherits. He had other property in the house. I inherited them as well. He did not have cattle or sheep or goats. [Who decided that the houses should belong to you and on how the property should be shared when the husband died? How did that happen?] No one sat down to decide because it’s something that they all knew. There was no
88 Budlender ‘Women, marriage and land: Findings from a three-‐site survey’ in Claassens & Smythe Marriage, Land and
Custom: Essays on Law and Social Change in South Africa (2013) at 39.
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formal gathering to say that now the husband is dead the property will go to her. It just happened because it’s the practice. The only thing that will happen now is that when I die the property will be divided among the children. I’m happy I got my husband’s property.89
This case in particular shows that some widows remain on the umzi of their deceased husband unconditionally. This contradicts the view that a widow’s control of the husband’s land is temporary until the son of the deceased comes of age and becomes capable of taking over the land.90 Furthermore, all three cases reveal a relatively easy and uncontested process in favour of widows’ inheritance, an indication of the existence of a normative basis on which inheritance proceeds. However we are unsure of how prevalent this practice is outside of the Eastern Cape.
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It is also important to note that some widows inherit with the active support of their husbands’ relatives. In one case from the Eastern Cape, the widow of a 48-‐year old man inherited the whole estate with the support of the deceased’s brother and despite the presence of a son of age. Her husband left sheep, houses and the furniture. Her husband’s brother went to the court to confirm that he had passed away, and that she should inherit the husband’s property. The son did not inherit anything. The support of the deceased’s family was a also evident in another case in which a 64-‐
year-‐old widow in the Eastern Cape, whose husband was survived by a son, inherited his husband’s estate with the agreement of the family: My late husband had two cars, this house and the furniture. They were divided under my name, we discussed it in the family and everything was divided in my name. Everything went well. While the foregoing cases demonstrate that widows inherit with little problem, cases
involving widowers show that they experience even greater ease when estates devolve to surviving spouses. From a gender perspective, one may argue that widowers and men generally experience no problems of inheritance at all after the death of their wives (or mothers) as the two cases seem to suggest. In the first case from the Eastern Cape, the 66-‐year-‐old widower inherited the
matrimonial home, which he described as being registered under his name, but as belonging to his late wife as well. Describing the process of inheritance he stated:
[My late wife] just told me to take care of the children and educate them. [Has any of your wife’s family come to you asking for her things that she left behind?] No. they never did. And why would they come and ask for her things? What are they to her to start with? No one has the right to do that. Only her children could do that. [Have the children done that?] No they did not do that. By the way I understand our culture is that anything I own when I die my first born son will inherit it.
Interestingly, although the husband described the house as having belonged to the wife as well, there was no suggestion that her relatives could inherit her share of the estate. It was as if her ‘ownership’ of the house was irrelevant to the issue of inheritance. Furthermore,
89 The interview was recorded in the third person. It has therefore been reconstructed in the first person. 90 See Budlender (n 4) at 64; Cousins (n 11) at 90.
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we learn from the participant’s response that he holds on to the traditional ideas of male primogeniture: ‘By the way I understand our culture is that anything I own when I die my first born son will inherit it.’ Compared to his daughters who will get nothing when the father dies, the son will inherit, apparently, under male primogeniture. In the second case, the wife was survived by her 55-‐year-‐old husband and seven children,
one of them an adult. The only property she left were her clothes, which were shared among her family members by the families of the deceased and the husband. Describing the experience of his wife’s estate, the husband said: It was easy, there was no conflict. There were no challenges [by the wife’s sisters]. In sum, widows and widowers in monogamous marriages inherit from their deceased
spouses in uncontroversial circumstances, and under egalitarian practices that make no reference to the Bhe rules. The findings underscore the complex mix or repertoire of customary law and other normative orders which are not restricted to customary law or not fully based on Bhe rules. However, even in these cases and 286
complexities, men seem to experience fewer problems than women. At the heart of men’s fortune is the continued application of the principle of male primogeniture.
7.3 Public knowledge of the rules Public knowledge of the Bhe rules is one of our measures of the implementation of the rules in practice. However, this study has shown that the majority of participants did not know about the rules. It can, therefore, be argued that the rules are not applied in practice, other than in the official enclave of the Master, where limited application occurs.
7.4 Public perceptions about Bhe rules As already stated, public perceptions about the Bhe rules were tested primarily through vignette7. This vignette depicted a scenario in which a man (who died after Bhe) was survived by his widow and children of both sexes. He left a sum of money in his estate. The participants were required to advise the vignette characters on how the estate should be dealt with. The follow-‐up questions also required them to address issues of inheritance by the widow, sons, daughters and extramarital children. The aim of the vignette was twofold. First, to establish whether Bhe was a resource the participants would draw from for the solution of the inheritance scenario. In order to do this they would have had to be aware of the content of the rules or know what the decision was about. Thus, the vignette was also intended to probe participants’ knowledge of the law. Secondly, the vignette sought to assess views or perceptions of the participants on the merits and demerits of Bhe. For this purpose, the essence of this decision was explained to the participants. The study found that the majority of participants who responded to the questions
concerning the vignette favoured distribution of the estate to the widow, or to the widow and children, regardless of sex and status of birth, or to the widow to enable her to support herself and/or the children. The majority of participants also thought that the Bhe rules were good because they promoted equality among the children with regard to inheritance.
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These views are all positive indicators of the implementation of the Bhe rules in practice. However, in the majority of these responses, the widow’s interest was identified only as that of someone who was in a better position to take care of the children of the deceased, not as a person who could inherit in her own right. In this sense, the opinions do not support the spirit of Bhe, in which the widow is an heir in her own right. There were also participants who felt that Bhe was a bad decision. Coupled with the ignorance of the rules by the majority of participants, these factors have a negative effect on the application of the Bhe
rules in practice, and they are not consonant with the decision.
7.5 The absence of challenges in the application of the Bhe rules Finally, a paucity of challenges to the implementation of the Bhe rules would be a significant indicator of compliance. This chapter has already identified significant challenges — which do not require any more discussion — relating to the implementation of these rules. These are ignorance of the law and of procedures that are necessary for people to claim their inheritance rights; the lack of accountability to the Master by persons appointed to administer estates; opposition to the Bhe rules by 287
family members; the non-‐disclosure of all assets in the estate upon the reporting of the estate to the Master, especially property that the parties consider to be family property; and the persistence traditional views that defy the demands of socio-‐economic changes and therefore lead to the exclusion of some members of the family, especially women. Two other challenges, however, do require discussion. The first is the multiple reporting of
estates for purposes of administration Mnisi reported on problems of multiple reporting of estates to the different offices of the
Master. This may create problems with regard to competing heirs, such as co-‐wives in a polygynous marriage91 or other persons who would have inherited the estate under customary law that was replaced by Bhe. However, officials at one Master’s office informed us that the government plans to introduce a system of recording reports of estates at the Master’s office electronically. Once all Masters’ offices across the country are linked electronically to each other, it will be impossible for people to report the estate in more than one place without these offices picking up the multiple reporting.
The second challenge relates to the proof of the existence of customary marriages for purposes of administration of estates. The easiest way to prove the existence of a marriage for any legal purpose is by means of a certificate of registration. Customary marriages may be registered by the Department of Home Affairs in terms of the RCMA as shown in chapter 4, but that chapter also shows that, in fact, few customary marriages are registered. Section 4(7) of the RCMA provides for alternative registration of a customary marriage by a court order, and this study found a number of cases that had been brought to the courts for this purpose
91 Mnisi (n 5) at 312.
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Cases in which family members deny the existence of the marriage pose particular challenges to officials in the Masters’offices. Because the officials are not judges, they have to refer the parties to court for a decision on the validity of the marriage. Indeed, some officials at the Masters’offices confirmed that they had referred parties who were not able to produce a marriage certificate, and where the existence of the marriage was contested, to courts to obtain an order declaring the existence or otherwise of the marriage in question. However, this study found that there are few customary marriages that are litigated upon in the courts, undoubtedly due to the cost of litigation and other issues of access to justice. This suggests that few parties seek the alternative method of establishing the existence of marriages through the courts. Some Master’s office officials also stated that the Department of Home Affairs terminated the procedure for posthumous registration of customary marriages in 2010 or thereabout. The foregoing challenges mean that the Master’s office relies on unofficial methods of
establishing the existence of unregistered customary marriages. In some cases, where there is no contestation regarding the existence of the marriage, they call a meeting of the families of the deceased spouse and surviving spouse to prove the existence of the marriage, and they record the minutes of these meetings for purposes of record in the Master’s office. In fact, some Master’s offices have designed a form for the recording of these minutes. In other cases, the officials require proof of 288
existence of marriages by the production of a lobola letter indicating the agreement of the two families about the lobola payment.
In the current environment in which many marriages are not registered officially in practice, these alternative methods of proving customary marriages are commendable, and live up to the objective of the RCMA, which does not require registration for concluding a valid marriage, but rather requires this administrative procedure as an aid in proving the existence of the marriage. Furthermore, these alternative methods counter the undesirable trend that has been noted by several scholarly works in which the registration process has shifted from being an ‘administrative exigency, useful to prove that a marriage existed . . . to, in practice constituting the validity of the marriage.’92 However, these alternative methods are not free from the following problems:
(a) The family meeting could be packed by family members who are interested in one view of administration of the estate that is not necessarily advantageous to all interested parties.
(b) The lobola letters could be forged. (c) Officials who reported that they had referred contesting parties to courts said that none
of the parties concerned went back to pursue the administration of the estate. In view of the finding that few customary matters go to courts, the most likelihood is that these
92 See Mwambene & Kruuse ‘Form over function? The practical application of the Recognition of Customary Marriages Act 1998 in South Africa’ in Claassens & Smythe (eds) Marriage, Land and Custom: Essays on Law and Social Change in South Africa (2013) at 292.
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cases moved into the informal arena of administration of estates where compliance with the Bhe rules could not be assured.
(d) Some officials who use the alternative methods of establishing the existence of marriages admitted the difficulty of conducting an enquiry into the existence of the marriage because they were not adequately trained for this function in the way that judges of courts are. The complexity and indeterminate nature of the requirements of a valid marriage noted in chapter 3 reinforces their concern.
Thus, the challenge to the administration of estates posed by the phenomenon of unregistered marriages is immense, and they are at the heart of proper administration of estates of deceased married persons contemplated by Bhe rules.
8. Summary
The findings in this chapter show significant areas of both compliance and dissonance with the Bhe rules. The compliance is found primarily in the administration of estates in the official enclave, and in nuanced compliance within family administration processes, as well as in positive public perceptions of certain aspects of the rules. The dissonances relate largely to the disinheritance of legitimate heirs, the indiscriminate exclusion of family property from the application of the rules, the ignorance of the law and the challenges associated with the application of the rules. A summary of these compliances and disjuncture in the operation of the Bhe rules in practice follows. The application of the Bhe rules receives support from the administration of estates by
the Master through both the service points and the Master’s office at the High Court. People have the option of obtaining letters of authority from the magistrate or 289
the Master in small estates. However, while the interface between the service points and the Master’s office is favourable to the enforcement of the Bhe rules in several respects, such as promoting structural access to the new rules, there are problems that undermine the enforcement of the rules within this official enclave. These include people’s lack of knowledge of legal rules and procedures pertaining to the administration of estates; weaknesses in the interface between the service points and the Master at the High Court; the inability of members of the deceased’s family to mobilise redress procedures in the event of problems requiring the intervention of the Master; and problems with accountability from administrators of estates. Compliance with the Bhe rules outside the official enclave is of a nuanced nature in which
reference is not made to the official rules, but the distribution of the estates reflect the spirit of Bhe. The study has highlighted instances in which widows and widowers inherit in their own right in actual cases. This nuanced compliance represents egalitarian norms of living customary law that other studies have found. The study has also found perceptions that support the right of children to inherit regardless of their age, sex and birth status. However, the study also found dissonances with Bhe in this enclave that are represented
by succession practices that deny a right of inheritance to legitimate heirs under the Bhe
rules — that is, to widows, daughters, younger sons and extramarital children. In particular,
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the concept of family property is used to exclude women from inheritance despite the fact that the social and economic contexts in which the concept developed have changed and continue to change. Perceptions among some participants (albeit the minority) are that they would oppose the application of the Bhe rules because of their failure to envisage the concept of family property. Finally, several challenges, including non-‐registration of customary marriages, ignorance
of relevant law and procedures, non-‐disclosure of estate assets and multiple reporting of estates undermine the effective and speedy administration of estates in the official enclave, with the result that estates are most likely administered in unofficial forums outside the framework of the Bhe rules, where negative traditional values persist.
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ANNEXURE G: DOJ LANDMARK CASE DATA: CASE SUMMARIES
Bezuidenhout v Bezuidenhout
2005 (2) SA 187 (SCA)
*Gender Equality/Dignity
1. Content of the right as determined by the court
Where spouses are married out of community of property in terms of an antenuptial contract, section 7(3) of the Divorce Act 1979 requires the court to decide on the nature and extent of a spouse’s contribution to the estate of the other spouse. It is unfair discrimination to undervalue the role of the housewife and mother, as traditionally conferred upon women by society. Her contribution as a homemaker must be afforded some weight in the division of the estate upon divorce. However, her direct contribution to the family or spouse’s business must also be taken into account.
2. Remedy chosen and reasons provided
The court assessed (not strictly mathematically) the wife’s actual contribution to the family’s business. Consequently, where the wife has made a contribution to the value of the husband’s estate beyond the traditional role of a wife, mother and homemaker – such as, in this instance, to the family business – the actual value of her contribution must be assessed.
3. Order of the court
On the particular facts, the court exercised its discretion in terms of section 7(3) by awarding a division of assets in favour of the ex-‐husband and the ex-‐wife in the ratio of 60:40, respectively.
Bhe & Others v Khayelitsha Magistrate & Others
(49/03; 50/03; 69/03) 2005 (1) SA 580 (CC)
*Gender Equality / Dignity
1. Content of the right as determined by the court
The impugned statutory provisions and the customary law rule of male primogeniture, as it has come to be applied to the inheritance of property, unfairly discriminates against the two children in that they prevented female and illegitimate children from inheriting the deceased estate of their late father and brother.
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2. Remedy chosen and reasons provided
The court indicated that while it would ordinarily be desirable for courts to develop new rules of African customary law to reflect the living customary law and bring customary law into line with the Constitution, that remedy was not feasible in this matter, given the fact that the rule of male primogeniture is fundamental to customary law and is not replaceable on a case-‐by-‐case basis.
An interim regime to regulate intestate succession of black persons was therefore necessary until the legislature is able to provide a lasting solution. The interim arrangement was that intestate succession of black persons would henceforth devolve according to the rules provided in the Intestate Succession Act of 1987.
The order of the Court in respect of the rules of inheritance was made retrospective to the 27 April 1994, but would not apply to completed transfers of ownership, except where an heir had notice of this challenge to the legal validity of the statutory provisions and the customary law rule of male primogeniture.
3. Order of the court
The rule of male primogeniture as it applied in the African customary law of succession, as well as constitutional challenges to section 23 of the Black Administration Act, 38 of 1927, regulations promulgated in terms of that section, and section 1(4)(b) of the Intestate Succession Act, 81 of 1987, were struck down as unconstitutional and invalid. The Constitutional Court put in place a new interim regime to govern intestate succession for black estates.
In relation to the administration of estates, the Court ordered that, henceforth, deceased estates which would have previously been administered by magistrates in terms of the Black Administration Act, must be administered by the Master of the Supreme Court in terms of the Administration of
Estates Act, 66 of 1965. However the order of the court in respect of the administration of estates was not made retrospective.
State v Visser
2004 (1) SACR 393 (SCA) / [2004] 1 All SA 605 (SCA)
*Gender Equality / Dignity
1. Content of the right as determined by the court
The effective enforcement of maintenance payments is necessary not only to protect the rights of children, but also to uphold the dignity of women and to promote constitutional
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ideals of substantive gender equality.
2. Remedy chosen and reasons provided
Maintenance default by father remedied by a sentence of periodic imprisonment over weekends and payment of arrear maintenance in instalments over a specified period.
It is important that the courts regard deliberate failure to comply with maintenance orders as serious offences and punish such failures accordingly.
3. Order of the court
Part of sentence of imprisonment suspended on condition that the father pay off arrear maintenance over a specified period in set, regular payments.
Santam (Bpk) v Henery
1999(3) SA 421 (SCA)
*Gender Equality / Dignity
1. Content of the right as determined by the court
A divorced woman who, in terms of section 7(2) of the Divorce Act, is entitled in terms of a court order to a specified amount in maintenance, should in principle be included in the class of dependants who may bring an action for damages for loss of support arising out of the negligent killing of her former husband. (Emphasis added)
2. Remedy chosen and reasons provided
A divorced woman who has a legally enforceable court order in her favour for a specified amount in maintenance should have a right of action for pure economic loss, based on logic, legal policy and fundamental fairness.
"... [T]here is no reason why our Courts should not similarly adapt the doctrine and reasoning of the law to the conditions of modern life, so far as that can be done without doing violence to its principles."
3. Order of the court
An action for damages recognised in principle.
Fuel Retailers Association of Southern Africa v DG: Environmental Management, Dept of Agriculture, Conservation and Environment, Mpumalanga & Others
(CCT 67/06) [2007] ZACC 13 (7 June 2007); 2007 (6) SA 4 (CC)
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*Environment
1. Content of the right as determined by the court
The matter involved the interaction between social and economic development and the protection of the environment.
Our Constitution does not sanction a state of normative anarchy which may arise where potentially conflicting principles are juxtaposed. It requires those who enforce and implement the Constitution to find a balance between potentially conflicting principles. The Constitution is founded on the notion of proportionality which enables this balance to be achieved. The principle that enables the environmental authorities to balance developmental needs and environmental concerns is the principle of sustainable development.
The (supposed) motive for opposing an authorisation is not a relevant for the authorities entrusted with protecting the environment.
2. Remedy chosen and reasons provided
The court expressed grave concern that the environmental authorities in this matter had not even had sight of the motivation placed before the local authority relating to need and desirability, let alone read it. Section 24(1) of NEMA makes it clear that the potential impact on socio-‐economic conditions must be considered by “the organ of state charged by law with authorising, permitting or otherwise allowing the implementation of [a proposed] activity.”
The environmental authorities took a narrow view of their obligations and misconstrued their obligations. As a consequence of this, the environmental authorities failed to apply their minds to the impact of the proposed filling station on environmental and socio-‐economic conditions, such as an adequate and acceptable water supply.
The appropriate relief in this case is to send the matter back to the environmental authorities for them to consider the matter afresh in a manner that is consistent with this judgment.’
3. Order of the court
Conclusion
The decision of the environmental authorities was found to have been flawed and was set aside as they misconstrued the obligations imposed on them by NEMA. In all the circumstances, the decision by the environmental authorities to grant authorisation for the construction of the filling station under section 22(1) of ECA cannot stand and falls to be reviewed and set aside. It follows that both the High Court and the Supreme Court of Appeal
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erred, the High Court in dismissing the application for review and the Supreme Court of Appeal in upholding the decision of the High Court.
Order
(a) The application for leave to appeal is granted.
(b) The appeal is upheld.
(c) The order of the Supreme Court of Appeal is set aside.
(d) The order of the High Court is set aside.
(e) The decision of the first, second and third respondents granting authorisation for the construction of the filling station to be located on a portion of portion 1, Erf 216, Kingsview extension 1, White River, Mpumalanga, under section 22(1) of the Environment Conservation Act 73 of 1989 is reviewed and set aside.
(f) The matter is remitted to the first, second and third respondents for them to consider afresh the application for authorisation for the construction of the filling station.
(g) The first, second and third respondents are ordered to pay the applicant’s costs including the costs incurred in the courts below, which includes the costs consequent upon the employment of two counsel.
Fuel Retailers Association of Southern Africa v DG: Environmental Management, Dept of Agriculture, Conservation and Environment, Mpumalanga & Others
(530/05) [2006] ZASCA 154; [2006] SCA 109 RSA (22 September 2006)
*Environment
1. Content of the right as determined by the court
Interaction between social and economic development and the protection of the environment.
There is an obligation under NEMA to consider social, economic and environmental impacts of proposed developments. The Constitution recognizes the interrelationship between the protection of the environment and socio-‐economic development. The Constitution contemplates the integration of environmental protection and socio-‐economic development and envisages that the two will be balanced through the ideal of sustainable development.
2. Remedy chosen and reasons provided
The court held that sustainable development provides a framework for reconciling socio-‐
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economic development and environmental protection and thus acts as a mediating principle in reconciling environmental and developmental considerations. The court reasoned that unsustainable developments are in themselves detrimental to the environment, and a development such as a filling station may have a substantial negative impact on the environment.
3. Order of the court
Conclusion
The decision of the High Court to reject the application for the review of the decisions of the MEC and the DG on all the grounds raised by Fuel Retailers must thus be upheld. The SCA stressed that the objective of considering the impact of a proposed development on existing ones is not to stamp out competition; rather it is to ensure the economic, social and environmental sustainability of all developments. The proliferation of filling stations poses a potential threat to the environment, which arises from the limited end-‐use of filling stations upon their closure.
Order
The appeal is dismissed with costs.
HTF Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others
2007 (5) SA 438 (SCA)
*Environment
1. Content of the right as determined by the court
An appeal against an administrative directive, made under section 21 of the Environment Conservation Act of 1989 prohibiting the appellant from further work on a parcel of land until environmental approval had been obtained. Interpretation of the powers under section 21 and 31A of the Environment Conservation Act of 1989 should be construed purposively, taking account of the constitutional imperative, to promote conservation and ecologically sustainable development. The court interpreted “virgin land” to mean land that has not been used or developed in the last 10 years, such land being of obvious concern to the environmental authorities in the present age of accelerated degradation. In the current constitutional dispensation, the ‘right to a clean environment’ must enjoy recognition equal to that which is accorded to other rights.
2. Remedy chosen and reasons provided
The SCA opined in a majority judgement that the regulation relied upon by the 3rd
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respondent was so vague that it was unenforceable. Secondly, the court ruled that if the legislature chose to afford a party affected by particular administrative action greater procedural protection by means of the specific provisions of the Act, those provisions cannot be ignored in favour of less onerous prescriptions in general legislation.
3. Order of the court
Conclusion
The court found the wording in section 31A of the Environment Conservation Act of 1989 to be clear and unambiguous-‐ before any directive is made, there had to be compliance with section 32 (which required the directive to be published)
Order
i. The appeal is upheld.
ii. The directive issued in terms of section 31A of the Act in respect of the remainder of Erf 232, Riviera Township, Pretoria, dated 12 August 2005 is set aside.
iii. The 2nd respondent is to pay costs.
Harmony Gold Mining Co Ltd v Regional Director: Free State, Department Water Affairs and Forestry
(269/05) [2006] SCA 65 (RSA) (29 May 2006)
*Environment
1. Content of the right as determined by the Court
This matter arose out of a directive that had been issued by the Acting Regional Director of the Department of Water Affairs in terms of section 19(3) of the National Water Act 36 of 1998, and which was directed at the applicant as well as the 4th, 5th, 6th and 7th respondents. The directive required them to take anti-‐pollution measures in respect of ground and surface water contamination caused by their gold mining activities.
2. Remedy chosen and reasons provided
The uncontrolled release of untreated acid mine drainage into the environment results in pollution of underground and surface water resources. The court reasoned that the provision imposing the obligation to take reasonable anti-‐pollution measures was wide enough to require the applicant to take such measures not only in its own mine but also, on the facts on the case, in the mines of the others companies (the 4th, 5th, 6th and 7th respondent companies). The court further held that even if there was an understandable
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official motive also to combat flooding, the directive was still a lawful one if there was the motive to fight pollution.
3. Order of the Court
The application was dismissed and the Court ordered that the directive remained valid.
No order was made as to costs.
MEC: Agriculture, Conservation and Environment, and Land Affairs, Gauteng v Sasol Oil (Pty) Ltd & Another
(368/04) 2006 (5) SA 483 (SCA) (16 September 2005)
*Environment
1. Content of the right as determined by the court
In interpreting relevant provisions of the Environment Conservation Act (ECA), the court emphasised the importance of relying on the constitutional right to ‘a healthy’ environment, as well as the need to achieve socially, environmentally and economically sustainable development. Section 31A of the ECA empowers a named authority to direct any person who performs or fails to perform an activity that is causing or may cause harm to the environment, to stop the harmful activity or take remedial steps within a specified period. Section 32 of the ECA provides that a 30-‐day notice and comment procedure must be followed before directions are issued in terms of the ECA. The former provision should not be constrained by the procedural requirements of the latter provision. The Constitution and the environmental legislature require authorities to adopt an integrated approach to the environment; one that protects the environment while promoting socio-‐economic growth.
2. Remedy chosen and reasons provided
The court held that the exercise of powers under section 31A does not require the notice and comment procedure contemplated in section 32 of the ECA. The court ruled that the provisions of section 31A of ECA were intended to give authorities the power to deal with immediate and imminent threats to the environment and that its (section 31A) provisions should be interpreted in a manner that is consistent with this purpose in section 32.
3. Order of the court
Order
i. The application for condonation for late filing of the application is upheld.
ii. The application for leave to appeal is granted.
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iii. The decision of the Supreme Court of Appeal is set aside.
iv. The appeal is upheld.
v. The 1st applicant is ordered to pay costs of this appeal.
S v Packereysammy
(048/2003) ZASCA (28 Nov 2003); 2004 (2) SACR 169 (SCA)
*Environment
1. Content of the right as determined by the court
The court is entitled to take judicial notice of the general incidence of particular environmental crime in its area of jurisdiction and to use such knowledge in imposing sentence. The court of first instance, it appears, was informed by his knowledge of illegal abalone activities in his jurisdictional area in meting out judgment to the accused (now appellant).
2. Remedy chosen and reasons provided
The sentence imposed by the court may have been severe but not inappropriate under the circumstances. The severity of a sentence is in itself not a sufficient ground to interfere.
3. Order of the court
The appeal was dismissed.
Director: Mineral Development, Gauteng Region & Another v Save the Vaal Environment & Others
1999 (2) SA 709 (SCA)
*Environment
1. Content of the right as determined by the court
The destruction of the Rietspruit wetland, threat to fauna and flora and decreased value of properties. The Constitution of South Africa, by including environmental rights as fundamental, justiciable human rights, by necessary implication requires that environmental considerations be accorded recognition and respect in the administrative process in South Africa. Together with the change in the ideological climate must also come a change in our legal and administrative approach to environmental concerns.
2. Remedy chosen and reasons provided
The court held that the audi alteram partem rule (hear the other side) applies when
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application for a mining licence is made to the Director of Mineral Development in terms of section 9 of the Minerals Act 50 of 1991. Such a hearing need not necessarily be a formal one, but interested parties should at least be notified of the application and be given an opportunity to raise their objections in writing. If necessary, a more formal procedure can then be initiated. Nothing in section 9 or in the rest of the Act either expressly or by necessary implication excludes the application of the rule, and there are no considerations of public policy militating against its application. On the contrary, the application of the rule is indicated by virtue of the enormous damage mining can do to the environment and ecological systems. What has to be ensured when application is made for the issuing of a mining licence is that development which meets present needs will take place without compromising the ability of future generations to meet their own needs (the criterion proposed in the Brundtland Report : World Commission on Environment and Development, Our Common Future, Oxford University Press 1987).
3. Order of the court
Order
The appeal is dismissed with costs, including costs of the two counsel.
Agri South Africa v Minister for Minerals and Energy (Afriforum, Afrisake, CALS and FJ Pool as Amici) (CCT 51/12) [2013] ZACC 9; 2013 (4) SA 1 (CC); 2013 (7) BCLR 727 (CC) (18 April 2013)
*Land and SERs
1. Content of the right as determined by the court
Background
The Constitutional Court handed down a judgment dismissing an appeal against a decision of the Supreme Court of Appeal. Agri South Africa (Agri SA) brought an application against the Minister for Minerals and Energy (Minister) in the North Gauteng High Court, Pretoria (HC). The essence of the application was that the commencement of the Mineral and Petroleum Resources Development Act (MPRDA) expropriated the coal rights of Sebenza (Pty) Ltd (Sebenza), which had been ceded to Agri SA. The application was successful. The Minister appealed the decision of the HC to the Supreme Court of Appeal (SCA), which upheld the appeal. Aggrieved by that outcome, Agri SA appealed to the CC.
Findings
In a majority judgment written by Mogoeng CJ, the CC held that, while the MPRDA deprived Sebenza of its coal rights, the deprivation did not rise to the level of expropriation at the
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time of the commencement of the MPRDA. This conclusion was supported by transitional arrangements which painstakingly protect pre-‐existing mineral rights and improved security of tenure, as well as by the objects of the MPRDA to facilitate equitable access to the mining industry, promote sustainable development of South Africa’s mineral and petroleum resources and to advance the eradication of all forms of discriminatory practises in the mining sector. The appeal was therefore dismissed.
In a separate judgment, Froneman J concurred in the outcome of the majority judgment, but for different reasons. Judge Froneman agreed that the appeal should fail, based on the understanding that what Agri SA had received in terms of the provisions of the MPRDA amounted to just and equitable compensation, albeit in kind, for what it had lost under the MPRDA. However, he disagreed that acquisition of property by the state is a necessary requirement for expropriation in all cases. According to Froneman J, the contestation about past and future rights to property must be done by interpreting the transitional arrangements in the MPRDA as seeking to give effect to the just and equitable compensation provisions under the Constitution, by providing past owners of minerals the opportunity of continuing to exploit the minerals in the transition, as well as giving them preferential treatment in acquiring new rights under the MPRDA.
In another separate judgment, Cameron J concurred in the majority judgment, but agreed with Froneman J that it is inadvisable to extrapolate an inflexible general rule of state acquisition of expropriated property as a requirement for all cases.
2. Remedy chosen and reasons provided
Chief Justice Mogoeng framed the question thus: What rights did Sebenza hold under the 1991 Act that the new Act had taken away? He concluded that only prospecting and mining rights exist under the new Act and these could be transferred under conditions that not every landowner could fulfil. Sebenza could not fulfil the conditions.
Thus, contrary to the SCA finding, a deprivation of rights had taken place, and the only remaining question was whether the deprivation amounted to an expropriation, which would have triggered a state obligation to pay compensation.
Framing the matter in this way, the chief justice then had to examine section 25 of the Constitution, the property clause, which sets out the conditions for compensation in the case of expropriation. In a key passage, Mogoeng CJ said: "We must interpret section 25 with due regard to the gross inequality in relation to wealth and land distribution in this country ... [B]y design, the MPRDA is meant to broaden access to business opportunities in the mining industry for all, especially previously disadvantaged people … This brings to the fore the obligation imposed by section 25 not to over-‐emphasise private-‐property rights at
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the expense of the state's social responsibilities."
From this interpretation, it followed that the court was required to guard against a literal interpretation of the concept of acquisition in section 25, which would blur the difference between deprivation and expropriation. In Mogoeng's view, the new Act caused Sebenza to suffer a deprivation of its mineral rights, but the state had not acquired these rights, so there had not been expropriation by the state. The effect was: ‘No expropriation, no compensation to Sebenza or to AgriSA.’1
The Court’s judgment ‘asserts a balance in the structure’ of the property clause between private property rights and the state's obligation to address inequality and poverty. This interpretation shows that it is neither the Constitution, by way of section 25, nor the Constitutional Court itself that is an obstacle to land reform. ‘Correctly, the spotlight is thrown on state policy (or the lack of it) intended to effect reasonable redress. By striking a balance between property and redress, the Constitutional Court has painted a clear picture of the meaning of transformation and the role of law in promoting this objective. The AgriSA judgment should serve as a lodestar as South Africa continues to debate what the Constitution, our core social compact, demands of us if we are to vindicate its vision.’2
1 AgriSA case vindicates Constitution's subtlety on transformation’ -‐ Serjeant at the Bar, Mail & Guardian 3 May 2013.
Available at http://mg.co.za/article/2013-‐05-‐03-‐agrisa-‐case-‐vindicates-‐constitutions-‐subtlety-‐on-‐transformation [Accessed 5March2014] (Own emphasis).
2 M&G article above.
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3. Order of the court
Appeal dismissed.
Schubart Park Resident’s Association and Others v City of Tshwane Metropolitan Municipality & Another (CCT 23/12) [2012] ZACC 26; 2013 (1) SA 323 (CC); 2013 (1) BCLR 68 (CC) (9 October 2012)
*Housing
1. Content of the right as determined by the court
Section 26(3) of the Constitution provides for a right of access to housing, which includes the right not to be evicted from one’s home without an order of court, made after considering all the relevant circumstances. Eviction is also governed by the provisions of the various statutory instruments that may allow the removal, evacuation or eviction of people from their homes.
Many provisions in the Constitution require the substantive involvement and engagement of people in decisions that may affect their lives, including in relation to SERs. Of particular relevance here are the cases dealing with the right to have access to adequate housing and protection under the Constitution and to protection from arbitrary eviction or demolition of their homes. Meaningful engagement is necessary because of the right to dignity of residents, and advisable because of the ‘interrelation between different rights and interests’ and because ‘the exercise of these often competing rights and interests can best be resolved by engagement between the parties’.
Section 38 of the Constitution allows a court, where the infringement of fundamental rights is at stake, to grant appropriate relief. It is wide enough to enable a court to make supervision and engagement orders.
2. Remedy chosen and reasons provided
The HC had dismissed the residents’ application for immediate reoccupation of their homes, but ordered –
(a) the City and the Minister to ensure that the temporary accommodation offered in terms of a tender made by the City was available; and
(b) the parties to meet at the earliest opportunity so as to propose a draft order to meet the further needs of the applicants and to re-‐approach the Court the next day.
The HC had, thus, made engagement and supervision orders, but not a declaratory order concerning the applicants’ rights to access to housing. Nor had the HC fully recognised the residents’ right to dignity and their consequential right to decline the City’s ‘top-‐down’
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tender of alternative accommodation.
The CC held that the HC order fell short of the protection provided for in section 26(3) of the Constitution in the following respects:
(a) It provided for occupation of the property only for those residents who accepted the City’s tender. Those who did not accept were left without a remedy.
(b) Restoration to Schubart Park was made conditional upon proof of their rights of occupancy to the property and their right of occupancy in the Republic of South Africa.
(c) Although it provided for court access in relation to extensions of time, it did not do so in respect of the vitally important eventuality where restoration was stated to be impossible. In that event, residents would have had only “alternative habitable dwellings” as an alternative. The lack of provision for a court order for what effectively would be an eviction order was in breach of section 26(3).
The HC order thus accepted: (1) that the removal of the residents was not a lawful eviction; (2) that the removal was instead temporarily necessary in order to save lives; (3) that the residents were entitled to re-‐occupation once it was safe to do so; and (4) that if it could not be made safe, those who accepted the tender must be provided with alternative accommodation, without the City having to come to court to effect what would then be an eviction that does not comply with section 26(3) of the Constitution. In the particular circumstances of this case, the CC accepted that (1), (2) and (3) were legally permissible, but (4) was not.
The CC declined to develop the common law remedy of spoliation (which ensures the immediate (albeit possibly temporary) return of physical possession and enjoyment of property after illicit deprivation, regardless of the underlying merits of the original possession), because that would not provide an effective remedy in the circumstances of this case.
Due to these circumstances, the CC accepted that the HC could not have ensured that all affected residents could be immediately returned to their homes. As a matter of law, however, said the CC, the HC could and should have issued a declaratory order indicating the residents’ eventual entitlement to restoration. Instead, it had permitted the City to make a ‘top-‐down’ tender of temporary alternative accommodation that did not address the applicants’ immediate needs or their existing rights to access to housing.
The CC held that the HC’s order that the evicted residents could accept the City’s tender of alternative accommodation did not constitute relief that could appropriately be granted in terms of section 38 of the Constitution, because it amounted to an eviction order that did
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not comply with the provisions of s.26 or the related statutory instruments.
The CC held that the applicants were as a matter of law entitled to restoration of their occupation but were nevertheless deprived of that restoration for a long period. Not only did their inherent right to dignity entitle them to be treated as equals in the engagement process, but also their legal entitlement to return to their homes in the absence of a court order for their eviction.
Normally, supervision and engagement orders accompany eviction orders where they relate to the provision of temporary accommodation pending final eviction. But there is no reason why they cannot be made in other circumstances where it is appropriate and necessary – section 38 is sufficiently wide and flexible to accommodate that.
3. Order of the court
The Constitutional Court upheld the Applicants’ application for leave to appeal. Froneman J (in a unanimous judgment) declared [ie a declaratory order] that the various High Court orders did not constitute an order for the residents’ eviction as envisaged by section 26(3) of the Constitution and that the residents were entitled to occupation of their homes as soon as reasonably possible.
The CC ordered that the applicants and the City of Tshwane Metropolitan Municipality must, through their representatives, ‘engage meaningfully’ with each other in order to give effect to this declaratory order. The parties were required to report to the High Court by 30 November 2012 on what plans had been agreed upon to provide alternative accommodation to residents until such time as they could return to a refurbished Schubart Park.
City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd & Others
[2011] ZACC 33; 2012 (2) BCLR 150 (CC); 2012 (2) SA 104 (CC) (1 December 2011)
*Housing
1. Content of the right as determined by the court
Findings briefly summarised
To the extent that it was the owner of the property and the occupation is unlawful, Blue Moonlight was entitled to an eviction order. All relevant circumstances must be taken into account though to determine whether, under which conditions and by which date, eviction would be just and equitable. The availability of alternative housing for the Occupiers was one of the circumstances. The eviction would create an emergency situation in terms of
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Chapter 12 of the National Housing Code. The City’s interpretation of Chapter 12 as neither permitting nor obliging it to take measures to provide emergency accommodation, after having been refused financial assistance by the province, was incorrect. The City is obliged to provide temporary accommodation. The finding of the SCA, that the City had not persuaded the Court that it lacked resources to do so, was not shown to be incorrect and must stand.
The City’s housing policy was unconstitutional in that it excluded people evicted by a private landowner from its temporary housing programme, as opposed to those relocated by the City. Blue Moonlight could not be expected indefinitely to provide free housing to the Occupiers, but its rights as property owner must be interpreted within the context of the requirement that eviction must be just and equitable. Eviction of the Occupiers would be just and equitable under the circumstances, if linked to the provision of temporary accommodation by the City.
Legal analysis
The South African constitutional order recognises the social and historical context of property and related rights. The protection against arbitrary deprivation of property in section 25 of the Constitution is balanced by the right of access to adequate housing in section 26(1) and the right not to be evicted arbitrarily from one‘s home in section 26(3).
It must be accepted that state resources for housing in any country – and particularly in South Africa – are limited. Section 26(2) recognises this by stating that reasonable legislative and other measures must be taken within available resources. Because the demand necessarily exceeds the availability of resources, any housing policy will have to differentiate between categories of people and to prioritise. The differentiation needs to be scrutinised, however, said the CC.
The present challenge dealt with section 9(1) and section 26(2) of the Constitution. The concepts of rationality and reasonableness were thus central. A policy which is irrational could hardly be reasonable. (Whether a policy which meets the requirements for rationality would necessarily be reasonable did not have to be decided here.) On the matter of the right of access to adequate housing, of which the provision of temporary or emergency accommodation is a part, the question is essentially one of reasonableness. The availability of resources is an important factor in determining the reasonableness of the measures employed to achieve the progressive realisation of the right. This does not mean that the state may arbitrarily decide which measures to implement. The measures taken must be reasonable. While there will be a range of possible measures that may be reasonable and the Court will not set aside a policy for the mere reason that other measures may have been more desirable or favourable, the enquiry must still take place.
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The question is whether it is reasonable for a local government’s policy to differentiate within the category of emergencies between people relocated by the City and those evicted by private landowners, and inflexibly to include the first but exclude the second group. In Grootboom, the CC held that a reasonable housing programme cannot disregard those who are most in need. A programme that leaves out the most desperate and vulnerable, even if conceived with the best of intentions, will fail to respond to the actual circumstances that section 26 is intended to ameliorate. By drawing a rigid line between persons relocated by the City and those evicted by private landowners, the City excluded from the assessment (of whether emergency accommodation should be made available) the individual situations of the persons at risk and the reason for the eviction. Once an emergency of looming homelessness is created, said the CC, the identity of the evictor matters little to the evicted. The policy did not meaningfully and reasonably allow for the needs of those affected to be taken into account.
A court must consider an open list of factors in the determination of what is just and equitable. The relevant factors to be taken into account in this case were the following: The Occupiers had been in occupation for more than six months. Some of them had occupied the property for a long time. The occupation was once lawful. Blue Moonlight was aware of the Occupiers when it bought the property. Eviction of the Occupiers would render them homeless. There was no competing risk of homelessness on the part of Blue Moonlight, as there might be in circumstances where eviction is sought to enable a family to move into a home. It could reasonably be expected that when land is purchased for commercial purposes, the owner, who is aware of the presence of occupiers over a long time, must consider the possibility of having to endure the occupation for some time. Of course, a property owner cannot be expected to provide free housing for the homeless on its property for an indefinite period. But in certain circumstances an owner may have to be somewhat patient, and accept that the right to occupation may be temporarily restricted, as Blue Moonlight‘s situation in this case had already illustrated. An owner‘s right to use and enjoy property at common law can be limited in the process of the justice and equity enquiry mandated by PIE.
The CC held that Chapter 12 of the National Housing Code must be interpreted in light of the relevant constitutional and statutory framework of which it is a part. Section 9 of the Housing Act requires municipalities to take all reasonable and necessary steps to ensure access to adequate housing. Sections 4(1) and 8(2) of the Municipal Systems Act empower municipalities with a degree of general, financial and institutional autonomy to carry out their functions, and section 4(2) places the duty on them to provide for the democratic governance and efficient provision of services to their communities. Section 4(2)(j) requires them to contribute, together with other organs to state, to the progressive realisation of the fundamental rights contained in sections 24, 25, 26, 27 and 29 of the Constitution. It would hardly be possible, said the CC, for the City to carry out its constitutional and legislative obligations without being entitled or obliged to fund itself in the sphere of emergency
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housing.
The City’s interpretation of Chapter 12 was premised on its view that local government is not primarily responsible for the achievement of the right of access to adequate housing. Its reliance on Grootboom was misplaced though, said the CC. While Yacoob J for the (unanimous) CC in Grootboom described the constitutional distribution of housing roles amongst the three governmental spheres, he did not delineate absolute and inflexible divisions of governmental responsibilities among the three spheres.
The City’s submission that national or provincial government is the primary duty-‐bearer in relation to funding emergency housing was cogent only to the extent that, but for the existence of a national emergency housing policy and budget, the attempt of a local authority to fulfil the right of access to adequate housing would be empty. The CC held that there is no basis in Grootboom for the assertion that local government is not entitled to self-‐fund, especially in the realm of emergency situations in which it is best situated to react to, engage with and prospectively plan around the needs of local communities, held the CC. Besides its entitlement to approach the province for assistance, the City has both the power and the duty to finance its own emergency housing scheme.
The CC found that, whereas differentiation between emergency housing needs and housing needs that do not constitute an emergency might well be reasonable, the differentiation made by the City’s policy was not. The exclusion was unreasonable. To the extent that eviction may result in homelessness, it is of little relevance whether removal from one’s home is at the instance of the City or a private property owner. The policy follows from the City’s incorrect understanding of its obligations under Chapter 12 and its claim that it lacked resources.
The differentiation in the City’s policy violated section 9(1) of the Constitution, which provides that everyone is equal before the law and has the right to equal protection and benefit of the law. The differentiation in the policy bore no rational connection to the City’s legitimate purpose of providing temporary accommodation to those who are vulnerable and most in need. Further, the City’s inflexible approach undermined the Occupiers’ right to dignity, a founding value and right entrenched in section 10 of the Constitution.
The Municipality’s emergency housing policy provided for assistance to persons it evicted from unsafe buildings, but failed to provide similar assistance to persons evicted from such buildings by private landowners. The policy unreasonably failed to take into account the personal circumstances of affected individuals and was, accordingly, held to be unconstitutional. The City’s housing policy was unconstitutional to the extent that it excluded the Occupiers and others similarly evicted from consideration for temporary accommodation.
2. Remedy chosen and reasons provided
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It was common cause that Blue Moonlight was the owner, that the Occupiers’ occupation was unlawful and that they have occupied the property for more than six months. The High Court and the Supreme of Appeal held that Blue Moonlight had complied with the requirements of PIE and was entitled to an eviction. The crucial question before the CC was therefore whether it was just and equitable to evict the Occupiers, considering all the circumstances, including the availability of other land, as well as the date on which the eviction should take place.
A just and equitable remedy
In order to conclude whether eviction by a particular date would in the circumstances of this case be just and equitable, it was mandatory to consider whether land had been made available or could reasonably be made available. The City‘s obligations are material to this determination. The duty regarding housing in section 26 of the Constitution falls on all three spheres of government – local, provincial and national – which are obliged to co-‐operate in order to meet this obligation. In Grootboom, the CC had made it clear that a co-‐ordinated state housing programme must be a comprehensive one determined by all three spheres of government in consultation with each other. Each sphere of government must accept responsibility for the implementation of particular parts of the programme. In the present matter, the national and provincial spheres of government were not before the Court, but only the City‘s obligations were at issue, although the City argued that its role was ‘a secondary and limited one, especially in view of Chapter 12 of the Housing Code’.
Chapter 12 provides for assistance to people who find themselves in need of emergency housing for reasons beyond their control. Included in the definition of an emergency is the situation where people are ‘evicted or threatened with imminent eviction from land or from unsafe buildings, or situations where pro-‐active steps ought to be taken to forestall such consequences’.
It was emphasised that this case concerned temporary relief in an emergency as defined in Chapter 12 and not permanent housing. A remedy must be formulated. The order of the SCA required the Occupiers to vacate the premises on a specific date. It also declared the City‘s policy unconstitutional. It had ordered the City to provide temporary emergency accommodation to the Occupiers. The SCA’s order did not link the date of eviction to a specified date on which the City had to provide the accommodation. Thus, from the date of eviction until the date on which the City provided emergency housing, the Occupiers could have found themselves homeless. This could persist for a long time.
The relief sought in the Occupiers’ cross-‐appeal therefore had to be considered in order not to render them homeless. The date of eviction had to be linked to a date on which the City had to provide accommodation. Requiring the City to provide accommodation 14 days
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before the date of eviction would, the Court reasoned, allow the Occupiers some time and space to be assured that the order to provide them with accommodation was complied with and to make suitable arrangements for their relocation. Although Blue Moonlight could not be expected to be burdened with providing accommodation to the Occupiers indefinitely, a degree of patience should be reasonably expected of it and the City had to be given a reasonable time to comply. The date should not follow too soon after the date of the judgment. The City’s appeal had to be dismissed.
The Occupiers’ cross-‐appeal had to succeed to the extent that eviction must be ordered, but the City had to provide the Occupiers with temporary accommodation on a date linked to the date of eviction. The Occupiers’ submissions in support of a structural interdict against the City in their written argument were neither persuasive, nor seriously pursued during oral argument. In this respect the cross-‐appeal could not succeed.
3. Order of the court
The following was ordered:
(a) The application for leave to appeal was granted.
(b) The appeal was dismissed.
(c) The application for leave to cross-‐appeal was granted.
(d) The cross-‐appeal was upheld to the extent set out below.
(e) Paragraphs 5.1 to 5.4 of the order of the Supreme Court of Appeal were set aside and replaced with the following:
(i) The Occupiers are evicted from the property situated at Saratoga Avenue, Johannesburg.
(ii) The Occupiers are ordered to vacate the property by no later than 15 April 2012, failing which the eviction order may be carried out.
(iii) The housing policy of the City of Johannesburg Metropolitan Municipality is declared unconstitutional to the extent that it excludes the Occupiers and other persons evicted by private property owners from consideration for temporary accommodation in emergency situations.
(iv) The City of Johannesburg Metropolitan Municipality must provide certain listed Occupiers with temporary accommodation in a location as near as possible to the area where the property is situated on or before 1 April 2012, provided that they are still resident at the property and have not voluntarily vacated it.
(f) The applicant was ordered to pay the costs in this Court of the first and second
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respondents, including the costs of two counsel.
City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd & Others
(338/10) [2011] ZASCA 47; 2011 (4) SA 337 (SCA); [2011] 3 All SA 471 (SCA); (30 March 2011)
*Housing
1. Content of the right as determined by the court
The right of access to adequate housing cannot be seen in isolation. It has to be seen in the light of its close relationship with other socio-‐economic rights, all read together in the setting of the Constitution as a whole. It is irrefutable that the State is obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerably inadequate housing. What was in dispute in the present case, as is frequently the case in disputes concerning housing, is the extent of the State’s obligation in this regard. This usually telescoped into an enquiry concerning the State’s resources to meet its constitutional obligations.
In the present matter, the inflexible application of the City’s policy subjected the occupiers to continued violation of their dignity because its effect was that they were rendered homeless on eviction and vulnerable to eviction wherever they went because they were, on the uncontested evidence, unable to afford other accommodation.
A municipality has a constitutional duty to provide emergency temporary shelter to desperately poor people evicted from a private building. Local authorities fulfil an important role in the progressive realisation of right of access to adequate housing. On the facts, the municipality had the resources to provide emergency temporary shelter. There is no bar to using ratepayer contributions to provide emergency temporary shelter to longstanding residents who otherwise would be forced onto public spaces.
The Court in the present matter said: ‘Proportionality is a constitutional watchword. In dealing with the interrelated issues of the limits of judicial intrusion and the reality of available resources, balanced against the assertion of socio-‐economic rights, a court’s role can rightly be described as ‘the art of the possible’.’ In Grootboom the Constitutional Court, in the context of the right of access to adequate housing, held that ‘the real question in terms of our Constitution is whether the measures taken by the State to realise the right afforded by section 26 are reasonable’.
(There was no need to enquire whether the City’s policy was nonetheless a reasonable and justifiable infringement of the right to equality in terms of section 36(1) of the Constitution because the City’s policy was not a ‘law of general application’.)
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Legal analysis
As stated in Grootboom, the precise form of the State’s obligation to provide housing depends on the context within which the right is asserted by an aggrieved citizen. The CC held in Grootboom that subsections (1) and (2) of section 26, being related, need to be read together: the first defines the scope of the right, while the second 'speaks to the positive obligation imposed upon the State'. The CC in Grootboom proceeded to say: 'It requires the State to devise a comprehensive and workable plan to meet its obligations in terms of the subsection. However subsections (2) also makes it clear that the obligation imposed upon the State is not an absolute or unqualified one. The extent of the State's obligation is defined by three key elements that are considered separately: (a) the obligation to "take reasonable legislative and other measures"; (b) "to achieve the progressive realisation" of the right; and (c) "within available resources".'
Section 26(2) obliges the State ‘in all its guises’ to take reasonable legislative and other measures ‘within its available resources’, to achieve the progressive realisation of the right of access to adequate housing. Whatever the precise parameters of the term ‘the State’ may be, there can be no doubt that for purposes of the Bill of Rights and section 26 of the Constitution, in particular, it includes the local sphere of government. Furthermore, the Constitutional Court has made it clear, in Olivia Road, that the City owes those who live within its precincts certain obligations. In that matter, the Court stated:
‘The city has constitutional obligations towards the occupants of Johannesburg. It must provide services to communities in a sustainable manner, promote social and economic development, and encourage the involvement of communities and community organisations in matters of local government. It also has the obligation to fulfil the objectives mentioned in the preamble to the Constitution to “[i]mprove the quality of life of all citizens and free the potential of each person”. Most importantly it must respect, protect, promote and fulfil the rights in the Bill of Rights.’
Later in that judgment the Court had stated, in the context of the interplay between ensuring safe buildings and preventing homelessness, that ‘the city has a duty to ensure safe and healthy buildings on the one hand and to take reasonable measures within its available resources to make the right of access to adequate housing more accessible as time progresses on the other’.
In Port Elizabeth Municipality v Various Occupiers, the CC had made the point that, generally speaking, courts should be reluctant to grant eviction orders against persons who are ‘relatively settled’ in the absence of reasonable alternative accommodation for them ‘even if only as an interim measure pending ultimate access to housing in the formal housing programme’. In that matter the Court had proceeded to state:
‘The availability of suitable alternative accommodation will vary from municipality to
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municipality and be affected by the number of people facing eviction in each case. The problem will always be to find something suitable for the unlawful occupiers without prejudicing the claims of lawful occupiers and those in line for formal housing. In this respect, it is important that the actual situation of the persons concerned be taken account of. It is not enough to have a programme that works in theory. The Constitution requires that everyone must be treated with care and concern; if the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test. In a society founded on human dignity, equality and freedom, it cannot be presupposed that the greatest good for the many can be achieved at the cost of intolerable hardship for the few, particularly if, by a reasonable application of judicial and administrative statecraft, such human distress could be avoided.’
The legislative framework appears in large measure to be designed to give effect to the obligations referred to in Grootboom in a co-‐ordinated manner. It is clear from that framework that each sphere of government has obligations imposed on it in respect of the right of access to adequate housing; that they are required to work together ─ as one would expect in a system predicated on principles of co-‐operative government ─ to ‘achieve the progressive realisation of this right’; and that each sphere is an independent bearer of the obligation. From this, and the legislative scheme as a whole, we conclude that the City’s obligations to the occupiers is not derivative, as was argued on its behalf, but direct and that the City has the authority to fund its own housing programme and administer its own housing policy from its own resources as well as from the national and provincial spheres of government, within the parameters of the national housing policy.
A further foundational value was involved, namely, the right to dignity entrenched in section 10 of the Constitution. This section provides that ‘everyone has inherent dignity and the right to have their dignity respected and protected’. The importance of dignity ─ particularly in the light of our history ─ was emphasised by O’Regan J in S v Makwanyane & Another when she stated that recognition of the right to dignity ‘is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern’.
In Grootboom, within the specific context of the right of access to adequate housing, the Constitutional Court had made the point that the ‘Constitution would be worth infinitely less than its paper if the reasonableness of State action concerned with housing is determined without regard to the fundamental constitutional value of human dignity’.
2. Remedy chosen and reasons provided
The structural interdict ordered by the HC was persisted in before the SCA. However, counsel for the occupiers conceded that the setting aside of the unconstitutional aspect of the policy coupled with an order that obliged the City to house the occupiers in temporary emergency accommodation en route to the ultimate realisation of permanent
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accommodation would mean that they had succeeded in their primary objective. Questioned by the court about the need for the structural interdict, counsel was unable to persuade us that it was necessary. The SCA was of the view that the structural interdict would serve no purpose and, that being so, it could not be said to be relief which was appropriate.
The HC made a compensation order for ‘constitutional damages’ in favour of the owner of Blue Moonlight, and awarded a stipend to the owner as rental for the Occupiers’ continued occupation. The SCA regarded the compensation order as ‘far-‐reaching’. It was ostensibly modelled on the decision of this court in Modderklip3.
In the present matter, the SCA was of the view that the peculiar facts of Modderklip rendered it distinguishable. First, in Modderklip the compensation order was made not, as in this case, as an ancillary to an eviction order but after an eviction order had been granted and ignored by the 40 000 unlawful occupiers of Modderklip Boerdery’s land. Secondly, compensation was ordered because the State had violated the fundamental rights of Modderklip Boedery by failing to assist it to execute the eviction order which, in view of the large number of occupiers who had invaded the land, Modderklip Boerdery was unable to do on its own. There was no question that, in this case, Blue Moonlight would be able to execute an eviction order if it had to. Thirdly, because of the large number of persons on the land, their eviction was, for all practical purposes, impossible to achieve and that left Modderklip Boerdery without the use and enjoyment of its land and, as stated above, with compensation as the only viable and hence appropriate remedy. Once again, the facts of this case were very different and there is no suggestion that Blue Moonlight cannot evict the occupiers if it has to. Finally, Modderklip Boerdery was the innocent victim of a land invasion and it took all reasonable steps – and did so expeditiously – to safeguard its interests. In this case, Blue Moonlight bought the property in the full knowledge that it was occupied by a number of persons.
Consequently, Modderklip certainly was not authority for the proposition that an award of constitutional damages is always available, or ordinarily appropriate, as a remedy whenever a fundamental right has been breached.
The granting of the stipend to the occupiers, albeit in the alternative, was itself also extraordinary. It had no basis in law that the SCA could discern and, if allowed to stand, would have had the potential to serve as a precedent for abuse by unscrupulous landlords who might see the State as a default source of rental income. It, like the compensation order, was relief which was not appropriate.
3 Modder East Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal
Resources Centre, Amici Curiae); President of the Republic of South Africa and others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) (187/03 and 213/03) [2004] ZASCA 47; 2004 (8) BCLR 821 (SCA); [2004] 3 All SA 169 (SCA) (27 May 2004).
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The CC said that it was ‘mindful of the doctrine of the separation of powers and the limits of judicial intrusion into the domains of other branches of government’. It was, however, ‘compelled to give effect to the rights being asserted before [it] and to the extent that this may take [it] into the City’s administrative system, it was of the view that it was in intrusion that was ‘mandated by the Constitution’. In Minister of Health & others v Treatment Action Campaign & others (No 2) the Constitutional Court held:
‘The primary duty of Courts is to the Constitution and the law, “which they must apply impartially and without fear, favour or prejudice”. The Constitution requires the State to “respect, protect, promote, and fulfil the rights in the Bill of Rights”. Where State policy is challenged as inconsistent with the Constitution, Courts have to consider whether in formulating and implementing such policy the State has given effect to its constitutional obligations. If it should hold in any given case that the State has failed to do so, it is obliged by the Constitution to say so. Insofar as that constitutes an intrusion into the domain of the Executive that is an intrusion mandated by the Constitution itself.’
3. Order of the court
Order
The order of the court below was set aside and substituted as follows:
‘1. The first respondent and all persons occupying through them (collectively ‘the Occupiers’) are evicted from the immovable property situated at Saratoga Avenue, Johannesburg;
2. The Occupiers are ordered to vacate by no later than 1 June 2011, failing which the Sheriff of the Court is authorised to carry out the eviction order;
3. The City’s housing policy, to the effect that it only provides temporary emergency accommodation to those evicted from unsafe buildings by the City itself or at its instance, in terms of the National Building Regulations and Building Standards Act 103 of 1977 is declared unconstitutional to the extent that it excludes the occupiers from consideration for such accommodation;
4. The City shall provide those surveyed and listed occupiers and those occupying through them, with temporary emergency accommodation as decant [sic: ‘decent’?] in a location as near as feasibly possible to the area where the property is situated, provided that they are still resident at the property and have not voluntarily vacated it;
5. The City is ordered to pay Blue Moonlight’s costs and the costs of the Occupiers, including the costs of two counsel.’
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Joseph & Others v City of Johannesburg & Others
(CCT 43/09) [2009] ZACC 30; 2010 (3) BCLR 212 (CC) ; 2010 (4) SA 55 (CC) (9 October 2009)
*Housing / Electricity
1. Content of the right as determined by the court
The provision of basic municipal services is a cardinal function, if not the most important function, of every municipal government. The central mandate of local government is to develop a service delivery capacity in order to meet the basic needs of all inhabitants of South Africa, irrespective of whether or not they have a contractual relationship with the relevant public service provider.
The City and City Power appropriately accepted that the provision of electricity is one of those services that local government is required to provide. In Mkontwana,4 Yacoob J held that “municipalities are obliged to provide water and electricity to the residents in their area as a matter of public duty.”5 Electricity is one of the most common and important basic municipal services and has become virtually indispensable, particularly in urban society. The obligations borne by local government to provide basic municipal services are sourced in both the Constitution (section 152 and 153) and legislation (Local Government: Municipal Systems Act, 32 of 2000; and Section 9(1)(a)(iii) of the Housing Act, 107 of 1997), which imposes a specific obligation on municipalities to provide basic municipal services, including electricity.
The right to administrative justice requires an interpretation of rights under section 3(1) of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA), which makes clear that the notion of “rights” includes not only private law rights that may arise and vest in terms of a contract, but also legal entitlements that have their basis in constitutional and statutory obligations of government. Municipalities are at the forefront of government interaction with citizens. Compliance by local government (and parastatals such as City Power) with its procedural fairness obligations is crucial not only for the protection of citizens’ rights and administrative efficiency, but also to facilitate trust in the public administration and in South Africa’s participatory democracy. The preamble of PAJA gives expression to the role of administrative justice and provides that the objectives of PAJA are inter alia to “promote an efficient administration and good governance” and to “create a culture of accountability, openness and transparency in the public administration or in the exercise of a public power or the performance of a public function”.
4 Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v Buffalo City
Municipality and Others; Transfer Rights Action Campaign and Others v MEC, Local Government and Housing, Gauteng, and Others (KwaZulu-‐Natal Law Society and Msunduzi Municipality and Amici Curiae) [2004] ZACC 9; 2005 (1) SA 530 (CC); 2005 (2) BCLR 150 (CC).
5 Emphasis in CC’s Joseph judgment at para 34.
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When City Power supplied electricity to the building in question, it did so in fulfilment not only of the terms of a contract with the landlord, but also of the constitutional and statutory duties of local government to provide basic services to all persons living within its jurisdiction. When the residents (including the Applicants) received electricity, they did so by virtue of their corresponding public law right to receive this basic municipal service. The fact that they did not have a direct contractual relationship with either the City or City Power did not change their public law rights. In depriving them of a service which they were already receiving as a matter of right, City Power was obliged to afford them procedural fairness before taking a decision which would ‘materially and adversely’ affect their enjoyment of that right. Notice to the residents would not undermine the City Power’s ability to provide an efficient service.
For the notice to be ‘adequate’ it had to contain all relevant information, including the date and time of the proposed disconnection, the reason for the proposed disconnection, and the place at which the affected parties could challenge the basis of the proposed disconnection. It also had to afford the Applicants sufficient time to make any necessary enquiries and investigations, to seek legal advice and to organise themselves collectively if they so wished. At a minimum, the Court considered that 14 days’ pre-‐termination notice would be fair, and would be consistent with the City’s Credit Control By-‐laws.
(The Court did not consider it necessary to apply Jaftha6 or to consider whether the termination of electricity supply constituted a retrogressive measure which violated the negative obligation to respect the right of access to adequate housing and which, consequently, materially and adversely affected their constitutional right to housing for the purposes of PAJA. The Court was also not persuaded that any rights that the Applicants may hold against their landlord in terms of their contract of lease had been affected by City Power’s decision to terminate the electricity supply to their building.)
2. Remedy chosen and reasons provided
As to the constitutional validity of the municipal by-‐laws regulating the supply of electricity, the Court held that the Credit Control and Debt Collection By-‐laws could be read consistently with PAJA so that procedural fairness was afforded to all City Power’s customers and also to any person whose rights would be materially and adversely affected by the termination of electricity supply.
The supply of electricity was also regulated by the City’s Electricity By-‐laws. To the extent that these By-‐laws permitted the termination of electricity supply “without notice”, they were inconsistent with the requirements of PAJA and section 33 of the Constitution, which establishes the right to just and fair administrative action.
6 Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005
(1) BCLR 78 (CC) at para 34.
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By-‐law 14(1) of the Electricity By-‐laws was declared invalid to the extent that pre-‐termination notice to “customers” was not mandatory. To the extent that by-‐law 15(3) of the Credit Control By-‐Laws limits the right to pre-‐termination notice to “customers”, the by-‐law must be read with by-‐law 15(4)(d) and in the light of PAJA to extend the right to mandatory pre-‐termination notice to any person whose rights may be materially and adversely affected by the termination.
The inconsistency between the City’s Electricity By-‐Laws and the constitutional and statutory standard could be cured by severing the words “without notice” from by-‐law 14(1) of the Electricity By-‐law, which had to be read in the light of PAJA so as to require pre-‐termination notice.
3. Order of the court
The following order was made:
(1) The application for leave to appeal was granted.
(2) The appeal was upheld and the order of the South Gauteng High Court, Johannesburg in Darries and Others v City of Johannesburg and Others, delivered on 3 April 2009 under Case No 08/22689, was set aside.
(3) The termination of electricity supply to Ennerdale Mansions on 8 July 2008 is declared to be unlawful.
(4) The respondents are ordered to reconnect the electricity supply to Ennerdale Mansions forthwith.
(5) The words “without notice” in by-‐law 14(1) of the Greater Johannesburg Metropolitan Council: Standardisation of Electricity By-‐laws (Provincial Gazette (Gauteng), GG 16 GN 1610, 17 March 1999), published in terms of section 101 of the Local Government Ordinance 17 of 1939, were declared to be unconstitutional and invalid and are severed from by-‐law 14(1).
(6) The respondents were ordered to pay the costs of the applicants in both the High Court and in this Court, such costs to include the costs consequent upon the employment of two counsel.
City of Johannesburg v Rand Properties (Pty) Ltd & Others
(253/06) [2007] ZASCA 25; [2007] SCA 25 (RSA) ; [2007] 2 All SA 459 (SCA) ; 2007 (6) SA 417 (SCA) (26 March 2007)
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*Housing
1. Content of the right as determined by the court
Background
The High Court’s (HC) basic hypothesis was that the State has a ‘minimum core’ obligation in respect of housing (without distinguishing between the right to housing, the right to adequate housing and the right of access to adequate housing). From that premise it had reasoned that the right of access to adequate housing includes the negative right to remain in occupation of unsafe (‘inadequate’) housing. The HC also held that the Constitution provides an overriding discretion to courts whether or not to evict, irrespective of other statutory provisions. Lastly, it held that the respondents were entitled to be adequately housed by organs of state in the inner city because that was where they wished to try to earn a living.
Findings
The SCA stated that section 26 must be read in context and with section 27, which deals with health care, food, water and social security. Section 26 must also be seen in the broader context: It reinforces other human rights such as the right to dignity, equality and freedom. While section 26 is based on those rights and on international standards, it is not ‘co-‐terminous’ with the right to housing contained in the international instruments [an extract is mentioned below] that speak of a right to ‘adequate housing’, whereas section 26(1) is limited to a right of ‘access to adequate housing’. The international instruments also speak of a ‘minimum core’ to which everyone in need is entitled, whereas, said the SCA, ‘the underlying assumption of the Constitution is that it does not guarantee a minimum core’.7
Section 26(1) has a positive and negative aspect, observed the SCA. The positive duty on the State is circumscribed by subsection (2), which acts as an internal limitation on the content and ambit of subsection (1). The effect is that the obligation imposed on the State is not absolute or unqualified8 but that the extent of its obligation is defined by three key elements that have to be considered separately: (a) the obligation to ‘take reasonable legislative and other measures’; (b) ‘to achieve the progressive realisation’ of the right; and (c) ‘within available resources.’9 The negative aspect of section 26(1) is the ‘obligation placed upon the State and all other entities and persons to desist from preventing or impairing the right of access to adequate housing.’10
7 Government of the RSA v Grootboom 2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC) para 33; Minister of
Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC), 2002 (10) BCLR 1033 (CC) para 26 et seq [ie ff] especially para 35.
8 Cf [ie ‘but see] Khoza v Minister of Social Development 2004 (6) SA 505 (CC), 2006 (6) BCLR 569 (CC)para 43. 9 Grootboom para 38. 10 Grootboom para 34. The SCA observed that this obligation is there referred to as a negative obligation, but
it appeared to the SCA to be a positive obligation. It had the same problem with the statement that the
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Although everyone has the right of access, the State may ‘interfere’ with that right if it would be justifiable to do so.11 Even though the Constitutional Court has12 as yet not delineated the negative content of subsection (1), any measure that permits a person to be deprived of ‘existing access to adequate housing’ limits the rights protected in subsection (1) although the limitation may be justified under section 36.13
Subsection (3) prohibits (a) any eviction without an order of court; (b) any court order granted without a consideration of all the relevant circumstances; and (c) any legislation that permits ‘arbitrary’ evictions. Its effect is threefold. First, it does not sanction arbitrary seizure of land and it therefore creates a defensive rather than an affirmative right. Secondly, it expressly acknowledges that eviction from homes in informal settlements may take place, ‘even if it results in loss of a home’ because there is ‘no unqualified constitutional duty on local authorities to ensure that in no circumstances should a home be destroyed unless alternative accommodation or land is made available.’14 Thirdly, the requirement that a court has to take into account all relevant circumstances underlines how non-‐prescriptive the provision was intended to be.15
The questions not yet addressed by the Constitutional Court are the meaning of ‘relevant circumstances’ and whether a court has a general discretion after having considered the ‘relevant circumstances’. A statute such as PIE, which follows the wording of subsection (3) by requiring a consideration of all the relevant circumstances, but adds that the court must in addition consider whether it would be ‘just and equitable’ to grant the order, ‘no doubt gives the court a discretion based on what is just and equitable’, said the SCA. But, as has been pointed out by the SCA in Brisley v Drotsky,16 when an eviction application is not covered by PIE, a court does not, without more, have a discretion based on what is just and equitable. What is required is a consideration of all legally relevant factors. The SCA had recognised that where a state organ wishes to evict, the state’s obligations under subsection (1) and (2) may possibly and in particular circumstances place a limitation on the right of eviction.
The SCA therefore held that the Constitution does not confer on a person the right to housing at State expense at a location of that person’s choice (in the present case, in the inner city). Depriving a person of unsafe housing does not amount to a denial of the right of access to adequate housing. Nevertheless, organs of state have a special duty to persons without access to land, without a roof over their head and who were living in intolerable
prohibition against eviction in ss (3) creates a ‘negative’ right. However, nothing turned on this semantic debate.
11 Jaftha v Schoeman 2005 (2) SA 140 (CC) para 28. 12 At least at the time of the judgment in the present matter. 13 Jaftha para 34. 14 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC), 2004 (12) BCLR 1268 (CC) para 28. 15 Port Elizabeth Municipality paras 20-‐22. 16 2002 (4) SA 1 (SCA), 2002 (12) BCLR 1229 (SCA) paras 38 and 42.
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conditions and in crisis situations. Eviction triggers, at the very least, an obligation resting on a local authority such as the City to provide emergency and basic shelter to any affected person such as the residents.
A notice in terms of section 12(4)(b) of the National Building Regulations and Building Standards Act 103 of 1977, for eviction from a dangerous building was neither unconstitutional nor otherwise unlawful. The obligation on the occupiers to comply with the notice was not dependent upon their being provided with alternative accommodation even if the effect of complying with the notice would be that they were left without access to adequate housing.
2. Remedy chosen and reasons provided
The HC had found after an inspection in loco that the condition of the buildings concerned was ‘appalling, abysmal and at times disgraceful; that the occupants were in an emergency situation; and that there existed fire and health hazards’. As far as the residents/occupiers were concerned, the court held (based on the allegations in the papers) that ‘many of them had been in occupation for a substantial period; that they were desperately poor; that most of them had no formal employment; and that many of them had no income’.
This case was only peripherally about the constitutional duty of organs of state towards those who are evicted from their homes and are in a desperate condition. The central dispute was rather whether the City is precluded from exercising its powers to order persons to vacate unsafe buildings unless it first provides them (or at least tenders to provide them) with adequate alternative housing. A subsidiary question that arises if the earlier question is answered against the City is whether such alternative housing must be within the inner city itself.
The court found that the powers of the City to order the vacation of unsafe buildings are not dependent upon its being able to offer alternative housing to the occupants. But it also found that the eviction of occupants triggers a constitutional obligation upon the City to provide at least minimum shelter to those occupants who have no access to alternative housing. It found further, on the facts, that the shelter that the City is obliged to provide need not necessarily be located within the inner city as demanded by the respondents.
Shortly before the launch of the application in this matter, the central government had issued its National Housing Programme (2004) in an apparent response to the judgment of the Constitutional Court in Grootboom. Chapter 12 of the National Housing Code dealt with housing assistance in emergency housing situations. The central government undertook to provide a grant to local authorities of some R24 000 per household to assist people who, for reasons beyond their control, found themselves in an emergency situation, for instance, because of the destruction of existing shelter, or because their prevailing situation posed an immediate threat to their life, health and safety, or if they were evicted or faced the threat
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of imminent eviction. According to the scheme, the funds have to be used by municipalities to provide land, the infrastructure for services, and shelter.
Before a municipality was entitled to any funds for emergency purposes, it is obliged to assess its requirements and to prepare a plan for submission to the relevant provincial authorities. It must then submit the necessary application to the province. The province has to assess the programme and once funds become available the municipality must implement the programme. The City had indeed filed a chapter 12 application on 22 December 2005 shortly before the hearing in the HC. Despite follow-‐up requests, the provincial authorities had not responded in any manner to the application.
In the circumstances, the City was obliged to provide emergency housing to the occupiers, but such housing need not be located within the city centre as demanded by the occupiers.
3. Order of the court
The order of the HC was set aside and replaced with an order in the following terms:
(i) Interdicting the occupiers from continuing to occupy the building in question;
(ii) Authorising their eviction should they remain in occupation;
(iii) Directing the City to provide the occupiers with minimum temporary alternative accommodation within its municipal area to those occupants who were evicted and who were desperately in need of housing assistance; and
(iv) Dismissing the remainder of the counter-‐application.
Port Elizabeth Municipality v Various Occupiers
(CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004)
*Housing
1. Content of the right as determined by the court
Background
In terms of section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (PIE), the Municipality (the Applicant) secured an order from the High Court (HC) for the eviction of various occupiers (the Respondents) – some 68 unlawful occupiers of various pieces of land within its jurisdiction. That Order was set aside on appeal to the SCA. The land in question was vacant land and the occupiers had been on that land for periods between two and eight years. Prior to the granting of the order, they indicated to the Municipality that they were prepared to vacate the land if they were provided with suitable alternative accommodation.
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The Municipality accepted that it was under an obligation to provide housing and had for that reason embarked on a comprehensive housing development programme. It contended that if alternative land was made available to the occupiers, they would effectively be ‘queue-‐jumping’; by occupying private land and, when asked to vacate it, demanding that they be provided with alternative accommodation, they would be disrupting the housing programme and forcing the Municipality to grant them preferential treatment.
A proposal made by the Municipality of alternative land in the area of Walmer was rejected by the occupiers because the proposed area was crime-‐ridden, and they would have no security of occupation there and would find themselves liable to yet further eviction. It was common cause that the occupiers had not applied to the Municipality for housing.
The SCA had overturned the eviction order granted by the HC on the grounds that the occupiers were not seeking preferential treatment in the sense that they were asking for housing to be made available to them in preference to people in the housing queue. They were merely requesting that land be identified where they could put up their shacks and where they would have some measure of security of tenure. The SCA held further that the important consideration in the present case was the availability of suitable alternative land. This was so because of the length of time that the occupiers had occupied the land, and, more importantly, because the eviction order was not sought by the owners of the property but by an organ of state on the owners’ behalf. The SCA held that given that on the papers it was unclear whether Walmer was land owned by the Municipality or privately owned, the HC should not have granted the order sought without assurance that the occupiers would have some measure of security of tenure at Walmer. It accordingly upheld the appeal and set aside the eviction order.
The Municipality then applied to the CC for leave to appeal against the decision of the SCA and to have the eviction order restored. It indicated that it was particularly concerned to secure a ruling from the CC that when it seeks eviction of unlawful occupiers it is not constitutionally bound to provide alternative accommodation or land.
CC findings
The Municipality in this matter had taken no action against the occupiers for years and had then acted precipitately to secure an eviction. The Municipality took only cursory steps to ascertain the circumstances of the occupiers, and to establish whether they had made any effort to apply for housing. It took no steps to seek to address the problems of the occupiers at all before launching eviction proceedings, despite the fact that the land was not needed by the owners or the Municipality, and despite the fact that the occupiers are a small group of people who have resided on the land for a considerable time.
Section 6(3) of PIE ‘Eviction at instance of organ of state’ provides—
‘In deciding whether it is just and equitable to grant an order for eviction, the court must
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have regard to—
(a) the circumstances under which the unlawful occupier occupied the land and erected the building or structure;
(b) the period the unlawful occupier and his or her family have resided on the land in question; and
(c) the availability to the unlawful occupier of suitable alternative accommodation or land.’
These three sets of circumstances that a court is obliged in terms of section 6(3) of PIE to take into consideration in deciding what is just and equitable, are peremptory but not exhaustive.
The CC held that under section 6 of PIE the court exercises a discretionary power to grant an eviction order if it was just and equitable to do so. In making that decision, the court had to take into account ‘all relevant circumstances’. The requirement in terms of section 6(3) that the court had to take into consideration the availability of suitable alternative accommodation was not an inflexible requirement. There is no unqualified constitutional duty on local authorities to ensure that an eviction is not executed unless alternative land or accommodation was made available. Courts should generally be reluctant, however, to grant an eviction order against relatively settled occupiers unless a reasonable alternative was available, even if only as an interim measure pending ultimate access to housing in the local authority’s formal housing programme. The existence of a formal housing programme was one of the considerations favouring a determination that an eviction order would be just and equitable.
In considering whether it is “just and equitable” to make an eviction order in terms of section 6 of the Act, the responsibilities that municipalities, unlike private owners of land or property, bear in terms of section 26 of the Constitution are relevant. As Grootboom indicates, municipalities have a major function to perform with regard to the fulfilment of the rights of all to have access to adequate housing. Municipalities, therefore, have a duty systematically to improve access to housing for all within their area. They must do so on the understanding that there are complex socio-‐economic problems that lie at the heart of the unlawful occupation of land in the urban areas of our country. They must attend to their duties with insight and a sense of humanity. Their duties extend beyond the development of housing schemes, to treating those within their jurisdiction with respect.
Section 26(3) of the Constitution and PIE act as an inversion of apartheid law, requiring unlawful occupiers to be treated with “dignity and respect”, not as “obnoxious social nuisances”. The Constitution has thus substantially altered the law relating to evictions by recognising that the “normal ownership rights of possession, use and occupation” are now
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offset by “a new and equally relevant right not arbitrarily to be deprived of a home”. Section 26(3) of the Constitution, Sachs J held “evinces special constitutional regard for a person’s place of abode” acknowledging that “a home is more than just a shelter from the elements. It is a zone of personal intimacy and family security.”
The court is required to balance and reconcile the opposing claims in as just a manner as possible, taking account of all of the interests involved and the specific factors relevant in each particular case. Unlawful occupation results in a deprivation of property under section 25(1). Deprivation might, however, pass constitutional muster by virtue of being mandated by law of general application and if not arbitrary. Therefore, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) allows for the eviction of unlawful occupiers only when it is just and equitable.
The CC recognised the concept of ubuntu as underlying the Constitution and PIE and that it is relevant to their interpretation – ‘Thus, PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern.’
The Constitution and the PIE Act do not provide that under no circumstances should a home be destroyed, but a court should be reluctant to conclude that an eviction would be just and equitable unless it is satisfied that a reasonable alternative is available, even if only as an interim measure pending access to permanent housing. Echoing Grootboom, Sachs J (for a unanimous Court) held that it was not enough to show that a municipality has in place a programme designed to house the largest number of people over the shortest period of time in the most cost-‐effective way. In addition to being statistically successful, a municipality must show that its housing programme is sufficiently flexible to respond to immediate housing need. If that cannot be demonstrated through the ability to make land available to relatively settled occupiers facing eviction, then an eviction order can be refused. Where the need to evict people arises, some attempts to resolve the problem before seeking a court order will ordinarily be required.
2. Remedy chosen and reasons provided
As to the requirement that the court had to be fully apprised of ‘all the relevant circumstances’ (section 6(1)) before it could ‘have regard to’ (section 6(3)) them, the Court held that although it was incumbent on all the interested parties to make all relevant
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information to the Court, technical questions relating to the onus of proof did not play an unduly significant role in its enquiry. In securing the necessary information, the Court was entitled to look beyond the facts established on the basis of the papers lodged with the Court. Indeed, where the evidence left important questions of fact obscure, contested or uncertain, the Court may be obliged to procure ways of establishing the true state of affairs so as to enable it to properly ‘have regard’ to ‘all the relevant circumstances’.
Consequently, the Court was called upon to go beyond its normal functions and to engage in active judicial management, according to equitable principles, of an on-‐going, stressful and law-‐governed social process. This has major implications for the manner in which the Court deals with issues placed before it, how it approaches evidence, the procedures it may adopt, the way in which it exercises its powers and the orders it can make.
Given the special nature of competing interests involved in eviction proceedings under s 6 of PIE, it would not, in the absence of special circumstances, ordinarily be just and equitable to order eviction if proper discussions and, where appropriate, mediation, have not been attempted. One of the relevant circumstances in determining whether an eviction order would be just and equitable is whether mediation had been tried. In appropriate circumstances, the court can order mediation.
[Comment: The power of PE Municipality lies in its fusion of the conception of justice and equity under the PIE Act, and the constitutional requirement of reasonableness set out in Grootboom. According to PE Municipality, whether it is just and equitable to order an eviction under the PIE Act will normally depend on whether an occupier can find alternative accommodation and, if not, whether the state has taken reasonable measures to make accommodation available to occupiers who are unable to provide it for themselves.17]
3. Order of the court
In the present matter, it was no longer appropriate to order mediation, but neither was it just and equitable to order eviction of the occupiers. The CC indicated, apparently informally, that its decision in no way precluded further efforts to find a solution to a situation that was manifestly unsatisfactory to all concerned. In such cases, it is particularly important that the Municipality not appear to be aligned with one side or the other. It must show that it is equally accountable to the occupiers and to the landowners. Its function is to hold the ring and to use what resources it has in an even-‐handed way to find the best possible solutions. If it cannot itself directly secure a settlement, it should promote a solution through the appointment of a skilled negotiator acceptable to all sides, with the understanding that the mediation proceedings would be privileged from disclosure.
The Municipality’s application for leave to appeal failed and it was ordered to pay the costs
17 Evictions and Alternative Accommodation in South Africa: An Analysis of the Jurisprudence and Implications
for Local Government, Socio-‐Economic Rights Institute (2014) at p15.
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of the respondents, including the costs of two counsel.
Modder East Squatters & Another v Modderklip Boerdery (Pty) Ltd; President of the RSA & Others v Modderklip Boerdery (Pty) Ltd
(187/03 and 213/03) [2004] ZASCA 47; 2004 (8) BCLR 821 (SCA); [2004] 3 All SA 169 (SCA) (27 May 2004)
*Housing
1. Content of the right as determined by the court
Background
Soon after the adoption of the Emergency Housing Programme, adopted in terms of Chapter 12 of the National Housing Code of 2004, the Supreme Court of Appeal (SCA) considered the interaction between the right of access to adequate housing in section 26 of the Constitution and landowners’ property rights in section 25 of the Constitution in this far-‐reaching case. The SCA’s judgment was later confirmed by the Constitutional Court.18
The Modderklip case dealt with the plight of 400 people who were evicted in May 2000 from the Chris Hani informal settlement that was situated on municipal-‐owned land. Having nowhere else to go, they moved onto a portion of the farm known as Modderklip Boerdery. By October 2000 the settlement had swelled to include over 4 000 informal shelters inhabited by approximately 18 000 people. At this point, the owner approached the High Court seeking an eviction order against the occupiers. The eviction order was granted.
However, by the time the order became executable, the informal settlement had grown significantly to roughly 40 000 occupiers in what became known as the Gabon Informal Settlement. The massive size of the settlement meant that the cost of executing the eviction order would have been around R1,8 million, substantially more than the land itself was worth. The owner therefore brought a further application in the High Court to compel the state to execute the eviction order on its behalf. The High Court granted this enforcement order, finding that the state was in breach of its constitutional obligation to protect property rights by failing to effectively execute the order. The High Court thus found that the continued unlawful occupation on the owner’s land despite an eviction order was a serious deprivation of the private property owner’s rights.
SCA findings
Both the eviction order and the enforcement order were appealed to the SCA. In that Court, Harms JA held that the continued occupation by the unlawful occupiers in the face of an eviction order amounted to an infringement of the owner’s property rights. Moreover, the 18 President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC) (Modderklip (CC)).
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Court considered the eviction of the unlawful occupiers in circumstances where they would effectively be rendered homeless to constitute a breach of what “limited” right of access to adequate housing they had realised for themselves.
Significantly, the Court stated that the real issue in the case was the failure on the part of the state to take any steps to provide alternative accommodation to the unlawful occupiers who the Court considered to be “in desperate need”. Referring to Grootboom, the Court stated that there was an unassailable obligation on the state to ensure that, at the very least, evictions are “executed humanely”.
In the circumstances, it seemed painfully evident that the eviction could not be executed humanely without the state providing some form of alternative accommodation or land. In fact, if the occupiers were evicted, they would have had nowhere else to go which would simply have resulted in them reoccupying the Modderklip land or occupying other vacant land, once again rendering them at risk of eviction. As a result, the SCA held that the failure on the part of the state to fulfil its constitutional obligation to take pro-‐active steps to realise the right to housing of the occupiers “leads ... to the conclusion that the State simultaneously breached its section 25(1) obligations towards Modderklip”.
2. Remedy chosen and reasons provided
According to Harms JA, the only appropriate relief in terms of section 38 of the Constitution was to allow the occupiers to remain on the land until alternative land or accommodation was made available by the state, and to require the state to pay constitutional damages to the property owner for the violation of its property rights.
The Court found that return of the land was not feasible. There was in any event no indication that the land, which was being used for cultivating hay, was otherwise occupied by the lessees or inhabited by anyone else. Ordering the state to pay damages to Modderklip had the advantage that the Gabon occupiers could remain where they were while Modderklip would be recompensed for that which it has lost and the state has gained by not having to provide alternative land. The state could, obviously, expropriate the land in which event Modderklip would no longer suffer any loss and compensation will not be payable (except for the past use of the land). A declaratory order to this effect was considered sufficient to ‘do justice’ in this case. Modderklip would not receive more than what it had lost, the state had already received value for what it had to pay, and the immediate social problem was solved while the medium-‐ and long-‐term problems could be solved as and when the state could afford it.
The Modderklip judgment emphasised the interconnected nature of the state’s constitutional obligations, by explicitly recognising that the state’s failure to provide adequate housing to the unlawful occupiers (a positive obligation on the state) also amounted to an infringement of the property owner’s rights (a negative obligation on the
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state). The court developed a novel way of balancing the conflicting rights and obligations that arise in eviction cases, and affirmed the principle that an unreasonable state failure to give effect to the obligation to provide, at least, basic temporary alternative shelter for unlawful occupiers who face homelessness, would constitute a breach of constitutional rights.
3. Order of the court
The application for leave to appeal in the eviction case was dismissed with costs. Modderklip, however, asked for a costs order de bonis propriis against the occupiers’ attorney. The Court was in ‘little doubt that the attorney’s intervention was a cause of much aggravation and irrecoverable costs by his pursuit of a matter obviously lacking merit. Misguided and over-‐zealous he may have been but there [was] no reason to doubt his bona fides and a special order consequently [could] not be justified’.
In the enforcement case, Modderklip was successful in the court below (ie the HC) and although on appeal much of the order of De Villiers J was replaced, the state did not have substantial success and was ordered to pay the costs of the appeal. De Villiers J’s order in relation to costs remained unaffected.
Orders
In Modder East Squatters v Modderklip Boerdery (Edms) Bpk (the eviction case 187/2003):
The application for leave to appeal is dismissed with costs.
In President van die Republiek van Suid-‐Afrika en andere v Modderklip Boerdery (Edms) Bpk (the enforcement case 213/03):
(a) The appeal was upheld in part.
(b) Para 1 to 5 of the order of the court below was set aside and replaced with an order –
(i) Declaring that the state, by failing to provide land for occupation by the residents of the Gabon Informal Settlement, infringed the rights of Modderklip Boerdery (Pty) Ltd which are entrenched in section 7(2), 9(1) and (2), and 25(1) and also the rights of the residents which are entrenched in section 26(1) of the Constitution.
(ii) Declaring that the applicant was entitled to payment of damages by the Department of Agriculture and Land Affairs in respect of the land occupied by the Gabon Informal Settlement.
(iii) Declaring that the residents were entitled to occupy the land until alternative land had been made available to them by the state or the provincial or local authority.
(iv) The damages were to be calculated in terms of section 12(1) of the Expropriation Act 63
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of 1975.
(v) If, in relation to the investigation and determination of the damages suffered, the parties were unable to reach agreement regarding the pleadings to be filed, and discovery, inspection, and other matters of procedure relating thereto, leave was granted to any of the parties to make application to the court in terms of Rule 33(5) for directions.
(c) The third appellant [the Minister of Agriculture and Land Affairs] was to pay the costs of appeal of the respondent [Modderklip Boerdery].
Govt of the RSA and Others v Grootboom and Others
(CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (4 October 2000)
*Housing
1. Content of the right as determined by the court
Background
The case concerned 900 individuals, including children, who had set up a rudimentary camp on private land following their eviction in mid-‐winter Cape Town from private land earmarked for formal low-‐cost housing.
Findings
The determination of a minimum core obligation in the context of the right to access to adequate housing presented difficult questions because needs were so diverse – some needed land; others, both land and houses; still others, financial assistance. The real question in terms of the Constitution was whether measures taken by the state to realise the right afforded by section 26 were reasonable. For a person to have access to adequate housing there has to be provision of land, services and a dwelling. The right also suggests that the state can in addition play a facilitative role in creating conditions that enable others to provide suitable housing for people at all economic levels of society. Section 26 as a whole places, at the very least, a negative obligation upon the state and all other entities to desist from impairing or preventing the right of access to adequate housing. The manner in which the eviction had been carried out in the present case resulted in a breach of this obligation.
Section 26 makes it clear that the positive obligation upon the state is not absolute or unqualified. The extent of the state’s obligation is defined by considering three elements separately: (a) the obligation to take reasonable legislative and other measures; (b) to achieve the progressive realisation of the right; and (c) within available resources. A court must enquire whether the measures adopted to comply with this obligation are reasonable. The evidence showed that the state was not meeting the obligations imposed by section 26,
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in particular, that programmes adopted by the state in the relevant area fell short of the requirements of section 26(2) to provide relief to categories of people in desperate need. People in desperate need have a corresponding right to demand that the state meet its obligations.
The Constitutional Court set out the parameters of a “reasonable policy”. A reasonable housing policy must be:
• comprehensive, coherent, flexible and effective;
• have sufficient regard for the social, historic and economic context of poverty and deprivation;
• take into account the availability of resources;
• take a phased approach, including short, medium and long-‐term plans;
• allocate responsibilities clearly to all three spheres of government;
• respond with care and concern to the needs of the most desperate; and
• be free of bureaucratic inefficiency or overly onerous regulations.
When determining reasonableness, courts should “not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent”. Rather, reasonableness requires courts to adopt a flexible approach, in terms of which a “wide range of possible measures” could be adopted by the state in order to comply with its constitutional obligations. The state thus has a relatively broad discretion in relation to the policy it adopts, provided that the policy “falls within the bounds of reasonableness”.
Section 28 of the Constitution, which provides in s 28(1)(c) that every child has the right to ‘basic shelter’, does not create rights for children and their parents independent and separate from those created by section 26 and section 27. Rather, section 28 as a whole ensures that children are properly cared for by parents and families, and that they receive appropriate alternative care in the absence of parental or family care. Through legislation and the common law, the obligation to provide shelter is placed primarily on parents or family, and only alternatively on the state. The state does not bear the primary obligation to provide shelter on demand to parents and their children if the children are being cared for by parents or family. The state must, however, provide the legal and administrative infrastructure necessary to ensure that children are accorded the protection contemplated by section 28. Its obligation in this regard is normally fulfilled by passing legislation creating enforcement mechanisms for maintenance of children, their protection of maltreatment, abuse, neglect or degradation, and other forms of abuse and, in addition, providing families
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with access to land, services and adequate housing.
2. Remedy chosen and reasons provided
Grootboom was decided on the basis that, in failing to have any plan for vulnerable people evicted without the ability to find alternative shelter, state policy lacked both comprehensiveness and sufficient concern for the shelter needs of the most desperate. In essence, the state had simply failed to take steps to assist those “with literally no access to land, no roof over their heads and who were living in intolerable conditions or crisis situations”.
The Court made a declaratory order that the state housing programme was in breach of section 26(2) of the Constitution, and that this provision required the state to actively devise and implement a comprehensive and coordinated programme progressively to realise the right of access to adequate housing. This programme included the obligation to devise, fund and supervise measures to provide relief to those in desperate need, within available resources.
People should not be impelled by intolerable living conditions to resort to land invasions. This sort of self-‐help could not be tolerated, for the unavailability of land was a key factor in the fight against the country’s housing shortage.
3. Order of the court
The Order
The following order was made:
1. The appeal against the order of the Cape of Good Hope High Court in Grootboom v Oostenberg Municipality & Others 2000 (3) BCLR 277 was allowed in part.
2. The order of the Cape of Good Hope High Court was set aside and the following was substituted for it:
‘It is declared that:
(a) Section 26(2) of the Constitution requires the state to devise and implement within its available resources a comprehensive and coordinated programme progressively to realise the right of access to adequate housing.
(b) The programme must include reasonable measures such as, but not necessarily limited to, those contemplated in the Accelerated Managed Land Settlement Programme, to provide relief for people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations.
(c) As at the date of the launch of this application, the state housing programme in the area
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of the Cape Metropolitan Council fell short of compliance with the requirements in paragraph (b), in that it failed to make reasonable provision within its available resources for people in the Cape Metropolitan area with no access to land, no roof over their heads, and who were living in intolerable conditions or crisis situations.
3. There is no order as to costs.’
Lee v Minister of Correctional Services
(CCT 20/12) [2012] (11 December 2012) ZACC 30; 2013 (2) SA 144 (CC)
*Healthcare
1. Content of the right as determined by the court
The constitutional provision under interpretation is section 27(1) of the South African Constitution which provides that everyone has the right to have access to health care services. The constitutional Court also interpreted the right of prisoners to dignity as encapsulated under section 10 of the Constitution.
The Constitutional Court noted that there is a legal duty on the responsible authorities to provide adequate health care services as part of the constitutional right of all prisoners to conditions of detention that are consistent with human dignity. The Constitutional Court held that there is a probable chain of causation between the negligent omissions by the responsible authorities and the applicant’s infection with TB.
2. Remedy chosen and reasons provided
The Constitutional Court declared that there is a legal duty on the responsible authorities to provide adequate health care services as part of the constitutional right of all prisoners to conditions of detention that are consistent with human dignity. The Constitutional Court held that there is a probable chain of causation between the negligent omissions by the responsible authorities and the applicant’s infection with TB.
3. Order of the court
The Constitutional Court stated that a just order would be to remit the matter to the trial court, for it to consider, in the light of the findings of the Supreme Court of Appeal, and its judgment, the manner in which the common law ought to be developed. It may have been appropriate, depending on the trial court’s conclusion on this, to permit the parties to lead further evidence.
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Cipla Medpro (Pty) Ltd v Aventis Pharma SA (TAC as Amicus); (139/12) Aventis Pharma SA v Cipla Life Sciences
(138/12) [2012] ZASCA 108 (26 July 2012)
*Healthcare
1. Content of the right as determined by the court
The constitutional provision under interpretation in this case is section 27(1) of the South African Constitution which provides that everyone has the right to have access to health care services, including reproductive health care.
The Supreme Court of Appeal construed patent legislation through the prism of the Constitution and weighed factors influencing the balance of convenience, including the broader public interest. The court stated that where the public is denied access to a generic during the lifetime of a patent that is the ordinary consequence of patent protection and it applies as much in all cases. This remark brings into the arena the issue of the impact of patent protection and the lack of generic competition on the fundamental right to have access to medicines provided for in the Constitution of South Africa and recognised in various regional and international human rights instruments and declarations. Court also employed section 39(2) which calls upon a court to ‘promote the spirit, purport and objects of the Bill of Rights when interpreting legislation.
2. Remedy chosen and reasons provided
The respondents were interdicted from procuring or inducing, aiding and abetting, advising, inciting or instigating or assisting any other person to infringe claim 1 of South African Patent no. 93/8936 in the Republic, and from disposing of or offering to dispose of CIPLA DOCETAXEL and CIPLA DOCETAXEL solvent.
The SCA said the only implication for health care of granting an interdict is that patients who receive private health care, and who are not able to recover the cost of treatment from a private medical fund, will be obliged to pay 10% more for treatment than they might have done had Cipla’s product remained on the market.
Court employed section 39(2) which calls upon a court to ‘promote the spirit, purport and objects of the Bill of Rights when interpreting legislation.
3. Order of the court
The court ordered that pending the outcome of the action for final relief the respondents are interdicted from procuring or inducing, aiding and abetting, advising, inciting or instigating or assisting any other person to infringe claim 1 of South African Patent no. 93/8936 in the Republic, and from disposing of or offering to dispose of CIPLA DOCETAXEL
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and CIPLA DOCETAXEL solvent.
Minister of Health & Others v Treatment Action Campaign & Others (No 2)
(CCT 8/02) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (5 July 2002)
*Healthcare
1. Content of the right as determined by the court
The constitutional provision under interpretation in this case is section 27(1) which provides that everyone has the right to have access to health care services, including reproductive health care. The Court also had to consider children’s right to basic health care services under section 28(1)(c). The State’s policy towards the prevention of mother-‐to-‐child transmission was confusing and uncertain. The policy established 18 ‘research sites’ where Nevirapine would be provided to HIV positive pregnant mothers at childbirth. Further, the policy placed a ban on health care professionals in State health care facilitates other than the 18 pilot sites from administering Nevirapine to HIV positive pregnant mothers.
The Constitutional Court found government policy on the provision of mother-‐to-‐child transmission unreasonable and unconstitutional because it excluded a significant segment of society. The programme had failed to address the needs of mothers.
2. Remedy chosen and reasons provided
The Constitutional Court declared the policy to be unconstitutional. The Constitutional Court found the policy to be unreasonable because the cost of administering Nevirapine was negligible, its safety and efficacy was proven beyond question, the procedure of administering it was simple and that funds to expand its provision outside designated sites were available.
3. Order of the court
The Constitutional Court ordered the State to make Nevirapine available, to provide counsellors; and to take reasonable measures to extend the testing and counselling facilities throughout the public health sector.
Soobramoney v Minister of Health (Kwazulu-‐Natal)
(CCT 32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (27 November 1997)
*Healthcare
1. Content of the right as determined by the court
The constitutional provision under interpretation in this case is section 27(3) which provides that no-‐one may be refused emergency medical treatment and section 11 (the right to life)
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of the Constitution. The appellant in this case was a diabetic who suffered from ischaemic heart disease and cerebro-‐vascular disease. His kidneys failed in 1996 and his condition was diagnosed as irreversible. He asked to be admitted to the dialysis program at a State hospital. He was informed that he did not qualify for admission. Due to limited resources, the applicant was not eligible for a transplant because of his heart condition (as argued by hospital).
2. Remedy chosen and reasons provided
The Constitutional Court declared that the appellant’s case was not an emergency which called for immediate remedial treatment. The court held that the right could not mean that the treatment of terminal illnesses had to be prioritised over other forms of medical care such as preventative health care. It also held that the right not to be refused emergency medical treatment was independent from the right to life and had to be interpreted in the context of the availability of health services generally. The court concluded that it had not been shown that the State’s failure to provide renal dialysis facilities for all persons suffering from chronic renal failure constitutes a breach of its constitutional obligations.
3. Order of the court
The Constitutional Court dismissed the appeal without costs.
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd
(CCT 78/07) [2008] ZACC 12; 2009 (1) SA 337 (CC); 2008 (11) BCLR 1123 (CC) (25 July 2008)
*Food (Land and Environment)
1. Content of the right as determined by the court
The content of the right to food has the twin elements of availability and accessibility. The first element refers to a sufficient supply of food and requires the existence of a national supply of food to meet the nutritional needs of the population generally. It also requires the existence of opportunities for individuals to produce food for their own use. The second element requires that people be able to acquire the food that is available or to make use of opportunities to produce food for their own use. Excessive fragmentation of agricultural land may adversely affect the availability and accessibility of food, in the context of land and environmental rights. The essential purpose of the Agricultural Land Act has been identified as a measure by which the legislature, in the national interest, sought to prevent the fragmentation of agricultural land into small uneconomic units. In order to achieve this purpose, the legislature curtailed the common law right of land owners to subdivide their agricultural land. It imposed the requirement of the Minister’s written consent as a prerequisite for subdivision, quite evidently to permit the Minister to decline any proposed subdivision which would have the unwanted result of uneconomic fragmentation.
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2. Remedy chosen and reasons provided
The decision of the Supreme Court was reversed and the sale declared invalid and unenforceable. Excessive fragmentation of ‘agricultural land’, be it arable land or grazing land, may result in an inadequate availability of food, and the Agricultural Land Act is a valuable tool enabling the State to carry out the necessary control. The reliance of the Supreme Court of Appeal on the fact that the land was no longer used as agricultural land was not followed by the Constitutional Court which held that the manner of use was irrelevant to the issues before the courts. The Constitutional Court ruled that land situated in the area of jurisdiction of a transitional council which immediately prior to the first election of the members of such transitional council was classified as agricultural land, remains classified as agricultural land. This is so despite the fact that the land now falls within the jurisdiction of the municipality. W's land had been classified as agricultural land prior to the first election of members of the transitional council of the then Port Elizabeth and accordingly remained classified as such. It therefore required the Minister's consent before it could be sold or sub divided.
3. Order of the court
The decision of the Supreme Court was reversed and the sale declared invalid and unenforceable.
Order
i. The failure of the applicant and the 1st respondent, respectively, to comply with the directions of the Chief Justice is condoned.
ii. Leave to appeal to this court is granted.
iii. The appeal is allowed, the order of the Supreme Court of Appeal is set aside and for it is substituted the following order: “The appeal is dismissed with costs”.
iv. The applicant’s costs will be paid by the 1st respondent, such costs to include the costs attendant on the employment of two counsels.
v. There will be no cost order in respect of the participation of the amici curiae and the Minister of Agriculture and Land Affairs in the proceedings.
City of Cape Town v Strümpher
(104/2011) [2012] ZASCA 54; 2012 (4) SA 207 (SCA) (30 March 2012)
*Water
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1. Content of the right as determined by the court
The case concerned the question as to whether to uphold the spoliation order in terms of which the city of Cape Town was directed to reconnect the water supply to a property owned by the respondent. This is because the respondent alleged that the disconnection of the water supply constituted interference with his statutory water rights in terms of the Water Services Act 108 of 1997. The main question however was whether the City of Cape Town entitled to cut off the water supply to the property due to non-‐payment of the arrears, notwithstanding the fact that the responded disputed liability. This is after that the city justified its disconnection on two grounds, that the respondent’s right to water supply is simply a personal right founded on a contract and that the city’s interference was authorised by its water by laws and the debt collection laws.
The Court stated that duty of the water services authority to provide water services is subject to the water user’s obligations to pay reasonable amount in terms of the bylaws. That the consumers such as the respondent living within a municipal area who wish to access water from a Water Service Authorities have to conclude a water supply contract with the Water Service Authorities. However, such a contract does not relegate the consumer’s right to a mere personal right from that contractual relation but it amounts to a public law right to receive water, which exist independently of any contractual relationship the respondent had with the city. This is because water is a basic right protected under sec 27(1) (b) of the Constitution and sec 3(1) of the Water Services Act. As such the municipality such as the appellant has both constitutional and statutory obligations to ensure uninterrupted water supply to consumers within its jurisdiction (section 11(1) of the Water Services Act and section 27(2) of the Constitution).
The limitation or discontinuation of water services by the municipality must be fair and equitable in terms of section 4(3) (a). In this particular case to expect the payment of amounts in dispute erodes the principles of fairness contemplated in section 4(3) (a). Instead what is fair to both the water supplier and user, the court held is to allow the water user continue to pay his or her monthly average water charge while attempt is being to resolve the dispute. Spoliation order is available to a person who is disposed of her possession of movable/immovable/incorporeal property. As such municipalities may not arbitrarily disconnect water services but must pay due to regard to their constitutional obligation (section 7), statutory obligations and principles of fairness and equity.
2. Remedy chosen and reasons provided
See 3 below.
3. Order of the court
Appeal dismissed with costs.
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Courts a quo were correct in granting the mandament van spolie to the respondent in the circumstances.
Mazibuko and Others v City of Johannesburg and Others
(CCT 39/09) [2009] ZACC 28; 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC) (8 October 2009)
*Water
1. Content of the right as determined by the court
The right under interpretation is the right of access to water as entrenched in section 27 of the Constitution, which provides that everyone has the right to sufficient water. The CC highlighted the importance of water. However, in the same accord as other socio-‐economic rights the right of access to water has to be progressive realised. Therefore progressive realisation recognises that the policies formulated by the state need to be reviewed and revised to ensure that the realisation of socio-‐economic rights is achieved progressively. Thus section 27(1) (b) of the 1996 Constitution does not require the state upon demand to provide every person with sufficient water without more resources, rather it requires the state to take reasonable legislative and other measures progressively to realise the achievement of the right of access to sufficient water within available resources. Unfortunately as in other socio-‐economic rights cases (Grootboom and TAC cases) in South Africa, the state does not bear the obligation to ensure a minimum core of the right to sufficient water but to ensure progressive realisation.
2. Remedy chosen and reasons provided
The CC indicated the role of the courts with respect to socio-‐economic rights such as the right to water that is to ensure the state does not arbitrarily interfere with the existing socio-‐ economic rights. Although limited to a certain extent, courts are there to assess whether the political organs are constantly reviewing their policies to conform to the Constitutional requirement of reasonableness. This is because courts are institutionally inappropriate to determine precisely what the achievement of any particular socio-‐economic right (the right to water) entails and what steps government take to ensure proper realisation of this right. If the state does not take steps to realise socio-‐economic rights such as the right to water in this case, it is the duty of the courts to require the state to take steps.
Where the state is in the process of revising and reviewing policies to conform to the Constitution it cannot be said that measures are unreasonable as the purpose of the constitutional entrenchment of socio-‐economic rights is to ensure that the state continue to take reasonable legislative measures to achieve the realisation of the rights to basic necessities of life overtime.
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Introduction of the system whereby residents are now furnished with 6 kilolitres of free water monthly, followed by a system of subsidised tariff for provision of water does not infringe the obligation to respect the right of access to sufficient water and section 27(1)(b) of the Constitution for that matter.
3. Order of the court
Appeal must fail and decision of the SCA and High court are set aside. The court appreciated that he prime purpose of litigation concerning the positive obligations imposed by socio-‐economic rights should be to hold the democratic organs of the state to account through litigation. However, in this case the state organs particularly the municipality had started reviewing measures and policies to conform to the constitutional requirement therefore it cannot be said that its conduct is unreasonable.
City of Johannesburg v L Mazibuko & Others
(489/08) [2009] ZASCA 20 (25 March 2009)
*Water
1. Content of the right as determined by the court
The right referred to in this case is the right to sufficient water supply. The right to sufficient water is a constitutional right found in section 27(1)(b) of the Constitution. This right is further reinforced in terms of the Waters Service Act. The preamble of the Waters Service Act provides that the right to sufficient water supply is the right to basic water supply and basic sanitation necessary to ensure that everyone has sufficient water. Basic water supply as interpreted by the court means that the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and personal hygiene.
The court through the utilisation of the purposive approach provided that the elements of the right are that it must be adequate for human dignity and health. The quantity of water depends on the circumstances of each individual. Section 11 (1) of the Waters Service Act provides that the City must supply water to all customers within its jurisdiction. This means no person to be denied access to basic waters services for non-‐payment. This right is intended to be progressively realised in terms of section 27 (2) of the Constitution. Finally, the right means that 42 litres water per Phiri resident per day would constitute sufficient water in terms of section 27(1) of the Constitution.
2. Remedy chosen and reasons provided
The court made an order declaring the following as a remedy, that the 42 litres water per Phiri resident per day would constitute sufficient water in terms of s 27(1) (b) of the Constitution. that the first respondent is, to the extent that it is in terms of section 27(2) of
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the Constitution reasonable to do so, having regard to its available resources and other relevant considerations, obliged to provide 42 litres free water to each Phiri resident who cannot afford to pay for such water.
The first and second respondents are ordered to reconsider and reformulate their free water policies. The Supreme Court of Appeal further indicated that pending the reformulation of their free water policy the first and second respondents are ordered to provide each accountholder in Phiri who is registered with the first respondent as an indigent with 42 litres of free water per day per member of his or her household. It is declared that the prepayment water meters used in Phiri Township in respect of water service level consumers are unlawful. The decision of the court was mainly informed by the fact that the Constitution obligates the first respondent to provide sufficient water supply. The SCA stipulated that water is basic thing for the realisation of human dignity. Therefore, no one was to be denied basic water supply essential for living. This means that if an individual cannot afford to pay for the water the first respondent must provide water that meets the requirement of basic supply within available resources.
3. Order of the court
The SCA declared that the 42 litres water per Phiri resident per day would constitute sufficient water in terms of section 27(1) (b) of the Constitution. That the first respondent is, to the extent that it is in terms of s 27(2) of the Constitution obliged within the available resources to provide 42 litres free water to each Phiri resident who cannot afford to pay for such water.
The first and second respondents are ordered to reconsider and reformulate their free water policies.
Impala Water Users Association v Lourens NO & Others
2008 (2) SA 495 (SCA)
*Water
1. Content of the right as determined by the court
The case concerned a water charge that was unquestionably due. Thus the question was whether water authorities (appellant) should impose the restriction from the water users who are at default.
Rights that emerge between water suppliers and water users (consumers) are not merely personal rights but they are public law rights. As such it can be protected by mandament van spolie. Mandament van spolie is necessary interdict through which people can hold accountable the state for the violation of the obligation to respect socio-‐economic rights
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such as the right to sufficient water in the Constitution.
2. Remedy chosen and reasons provided
The SCA opined that the respondent’s use of the water was an incident of possession of the property. Clearly interference by the municipality an organ of state with the respondent’s access to the water supply was akin to deprivation of possession of property. The court opined therefore that, there is no reason in principle why a water user who is deprived of a water service summarily by a Water Service Authority, without that authority complying with its procedural formalities for dispute resolution laid down in its own by-‐laws, should not be able to claim reconnection of the water supply by means of a spoliation order. It therefore follows that the mandament van spolie was available to the respondent and the courts below were correct in granting the relief claimed by the respondent.
3. Order of the court
Appeal dismissed with costs.
City Council of Pretoria v Walker
1998 (3) BCLR 257 (CC) (17 Feb 1998)
* (Water and electricity) / equality, dignity
1. Content of the right as determined by the court
Conduct of the council or its officials thereof in selectively enforcing the collection of arrears with respect to the water usage (the right to sufficient water) amounts to discrimination under section 8 of the interim Constitution.
2. Remedy chosen and reasons provided
The SCA emphasised that it is because the Constitution requires that the rates an tariffs charged by the municipalities shall be based on a uniform structure and needs to be interpreted within the context of the local government as it exists (Section 178 of the interim Constitution). The Constitution further requires that the local government’s debt collection policy be rational and coherent, not constitutional unfair by selecting to use a crude method in recovering charges as those who consumed less still paid the same as those who consumed more.
The SCA also indicated that Section 8 of the interim Constitution is a guarantee that at least at the level of law-‐making and executive action, hurtful discrimination such as that during apartheid will no longer be a feature of South African life. This because equality and dignity are part of the core values of the Constitution. As such core values must be used to interpret
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the Bill of Rights.
The selective institution of legal proceedings by the council amounts to a breach of respondent’s right not to be unfairly discriminated against.
3. Order of the court
Absolution from instance was not an appropriate relief in the case. This is because a person who suffers an infringement of a right entrenched in the Bill of Rights is entitled to appropriate relief.
Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others
(CCT 31/09); [2009] ZACC 33; 2010 (4) BCLR 312 (CC) (19 Nov 2009)
*Sanitation
1. Content of the right as determined by the court
Background
The Applicants argued that the right of access to adequate housing, recognised in section 26 of the Constitution, must be interpreted to include basic sanitation. They also urged the CC to find that its previous decisions on section 26 were wrong inasmuch as the right of access to adequate housing was not given content and to find that the right in fact has a minimum content. They argued that the HC had erred in not finding that the right of access to adequate housing, read with the Housing Act, the National Housing Code (NHC) and the Water Services Act, 108 of 1997, imposed a mandatory minimum core content concerning free basic sanitation. (Section 3 of the Water Services Act, 108 of 1997, provides that everyone is entitled to access to basic water supply and basic sanitation. Every water services authority is obliged to take reasonable measures to realise these rights. Water conservation regulations also describe minimum standards for sanitation services.). They argued that budgetary constraints could not outweigh the mandatory minimum obligation to provide to provide free basic sanitation.
In addition, the Applicants contended that they were living in conditions that posed an immediate threat to their lives, health and safety and were accordingly in need of emergency assistance, as provided for in Ch 12 of the NHC.
In August 2006, the Municipality had submitted a proposal, in terms of Chapter 13 of the National Housing Code, to the MEC to upgrade the status of the Harry Gwala Settlement to a formal township, which would entitle the Applicants to services they were not currently receiving. Some three years later, a final decision by the MEC on the proposal was still being awaited. Moreover, an emergency in terms of Ch 12 did not exist because the MEC had not made a declaration to that effect.
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The applicants submitted that, pending the decision on whether the Settlement was going to be upgraded, the Municipality is nevertheless required, in terms of its obligations under the Constitution, housing legislation and the NHC, to provide the Settlement with certain basic services with immediate effect.19 These services included: (1) communal water taps; (2) temporary sanitation facilities (per household); (3) refuse removal; and (4) high-‐mast lighting. The Municipality took the view that, in terms of the National Housing Code, it was not permitted (including in terms of the Municipal Finance Management Act, the MFMA) to provide basic services that require extensive capital outlay until the decision is taken to upgrade, unless an emergency arose, which it contended did not exist.
In the High Court (HC), the Municipality accepted its responsibility to provide water taps and refuse removal services, and the HC ordered it to provide them immediately. It found, however, that no case had been made in terms of Ch 12 or 13 for the provision of sanitation and high-‐mast lighting.
The CC found that it was not necessary to make a finding on the submissions concerning s 26. It is settled law that where legislation has been enacted to give effect to a right, a litigant should rely on that legislation or alternatively challenge the legislation as inconsistent with the Constitution.
The CC observed that Ch 12 of the NHC had been introduced following the CC’s decision in Grootboom and provided for housing assistance in emergency situations where people found themselves in dire need through no fault of their own. Ch 13 of the NHC provided for upgrading informal settlements in a phased way with structured grants where the municipality decides it is necessary. They do not purport to establish minimum standards. Their ‘manifest purpose is to regulate the provision of services pending a decision on upgrade, as in this case’.
The CC found that the HC had correctly held that the Applicants could not rely on Ch 12, as no emergency had been declared. The CC also held that the Applicants could rely on Ch 13 only once the decision had been taken to upgrade the settlement. Ch 13, in accordance with the MFMA, precludes capital intensive service provision until the decision to upgrade has been taken. The Municipality had complied with its duties in terms of Ch 13 by lodging an application with the provincial MEC, whose decision was awaited.
The Court considered an offer/tender by the Minister, the Department and the MEC to make a special grant to the Municipality for the provision of one chemical toilet per four households in the settlement, ‘for it may alleviate the desperate situation of those living in the Settlement, even if only to a limited degree’. These government representatives had made it clear that this offer could be made only on the basis that the circumstances of the applicants are exceptional and unique. There were no funds available to extend the same
19 See paras 25-‐31 of the judgment.
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offer to other communities. The Municipality was strongly opposed to accepting the offer, or being obliged to implement it, as it was of the view that it would amount to allowing ‘queue jumping’ and discrimination against the many other similarly situated communities under its jurisdiction.
The CC found it ‘tempting to order the Municipality to accept the assistance offered in order to improve the lives of at least the applicants before this Court, by describing their situation as exceptional and unique. Unfortunately though, it [was] not so exceptional or unique’.
The remaining question that required the attention of the Court was the delay of more than three years by the Gauteng provincial government in reaching a decision on the Municipality’s application to upgrade the Settlement to a township. The rights of residents under Ch 13 were dependent on a decision being taken. The provincial government should take decisions for which it is constitutionally responsible, without delay. The Court found that a delay of this duration was unjustified and unacceptable. It complied neither with section 23720 of the Constitution, nor with the requirement of reasonableness imposed on the government by section 26(2) of the Constitution with regard to access to adequate housing.
This was conceded by the MEC in open court, and counsel for the MEC had offered an apology on behalf of the provincial government to the Court and to the residents of the Settlement.
The CC ordered the MEC to take a final decision on the Municipality’s application to upgrade the informal settlement within 14 months of the Court’s order.
2. Remedy chosen and reasons provided
The case shows that the role of courts in the achievement of socio-‐economic goals is an important but limited one and that bureaucratic efficiency and close co-‐operation between different spheres of government and communities are essential.
The Municipality informed the court of its new policy (adopted on 16 April 2009, after the HC’s Order) to supply the settlement with one chemical toilet per every ten families and of its express intention to do this in the near future. The Municipality presented this policy as an offer to the applicants and agreed that it be incorporated into any order this Court may make. Counsel for the applicants urged the Court to find the policy to be unreasonable and irrational. The CC declined to consider the policy as it is impermissible to consider what amounted to a ‘fundamentally new case’ for the Appellants on appeal. However, the Court did consider the offer/tender by the Minister, the Department and the MEC to make a special grant to the Municipality for the provision of one chemical toilet per four households
20 Section 237 of the Constitution provides that: ‘All constitutional obligations must be performed diligently
and without delay’.
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in the settlement.
The Court found that it was necessary to incorporate the need for a speedy decision in its order. The delay by the Province was ‘the most immediate reason for the dilemma and desperate plight of the residents. As long as the status of the Settlement is in limbo, little can be done to improve their situation regarding sanitation, sufficient lighting to enhance community safety and access by emergency vehicles, as well as a range of other services’. The Court accepted an indication for the MEC that ‘a period of 12 months would be sufficient to finalise specialist feasibility studies and that a one month period would thereafter be required to decide whether to upgrade’. It was accordingly ‘just and equitable to order the MEC to reach a decision within 14 months’.
The Court found that the applicants should not be ordered to pay the costs of any of the respondents in the CC proceedings, even though they were largely unsuccessful. They had raised important constitutional issues, although their case was not properly conceived in law. The delay in the decision on the part of the Province being one of the root causes of the applicants’ plight, the MEC should pay the applicants’ costs in this Court.
3. Order of the court
Order
1. Condonation for the late filing of the Ekurhuleni Metropolitan Municipality’s written argument is granted.
2. The application for leave to appeal is granted.
3. The appeal is dismissed.
4. The Member of the Executive Council for Local Government and Housing, Gauteng, is ordered to take a final decision on the Ekurhuleni Metropolitan Municipality’s application in terms of Chapter 13 of the National Housing Code, published in terms of section 4 of the Housing Act 107 of 1997, to upgrade the status of the Harry Gwala Informal Settlement, within 14 months of the date of this order.
Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development
(CCT 12/2003; 13/2003); 2004 (6) SA 505 (CC)
*Social security / assistance
1. Content of the right as determined by the court
Background
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The issue before the court was the constitutionality of legislation not yet in force. An order of constitutional invalidity had been made by the High Court and it was referred to the CC for confirmation, as required by section 172 of the Constitution.
The right to social security in section 27 of the Constitution includes non-‐citizens who are permanent residents in the country. The CC adopted a purposive approach to the interpretation of section 7 ‘Rights’ of the Constitution, which expressly refers to ‘all people in our country’ when describing the scope of the Bill of Rights. The applicants and others in their position are entitled to enjoy this right even if they have not made any effort to become permanent residents despite being eligible for such status.
Socio-‐economic rights are closely related to the Constitution’s founding values of human dignity, equality and freedom. Where the right to life, dignity and equality are implicated in cases involving SERs, they have to be taken into account, together with the availability of human and financial resources, in determining whether the state has complied with the constitutional standard of reasonableness.
However, even where the state can justify not paying benefits on the grounds of unaffordability, the criteria it uses to justify such limitation must be consistent with the Bill of Rights. Also relevant are the means chosen by the legislature to give effect to the state’s positive obligation in terms of a specific provision of the Bill of Rights, and whether it unreasonably limits other constitutional rights.
However, the court will not enquire whether other more desirable or favourable measures could have been adopted, or whether public resources could have been better spent. It is sufficient that it is shown that government’s preferred measures enable the state to meet its obligations and meet the requirements of reasonableness. Courts should be slow to reject reasonable estimates from policymakers.
Differentiation on grounds of citizenship is clearly a ground that is analogous to the grounds listed in subsection (3) of section 9 ‘Equality’, and therefore amounts to discrimination. In deciding whether such discrimination is unfair, the determining factor is its impact. A court must consider the cumulative effect of the following relevant factors, amongst others: (a) the person’s position in society and whether they have suffered in the past from patterns of disadvantage; (b) the nature of the provision, the power conferred and the purpose sought to be achieved by it; and (c) the extent to which discrimination has affected the rights or interests of the complainants, and whether it has led to an impairment of their fundamental human dignity or an impairment of a comparably serious nature.
2. Remedy chosen and reasons provided
‘Reading in’ -‐ In order to remedy the defect of the omission of the phrase ‘or permanent
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residents’ from the Social Assistance Act, 59 of 1992, as amended by the Welfare Laws Amendment Act, 106 of 1997, the Court held that the legislation should be read as though the words ‘or permanent residents’ appear after word ‘citizens’.
A declaration of invalidity of impugned legislation has grave implications for constitutional jurisprudence and can have far-‐reaching practical effects. The court must therefore proceed cautiously and consider necessary evidence, including of budgetary and administrative implications for the state. It is government’s responsibility to place the relevant evidence before the court.
A settlement between the parties affecting only the parties did not remove the uncertainty affecting the broader group or class of persons. Where such persons are indigent and in dire circumstances, the existing need for legal certainty in confirmation proceedings becomes even more pressing. To remit the matter back to the HC for evidence would cause undue delay and would be contrary to the interests of justice.
‘The applicants having successfully prosecuted an important constitutional claim, … are entitled to their costs.’
3. Order of the court
Order
The following order is made:
1. In the Khosa matter, the order of invalidity and striking down of section 3(c) of the Social Assistance Act 59 of 1992, prior to its amendment by the Welfare Laws Amendment Act 106 of 1997, made by the High Court is set aside and replaced with the following order:
1.1. The omission of the words “or permanent resident” after the word “citizen” from section 3(c) of the Social Assistance Act 59 of 1992, prior to amendment by the Welfare Laws Amendment Act 106 of 1997 is declared to be inconsistent with the Constitution.
1.2. To remedy the defect, section 3(c) of the Social Assistance Act 59 of 1992 prior to amendment by the Welfare Laws Amendment Act 106 of 1997 is to read as through the words “or permanent resident” appear after the word “citizen”.
1.3. The omission of the words “or permanent resident” after the word “citizen” from that part of section 3 of the Welfare Laws Amendment Act 106 of 1997 which is to amend section 3(c) of the Social Assistance Act 59 of 1992 is declared inconsistent with the
Constitution.
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1.4. That part of section 3 of the Welfare Laws Amendment Act 106 of 1997 which is to amend section 3(c) of the Social Assistance Act 59 of 1992 is to be read as though the words “or permanent resident” appear after the word “citizen”.
2. In the Mahlaule matter, the order of invalidity and striking down of section 4(b)(ii) of the Social Assistance Act 59 of 1992, as amended by the Welfare Laws Amendment Act 106 of 1997, made by the High Court is set aside and replaced with the following order:
2.1. The omission of the words “or permanent resident” after the word “citizen” from section 4(b)(ii) of the Social Assistance Act 59 of 1992, as amended by the Welfare Laws Amendment Act 106 of 1997, is declared to be inconsistent with the Constitution.
2.2. Section 4(b)(ii) of the Social Assistance Act 59 of 1992, as amended, is to be read as though the words “or permanent residents” appear after the word “citizens”.
3. In the Mahlaule matter, the order of invalidity and striking down of section 4B(b)(ii) of the Social Assistance Act 59 of 1992, as amended by the Welfare Laws Amendment Act 106 of 1997, made by the High Court is set aside and replaced with the following order:
3.1. The omission of the words “or permanent resident” after the word “citizen” from that part of section 3 of the Welfare Laws Amendment Act which is to introduce section 4B(b)(ii) into the Social Assistance Act 59 of 1992 is declared to be inconsistent with the Constitution.
3.2. That part of section 3 of the Welfare Laws Amendment Act 106 of 1997 which is to introduce section 4B(b)(ii) into the Social Assistance Act 59 of 1992 is to be read as though the words “or permanent residents” appear after the word “citizens”.
4. The first and second respondents are ordered, jointly and severally, to pay the costs of the confirmation proceedings.
The Head of Department: Department of Education, Free State Province v Welkom High School & Harmony High School
(766 &767/2011) [2012] ZASCA 150 2012 (6) SA 525 (SCA); [2012] 4 All SA 614 (SCA) (28 September 2012)
*Education
1. Content of the right as determined by the court
• This case concerns the exercise of administrative power and the principle of legality, in the context of an instruction by a provincial Head of the Department of Education (HOD) to a principal of a public school to act in a manner contrary to a policy adopted by the school‘s governing body.
• The legislative framework relevant to this case is to be found in the Schools Act. In
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terms of the scheme of the Act, public schools are to be run by three partners, namely the national government represented by the Minister of Education; the provincial government, that acts through the MEC for Education; and parents of the learners and members of the community where the school is located, the latter being represented in the school governing body. Sections 5(5), 6(2), 7, 8(1), 16(1) and 20(1) – (5) of the Act vest particular governance powers in the governing body.
• The governing body‘s primary function is to promote the interests of the school and ensure the provision of quality education for its learners. The powers of a governing body are limited and it may only perform such functions and obligations and exercise only such rights as prescribed by the Act. The limited nature of the powers of a governing body was confirmed by the Constitutional Court in Head of Department, Mpumalanga Department of Education & another v Hoërskool Ermelo & another, where Moseneke DCJ stated that a governing body has “defined autonomy over some of the domestic affairs of the school”.
• Whereas the ‘professional management’ of a public school must be undertaken by the principal under the authority of the HOD, the ‘governance’ is vested in the governing body.
2. Remedy chosen and reasons provided
• The HOD does not have the power, in terms of the Act, to determine pregnancy policies for the schools.
• The HOD was precluded from taking the decisions of the governing bodies on review. He is precluded by the principle of legality.
3. Order of the court
• Each appeal is dismissed, with costs.
• The order of the high court is amended to read:
o (a) In each case, for as long as the pregnancy policy remains in force, the first respondent is interdicted and restrained from directing the school principal to act in a manner contrary to the policy adopted by the school governing body.
o (b) The learner concerned shall be entitled to attend formal classes at the school, to remain at the school and in her current grade and to be taught, to learn and to be examined.
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Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others
(CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) (11 April 2011)
*Education
1. Content of the right as determined by the court
• Case concerned the right to a basic education where a private property owner sought to evict a public school conducted on its property.
• Broadly, the issues relate to:
(a) whether the MEC fulfilled the constitutional obligations in relation to the learners‘ right to a basic education;
(b) whether the Trustees, when vindicating their property rights had any constitutional obligations vis-‐à-‐vis the learners‘ right to a basic education and, if so;
(c) Whether the common law remedy of rei vindicatio ought to have been developed in circumstances where the learners’ right to a basic education was likely not to be given effect to as a result of an eviction. These questions involve balancing competing rights: the right to a basic education on the one hand and property rights on the other.
• The right to a basic education, property rights and the paramountcy of the child‘s best interests were in conflict.
• Court noted that the nature of the right to ‘basic education’ meant that it was immediately realisable. There is no internal limitation requiring that the right be ―progressively realised within ―available resources subject to ―reasonable legislative measures. The right to a basic education in section 29(1)(a) may be limited only in terms of a law of general application which is ―reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
• Section 3(1) of the Schools Act, following the constitutional distinction between ―basic and ―further education, makes school attendance compulsory for learners from the age of seven years until the age of 15 years or until the learner reaches the ninth grade, whichever occurs first. Section 3(3) of the Act enjoins the MEC to ensure that there are enough school places so that every child who lives in his or her province attends school as required by section 3(1) of that Act. These statutory provisions which make school attendance compulsory for learners from ages seven to 15, read together with the entrenched right to basic education in the Constitution signify the importance of the right to basic education for the transformation of our society.
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• Basic education entails access to a school so that a child can achieve that basic right.
• The MEC has a duty in terms of section 12 of the Schools Act to provide public schools for the education of the learners-‐ in this case the MEC was under obligation to pay rent to the property owners so that the learners would be granted access to the premises and consequently their right to education.
• Section 28-‐ Best interests of the child-‐ ―imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions.
2. Remedy chosen and reasons provided
Eviction order-‐ The Department had full control of the situation, but continually adopted an uncompromising stance despite the numerous undertakings to pay rentals and out-‐of-‐pocket expenses incurred by the Trustees for the upkeep of the school.
3. Order of the court
• Leave to appeal is granted.
• Condonation for the late filing of the record is granted.
• Condonation for the late filing of supplementary written submissions is granted.
• The order of the KwaZulu-‐Natal High Court, Pietermaritzburg dated 16 September 2009 is set aside.
• The Member of the Executive Committee for Education for the Province of KwaZulu-‐Natal (MEC) together with any and all persons who claim a right to occupy by, through or under the MEC, are ordered to vacate the premises known as the Juma Musjid Primary School situated at 62-‐64 Cathedral Road, Durban by no later than 31 December 2010.
• Failing compliance with paragraph 5 of this order, the Sheriff of the High Court, Durban, or his or her Deputy is authorised and directed to take all such steps as may be necessary to give effect to the order.
• The MEC is ordered to pay the costs of the proceedings in the KwaZulu-‐Natal High Court, Pietermaritzburg; in the Supreme Court of Appeal and in this Court, on a party and party scale.
• The costs referred to in paragraph 7, above, should include costs consequent upon the employment of two counsel.
• There is no order as to costs in respect of the urgent application lodged on 11
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November 2010.
Hoerskool Ermelo and Another v Head, Department of Education, Mpumalanga and Others
(219/2008) [2009] ZASCA 22; 2009 (3) SA 422 (SCA) ; [2009] 3 All SA 386 (SCA) (27 March 2009)
*Education
1. Content of the right as determined by the court
Language policy remains the exclusive function of the governing body of an existing school. The SA Schools Act, 84 of 1996, takes great care to establish governing bodies of public schools that are representative of the community served by the school. The power to determine language policy is allocated in terms of section 6 of the Act, not in terms of section 21, which latter powers may be withdrawn in terms of section 22.
The head of department made the appointment of an interim committee in terms of section 25 to determine the language policy of the school before he had withdrawn that power from the governing body. The consequence of this premature purported appointment was that the language policy was changed by the interim committee before the power of the governing body to do so was withdrawn. Far from allowing the interim committee to reach their own decision, the head of department, in the letter of appointment addressed to them, instructed them to ‘ensure that the Language policy determined by [them] will enable the learners to be admitted at Hoërskool Ermelo as a matter of urgency’ and this was reinforced by a member of the department who attended the meeting. The SCA held that it did not appear that the interim committee was afforded the opportunity to consider all relevant and available information before taking an ‘urgent’, prescribed decision.
The SCA opined that these steps that the respondent (Department) purportedly took in terms of the Act failed also, in several respects, to comply with the Promotion of Administrative Justice Act of 2000. In the light of the conclusion that subsection 22 and 25 did not empower the head of department to act as he did, it was not necessary to discuss the detail of the contraventions of PAJA. It sufficed to say that these contraventions ‘were sufficient in themselves to have obliged the court a quo to grant the relief sought by the appellants’.
The respondent Department expressed the concern that this conclusion left them without a remedy. The Court held that it did not. PAJA prescribes the standard for all administrative action. The respondents were entitled to review the language policy determined by a governing body of a school if they made out a case in terms of PAJA.
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2. Remedy chosen and reasons provided
The SCA therefore concluded that the head of department’s withdrawal of the governing body’s function to determine the language policy of the school was unlawful; that the head of department’s appointment of the interim committee was unlawful; and that the decision taken by the unlawfully appointed interim committee was invalid. Consequently, the decisions were set aside.
3. Order of the court
Order
On appeal from: High Court, Pretoria (Ngoepe JP, Seriti J and Ranchod AJ sitting as court of first instance).
1. The appeal is upheld.
2. The order of the court a quo is set aside and replaced by the following:
‘a. The first respondent’s decision to withdraw the function of the governing body of Hoërskool Ermelo to determine the language policy of the school is set aside.
b. The first respondent’s decision to appoint an interim committee to perform the function of the governing body to determine the language policy of Hoërskool Ermelo is set aside.
c. The decision of the interim committee to amend the language policy of Hoërskool Ermelo from Afrikaans medium to parallel medium is set aside.
d. Learners that have enrolled at Hoërskool Ermelo since 25 January 2007 in terms of a parallel medium language policy shall be entitled to continue to be taught and write examinations in English until the completion of their school careers.
e. The costs of the application are to be paid by the first and eighth respondents jointly and severally, the one paying, the other to be absolved.’
3. The costs of the appeal are to be paid by the first and eighth respondents jointly and severally, the one paying, the other to be absolved.
Ngewu and Another v Post Office Retirement Fund and Others
(CCT 117/11); [2013] SACC 4; 2013 (4) BCLR 421 (CC) (7 March 2013)
*Direct access to CC / Equality
1. Content of the right as determined by the court
• Matter concerns the right to equality before the law and equal protection and
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benefit of the law, as guaranteed by section 9(1) of the Constitution.
• Sections 10 to 10E of the Post Office Act, 44 of 1958, the relevant provisions dealing with the administrative and financial matters of the Fund, are clearly unconstitutional. Because of the omission of the “clean break” principle there is a differentiation between the payment of divorced spouses’ interests regulated by the Pension Funds Act and the Government Employees Pension Law Amendment Act on one hand, and the payment of divorced spouses’ interest governed by the Post Office Act on the other.
• The differentiation is irrational. It does not meet the requirement of equality before the law and equal protection and benefit of the law contained in section 9(1) of the Constitution.
2. Remedy chosen and reasons provided
• Sections 10 to 10E of the Post Office Act declared unconstitutional and invalid to the extent that they provide for unequal treatment.
• The declaration of invalidity is suspended for eight months for the Legislature to cure the defect.
3. Order of the court
The following order is made:
• Condonation for the late filing of the record is granted.
• The application for direct access is granted.
• The omission from sections 10 to 10E of the Post Office Act 44 of 1958 of a provision for the former spouse of a member of the Post Office Retirement Fund, who has been awarded a portion of that member’s pension interest in that Fund, pursuant to section 7(8) of the Divorce Act 70 of 1979, to be paid that portion on divorce or dissolution of customary marriage (the “clean break” principle), is declared to be inconsistent with section 9(1) of the Constitution and therefore sections 10 to 10E of the Post Office Act 44 of 1958 are invalid to the extent of the inconsistency.
• The declaration of invalidity is suspended for eight months to enable Parliament to cure the defect.
• If the constitutional defect is not remedied by 7 November 2013, section 24A of the Government Employees Pension Law, Proclamation 21 of 1996, shall be read into the Post Office Act 44 of 1958 as section 10F thereof and will take effect. The wording to be read in as section 10F is annexed to this order, as “A”.
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• The second respondent is ordered to pay the applicants’ costs in this Court.
Women’s Legal Centre Trust v President of the Republic of South Africa
(CCT 13/09) [2009] ZACC 20; 2009 (6) SA 94 (CC) (22 July 2009)
*Direct access to CC
1. Content of the right as determined by the court
• Direct access
• Direct access can be awarded where the court has exclusive jurisdiction if not-‐ the matter must be in the interests of justice.
• The exclusive-‐access provision of the Constitution, section 167(4)(e), focuses on specific agents – it mentions only the President and Parliament.
2. Remedy chosen and reasons provided
• No remedy-‐ application was dismissed. Court did not want to be a court of first and last instance in a matter that it did not have exclusive jurisdiction. It wanted to have insights from other courts as well as afford litigants a right to appeal should the court decide otherwise.
3. Order of the court
• The application for direct access is dismissed.
• There is no order as to costs.
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Liberal Party v The Electoral Commission and Others
(CCT 10/04); [2004] ZACC 1; 2004 (8) BCLR 810 (CC) (5 April 2004)
*Direct access to CC
1. Content of the right as determined by the court
• Direct access to the court.
• If a litigant raises a constitutional matter then the court had jurisdiction to consider the application for direct access, despite the Electoral court having the final say on the matter.
2. Remedy chosen and reasons provided
• The application had to fail because the applicant’s inability to contest the forthcoming elections arose solely from its failure to comply with the mandatory provisions of the Electoral Act and regulations and cannot be laid at the door of the Commission.
3. Order of the court
• The court dismissed the application for direct access and leave to appeal to the Court.
Brink v Kitshoff N.O.
(CCT 15/95) [1996] ZACC 9; 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (15 May 1996)
*Direct access to CC
1. Content of the right as determined by the court
• Application of the provisions of section 102(1) of the Constitution.
• Section 102(1) which deals with the referral of constitutional issues to this Court by a provincial or local division of the Supreme Court, and sections 103(3) and (4) which deal with referrals of constitutional issues raised in other courts, are necessary to address problems of jurisdiction.
• The procedures, which are prescribed by sections 102(1), (2), and (3) and sections 103(2), (3) and (4) of the Constitution, contemplate that constitutional issues within the exclusive jurisdiction of the Constitutional Court will be raised formally in proceedings before the Supreme Court or other courts, and will only be referred to the Constitutional Court for its decision in circumstances where it would be appropriate to do so. It is in the first instance the responsibility of the Supreme Court
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to decide whether or not the circumstances are appropriate. The Constitution requires the Supreme Court to deal with constitutional issues raised in proceedings brought before it in terms of sections 102(1) or 103(4), if such issues are within its jurisdiction.
• section 102(1) of the Constitution provides three prerequisites for a valid referral: the issue referred must fall within the exclusive jurisdiction of the Constitutional Court, it must be shown that the issue ‘may be decisive of the case’ and the judge of the provincial or local division must consider it in the interest of justice for the issue to be referred.
2. Remedy chosen and reasons provided
• The deeming provisions of sections 44(1) and (2) were deemed invalid with effect from 27 April 1994, but payments made as a result of the operation of the deeming provisions before the date of the order were exempted from that order.
3. Order of the court
• Subsections (1) and (2) of section 44 of the Insurance Act, 27 of 1943, are declared invalid.
• In terms of section 98(6) (a) of the Constitution it is ordered that the declaration of invalidity made in paragraph 1 shall invalidate the deeming provisions of sections 44(1) and (2) of the Insurance Act with effect from 27 April 1994, except to the extent that the operation of such deeming provisions has resulted, before the date of this order, in the payment of any money or the delivery of any asset, which, but for such provisions, would not otherwise have formed part of the estate, to any creditor of the man, or any beneficiary of his estate.
• The matter of Brink v Kitshoff NO is remitted to the Transvaal Provincial Division to be dealt with in terms of this judgment.
Children’s Resource Centre Trust v Pioneer Food
(50/2012) [2012] ZASCA 182; 2013 (2) SA 213 (SCA); 2013 (3) BCLR 279 (SCA); [2013] 1 All SA 648 (SCA) (29 November 2012)
*Procedural rights in class actions and access to courts
1. Content of the right as determined by the court
• Section 38(c) class action.
• The constitutional challenge required the Supreme Court of Appeal to revisit the issue of whether or not a class action may be introduced in the absence of a
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challenge based on a constitutional right.
• The most important issue concerning class actions, as identified is the scope and ambit of the class, i.e. who is bringing the action on behalf of whom.
• Once the Supreme Court of Appeal had decided that the class action in the Pioneer Food case was competent in the absence of a challenge based on a constitutional right, the Supreme Court of Appeal then examined the requirements necessary for a class action in South African law. The requirements examined by the Supreme Court of Appeal are certification, class definition, a cause of action raising a triable issue, common issues of fact of law and the identity of the representative. Each of these requirements is examined closely by the Supreme Court of Appeal and particular criteria are imposed in respect of how one is to meet these requirements as a particular class in any potential class action.
2. Remedy chosen and reasons provided
• The Supreme Court of Appeal declined to certify the second class action but allowed for the certification of the first class action by applying the criteria established by the Supreme Court of Appeal.
3. Order of the court
• The appeal against the refusal to certify a class action in respect of the national complaint and the class 2 claimants is dismissed.
• The appeal against the refusal to certify a class action in respect of the Western Cape complaint and the class 1 claimants is upheld and the application is remitted to the high court for determination in accordance with the principles in this judgment.
• The order of the high court is set aside and replaced with the following order:
• (a) If the applicants choose to pursue the application they are granted leave to supplement their papers within two months of this order by delivering supplementary affidavits, to which are annexed a draft set of particulars of claim in respect of their delictual claim against the respondents, embodying such further evidence as they deem meet in amplification of that claim.
• (b) The respondents are to deliver such further answering affidavits as they deem meet within four weeks of the date for delivery of the affidavits referred to in para (a) of this order.
• (c) The applicants are afforded two weeks thereafter to deliver their replying affidavits, if any.
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• (d) The costs of the application are reserved.
• Each party is ordered to pay his, her or its own costs of this appeal.
Trustees for the Time Being of the Biowatch Trust v Registrar of Genetic Resources & Others (Centre for Child Law, Lawyers for Human Rights and Centre for Applied Legal Studies as amici curiae)
(CCT 80/08) [2009] ZACC 14 (3 June 2009); 2009 (6) SA 232 (CC) ; 2009 (10) BCLR 1014 (CC) (3 June 2009)
*Access (Public interest litigation)
1. Content of the right as determined by the court
• The sole issue revolves around the proper judicial approach to determining costs awards in constitutional litigation.
• The applicant was pursuing information in terms of a right conferred by section 32 of the Constitution, and the information sought concerned environmental rights protected by section 24 of the Constitution. The government’s duty was to act as impartial steward, and not to align itself either with those who had furnished the information or with parties seeking access to it. It was important that the objectivity not only be present, but be seen to be present in circumstances where the information related to questions of general public interest and controversy, and there was no lawful ground to withhold it.
2. Remedy chosen and reasons provided
• In a matter where the state is shown to have failed to fulfil its constitutional and statutory obligations, and where different private parties are affected, the state should bear the costs of litigants who have been successful against it, and ordinarily there should be no costs orders against any private litigants who have become involved. The state had control over its conduct.
3. Order of the court
• Leave to appeal is granted.
• The appeal against the order made by the Full Court of the North Gauteng High Court dated 6 November 2007 succeeds and paragraphs 2 and 3 of that order are set aside.
• In the place of those portions of the order granted by the Full Court there
• is substituted—
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“(i) The appeal against paragraph (d) of the order of the NorthGauteng High Court dated 23 February 2005 succeeds (ii) Paragraph (d) of that order is set aside and replaced with the following order:
• ‘First, second and third respondents are ordered to pay applicant’s costs.’”
• First, second and third respondents are ordered to pay the costs occasioned by the application for leave to appeal to this Court, such costs to include the costs of two counsel.
Modder East Squatters and Another v Modderklip Boerdery (Pty) Ltd; President of RSA and Others v Modderklip Boerdery (Pty) Ltd
(187/03; 213/03) [2004] ZASCA 47; 2004 (8) BCLR 821 (SCA); [2004] 3 All SA 169 (SCA) (27 May 2004)
*Constitutional damages
1. Content of the right as determined by the court
• Basis of this case is Modderklip’s right to property entrenched by s 25(1) of the Bill of Rights, which provides that ‘no one may be deprived of property except in terms of law of general application’. De Villiers J found that the refusal of the occupiers to obey the eviction order amounted to a breach of this right.
• The state had failed to protect Modderklip’s rights entrenched in s 25(1) because the state was in breach of its obligation to the residents, this leads to the conclusion that the state simultaneously breached its s 25(1) obligations towards Modderklip. Section 165(4) of the Constitution, which requires of organs of state, through legislative and other measures, ie, to assist the courts to ensure their effectiveness-‐ De Villiers J found that the SAPS had failed in its duty to investigate the complaints laid and to protect the property of Modderklip.
2. Remedy chosen and reasons provided
• The application for leave to appeal in the eviction case has to be dismissed with costs.
• ‘Constitutional’ damages, ie, damages due to the breach of a constitutionally entrenched right. Ordering the state to pay damages to Modderklip has the advantage that the Gabon occupiers can remain where they are while Modderklip will be recompensed for that which it has lost and the state.
• Residents were entitled to occupy the land until alternative land was made available.
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3. Order of the court
• In Modder East Squatters v Modderklip Boerdery (Edms) Bpk (the eviction case 187/2003): The application for leave to appeal is dismissed with costs.
• In President van die Republiek van Suid-‐Afrika en andere v Modderklip Boerdery (Edms) Bpk (the enforcement case 213/03):
• The appeal is upheld in part.
• (b) Para 1 to 5 of the order of the court below is set aside and replaced with an order –
(i) Declaring that the state, by failing to provide land for occupation by the residents of the Gabon Informal Settlement, infringed the rights of Modderklip Boerdery (Pty) Ltd which are entrenched in sections 7(2), 9(1) and (2), and 25(1) and also the rights of the residents which are entrenched in section 26(1) of the Constitution.
(ii) Declaring that the applicant is entitled to payment of damages by the Department of Agriculture and Land Affairs in respect of the land occupied by the Gabon Informal Settlement.
(iii) Declaring that the residents are entitled to occupy the land until alternative land has been made available to them by the state or the provincial or local authority.
(iv) The damages are to be calculated in terms of section 12(1) of the Expropriation Act 63 of 1975.
(v) If, in relation to the investigation and determination of the damages suffered, the parties are unable to reach agreement regarding the pleadings to be filed, and discovery, inspection, and other matters of procedure relating thereto, leave is granted to any of the parties to make application to the court in terms of Rule 33(5) for directions.
• The third appellant is to pay the costs of appeal of the respondent.
Permanent Secretary: Department of Welfare, Eastern Cape Provincial Government and Another v Ngxuza and Others
(493/2000) 2001 (10) BCLR 1039 (SCA) (31 August 2001)
*Clarified requirements for class action
1. Content of the right as determined by the court
• Class action section 38(c).
• In the type of class action at issue in this case, one or more claimants litigate against
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a defendant not only on their own behalf but on behalf of all other similar claimants. The most important feature of the class action is that other members of the class, although not formally and individually joined, benefit from, and are bound by, the outcome of the litigation unless they invoke prescribed procedures to opt out of it.
• From the point of view of practical definition, it is beyond dispute that (1) the class is so numerous that joinder of all its members is impracticable; (2) there are questions of law and fact common to the class; (3) the claims of the applicants representing the class are typical of the claims of the rest; and (4) the applicants through their legal representatives, the Legal Resources Centre, will fairly and adequately protect the interests of the class. The quintessential requisites for a class action are therefore present. It is in any event clear from the judgment of Froneman J that the class definition encompasses only those whose social benefits have been unlawfully discontinued in the same manner as those of the applicants.
2. Remedy chosen and reasons provided
• There is no doubt that the Constitution requires that, once an applicant has established a jurisdictional basis for his or her own suit, the fact that extra-‐jurisdictional applicants are sought to be included in the class cannot impede the progress of the action.
• The requirements for a class action were met and therefore the court had jurisdiction.
