THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 440/2011
Reportable

In the matter between:

MICHAEL HATTINGH

First Appellant
EDWINA JUNITA HATTINGH

Second Appellant
PIETER HATTINGH

Third Appellant

and

LAURENCE EDWARD JUTA

Respondent

Neutral citation:
Hattingh v Juta (440/2011) [2012] ZASCA 84 (30 May 2012)

Coram:
Navsa, Nugent and Leach JJA

Heard:
18 May 2012

Delivered:
30 May 2012

Summary: Family’s cultural rights under s 6(2)(d) of ESTA – what constitutes –
section envisages rights of an associative nature.

___________________________________________________________________

O R D E R
___________________________________________________________________

On appeal from:
Land Claims Court, held at Cape Town (Meer J and Gildenhuys
J):
1.  The appeal is dismissed.
2.  The dates 12 May 2011 and 13 May 2011 in paras 1 and 2 of the order of the
court a quo are amended to read 31 August 2012 and 1 September 2012,
respectively.
3.  There will be no order as to the costs of this appeal.
___________________________________________________________________
J U D G M E N T
__________________________________________________________________

LEACH JA (NAVSA AND NUGENT JJA CONCURRING):

[1] The issue in this appeal is whether the appellants were correctly evicted from
a worker’s house on a smallholding known as Fijnbosch farm in the district of
Stellenbosch (‘the farm’) that is owned by the respondent.1 The appellants have
since December 2002 resided in the house together with the mother of the first and
third appellants. On 10 May 2010 the Stellenbosch Magistrate’s Court dismissed an
application brought by the respondent to evict the appellants from the house. The
respondent thereafter successfully appealed to the Land Claims Court which, on 30
March 2011, set aside the magistrate’s order and substituted an order directing the
appellants to vacate by 20 May 2011. With leave of the Land Claims Court, the
appellants now appeal to this court against that order.

[2] The first and third appellants are brothers, the sons of Mrs Magrieta Hattingh,
a woman in her mid-sixties. The second appellant is the first appellant’s wife. At the
time of the institution of the eviction proceedings in the magistrate’s court, the first
and second appellant’s were both 29 years of age, while the third appellant was 37

1 More fully described as ‘Portion 9 (a portion of portion 2) of the farm Mendoza No 512, in the
Municipality and Division Stellenbosch, Province Western Cape in extent: 1,4286 hectares’.

years old. The first and second appellants have either two or three minor children
(the papers are contradictory) who also live with them.

[3]   The respondent purchased the farm in 2002. At that time Mrs Hattingh was
working for him as a domestic servant in his home in Stellenbosch, having been
employed in this capacity since approximately 1994. After taking occupation of the
farm, the respondent built himself a residence there, which was only completed in
December 2003. However there was a worker’s house on the farm which the
respondent agreed to allow Mrs Hattingh and her husband to use, and they moved
in during December 2002. Although Mrs Hattingh only resumed full time employment
with the respondent once his house had been completed, she continued to receive
her full salary. The respondent also employed her husband as a gardener for a
period.

[4] Mrs Hattingh continued in the respondent’s employ until the end of 2005. The
respondent avers that he ended her employment at that time as her health had
deteriorated and she was unable to work. The appellants deny this, and allege that
the termination of her employment occurred without any valid reason. It is
unnecessary to determine this dispute for purposes of the present enquiry as it is
common cause that, after her employment came to an end, the respondent allowed
her to continue living in the worker’s house with her husband who was in poor health
until he died from lung cancer in 2006. She continues to reside in the worker’s house
to this day, not as an entitlement flowing from her employment with the respondent
but solely due to his generosity and consent.

[5]    I turn to consider the position of the appellants. At the time the respondent
purchased the farm, the appellants were living on another farm in the district owned
by a Mr Nico Mostert. How long this had been the case and under what
circumstances they came to be living there, is not disclosed in the affidavits. It is not
clear whether Mrs Hattingh and her husband were living with them, although that
may well have been the case. It is also not clear whether the appellants moved onto
the respondent’s farm at the same time as Mrs Hattingh or shortly thereafter,
although that is neither here nor there for present purposes. What is clear is that in

December 2002, the same month in which Mrs Hattingh moved to the farm, they did
so too and have remained residing there ever since.

[6] According to the respondent, he allowed the appellants to move onto the farm
on condition that they remained there for no longer than three months. This the
appellants deny. While it is common cause that the second appellant worked for the
respondent for a period, there is a dispute as to whether he had also employed the
first and third appellants at any time. They allege that he did, but he denies this.
Again it is unnecessary to resolve this dispute. What is common cause is that when
the eviction application was launched all three appellants were working for different
employers in Stellenbosch.

[7] It is also common cause that when Mrs Hattingh moved onto the farm her
third son, Ricardo, was at school at Graaff–Reinet. During his school holidays he
returned home from time to time and lived on the farm with his parents. After leaving
school Ricardo returned to Stellenbosch where he was able to find both work and
accommodation in the town.  However, when he changed jobs and took up work with
an employer who did not provide accommodation, he too went to live with Mrs
Hattingh and the appellants in the worker’s house on the respondent’s farm. It must
immediately be recorded that the respondent does not seek to have Ricardo evicted
and, as counsel for the respondent confirmed from the bar, is happy to allow him to
reside with his mother.

[8]   The worker’s house on the farm where the appellants live consists of two
interlinked units which were altered when they moved onto the farm to become
effectively a single house. Since September 2006 the respondent has employed a
Mr Gert Willemse as a general labourer and is of a mind to restore the house to its
original condition of two living units with the intention to accommodate Mr Willemse
in the one and Mrs Hattingh and Ricardo in the other. It was for this reason that he
sought to evict the appellants.

[9] In seeking to avoid eviction the appellants do not purport to rely upon any
rights that they themselves hold under the Extension of Security of Tenure Act 62 of

1997 (‘ESTA’). Instead they contend that they are entitled to remain on the property
by virtue of Mrs Hattingh who is an ‘occupier’ under ESTA, being entitled to exercise
her rights as such under s 6(2)(d) thereof which provides:
‘Without prejudice to the generality of the provisions of section 5 and subsection (1), and
balanced with the rights of the owner or person in charge, an occupier shall have the right ─
. . .
(d)  to family life in accordance with the culture of that family . . .’2

[10]   It is the meaning of the phrase ‘family life in accordance with the culture of that
family’ that lies at the heart of the dispute between the parties. In considering the
issue, the court a quo took into account s 8(5) of ESTA which extends a right of
residence to only a spouse or dependant of an occupier who dies, and commented
that restricting family members only to those persons is an equitable formulation
‘[f]or were it otherwise, landowners would have the onus and intolerable burden of
housing adult members or occupiers’ extended families indefinitely’. It therefore
concluded that while in a specific situation a wider interpretation, which would permit
other family members to reside with an occupier, could be accorded under the right
to family life protected by s 6(2)(d), in such a case evidence in support of a wider
interpretation would be necessary. It then proceeded to then rule against the
appellants on the basis that they had failed to prove that family life as envisaged by
their culture entitled them to reside with Mrs Hattingh, and that they were therefore
not protected from eviction.

[11]   The appellants did not seek to impugn the approach that it was incumbent
upon them to prove the cultural basis under s 6(2)(d), upon which they rely to avoid
eviction from the respondent’s farm, and it is thus unnecessary to decide whether
the court a quo’s reasoning in this regard was correct.  However I certainly think that
it would hardly require evidence to prove that a wife and minor dependants were
family of an occupier, and a nuclear family of that nature would surely be regarded
as a ‘family’ as envisaged by s 6(2)(d). But that is not the issue in the present case;
it is whether the extended Hattingh family reside together in accordance with its
culture.

2 There is a proviso to the subsection which is of no relevance to the present debate.

[12]   In arguing this to be the case, counsel for the appellants submitted that the
concept of ‘culture’ as envisaged in s 6(2)(d) should be broadly interpreted and was
in no way limited to considerations of race, ethnicity, religion, language and
community. Rather he submitted that each family had to be considered individually
to determine its culture, being the way in which it lived, and that although this might
well be influenced by race, ethnicity, language, religion and the values and practices
of the local community, such factors would not be determinative.

[13]   Essentially the appellant’s argument was that ‘culture’ as envisaged by s 6 was
not a matter of association ─ rather it is a reflection of the ethos of the family itself
and the way in which it lived ─ and  is, as counsel for the appellant put it, ‘family
sensitive’. Thus, so it was argued, the history of the appellants showed that they
were members of a caring family who looked after and supported each other; who
had lived together sharing the same accommodation for years; and who had been
prepared to share their home with members of their extended family when the need
arose, as it had when Ricardo changed employment and needed somewhere to live.
These were their shared values which evidenced their culture. And as they lived
together as part of that family culture, their continued residence on the farm was
protected by s 6.

[14] In construing s 6, the importance of family and family life must be borne in
mind. South Africa has ratified the International Covenant on Civil and Political
Rights, art 23(1) of which recognises that the family ‘is the natural and fundamental
unit of society’ entitled to protection by society and the state.  Article 18 of the
African Charter on Human and People’s Rights contains a similar provision, and in
art 8 of the European Convention on Human Rights and Fundamental Freedoms
provision is made for the recognition and protection of a person’s ‘right to respect for
his private and family life, his home and his correspondence’. In Huang v Secretary
of State for the Home Department3 Lord Bingham, dealing with the core value of this
latter article in an immigration context, commented:4

3 Huang v Secretary of State for the Home Department [2007] 2 AC 167 (HL); [2007] UKHL 11.
4 At para 18.

‘Human beings are social animals. They depend on others. Their family, or extended family,
is the group on which many people most heavily depend, socially, emotionally and often
financially.’

[15] In the Certification of the Constitution of the Republic of South Africa case5
the Constitutional Court, after recording that a survey of various national
constitutions throughout the world shows that there to be no universal acceptance of
a right to family life as fundamental in the sense that it required express
constitutional protection, went on to observe:6
‘The absence of marriage and family rights in many African and Asian countries reflects the
multi-cultural and multi-faith character of such societies. Families are constituted, function
and are dissolved in such a variety of ways, and the possible outcomes of constitutionalising
family rights are so uncertain, that constitution-makers appear frequently to prefer not to
regard the right . . . to pursue family life as a fundamental right that is appropriate for
definition in constitutionalised terms. They thereby avoid disagreements over whether the
family to be protected is a nuclear family or an extended family, . . . These are seen as
questions that relate to the history, culture and special circumstances of each society,
permitting no universal solutions.’

[16] Although the Constitutional Court found it unnecessary to constitutionally
entrench the right to family life, which it felt was adequately protected by other
provisions, it has subsequently recognised it as being a concomitant of the right to
human dignity entrenched in s 10 of the Constitution: see eg the judgment in
Dawood & another v Minister of Home Affairs & others.7

[17] Although the word ‘family’ is incapable of having a precise legal connotation
or definition, it is apparent from what I have said that a right to family life is inherent
in the fundamental right to human dignity enshrined in the Constitution.  And, as

5 Ex parte Chairperson of the Constitutional Assembly: In re certification of the Constitution of the
Republic of South Africa 1996 1996 (4) SA 744 (CC).
6 At para 99.
7 Dawood & another v Minister of Home Affairs & others; Shalabi & another v Minister of Home Affairs
& others; Thomas & another v Minister of Home Affairs & others 2000 (3) SA 936 (CC) at paras 28-
37.

enjoined by decisions such as Bato Star Fishing,8 it is the Constitution which
provides the backdrop when seeking to interpret sections such as s 6(2)(d).

[18]   In considering the concepts of family life and culture through the prism of the
Constitution,  the decision in Pillay,9 a case to which we were most surprisingly not
referred to by the parties, is instructive. In that matter the Constitutional Court was
called on to deal with the issue of discrimination under s 6 of the so-called Equality
Act10 in order to consider whether a learner of Hindu descent had been discriminated
against by not being permitted to wear a nose-stud to school. That section reiterates
the prohibition in ss 9(3) and 9(4) of the Constitution against unfair discrimination on
a number of grounds, including culture. In this context the court were unanimous that
the concept of ‘culture’ resisted any precise definition but in both the majority
judgment of Langa CJ (with whom the other members of the court, save for O’Regan
J concurred) as well as O’Regan J’s partial dissent, it was concluded that culture
was an inherently associative practice and that, while differing from religion, cultural
practices are often influenced by religious practices. But, as Langa CJ observed,
‘culture generally relates to traditions and beliefs developed by a community’.11 The
learned Chief Justice went on further to hold:
‘ . . . cultural convictions or practices may be as strongly held and as important to those who
hold them as religious beliefs are to those more inclined to find meaning in a higher power
than in a community of people. The notion that “we are not islands unto ourselves”  is
central to the understanding of the individual in African thought. It is often expressed in the
phrase
umuntu
ngumuntu
ngabantu
which
emphasises
“communality
and
the
interdependence of the members of a community” and that every individual is an extension
of others. According to Gyekye, “an individual human person cannot develop and achieve
the fullness of his/her potential without the concrete act of relating to other individual
persons”.  This thinking emphasises the importance of community to individual identity and
hence to human dignity. Dignity and identity are inseparably linked as one's sense of self-
worth is defined by one's identity. Cultural identity is one of the most important parts of a
person's identity precisely because it flows from belonging to a community and not from

8 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & others 2004 (4) SA 490 (CC) para
90. See further Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd  2007 (6) SA 199
(CC) para 53.
9 MEC for Education, KwaZulu-Natal & others v Pillay 2008 (1) SA 474 (CC).
10 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
11 Para 47.

personal choice or achievement. And belonging involves more than simple association; it
includes participation and expression of the community's practices and traditions.’
(Footnotes omitted).

[19]   In her judgment O’Regan J stated that a cultural practice is ‘about a practice
pursued by individuals as part of a community’.12 Indeed, as appears from her
judgment, she was concerned that the approach of the majority judgment did not
sufficiently acknowledge the associative nature of cultural practices and that the right
to cultural life is a right to be practiced, not primarily as a sincere but personal belief,
but as a member of the community. She then went on to state: 13
‘Nevertheless, the need to investigate whether a particular property asserted practice is
shared within the broader community, or portion of it and therefore understood as a cultural
practice rather than a personal habit or preference, is central to determining whether a
cultural claim has been established,’
and that:14
‘My understanding of how our Constitution requires us to approach the rights to culture,
therefore, emphasises four things: cultural rights are associative practices, which are
protected because of the meaning that shared practices give to individuals and to succeed
in a claim relating to a cultural practice a litigant will need to establish its associative quality;
an approach to cultural rights in our Constitution must be based on the value of human
dignity which means that we value cultural practices because they afford individuals the
possibility and choice to live a meaningful life; cultural rights  are protected in our
Constitution in the light of a clear constitutional purpose to establish unity and solidarity
amongst all who live in our diverse society . . .’(Emphasis added).

[20] As is apparent from both judgments in Pillay, a person’s culture as envisaged
by the Constitution is clearly not a matter of such person’s individual practice but a
matter of association and practices pursued by a number of persons as part of a
community. As O’Regan J concluded, the ‘anthropological conception of culture
which refers to the way of life of a particular community’ is the concept of culture
referred to in ss 30 and 31 of the Constitution, and that the rights in those sections
are ‘associative rights exercised by individual human beings’ which ‘bolster the

12 Para 147.
13 Para 154.
14 Para 157.

existence of cultural, religious and linguistic groups so long as individuals remain
committed to living their lives in that form of association’.15 And while the majority
judgment may have placed less emphasis on the associative nature of cultural
practices, in a comment particularly damaging to the appellants’ contention Langa
CJ, warned  that ‘if too wide a meaning is given to culture “the category becomes so
broad as to be rather useless for understanding differences among identity
groups”'.16

[21]   The right to a family life in accordance with the family’s ‘culture’ in s 6 of ESTA
is clearly a reflection of the fundamental rights set out in ss 30 and 31 of the
Constitution, namely, that every person has the right ‘to participate in the cultural life
of their choice’ and to ‘enjoy their culture’ with other members of a cultural, religious
or linguistic community.17 Bearing that in mind, the finding in Pillay that cultural rights
protected by the Constitution are clearly associative in nature is fatal to the
appellant’s argument that culture as envisaged in s 6(2)(d) of ESTA was non-
associative and fell to be determined solely by the manner in which Mrs Hattingh
and her extended family lived their lives. As the court a quo correctly found, the
appellants did not seek to establish a cultural practice of association as envisaged
by the Constitution to show that they that they and Mrs Hattingh were enjoying
family life in accordance with the culture of their family. Indeed counsel for the
appellants conceded that in the event of this court finding that culture was a matter
of association shared by at least a portion of the community, the appeal must fail.

15 Para 150.
16 The quotation used by the learned Chief Justice is from Gutmann Identity in Democracy (Princeton
University Press 2003) at 38.
17 The sections read as follows:
‘30.  Language and culture. ─ Everyone has the right to use the language and to participate in the
cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with
any provision of the Bill of Rights.
31.  Cultural, religious and linguistic communities. ─
(1)   Persons belonging to a cultural, religious or linguistic community may not be denied the right,
with other members of that community ─
(a)  to enjoy their culture, practise their religion and use their language; and
(b)  to form, join and maintain cultural, religious and linguistic associations and other organs of civil
society.
(2)  The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of
the Bill of Rights.’

[22]   In the order of the court a quo, the appellants were given until 12 May 2011 to
vacate the premises and, in the event that they failed to do so, the sheriff, with effect
from the following day, was authorised to take the necessary steps to evict them.
That order has been overtaken by events and, even though the appeal must fail, it is
necessary to amend its terms to afford the appellants the adequate opportunity to
arrange other accommodation. The parties were agreed that it would be fair to allow
the appellants a period of some three months to do so. As this judgment will be
delivered before the end of May 2012, this can be achieved by amending the dates
in the order to 31 August 2012 and 1 September 2012, respectively.

[23] Finally, dealing with the question of costs, the respondent who has at all times
behaved with the utmost consideration towards Mrs Hattingh and her extended
family, did not seek a costs order against the appellants. For this he is to be
commended.

[24] In the result the following order is made:
1.  The appeal is dismissed.
2.  The dates 12 May 2011 and 13 May 2011 in paras 1 and 2 of the order of the
court a quo are amended to read 31 August 2012 and 1 September 2012,
respectively.
3.  There will be no order as to the costs of this appeal.

.

______________________
L E Leach
Judge of Appeal

APPEARANCES:

For Appellant 1st and 3rd:

A C Dodson SC

Instructed by:

University of Stellenbosch Law Clinic

Stellenbosch

Honey Attorneys, Bloemfontein

For Respondent:

L F Wilken

Instructed by:
Bouwer Potgieter Inc, Strand
Symington & De Kok Attorneys,
Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  30 May 2012
Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Neutral citation: Hattingh v Juta (440/2011) [2012] ZASCA 84 (30 May 2012)

The three appellants reside on Fijnbosch farm in the district of Stellenbosch, a property
owned by the respondent. They have done so since December 2002 when they moved into a
house on the property which the respondent had permitted the mother of the first and third
appellants to reside in. The respondent applied to the Stellenbosch Magistrate’s Court for an
order evicting the appellants from the house. This application was unsuccessful but an appeal
brought by the respondent to the Land Claims Court, Cape Town was upheld and, on 30
March 2011, that court set aside the magistrate’s order and issued an order directing the
appellants to vacate the property by 20 May 2011. With leave of the Land Claims Court, the
appellants then appealed to the Supreme Court of Appeal.

In seeking to evade eviction the appellants contended that they are entitled to remain on the
property by virtue of the mother of the first and third appellants, who is an occupier as
envisaged by the Extension of Security of Tenure Act 62 of 1997, being entitled to exercise
her right under s 6(2)(d) of the Act to have a family life in accordance with the culture of that
family. The appellants alleged that the culture of their family was an issue which was family
specific, that theirs was a caring family the members of whom supported and looked after

each other and who had shared their home with each other. This it was submitted constituted
their culture as envisaged by s 6(2)(d) which, so it was argued, should be broadly interpreted
and was in no way limited to considerations such as race, ethnicity, religion, language and
community. The appellants conceded that they had placed no evidence relevant to these latter
factors before court and that, should it be held that culture was not a matter of a family’s
individual practice but a matter of association and practices pursued by a number of persons
as part of a community, they had not made out a case to avoid eviction.

The Supreme Court of Appeal, with reference to the judgment of the Constitutional Court in
MEC for Education, KwaZulu-Natal & others v Pillay 2008 (1) SA 474 (CC) concluded that
‘culture’ as envisaged by the section was an inherently associative practice pursued as
individuals as part of a community. As the appellants had not failed to establish that in terms
of an associative culture their family would have resided together in a manner in which they
lived, the appeal had to fail.

The appeal was therefore dismissed.

---ends---