South Africa’s Constitution begins with a bold statement: “We, the people of South Africa, Recognise the injustices of our past …”

Yolanda Daniels is a domestic worker with three children. She has lived on a farm outside of Stellenbosch in South Africa’s Western Cape for more than 16 years with the white farm owner’s consent. Like many other women living on farms, overwhelmingly coloured and black, both the security of Ms Daniels’ employment and housing are precarious and constantly under threat. Both are reliant often on the whims of their male partners or husbands, but mostly of white farm owners and managers. For several years the farm manager on the farm where Ms Daniels lives, Mr Scribante, sought her eviction through a number of unlawful and indirect means. The final manifestation of these attacks was opposing her attempt, at her own cost, to making necessary improvements to her home such as leveling floors, establishing a system of running water and a washbasin, adding windows and laying paving outside the house. Prior to this, he had attempted to get her to leave by unlawfully disconnecting her electricity supply, removing the door from her home and simply ceasing to perform his obligation to maintain the premises. On both previous occasions, as a result of Ms Daniels’ tenacity and persistence, the Magistrates Court had come to her aid. On this occasion, however, neither the Magistrates Court in Stellenbosch, the Land Claims Court in Randburg nor the Supreme Court of Appeal in Bloemfontein vindicated her rights. Ms Daniels, whose rights were recently upheld in a path breaking Constitutional Court judgment, is not alone in having called upon Constitutional Court for assistance in affirming her rights. In Ms Daniels case, the court was clear that both the constitution and the Extension of Security of Tenure Act entitled her to make the necessary improvements required to ensure a dignified home, regardless of Mr Scribante’s consent. But many similar examples exist. Elsie Klaase, for instance, is a seasonal worker on farm near Clanwilliam. In 2016, after 30 years of living and working on the farm with her three children and three grandchildren, the Constitutional Court upheld Klaase’s application resisting her eviction. This following the Clanwilliam Magistrates Court and the Land Claims Court decisions that Ms Klaase herself had no independent legal right to continue occupying her home on the farm because her husband was evicted after being dismissed from his employment on the farm. The Constitutional Court lambasted the judgments of the lower courts for “demean[ing] Mrs Klaase’s rights to equality and dignity” by only considering her occupation as legitimate “through” or “under” her husband. Then there’s Magrieta Hattingh, is an elderly woman living on a farm in Stellenbosch. She lived there with her three children and three grandchildren for more than 10 years and had worked on the farm for some of this time. The Magistrates Court, Land Claims Court and Supreme Court of Appeal denied that her right to a family life included the protection of the occupation of her grandchildren and adult children. It took a 2013 Constitutional Court judgment to affirm the validity of Hattingh’s right to family life, because, as it pointed out “families come in different shapes and sizes.” These three examples illustrate a ubiquitous problem with respect to the precarity of farm workers in general, and women in particular, drawing attention to broader social issues and systems of oppression. First, women living and working on farms find themselves in dual patriarchal relationships: the relationships with their male partners and their relationships with farm owners and managers. Their employment is, by design, often seasonal (and therefore temporary and contract-based). As the cases of Klaase and Hattingh show tenure for them and their families has also been deeply insecure. Second, the majority of farm owners and managers are white and the majority of farm workers and dwellers are black African or coloured: the legacies of colonialism and Apartheid are alive and well on farms throughout South Africa. Third, more than 20 years after the adoption of the constitution and nearly 20 years after parliament’s enactment of the Extension of Security of Tenure Act, legal representation and protection of farm workers’ rights remains the exception, not the norm. It took Hattingh, Klaase and Daniels all several rounds of draining, costly, demoralizing litigation in courts around the country for the justice system to vindicate their rights. This suggests that both the legacies of patriarchy, white supremacy and capitalist worker exploitation may often be reproduced by South Africa’s justice system. It is in this context of the daily realities of women living and working on farms in South Africa that last week’s watershed Constitutional Court judgment in Ms Daniels case must be appreciated. The court’s judgments reveal the palpable disdain for Mr Scribante’s actions noting that he himself accepted that without the improvements Ms Daniels sought to make, the “dwelling is not fit for human habitation.” It affirmed that, after attempting to reasonably engage Mr Scribante, Ms Daniel’s was well within her right to make improvements that amount to “ordinary, basic, things” without his consent. But the increased influx of similar conscience-crushing cases that the court has heard in the last few years also led it to make statements of broader importance about the treatment of black farm workers by white farm owners and managers in South Africa. In a judgment written by Justice Madlanga, the court acknowledges importance of land reform and redistribution as a means of “recognizing the injustices” of the past, which include colonial- and Apartheid-imposed systems of racism and sexism. Justice Madlanga affirms the deep physical, psychological, economic and emotional pain that go with such dispossession. His judgment begins with a quote from a farm worker at a community meeting imploring his comrades “we must remember that there is only one aim and one solution and that is the land, the soil, our world.” It proceeds, therefore, to make it categorically clear that white farmers’ property rights need to be better balanced with black workers rights to dignity, housing and security of tenure. It accepts the vulnerability of black women to evictions despite protective laws noting they are “susceptible to untold mistreatment.” These are important reaffirmations by the court that it will not stand in the way of any efforts to redouble commitment to redistribution of land and wealth. This is of course, if politicians of various loyalties are indeed committed to “radical economic transformation” and claims of “economic freedom.” It invites us to question whether the constitution and judiciary are convenient scapegoats rather than obstructions to transformation as is now so often suggested. Moreover, in a judgment which is written in both Afrikaans and English (this is a rarity), and is clearly intended to be  read by white farmers and those sympathetic to their positions, Justice Johan Froneman implored them to take the rights of the farm workers and dwellers seriously. Justice Froneman, a white judge, who identifies as someone who “grew up” on a farm, underlined the hypocrisy which is often present in white people’s attitudes towards poor black South Africans:

Anyone who travels through our beautiful countryside cannot help but notice that the living conditions of workers who live on farms do not always meet a standard that accords with human dignity…

That there still can be a debate about whether the applicant, Ms Daniels, should be allowed to improve her home dwelling by doing ordinary things to make it more habitable without consent, shows that we still have a long way to travel before the promises of the Constitution are fulfilled. Remember, what is at stake here is the leveling of floors, the establishing of a system of running water with a washbasin in the house, the addition of another window and the laying of paving outside. Ordinary, basic, things. Many of us who take these basic everyday conveniences for granted, appear not to view it as a problem that others are denied them. These statements are an indictment on the conscience of white South Africans who far too often lack basic compassion and empathy for the very material plight of poor black people. Acknowledging this broader context, Justice Edwin Cameron bolstered his agreement with Justice Froneman in what appears to be the court’s first direct acknowledgement of white privilege and how “white people in particular … grew up with the benefits, both accumulated and immediate”. The constitution’s preamble begins “recognising the injustice of the past…”. The rest of its text follows from this basic premise and which is both a legal necessity and a moral imperative. It is with this in mind that the rights to access to adequate housing, dignity and not to be arbitrarily deprived of property must be read. Read in this way, as the court does, these rights take new and potentially radical meaning. For example, “Recognising the injustices of the past… no law may permit arbitrary deprivation of property” hardly reads as Magna Carte for the liberal protection of property rights. As Justice Cameron acknowledges, in South Africa, while the past continues to haunt landless farm workers whose employment and housing are precarious it is “not the past”,  “is not be done with us” either and “it will not leave us in peace until we have reckoned with its claims to justice”. At the heart of these claims for justice are women like Misses Hattingh, Klaase and Daniels. They are deeply affected by the way in which the Constitution is understood by judges, politicians and society more broadly. They work and live on farms they do not own for men who often deliberately and wilfully ignore their rights to even basic, ordinary things like a washbasin or a window and, even, “Recognising the injustices of the past…  the right to have their dignity respected and protected”.