In Daniels v Scribante and Another 2017 ZACC 13, the Constitutional Court addressed the question of whether an occupier of a property has the right to make improvements without the landowner’s consent, within the context of the Extension of Security of Tenure Act 62 of 1997 (ESTA).

Yolanda Daniels occupied a dwelling on a farm in the Stellenbosch district. She indicated to the landowner that she intended to make basic improvements to the dwelling, viz. levelling the floors, paving part of the outside area, installing an indoor water supply, a wash basin, a second window and a ceiling. The costs would be for her account. However, the landowner refused to grant permission and insisted that the work should stop.

The matter went to court. Daniels argued that the improvements were required for the sake of human dignity, which was a right protected under ESTA. The landowner disagreed, saying that Daniels sought an order which could have the effect of making the landowner liable to pay compensation for the improvements in the event of an eviction. Moreover, argued the landowner, the constitutional right to human dignity could not be applied between two private individuals, i.e. the horizontal application of a constitutional right.

The majority judgment of the Constitutional Court held that ESTA grants an occupier the right to make improvements to his or her dwelling without the landowner’s consent. Nevertheless, the occupier must ensure that he or she has attempted meaningful engagement with the landowner.

There was nothing to prevent the horizontal application of a constitutional right. Whether or not it could be applied depended on a variety of factors. Here, it could be applied because of the importance of the right to human dignity in contrast to the tenuous nature of the duty that was imposed, i.e. the landowner could well be required not to pay compensation to Daniels in the event of a future eviction.

No meaningful engagement had taken place between Daniels and the landowner. The Constitutional Court ordered the parties to do so in relation to the intended improvements.