Abstract

Keywords

ESTA occupiers; access to electricity; SDG 7; human dignity; horizontal application of rights; property rights of private landowners.

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1 Introduction

This case note is about the need of an occupier under the Extension of Security of Tenure Act 62 of 1997 (hereafter ESTA) to vindicate his right of access to electricity on a privately owned farm. It is important to reflect for a moment on the fact that during the apartheid era many black South Africans, including ESTA occupiers, 1

* Lerato Rudolph Ngwenyama. LLB (UNIVEN) LLM (UJ) LLD (SU). Senior lecturer and Co-project leader for the Justice in Practice project in the Faculty of Law Research Unit, North-West University (NWU), School of Undergraduate Studies, Vanderbijlpark Campus, South Africa. Advocate of the High Court of South Africa. Email: 44748582@nwu.ac.za. ORCID: https://orcid.org/0000-0003-1256-3903. This case note is partly based on the ideas developed from the doctoral thesis submitted by the author for the completion of the degree of Doctor of Laws at Stellenbosch University, Cape Town. The case note is an extended version of a paper presented at the Wits Law Conference 2022 under the banner "A conference bringing together academics, practitioners and alumni to discuss and share knowledge and experiences of the law". The conference was hosted by the Wits School of Law, Johannesburg, from 13-14 September 2022. I extend my thanks to the conference organisers and to all the other delegates whose papers and contributions during the conference influenced my approach in this case note. The case note was further developed at a writing retreat organised by the NWU Faculty of Law Research Unit hosted at Emerald Resort and Casino in Vaderbijlpark from 31 October – 2 November 2022. The financial support of the NWU Faculty of Law Research Unit is hereby acknowledged. I want to express my gratitude to Priviledge Dhliwayo, Tola Fola Olowolafe, Obakeng van Dyk and Nhlanhla Sono for their very generous and thought-provoking comments on earlier drafts of this case note. I am also thankful to the two anonymous peer reviewers for their positive feedback. The opinions expressed in this discussion are my own and should not be attributed to any of the institutions and persons mentioned above. All remaining errors are my own.

1 This case note is limited to the Extension of Security of Tenure Act 62 of 1997 (hereafter ESTA) occupiers who had consent or a right in law to occupy unless otherwise stated, and not to occupiers of other types of property. S 1 of ESTA provides that an occupier means: "a person who resides on land which belongs to another person, and who has or on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes, but including a person who works the land himself or herself and does not employ any person who is not a member of his or her family; and a person who has an income in excess of the prescribed amount."

situations that are in part perpetuated by past discriminatory laws. 5

5 The preamble of ESTA.

Interestingly, a situation partly perpetuated by past discriminatory laws was up for determination in the Sibanyoni case. The Sibanyoni case dealt with an application for an interdict restraining Ms Van der Merwe from violating Mr Sibanyoni's right to effect improvements on his household. Furthermore, for Ms Van der Merwe to be ordered and directed to permit connection of electricity to Mr Sibanyoni's homestead. 7

7 Sibanyoni case para 1.

The Land Claims Court (hereafter the LCC) decided that Mr Sibanyoni was not entitled to a general right to make improvements to his dwelling. 9

9 Sibanyoni case para 27.

As Prof Willemien du Plessis has shown throughout the course of her career, several pertinent issues remain unresolved and new challenges continuously arise in the area of land. This case note therefore continues to critically engage with the most recent developments in this area of law, such

as access to electricity for ESTA occupiers. Part 1 of the case note will provide an introduction to the subject matter in question, namely the progressive realisation of the right to have access to electricity for an ESTA occupier in his or her own dwelling. Part 2 of the case note will discuss the importance of access to electricity for ESTA occupiers - a right implied in the right to have access to adequate housing. Part 3 will set out the facts and judgment in the Sibanyoni case. More importantly, the subsequent sub-parts will comment on whether the LCC got the decision right (or not). Moreover, it will be important to provide a commentary on whether the right to human dignity in section 5 of ESTA requires private dwellings on farmlands to have access to electricity. Furthermore, the question of whose responsibility it is to provide ESTA occupiers with access to electricity on farmlands is asked in this case note. Finally, the case note will also comment on whether the Sibanyoni case was progressive (or not) and why. Part 4 of the case note will draw conclusions to the issues identified.

2 Importance of access to electricity as a component of adequate housing

The right to access to electricity is not explicitly provided for in the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution). 13

13 Sibanyoni case para 13; Mahlangu v Van der Merwe (LCC: 142/2019) [2022] ZALCC 5 (3 February 2022) para 17 (hereafter the Mahlangu case); Joseph v City of Johannesburg 2010 4 SA 55 (CC) para 34 (hereafter the Joseph case); Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd (CCT 44/22) [2022] ZACC 44 (23 December 2022) (hereafter the Eskom case) paras 22 and 112. See further, Dube and Moyo 2021 PELJ 2 and 9.

available land, appropriate services [such as electricity] and the financing of all of these, including the building of the house itself. For a person to have access to adequate housing all of these conditions need to be met: there must be land, there must be services, [and] there must be a dwelling. 16

16 Grootboom case para 35. Also see Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Mr Miloon Kothari UN Doc E/CN.4/2002/59 (2002) para 49.

Yacoob J's description of what it means to have access to adequate housing, especially services like electricity, indicates that access to

electricity for housing purposes forms part and parcel of the right to access to adequate housing in section 26 of the Constitution. 17

17 Also see Dugard "Power to the People?" 266, where she points out that the right to electricity may be implied in the right to access to adequate housing enshrined in s 26(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution).

In the modern day, a supply of electricity and water to a residential property is a practical necessity in order for the occupant to use the property as a dwelling. 20

20 Makeshift case para 25. See also Eskom case para 74; Dube and Moyo 2021 PELJ 2.

Similarly, in Joseph v City of Johannesburg (hereafter the Joseph case), 21

21 Joseph v City of Johannesburg 2010 4 SA 55 (CC).

Electricity is one of the most common and important municipal services and has become virtually indispensable, particularly in [rural or peri] urban society. 22

22 Joseph case para 34.

Access to electricity is one of the most important basic amenities for an occupant to use and enjoy the property for the purpose for which it was provided. In other words, for a property to be adequately used and enjoyed as a dwelling, an occupant should have an electricity supply. This is because a property used as a dwelling must meet the characteristics identified by the United Nations Committee on Economic, Social and Cultural Rights (hereafter the CESCR). 23

23 In terms of s 39(1)(b) of the Constitution, a court is obliged to consider international law when determining the meaning of the rights in the Bill of Rights. Furthermore, s 233 of the Constitution requires a court to prefer any reasonable interpretation of ESTA that is consistent with international law.

(hereafter the ICESCR). 25

25 The Covenant was adopted by the General Assembly of the UN on 16 December 1966 and came into force on 3 January 1976. As of 19 June 2019, the Covenant has been ratified by 169 countries. South Africa signed the Covenant on 3 October 1994 and ratified it on 15 January 2015.

habitable, in terms of providing the inhabitants with adequate space and protecting them from cold, damp, heat, rain, wind or other threats to health, structural hazards, and disease vectors. The physical safety of occupants must be guaranteed as well. The Committee encourages States Parties to comprehensively apply the Health Principles of Housing prepared by WHO which view housing as the environmental factor most frequently associated with conditions for disease in epidemiological analyses; i.e. inadequate and deficient housing and living conditions are invariably associated with higher mortality and morbidity rates. 26

26 CESCR General Comment No 4: The Right to Adequate Housing (Article 11(1) of the ICESCR) UN Doc E/1992/23 (1991) (hereafter General Comment 4) para 8(d).

The CESCR has further observed that housing is adequate if there is:

Availability of services, materials, facilities and infrastructure. An adequate house must contain certain facilities essential for health, security, comfort and nutrition. All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services 27

27 General Comment 4 para 8(b).

Although the CESCR General Comment 4 does not explicitly refer to electricity but instead to energy, the United Nations Special Rapporteur on adequate housing has pointed out that the right to adequate housing includes access to essential services such as electricity. 28

28 Tully 2006 Northwestern Journal of International Human Rights 524. Also see Dugard "Power to the People?" 266.

ESTA occupiers cannot be said to live in adequate housing if that house lacks electricity. More importantly, a house without electricity impacts on the elements of habitability such as threats to health and the physical safety of the occupants. If you deny ESTA occupiers the right to make improvements in the form of installing electricity to their dwellings, you fail to protect them against threats to health and their physical safety. Failure to protect the ESTA occupier from health threats and failure to guarantee his or her physical safety may lead to the ESTA occupier’s using traditional bio-mass stoves and other traditional forms of energy which have the potential to cause respiratory health problems and offer an unsafe environment. It is important to grant ESTA occupiers access to electricity because electrically-operated appliances which modern life takes for granted improve living conditions, habitability and welfare. 32

32 Sibanyoni case para 17. Also see Dube and Moyo 2021 PELJ 2; UN 2022 https://unstats.un.org/sdgs/report/2022/The-Sustainable-Development-Goals-Report-2022.pdf 40.

The right to access to electricity is closely linked to the enjoyment of other pre-existing socio-economic rights such as the right to housing. 33

33 Sibanyoni case paras 18-23, citing Grootboom case para 37; Joseph case para 34; Makeshift case para 25; Eskom case para 22; Dugard "Power to the People?" 266-267; Convention on the Elimination of All Forms of Discrimination against Women (1979); General Comment 4 para 8(b); Löfquist 2020 IJHR 716 and 723. See further, Dube and Moyo 2021 PELJ 9-10.

setting of the Constitution as a whole." 39

39 Grootboom case para 24.

The right to human dignity (in terms of section 10 of the Constitution), but also with reference to section 5(a) of ESTA, was therefore established to facilitate a move away from the past by emphasising the significance of human beings’ having their inherent human dignity respected and protected against intolerable treatment or living condition in our new constitutional dispensation. 42

42 Daniels case paras 1-2.

The state must therefore strive to respect, protect, promote and fulfil the rights of ESTA occupiers. 45

45 Section 7(2) of the Constitution.

It is here that the horizontal application of the Bill of Rights and the courts prior to the Daniels case becomes important. 49

49 For academic literature on the horizontal application of the Bill of Rights in South Africa, see generally Cheadle and Davis 1997 SAJHR 44-66; Sprigman and Osborne 1999 SAJHR 25-51; Liebenberg 2008 TSAR 464-480; De Vos and Freedman South African Constitutional Law 417-419.

Governing Body of the Juma Musjid Primary School v Essay (hereafter the Juma Musjid case) 53

53 Governing Body of the Juma Musjid Primary School v Essay (CCT 29/10) [2011] ZACC 13 (11 April 2011) (hereafter the Juma Musjid case).

obligation meant that the trust must not interfere with or diminish the enjoyment of the right to basic education. 58

58 Juma Musjid case para 58.

In the Daniels case the Constitutional Court found that it was unreasonable to require private persons to bear the same obligations as the state (i.e. positive duties). 59

59 Daniels case para 40.

Now that this part of the paper has outlined the importance of access to electricity in a private home, the next part will analyse the case of Sibanyoni, which dealt with the right to access to electricity in the context of ESTA occupiers.

3 Access to electricity in light of Sibanyoni v Van der Merwe

3 1 Facts of Sibanyoni v Van der Merwe

In this case Mr Sibanyoni as the occupier in terms of ESTA resided on a farm belonging to another. Mr Sibanyoni lived in a permanent structure that he had constructed years earlier. 62

62 Sibanyoni case paras 2-3.

Mr Sibanyoni alleged that the son-in-law of Vincent Schalk (the previous private landowner) had signed a consent form to install electricity in his home and had handed the form to the municipality. 66

66 Sibanyoni case para 5.

however, denied signing such a form or giving verbal consent, as alleged by Mr Sibanyoni. 67

67 Sibanyoni case para 5.

Eskom personnel came to the farm to install electricity in Mr Sibanyoni's dwelling. However, they were denied entry by Ms Van der Merwe, as she claimed she had not given consent for the installation. 74

74 Sibanyoni case para 7.

Mr Sibanyoni pointed out that Ms Van der Merwe could not have been surprised by the poles being dropped off. 79

79 Sibanyoni case para 8.

conduct inspections before the poles were delivered. 80

80 Sibanyoni case para 8.

The attorney representing the ESTA occupier asserted, with reference to the Daniels case, that Mr Sibanyoni had a clear right to make improvements to render his dwelling habitable. 85

85 Sibanyoni case para 11.

Furthermore, the attorney representing Ms Van der Merwe asserted that neither the Constitution nor ESTA recognised the right to electricity as a fundamental right. 89

89 Sibanyoni case para 12.

3.2 Land Claims Court judgment

Meer AJP began her judgment by explaining that the right to electricity was not explicitly provided for in the Constitution or ESTA. 93

93 Sibanyoni case para 13.

Meer AJP pointed out in detail the importance of access to electricity in modern life and that living in a dwelling without electricity deprived Mr Sibanyoni of certain benefits, such as an electric stove. 97

97 Sibanyoni case paras 17-24.

Relying on various cases and literature, Meer AJP found that the delivery of the implied right to electricity was necessary to exercise other pre-existing rights, such as the right to housing. 101

101 Sibanyoni case paras 18-24, citing Grootboom case para 37; Joseph case para 34; Makeshift case para 25; Dugard "Power to the People?" 266-267; Convention on the Elimination of All Forms of Discrimination against Women (1979); General Comment 4 para 8(b); Löfquist 2020 IJHR 716 and 723.

engagement. 103

103 Sibanyoni case para 25, referring to Daniels case paras 62-65.

some twenty years into a constitutional democracy based on freedom, equality and dignity, a farm owner can, in antithesis to these very values, refuse an occupier access to electricity, thereby perpetuating the injustices of the past and the stark division and disparity between the 'haves' and 'have-nots' in our society. 106

106 Sibanyoni case para 26.

This statement shows how much transformation is still needed, in the context of ESTA, to ensure that the promises of the Constitution are not a distant dream for all those who live on farms. Meer AJP found that Mr Sibanyoni was not entitled to a general right to improve his dwelling. 107

107 Sibanyoni case para 27.

3.3 Some comments from Sibanyoni v Van der Merwe

3.3.1 Did the LCC get the decision right?

The LCC got the overall decision right. I have a comment only on the finding by the court that it would be difficult to assert that the installation of electricity would be an improvement that was reasonably necessary to make Mr Sibanyoni's dwelling habitable, to enable him to exercise his right to human dignity in section 5(a) of ESTA. In my opinion it is not difficult to find that a lack of electricity impacts on the habitability of the dwelling. For example, if ESTA occupiers do not have electricity they will use traditional forms of energy such traditional bio-mass stoves, candles for lighting, etc. These

forms of energy may pose a threat to their health and physical safety as traditional bio-mass stoves produce smoke emissions and candles unattended can easily start a fire. Their health and physical safety are impacted on in this example, and these are clearly elements of habitability, as mentioned above. 111

111 See part 2 above. See further, Ngwenyama Common Standard of Habitability 17-19.

3.3.2 Does section 5 of ESTA require a private dwelling on farmland to have access to electricity?

The right to electricity is not explicitly provided for in ESTA. Section 5 of ESTA does however provide that:

Subject to limitations which are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, an occupier, an owner and a person in charge shall have the right to—

(a) human dignity;

(b) freedom and security of the person;

(c) privacy;

(d) freedom of religion, belief and opinion and of expression;

(e) freedom of association; and

(f) freedom of movement,

with due regard to the objects of the Constitution and this Act.

Section 5 of ESTA recognises in particular the right to the human dignity of an ESTA occupier and a private landowner. This means that a private landowner enjoys the same rights as an ESTA occupier. 116

116 Daniels case para 61.

Section 25(1) of the Constitution provides that no one may be deprived of property except in terms of a law of general application, given that no arbitrary deprivation can take place. 121

121 For a discussion of s 25 of the Constitution, see generally Van der Walt Constitutional Property Law 190-333; Muller et al Silberberg and Schoeman's Law of Property 607-671; De Vos and Freedman South African Constitutional Law 737-780.

rights enshrined in the Bill of Rights. 125

125 Dawood case para 35; Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 SA 505 (CC) para 41; Shoprite case paras 43-51.

The Constitutional Court has decided on human dignity in several cases and emphasised the importance of human dignity in our constitutional dispensation. 127

127 Makwanyane case paras 111 and 328; S v Williams 1995 3 SA 632 (CC) para 35; National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC) para 28 (hereafter National Coalition case); Dawood case para 35.

In the context of ESTA occupiers, human dignity is specifically invoked to contradict the result of past discriminatory laws and practices in which the human dignity of occupiers in South Africa was deliberately denied. 131

131 Daniels case para 23. Referred to in Mahlangu case para 8, where the court reiterated that ESTA affords occupiers the dignity that eluded most of them throughout the colonial and apartheid regimes.

dignity of ESTA occupiers must be understood to include the entitlement to a dignified standard of living despite the insufficient and poor resources at the disposal of ESTA occupiers. 136

136 Sibanyoni v Holtzhausen case para 55.

Subject to the provisions of this Act, an occupier shall have the right to reside on and use the land on which he or she resided and which he or she used on or after 4 February, 1997, and to have access to such services as had been agreed upon with the owner or person in charge, whether expressly or tacitly.

Section 6(1) of ESTA is concerned with conferring on an ESTA occupier the rights of residence and the use of land and the related services – but subject to the owner's consent or agreement. 137

137 Nkosi v Buhrmann (1/2000) [2001] ZASCA 98 (25 September 2001) para 48

occupation is not simply about a roof over the occupier's head. Yes, it is about that. But it is about more than just that. It is about occupation that conduces to human dignity and the other fundamental rights itemised in section 5. 141

141 Daniels case para 31.

Madlanga J's statement arguably supports the idea that the dwellings of ESTA occupiers should conform to the conditions of human dignity. In the Daniels case Zondo J (as he then was) further pointed out that the important question to be determined in instances where human dignity is at stake under ESTA is the following:

does a landowner have the right to prevent an occupier as defined in ESTA from effecting improvements to his or her dwelling which will enable him or her to live in the dwelling under conditions that do not violate his or her right to human dignity? 142

142 Daniels case para 209.

He went on to respond thus:

I am of the view that under ESTA an occupier has a right to effect improvements to his or her dwelling without the consent of the owner of the

land where, as here, the improvements are basic improvements that will ensure that the occupier ceases to live in conditions of human indignity. In this case there is no suggestion by the respondents that they will suffer any prejudice if the applicant were to effect the improvements she seeks to effect. 143

143 Daniels case para 210.

It seems that by permitting an ESTA occupier to install electricity in his or her house without prejudice to the private landowner, two purposes are served, namely (a) it brings the house up to a standard that accords with human dignity, and (b) it protects the ESTA occupier from suffering any form of indignity that might be caused by intolerable living conditions such as a lack of electricity. 144

144 Sibanyoni case para 14, quoting Daniels case para 34.

3.3.3 Who bears the obligation to provide access to electricity to ESTA occupiers?

As already mentioned, the right to access to adequate housing includes access to electricity. 148

148 See part 2 above.

obligation to provide access to adequate housing. In this regard the Constitutional Court stated that:

the state's obligation to provide access to adequate housing depends on context, and may differ from province to province, from city to city, from rural to urban areas and from person to person. Some may need access to land and no more; some may need access to land and building material; some may need access to finance; some may need access to services such as water, sewerage, electricity and roads. 149

149 Grootboom case para 37.

Similarly, the Constitutional Court in Joseph found that:

there are constitutional and statutory obligations on local government to provide basic municipal services, which include electricity. The applicants are entitled to receive these services ... Although, in contrast to water, there is no specific provision in respect of electricity in the Constitution, electricity is an important basic municipal service which local government is ordinarily obliged to provide. 150

150 Joseph case para 34.

Local government is statutorily obliged to provide municipal basic services in terms of the Housing Act 107 of 1997 (hereafter the Housing Act) and the Local Government: Municipal Systems Act 32 of 2000 (hereafter the Systems Act). 151

151 Muller and Viljoen Property in Housing 181-182; Dube and Moyo 2021 PELJ 7-8; Eskom case para 103.

electricity. 158

158 Section 2(d) of the Electricity Regulation Act 4 of 2006.

Cases such as Grootboom and Joseph further strengthen the impression that it is the state that bears the positive obligation to provide basic services, such as access to electricity, as a component of the right to access to adequate housing. It should be mentioned here that the state also has a negative obligation not to impair the delivery of the right. 161

161 Grootboom case para 34. See further, In re: Certification of the Constitution of the Republic of South Africa 1996, 1996 4 SA 744 (CC) para 78 (hereafter the Certification case); Minister of Health v Treatment Action Campaign (2) 2002 5 SA 703 (CC) para 46 (hereafter the TAC case); Jaftha case para 34; Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 2 SA 721 (CC) para 69 (hereafter the Rail Commuters case); City of Johannesburg v Rand Properties (Pty) Ltd 2007 6 SA 417 (SCA) paras 37-38 (hereafter the Rand Properties case); Eskom case para 267.

This indicates the interrelated, interconnected and mutually supporting nature of the fundamental rights in chapter 2 of the Constitution and mirrored in ESTA. 165

165 Grootboom case paras 23-24. See further, Liebenberg Socio-Economic Rights 51-54; Muller and Viljoen Property in Housing 179.

The state's grant of subsidies under ESTA further affirms that the state has a positive obligation to ensure that ESTA occupiers enjoy access to services such as electricity. The obligation is positive in the sense that the state, through the Minister, is obliged to pay compensation in the form of state subsidies for the services provided by private landowners or persons in charge. The state in effect finances the services provided by private landowners or persons in charge. In this regard the state must facilitate access to electricity on farms as mandated by the Constitution, ESTA, the Housing Act and the Systems Act. 166

166 Muller and Viljoen Property in Housing 182.

3.3.4 Was it a progressive judgment?

By progressive I mean whether there is some social reform element to the decision in Sibanyoni. The judgment in Sibanyoni was progressive for

various reasons. Firstly, the court upheld an ESTA occupier's right to human dignity over a private landowner's right to property. This is because it was found that the right to access to electricity is an implied right leading to the enjoyment of the right to human dignity. Secondly, the ESTA occupier was allowed to install electricity in his dwelling without the private landowner's consent. This second point shows a promotion of the transformative goals of the Constitution, including land reform goals which ESTA gave effect to, as shown above. The transformative goals were achieved on the one hand by permitting improvements which were basic improvements that ensured that the ESTA occupier ceased to live in conditions of human indignity, thereby giving effect to section 5(a) of ESTA. On the other hand, there was no suggestion in Sibanyoni that the private landowner would suffer any prejudice if the ESTA occupier were to effect the improvements he sought to effect, thus not violating the property owner's rights. Thirdly, the Sibanyoni judgment shows that the right to electricity, although not expressly stated in the Constitution or ESTA, is a public law right that is constitutionally protected. 172

172 See further, Dube and Moyo 2021 PELJ 1-21.

4 Conclusion

The importance of access to electricity for ESTA occupiers cannot be denied. Without electricity it cannot be said that ESTA occupiers reside and enjoy adequate housing. For a house to be adequate, it must have electric equipment, which is necessary for daily living. This may include electric stoves, which are crucial and safe for cooking, and electric lights, which are useful to deter criminality in dwellings. Crucially, human dignity would be violated or denied to ESTA occupiers by refusing the installation of electricity in their dwellings. This shows how significant electricity is for property to be used as a dwelling. Section 26(2) of the Constitution guarantees the right to access to adequate housing and places a positive obligation on the state to realise this right. As part of the obligation to provide

adequate housing, the state is obliged to provide basic services such as electricity to ESTA occupiers living on farmland. This would mean that private landowners should create a conducive environment for the state or any other provider, such as Eskom, to connect an electricity supply in the dwellings of ESTA occupiers.

More importantly, private landowners have a negative obligation to refrain from impairing ESTA occupiers' right to have electricity installed in their private dwellings. In instances where access to electricity is denied, an ESTA occupier may approach the court for an order preventing a private landowner from unreasonably interfering with his or her right to access to electricity. This is because a basic service such as electricity is important to the dignity of ESTA occupiers. Accordingly, the right to human dignity in section 5 of ESTA should mean that a private dwelling on farmland must have access to electricity to give effect to this right. Since ESTA does not reflect the position of ESTA occupiers to have the right to access to electricity in their dwelling, it should be amended. This provision should be inserted in section 6 of ESTA under the "rights and duties of occupiers". It is proposed that the provision reads thus: "an occupier shall have the right not to be denied or deprived of access to electricity". This would ensure that similar denials or deprivations of access to electricity do not take place beneath the radar of a carefully crafted piece of legislation. The Sibanyoni judgment was progressive. The court found that an ESTA occupier could improve his dwelling by installing electricity without the consent of the private landowner. The finding by the court that Mr Sibanyoni should be allowed to have electricity in turn gave effect to his right to human dignity as an ESTA occupier. Therefore the Sibanyoni case reaffirms that housing is "more than bricks and mortar", 174

174 Grootboom case para 35.

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Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 SA 505 (CC)

Khumalo v Holomisa 2002 5 SA 401 (CC)

Mahlangu v Van der Merwe (LCC: 142/2019) [2022] ZALCC 5 (3 February 2022)

Makeshift 1190 (Pty) Ltd v Cilliers 2020 5 SA 538 (WCC)

Malan v City of Cape Town 2014 6 SA 315 (CC)

Minister of Health v Treatment Action Campaign (2) 2002 5 SA 703 (CC)

Motswagae v Rustenburg Local Municipality 2013 2 SA 613 (CC)

National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC)

Nkosi v Buhrmann (1/2000) [2001] ZASCA 98 (25 September 2001)

Oranje v Rouxlandia Investments (Pty) Ltd 2019 3 SA 108 (SCA)

Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC)

Rademan v Moqhaka Local Municipality 2013 4 SA 225 (CC)

Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 2 SA 721 (CC)

S v Makwanyane 1995 3 SA 391 (CC)

S v Williams 1995 3 SA 632 (CC)

Shoprite Checkers (Pty) Ltd v MEC for Economic Development, Eastern Cape 2015 6 SA 125 (CC)

Sibanyoni v Holtzhausen (LCC143/2015) [2019] ZALCC 11 (9 May 2019)

TM Sibanyoni and Sibanyoni Family v Van Der Merwe and Any Other Person in Charge of Farm 177, Vaalbank Portion 13 Hendrina, Mpumalanga (LCC 119/2020) [2021] ZALCC 33 (7 September 2021)

Legislation

Constitution of the Republic of South Africa, 1996

Electricity Regulation Act 4 of 2006

Extension of Security of Tenure Act 62 of 1997

Extension of Security of Tenure Amendment Act 2 of 2018

Housing Act 107 of 1997

Local Government: Municipal Systems Act 32 of 2000

International instruments

CESCR General Comment No 4: The Right to Adequate Housing (Article 11(1) of the ICESCR) UN Doc E/1992/23 (1991)

Convention on the Elimination of All Forms of Discrimination against Women (1979)

International Covenant on Economic, Social and Cultural Rights (1966)

Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Mr Miloon Kothari UN Doc E/CN.4/2002/59 (2002)

Internet sources

UN Date unknown https://www.un.org/sustainabledevelopment/ development-agenda/

United Nations Date unknown Sustainable Development Agenda https://www.un.org/sustainabledevelopment/development-agenda/ accessed 7 August 2022

UN 2022 https://unstats.un.org/sdgs/report/2022/The-Sustainable-Development-Goals-Report-2022.pdf

United Nations 2022 The Sustainable Development Goals Report 2022 https://unstats.un.org/sdgs/report/2022/The-Sustainable-Development-Goals-Report-2022.pdf accessed 7 August 2022

List of Abbreviations