Potchefstroom Electronic Law Journal (Nov 2023)
Access to Electricity for ESTA Occupiers: 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)
Abstract
This case note highlights the importance of access to electricity for occupiers under the Extension of Security of Tenure Act 62 of 1997 (hereafter ESTA). More importantly, the case note questions whose responsibility it is to provide ESTA occupiers with access to electricity on farmland. Moreover, it will comment on whether the Land Claims Court (hereafter LCC) got the decision right (or not). Furthermore, it provides a comment on whether the right to human dignity in section 5 of ESTA requires a dwelling on rural or peri-urban land to have access to electricity. It will also comment on whether the Sibanyoni judgment was progressive (or not) and why. The conclusion is that access to electricity is essential in modern life to enjoy adequate living conditions. A dwelling without electricity deprives an ESTA occupier of benefits such as utilising electric equipment, which is necessary for daily living. ESTA occupiers are unable to use stoves, which are crucial and safe for cooking. They are also not able to have lights, which are useful to deter criminality in their dwellings. Very importantly, ESTA occupiers' human dignity would be violated or denied to them by refusing to install electricity in their dwellings. The state therefore has a positive obligation to provide ESTA occupiers with access to electricity. Private landowners have only a negative obligation to refrain from impairing ESTA occupiers' right to access to electricity by not unreasonably refusing consent to have electricity installed by the state. The Sibanyoni judgment was progressive, among other reasons because it permitted an ESTA occupier to have electricity installed on his dwelling without the consent of the private landowner.
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