Spatial Justice, Relationality and the Right to Family Life: A Discussion of Hattingh v Juta 2013 3 SA 275 (CC)

• Jurisdiction: South Africa
• Date: 27 May 2019
• Author: Isolde de Villiers
• Citation: (2017) 28 Stell LR 487
• Published date: 27 May 2019
• Pages: 487-507

SPATIAL JUSTICE, RELATIONALITY AND THE

RIGHT TO FAMILY LIFE: A DISCUSSION OF

HATTINGH V JUTA 2013 3 SA 275 (CC)*

Isolde de Villiers

LLB LLM LLD

Senior lecturer, University of Pretoria

1 Introduction

Subsequent to the 2013 decision of the Constitut ional Court, in Hatt ingh v

Juta (“Hattingh”),1 the re have been engagements with the case in the context

of evictions and securit y of tenure, with some attention in the eld of legal

plurali sm.2 The narrow a ngle of this case discus sion is an analysis of t he

case based on femi nist theories of spatial justice.3 Spatial just ice refers to the

concept a s introduced through the spatial turn in law. The concept looks at

the inextricable link bet ween law and space. Three central notions und erpin a

feminist reading of the concept of spatial justice: rights as relationships, space

as relational, and proper ty as a spatially contingent relation of belonging.

Rights as relationships rely on the work of Jennifer Nedelsky and are unpacked

in more detail in th is article. 4 Feminist geog rapher Doreen Massey views

* This ar ticle derives fr om my LLD thesis e ntitled Law, Spatial ity and the Tshwane Urban Space. I would

like to t hank the or ganisers of t he 2015 Gendered Mode rnities in Motion con ference where a version of

this article was presented, as well as Kar in van Marle for discussions of and comments on earlier drafts.

All shortc omings and erro rs remain my own.

1 Hattingh v Juta 2 013 3 SA 275 (CC).

2 See eg, J Pienaar L and Reform (2014); M Dafel “The negative obliga tion of the housing righ t: an analysis

of the duties to respect and protect” 29 (2013) SAJHR 591 and JD Mujuzi “Legal pluralism and t he right

to family life, and the transfer of offenders who are nationals of African countries, within Africa and to

Africa” (2013) The Journ al of Legal Pluralism and Un official Law 2 67.

3 The notion of “spatial justice” is part of a global spatial turn in law. This spatial tu rn in law took hold in the

social science s and humanities rou ghly since the mid- eighties. The spat ial turn calls for g reater attent ion

to space and spatia lity (space a s relational) in academ ic engagements with the social, and by extension

with the law. S Keena n Subversive P roperty: Law and the Pro duction of spaces of belo nging (2015) 5.

On spatia l justice, the spatial tu rn and the influence of legal geogra phy and law and architectu re on the

development of these co ncepts see eg, A Philipp opoulos-Mihal opoulos Spatial Ju stice: Body, Lawsca pe,

Atmosphere (2015); I Braverma n, N Blomley, D Delaney & A Ked ar Alexa ndre (eds) The Expanding

Spaces of Law: A Tim ely Legal Geography (2014); C Butler Henri Lef ebvre: Spatial Politic s, Everyday

Life and the Right to th e City (2012); EW Soja Seeking Spatial Justice (2010); D D elaney Nomospheric

Investigati ons: The Spatial, the Lega l and the Pragmatics of World- making (2010); S Ari as Santa & B

Warf The Spatial Turn: Interdisciplinary Perspectives (2009). The c oncept of spatial justice has only

recently ente red the South Afr ican legal discour se. Spatial justice i s taken up in the Spati al Planning and

Land Use Manag ement Act 16 of 2013 (“SPLUMA”) and policy doc uments such as the Integrated Urba n

Development Framework: Cooperative Governance Traditional Affairs “Integrated Urban Development

Framework (IU DF)” (15-09-2017) C OGTA

urban-de velopment-framework-iudf > (acce ssed 13-0 2-2017). According to s 7(a) of SPLUMA, spatial

justice involves a number of key aspect s, i ncluding redressing past spatial and other development al

imbalances t hrough great er and more equal acc ess to land.

4 “[W]hat rights do and always have done is constru ct re lationships” J Nedelsky Law’s Relation s: A

relational th eory of self, auton omy, and law (2011) 236.

487

(2017) 28 Stell LR 487

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space as primarily relat ional.5 Instead of seeing space as xed and abstract,

she conceives of space in terms of relations. Space only exists in relationships

between entities. This gives r ise to the concept “spatialit y” – space as

relationality. Abst ract space stands i n contrast to relational space. Abstr act

space is spac e as a mere container in which bodies can be placed. Relationa l

space is space that exists i n the relationships betwee n bodies.6 Property as a

spatially conti ngent relation of belonging means that property is regarded in

terms of the nested relations of belonging that accompa ny it, a s argued by

Sarah Keenan.7

The series of cases in Hat tingh,8 because of the very clea r relational

nature of the matter, aptly illust rates the way in which relationships produce

and reproduce space. T he initial power relationships between M r Juta (as

landowner) and Mr and Mrs Hattingh (a farm- and domestic worker) produced,

structu red and determine d the terms of Mrs Hattingh’s accommodation on Mr

Juta’s smallholding. These relationships endured and the space reproduced

those relationships to the det riment of her family relations.

The question that I pose here is whether the Hatti ngh matter can be cited

as an example of spatial justice that embraced space as relat ional or whether

an opportunity to acknowledge the layered and gendere d relations of spac e

was missed. A fter a brief overview of the c ase, I situate this discu ssion withi n

the broader discour se around the Hatti ngh case with r eference t o some of the

main texts that referred to it. There after I sketch the terrain of spatial justice by

unpacking the theories of Nedelsky, Massey and Keenan. I turn to the judgment

and the pleadings presented in the Constitutional Court in order to evalu ate it

from a spatial justice perspe ctive that is understood in terms of relationality.

2 Hattingh v Juta

2 1 The facts of the case

In 2012, Magrieta Hattingh (67) was living in a cottage with her three

sons: Michael Hattingh (29), Pieter Hatti ngh (37) and Ricardo Hattingh (the

youngest adult son).9 With them lived M ichael’s wife Edwina Ju nita Hattingh

(29) and their two minor childr en Micayla Hattingh (12) and Elvino Hattingh

5 “the spatia l is social relations ‘st retched out.’” D Massey Spac e, place and gender (1994) 2.

6 Lefebvre The pr oduction of space 363; Ma ssey Space, place a nd gender 261.

7 “All spaces are socially regulated in some way, hold ing up par ticular rel ations of belong ing” S Keen an

Subversive P roperty: Law and th e Production of Sp aces of Belonging (2014) 165.

8 The matter was also heard in the Magistrate’s Court, the Land Claims Court and the Supreme Court of

Appeal. Juta v Hattingh 30- 03-2011 case no LC 145/2010 and Hattingh v Juta 2012 5 SA 237 (SCA).

9 His exact age at the time that the pro ceedings were inst ituted is not given. Because ever yone has the same

surname , I include full f irst names instead of only refer ring to Mr or M rs Hatting h. On a related note,

the legal r epresentative of the Hatti ngh childre n, Marion Hat tingh of th e Stellenbosch U niversity Legal

Aid Clinic, depos ed to the founding affidav it used in the Constitutio nal Court. Conscious an d wary of the

importa nce of family, and the sur name as signif ier of such, in the cas e, she disclaimed:

“Although I share th e same surname a s the applicants, it is c oincidental and I a m not related to them”.

Founding affid avit i n the Const itutional Court para 3

cgisirsi/v kbgBVIv1t/MAIN/286350011/503/13327> (accessed 09-02-2017).

488 STELL LR 2017 2

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