Modder East Squatters and another v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa and others v Modderklip Boerdery (Pty) Ltd

Supreme Court of Appeal -187/03 Hearing date: 3,4 May 2004
  Judgment date: 27 May 2004
Illegal occupation of land - infringement of constitutional rights of owner and of occupeirs - constitutional damages

Media Summary of Judgment

From: The Registrar, Supreme Court of Appeal

Please note that the media summary is intended for the benefit of the media and does not form part of the judgment of the Supreme Court of Appeal

Today the SCA delivered a judgment in two related cases. They concern the unlawful occupation of a portion of farm land belonging to a family farming company, Modderklip Boerdery (Pty) Ltd.

During the 1990s, because of overcrowding, residents of Daveyton began settling on a buffer strip of land between Daveyton and the farm. This became the Chris Hani informal settlement. During May 2000 some 400 persons, who had been evicted by the municipality from Chris Hani, moved onto a portion of the farm and erected about 50 shacks. By October 2000 there were about 4 000 residential units in which some 18 000 persons were living. In October 2000 Modderklip launched an application for their eviction under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998. The Johannesburg High Court granted the application and Marais J issued an eviction order in April 2001.

The order was served on the occupiers, who were granted two months to vacate. But they failed to comply; nor did they take any steps to appeal. It was later estimated that the number of people on the on 50 hectares of farm property numbered 40 000, of whom a third are illegal immigrants.

It was not possible for the owner to enforce the court order. First, it was difficult to determine who was bound by the order. Next, the sheriff required a deposit of R1,8m to pay the costs of a security firm to carry out the actual eviction. This amount by far exceeds the value of the land in question. Eviction would in any event not be effective since (as all parties later agreed) the occupiers have nowhere to go – and leaving them and their possessions next to the road would only result in their returning or illegal occupying other land.

This led to the second case against the state in which the owner invoked the provisions of the Bill of Rights. The owner applied for an order requiring the state to take necessary all steps, including assisting the sheriff, to remove the unlawful occupiers from the land. During the course of the proceedings it was realised however that unless the state provided other land the order would be futile.

The state opposed the application on a number of grounds including that the owner could vindicate its property by simply paying for the occupiers’ eviction, that the problem was one of the owner’s own making and that the issue of accommodation for the occupiers was not something for the courts.

The Pretoria High Court found in favour of the owner. Apart from declaring that a number of constitutional rights of the owner and of the occupiers had been breached, the court ordered the state to provide a plan for scrutiny by the Court and other parties in which the state set out how it proposed to deal with the problem.

The SCA has set this order aside as inappropriate. In its place it has issued a more limited order which declares that the owner is entitled to constitutional damages while the unlawful occupation of the land continues, but that the occupiers are entitled to remain on the land until the state provides an alternative. This order aims to uphold the constitutional rights of both the land-owner and the occupiers, while at the same time recognising the difficulties the state faces in dealing with the land issue.

In its judgment, the SCA has held that the state breached the rights of the occupiers to housing by not providing them with alternative land on which to erect their shacks and that the state’s approach to the occupiers’ rights could not be justified in the light of the Constitutional Court’s decision in Grootboom. In consequence the occupiers have infringed the owner’s right to property.

On the facts of the case, the SCA found no evidence that the occupiers deliberately engaged in ‘queue-jumping’ so as to get preferent access to land – a concern government officials expressed in their evidence. The SCA also found that the state has a duty to ensure that eviction orders are executed humanely, something that could not happen here unless alternative land was made available. Instead of doing this, the state allowed the burden of the occupiers’ land need to fall on an individual.

In considering the legal and constitutional position in the light of these breaches, the SCA gave particular attention to the question of how to craft an appropriate and sensitive constitutional remedy.

This had to take into account the rights of the land owner, the needs of the occupiers and the legitimate interests of the state.

The SCA has held that the only appropriate relief justified in the particular circumstances is ‘constitutional damages’ for the breach of a constitutionally entrenched right. No other remedy is practical or just. Immediate return of the land is not feasible or humane. There is in any event no indication that the land, which was being used for cultivating hay, was otherwise occupied by the lessees or inhabited by anyone else.

Requiring that the state pay damages to Modderklip for the duration of the unlawful occupation has the advantage that the occupiers can remain where they are while Modderklip will be recompensed for what it has lost. Should the state decide to expropriate the land, Modderklip will no longer suffer any loss and compensation will not be payable (except for the past use of the land). Modderklip will not receive more than what it has lost, while the state has already received value for what it has to pay. And the immediate social problem is solved while the medium and long term issues can be resolved as and when the state can afford it.

In the case against the state a declaratory order was accordingly issued which differed from that of the Pretoria High Court. It was further declared that the owner is entitled to damages and an inquiry into damages ordered.

The occupiers’ belated application for leave to appeal against the original eviction order had to be dismissed, first, because the applicants applied for leave after 18 months instead of within 15 days and because in any event there were no grounds for the intended appeal. Under the 1998 statute the land owner was fully entitled to the order of eviction at the time it was issued. The SCA’s order however brings clarity and security to their position by declaring that the residents are entitled to occupy the land until the state makes alternative land available.

Even though the order of the Pretoria High Court was substantially varied, the SCA considered that in all the circumstances the Minister of Agriculture and Land Affairs should nevertheless pay the appeal costs of the land-owner.