Modder East Squatters and Another v Modderklip Boerdery (Pty) Ltd (187/03); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (213/03)

Right to property - evictions - obligations of the state - rights of landowners - damages. Modder East Squatters, Greater Benoni City Council and Modderklip Boerdery (Pty) Ltd, SCA 187/03 and President of the Republic of South Africa, The Minister of Safety and Security, The Minister of Agriculture and Land Affairs, The National Commissioner of Police and Modderklip Boerdery (Pty) LTD, SCA 213/03


This case arose from the occupation by a group of 40,000 unlawful occupiers of a portion of privately owned farmland. The landowner, Modderklip Boerdery (Pty) Ltd, applied in the High Court for an eviction under the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act (PIE). The High Court allowed the application and granted the eviction order, requiring the occupants to vacate the land within two months, failure of which the Sheriff was authorised to evict them. The occupants did not vacate the land as ordered, the land owner was informed by the Sheriff that a deposit of R1.8 million, later increased to R2.2 million, had to be made to facilitate the eviction. The landowner was not prepared to incur that expense; he took up the matter with the High Court by applying for an order against the authorities compelling them to carry out the court order, arguing that the authorities were obliged to protect his property. That the state had a duty not only to execute the court order but also to provide alternative land to the occupants to end the illegal occupation. It was contended on behalf of the authorities that the state was not obliged to assist in the execution of the court order, which was regulated in terms of the civil proceedings. Further, that the question of providing land to the occupants was not in issue, but that even then, the state would not prioritise the needs of unlawful occupants of land at the expense of the land programme and the law abiding citizens in the queue for land.

The state's arguments were rejected by the High Court, which held that the state was obliged to protect the applicant's property by virtue of section 25(1) of the constitution, which guarantees the right to property. Further, that the state had a duty to provide land to the unlawful occupants. This was in terms of section 26(1) and (2), read together with section 25(5) of the constitution. Reference was also made to the obligations of the state as discussed in the case of Government of the Republic of South Africa and ors v Grootboom and ors, 2001(1) SA 46 (CC). The state appealed to the Supreme Court of Appeal, among others, arguing that the High Court had erred in ordering the state to provide alternative accommodation to the unlawful occupants and in holding that the state had to be actively involved in the execution of civil judgments.

Decision in the Supreme Court of Appeal

  1. In respect of the occupiers' right of access to adequate housing entrenched in section 26(1) of the Constitution, the Court found that the State had not taken any steps to cater for those occupiers who were in 'desperate need'. It further held that, despite the Grootboom judgment, the state at all three levels of government did not have a plan for the 'immediate amelioration of the circumstances of those in crisis. There was failure on the part of the state to prove that the occupation had taken place with the intent of obtaining precedence over persons in the queue. The unlawful occupants had occupied the land simply because they did not have anywhere else to go.
  2. The court upheld the findings of the High Court, holding that the state was under duty to protect not only the interests of the unlawful occupants but the landowner's as well. This was by failing to provide alternative land to the occupants. That if the state had provided alternative land, the landowner would have had the land available and would not have to enforce the court order. The Court also held that the state has an obligation to ensure at the very least, that evictions are executed humanely. It was clear from the facts of this case that the eviction order could not be executed humanely unless the State provided land for the occupiers' relocation. The court therefore ordered that the residents are entitled to remain in occupation of the land until the state or provincial authority makes alternative land available to them.
  3. In respect of the landowner, the court ordered the state to pay constitutional damages arising from the breach of the right to property as no other remedy was apparent. The court declined to suggest the manner in which the damages were to be calculated though it indicated that the expropriation principles would be applicable.
  4. There was also considerable engagement with the appropriateness of the structural interdict that had been issued by the High court. It was held that structural interdicts must be given careful consideration. This is because they have the tendency to blur the distinction between executive and judicial authority and the separation of powers. They tend to deal with policy matters and not with enforcement of particular rights. In the court' s opinion was the structural interdict by the High Court was inappropriate and defective in a number of respects. Firstly, it was not couched in specific terms but was only a generalisation of the obligations. Secondly, it encroached on policy matters by requiring prioritisation of the unlawful occupants yet there was no evidence that they deserved it because it in effect justified queue jumping.
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