President of the Republic of South Africa and Anor. v. Modderklip Boerdery (Pty) Ltd 40 2005 (5) SA 3 (CC)

Nature of the Case

Constitutional review of failure of State to provide remedy to private landowner and alternative housing for landless under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).   Whether right to protection from arbitrary deprivation of property and uncompensated expropriation of property breached when State remains passive in face of massive invasion of respondent’s farm.   Right to housing and right to alternative accommodation under article 26 of the Constitution.  Rule of law and right to effective remedy under s 1(c) of Constitution.

Summary

400 people who had been evicted from adjacent municipal land settled on the private Modderklip farm in 2000. In April 2001 an eviction order was issued, but the occupiers had no place to go and failed to comply.  The numbers of occupiers continued to increase and the sheriff demanded a deposit of 1.8 million rand – more than the land was worth to carry out the eviction.

The owner tried unsuccessfully to get help from the national government.  He applied to the High Court in Pretoria arguing that it was the state’s obligation to protect both his property rights under s 25 of the Constitution as well as the right to housing of the occupiers under s. 26.  The High Court found that both of these rights were violated and ordered the state to devise a comprehensive plan. On appeal to Supreme Court of Appeal, the Court agreed that both rights had been infringed and ordered the state to pay compensation, while allowing the occupiers to remain on the land until alternative land was made available On appeal, the Constitutional Court held that it was not necessary to resolve the case on the basis of property rights in relation to housing rights.  Instead, the Court found that the State’s failure to take reasonable steps to assist the landowner and, at the same time, to avoid  the eviction of a large community with nowhere to go, was a violation of the principle of the rule of law in Sect. 1(c) as well as the right of access to effective remedies in Sect. 34 of the Constitution.  The Court found that the appropriate remedy in the circumstances was to require the State to compensate the landowner for the unlawful occupation of his property.

Keywords: President of the Republic of South Africa and Anor. v. Modderklip Boerdery (Pty) Ltd 40 2005 (5) SA 3, Housing, Right

Enforcement of the Decision and Outcomes

The Court declared that the approximately 40,000 residents are entitled to occupy the land until alternative land has been made available.  The Department of Housing began working on developing alternative land. Negotiations were held to agree on the compensation for the land occupation as instructed by the Court. R866 842, 50 was paid to as arrear rental for the period June 2000 to May 2005 and R13 607, 50 was paid for monthly rental

Significance of the Case

This case represents a significant advance in assessing the positive duties on states to ensure that social problems leading to disputes between private actors are resolved in a manner that respects esc rights.  Where there is only one party, the state, which has the key to the solution to problems, then the rule of law imposes obligations on the state to assume that role.  The decision recognizes that courts must address the realities of injustice and poverty rather than dealing with rights such as the right to property in the abstract.

Groups Involved in the Case

Nkuzi Development Association
Community Law Centre, University of the Western Cape
Programme For Land And Agrarian Studies, University of the Western Cape
Agri SA