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

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President of the Republic of South Africa, Minister of Agriculture and Land Affairs v Modderklip Boerdery (Pty) Ltd (CCT 20/04)

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This case dealt with two related matters. The first matter was an application for leave to appeal against an eviction order granted against the Modder East Squatters who unlawfully occupied a portion of the farm owned by Modderklip Boerdery (Pty) LTD. The second matter, which originated in the Transvaal Provincial Division (TPD), centred on the landowners' attempts to get the State to assist in executing the eviction order. In this case, the TPD held that the State had breached two of its constitutional obligations. The State, by not assisting in maintaining the efficacy of the earlier court order had breached its constitutional obligations to the landowner. The State furthermore breached its constitutional obligations to the unlawful occupiers by failing to realise their rights of access to adequate housing and land. The TPD ordered the State to devise a plan that would end the occupation of the land in question. The State appealed this decision to the Supreme Court of Appeal (the Court).

The Community Law Centre, spearheaded by the Socio-Economic Rights Project, together with the Nkuzi Development Association and the Program for Land and Agrarian Studies (PLAAS), were admitted as joint amici curiae in the second matter in the Supreme Court of Appeal. Our intervention as amici in this case was motivated by the continued vulnerability of unlawful occupiers facing the prospect of eviction in South Africa today, and the potential impact that this judgment could have on millions of occupiers who find themselves in similar situations. Of concern to us were the legal principles applicable to a mass eviction where it is known that the eviction would result in a community literally being left homeless.

Judgment was handed down on 27 May 2004 and we as amici support the orders given by the SCA in this case. The Court held that the State breached its constitutional obligations to both the landowner and the unlawful occupiers in failing to provide alternate land for their occupation upon eviction. 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 furthermore 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'.

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.

While the facts of this case highlight the vulnerability of unlawful occupiers, it also highlights the predicament of landowners who, in trying to vindicate their property, have complied with legislation governing evictions, to no avail. In granting an order of constitutional damages, the Court emphasized that landowners should not be unduly prejudiced by the failure of the state to fulfill its obligations to vulnerable occupiers. As such, the Court held that it had a duty to 'mould an order that would provide effective relief to those affected by constitutional breach', and in doing so, 'should not be overawed by practical problems'. The Court therefore ordered that the landowner be awarded damages to be calculated in terms of the Expropriation Act 63 of 1975.

We believe that the Court has successfully managed to balance the competing proprietary rights of landowners and the socio-economic rights of occupiers in the context of evictions. This judgment will go a long way in not only compelling the state to fulfill its constitutional duties, but in providing legal certainty and tangible protection for both vulnerable occupiers and landowners who find themselves in similar situations in future.