PRESIDENT OF THE RSA v M0DD5RKUP BQERBERY (PTY) LTD ZOOS (5) SA.

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7. The Registrar will not accept documents in relation to an appeal cn the A date of the hearing of that appeal. 8. Each communication from ny practitioner directed to the President of the Court or any presiding Judge must be done through the offices of the Registrar* and not directly with that Judge. 0 If an <({j|jiicatio for leave to appeal ir. filed within 21 court days instead of within 21 ordinary days as required by s 21(2) of the Supreme Court B Act 59 of 1959, it will for the time being not be necessary for the Hpplicant to apply formally for condonation for the failure to comply with that provision. 10 The use of plastic ring binders (not files) for heads of argument and m applications would be appreciated. 11. This Practice Direction replaces the one of 7 April 2003 (see 2003 (3) C SA 129) with immediate effect.

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND ANOTHER v MODDERKLIP BOERDERY (PTY) LTD E (AGRI SA AND OTHERS, AMICl CURIAE)
CONSTITUTIONAL COURT
t A N G A A C J . M A 0 A L A J , M O K G O R O J. M O S 6 N G K E J. N G C O B O J. O flEGAN J SACHS J SHWEYiYA J. V A N Dm WEST HU12 EN J nn<t Y A C O O S J F

2004 November A, 5

2005 May 13

C a s e No CCT 20/04

Constitutional lawConstitutional damagesAward ofAppropriateness of Failure by State to comply with duty to uphold rule of low as imposed by s 1(c) of ConstitutionResulting breach of arizen's right to effective <3 remedy as entrenched in $ 34 of ConstitutionState remaining passive in face of massive invasion of respondent s farm despite existence of eviction onlerMagnitude of problem rendering respondent poiucrkssDeienmnation of appnipriatc reliefReiterated that appropriate relief meaning effective reliefFactors to be taken otto account listedAward of ^ compensation most, appropriate remedy in circumstances. Constitutional lawHuman rightsEnforcement ofDuly of State to uphold rule of law imposed by s / ( c ) of ConstitutionSaid obligation having ai its comttary right of even! citizen to access to courts as entrenched in $ 34 of ConstitutionState must not only provide necessary mechanisms for citizens to resolve disputes between them, but aha prevent | large-scah disruptions of social fabric resulting fimt execution of court ordersLarge-scale land invasions posing serious threat to public peaceState to take reasonable steps to ensure effective relief for landowners faced with mass invasions of their propertyAlthough property owners bearing primaiy responsibility lo protect property, unreasonable for State to remain passwe in circumstances in which landowner powerless. J

PRESIDENT OF THE RSA v MGDDERKUPB O t H O E R Y(PTY1tTO 2005 (5) SA 3

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A T h e applicant applied for leave to appeal to the Constitutional C o n n against a decision of the Supreme Court of Appeal (SCA) in which an interdict issued against the applicants in a High Court was upheld. It appeared that during the 1990s the respondent's farm was illegally occupied by people evicted from a nearby informal settlement by the local city council. T h e city council alerted the respondent to the unlawful occupation of its land and B gave it notice under s 6(4) of the Prevention of Illegal Eviction from end Occupation of Land Act 19 of 1998 (the Act) requiring it to institute eviction proceedings against the unlawful occupiers. T h e respondent's attitude was that it was the city council's responsibility to d o so. The respondent then laid chargcs of trespass against the occupiers Those convicted were given warnings and released, but they simply went back to C the farm and resumed their occupation. T h e respondent then sought to remove the occupiers from its farm with the help of police and other organs of the State, including the city council, but received no co-operation. It also offered to sell the affected portion of the farm ro the city council at si negotiable price, but nothing came of it. The respondent then approached a Local Division for an eviction order, which was granted. The order D authorised the Sheriff to enlist the assistance of the police in carrying out the evictions The police refused to help because it regarded the dispute as a private matter between the respondent and the occupiers, forcing the Sheriff, however, to enlist the aid of a private security company to implement the evictions T o these costs the Sheriff wanted a deposit of Rl ,8 million which the respondent was unable to pay. The result was that the E farm continued to be occupied by a squatter population of 40 000, The respondent then turned to a Provincial Division, which imposed a structural interdict requiring the State to present a comprehensive plan to the Court and to the other parties indicating the steps it would take to implement the Court 's order. T h e State appealed to the SCA, which substantially upheld the judgment of the Pretoria High Court while altering F the order against die State by dropping the requirement that it should show how it intended to evict die occupiers, requiring instead that it pay compensation to the respondent for the loss occasioned by the unlawful occupation. The compensation was to be computed in terms of the Expropriation Act. In an application by the State For leave to appeal against the decision of the SCA, G the State challenged the findings of the SCA that the respondent's right to property under s 25(1) of the Constitution of the Republic of South Africa Act f08 of 1996 had been breached, arguing that s 25(!) applied to State conduct only and not to the conduct of private individuals. This raised the question of whether s 2 5 0 ) had horiEomai application. T h e State also challenged the finding that the occupiers' rights to access to adequate H housing as cmrenched in s 2 6 H ) and (2) of the Constitution had been breached. T h e State's second contention was that the respondent was not entitled to its relief because it had failed to apply in time for an urgent eviction as intended uiiderihe provisions o f s 5 of the Act. The State argued that had the eviction proceedings been instituted during May 2000, the evictions would have been manageable and affordable. The view of i the State was in effect that the responsibility for the implementation of the evictions had rested solely on the respondent Held, that the obligation that s 1 Cc) of the Constitution imposed on the State to uphold the rule of law meant that it had to provide the necessary mechanisms for citizens to resolve disputes that arose between them, and that that obligation had its corollary in the right or entitlement of every J person to have access to c o r n s or other independent forums provided by

PRESIDENT OP THE RSA v MOQDERKUP BOEPOERY (PTY) LTO 2005 (5) SA 3

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the State for the settlement of such dispute. ; as provided in s 34 of die A Constitution. (Paragraph [39] at 2 1 A - C ) Held, further, that it was obvious that only die State held the key to the solution of the respondent's problem. T h e only question was whether the State was obliged to help in resolving it, in other words, whether the respondent was entitled to any relief from the State. {Paragraph f'12] at 2 1 G - H ) Held, further, that the obligation on the State went further than die mere 8 provision of the mechanisms and institutions referred to above. It was also obliged to take reasonable steps, where possible, to ensure that large-scale disruptions in the social fabric did not occur in the wake of the execution of court orders, thus undermining the rule of law. T h e precise nature of the State's obligation in any particular case and in respect oFany particular right depended on what was reasonable in the light of the right or interest at risk, C fis well as on the circumstances of each case. (Paragraph [43) at 2lHrt-23B.) Held-, further, that the position of the respondent was aggravated by the ineffectiveness of die mechanisms provided by the State to resolve its problem. T h e eviction Order granted by the High Court was unenforceable because the occupiers had nowhere to so. (Paragraph [44) at 22B-E.) D He!d> further, that it was unreasonable to expect 3 private entity such as the respondent to bear the State's obligation to provide die occupiers with accommodation. Large-scale land invasions threatened far more than the private rights of single property owners, and had serious implications for Stability and public peace Failure by the State to act in an appropriate manner would mean that the respondent, and other? m its position, would E be unabic to look to the State and its organs to proteci them from invasions of their property, a recipe for anarchy. (Paragraph f45] at 2 2 E - G ) Heidi further, that it should have been obvious to the State that it was not possible in the present case to rely on die usual mechanisms for the execution of eviction orders. It would not have been consistent with the rule of law. F (Paragraph [47] at 221-J ) Hdd, further, that the State had been obliged to do more than ii had to fulfil the requirements of the rule of law and thus fulfil the respondent's rights under s 36 of the Constitution. It had been unreasonable for the State to remain passive while the respondent's own hands were tied by the circumstances (Paragraph [48] at 2 3 A - B ) Hdd. further, that the State had breached its obligation to take the available reasonable steps (expropriating the property, providing other land) to ensure effective rdief for the respondent. Held, further, that no acceptable reason had been proffered for the State's failure to act. [t had been obliged to take reasonable steps to ensure that die respondent was provided with effective relief. By failing to do anything the State had breached the respondent's constitutional right to an effective remedy as required by rule of law and s 34 of the Constitution (Paragraphs [50} and [5!] at 23F -I.) Held, as to the State's second contention (vis that the respondent was to blame because it had failed to institute eviction proceedings under the urgency provisions of s 5 of the Act), that although there was no doubt that owners of property bore die primary responsibility to take reasonable steps to protect their property, it was by no means clear that the respondent would have been able to satisfy the requirements of s 5- T h e respondent's case for eviction was not based on any of those factors but simply on the fact that it had been deprived of the enjoyment of its nght of ownership of the land in question. It was in addition clear that the respondent had neither been idle nor failed to assert its rights from the outset. It was the local municipality

PRESIDENT OF THE ASA v MQ0OERKL1P BOEROERY (PTY) H O 2005 f5) SA 3

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that had refused to co-operate with the respondent in the search for solutions. (Paragraphs [29]-[31] as 1 S D - 1 9 C ) Held, further, that it also had to be kept in mind that s 4 and s 6(1) of the Act did in fact envisage the involvement of the State in evictions from private property, in the present case the municipality could itself have instituted eviction proceedings against the occupiers when the respondent declined to do so (Paragraph (32] at 1 9 C D - F ) Held, further, that the SCA had been correct in finding that the respondent could not be blamed for any delay in instituting eviction proceedings for the failure to consummate the eviction order T h e respondent's conduct in its pursuit of an effective solution h3d been prudent and reasonable, and even if a delay on its p a n had occurred, it was not sufficient to deny it the relief it was entitled to. Accordingly, the State's contentions in that regard had to fail (Paragraph [38] at 20G/I-I-1.) HiM, further, as to appropriate relief for the unlawful occupation of the respondent's property and the violation of its rights, that the following factors had to be taken into account: (a) that the occupiers, had (brmd themselves into a settled community and built homes for themselves; (h) that the occupicrs had jjo other option but to remain on the respondent's propertyi (c) that their investment into their own community on the respondent's farm had to be weighed against the financial waste that their eviction would represent; (d) that the cost of avoiding such a waste would he minimal; (e) that the State was and had always been involved in matters concerning the unlawful occupation of the respondent's farm; (J) that the State had given the respondent notice in terms of s 6(4) of the Act to institute eviction proceedings and that the respondent had made various requests for assistance from various organs of State, and Cg) that the State's responses had been consistently negative and unhelpful. (Paragraph [54] at 24G-25B) Held, further, that appropriate relief meant effective relief Compensation m the form of damages had several advantages over other forms (for example the declaratory order suggested by the State (less effective) or expropriation (possiWy a breach of the rule of separation of powers)), and the difficulty of quantifying it could be met by rescuing to s 12 of the Expropriation Act 63 of 1975. (Paragraphs [58j-[60j and |&3) ai 2fiB~G and 27B ) Held, accordingly, that the award of compensation made by the SCA was the most appropriate remedy in the instant cas*;. Leave to appeal dismissed save for the costs order made in the SCA It followed that if the State decided to expropriate', the sum to be awarded as compensation would have to be set off against the compensation to be given for the expropriation. (Paragraph (65] at 27D-H.) T h e Constitutional Court replaced the order of the SCA with one declaring that*. (a) the State had, by failing to provide an appropriate mechanism to give effect to the eviction order of the Johannesburg High Court, infringed the respondent's tights under s 34 of the Constitution; (b) the respondent was entitled to payment of compensation by the Department of Agriculture and Land Aft'.ins in rcspcct of the land occupied, (c) the residents were entitled to occupy the land until alternative land was made available to them by the State or the provincial or iota! authority; (d) the compensation had to be calculated in terms of s 12(1) of the Expropriation Act, and (e) if the parties were unable to teach agreement regarding die pleadings to be filed, and discovery, inspection, and other matters of procedure relating thereto, leave was granted to any of the parties to make application to a High Court having jurisdiction in terms of Rule 33(5) of the Uniform Rules of Court for directions (Paragraph |6S] at 2 8 C - H )

PRESIDENT OF THE RSA v MOOOERKUP BOEERDEOY SPTY) LTD 290$ (5) SA 3

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Annotations: Reported cases

Banuaiync v Banna ty tie {'Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA 363 (CC) (2003 (2) BCLR 111); referred to Carmichdi v Minister of Safety and Security and Anadyr (Centre far Applied Legal Studies Intervening) 200] (4) SA 938 (CC) (2001 (10) BCLR 995): g referred to Chief Leiapo v North I'K'se Agricultural Bank and A nether 2000 (1) SA 409 (CC) (1999 (12) BCLR 1420): dictum in para {22} applied De Langs v Smuts NO and Others \<m (3) SA 785 (CC) (1998 (7) BCLR 779); dictum m para [116} applied Pose v Minister of Safety ami Security 1997 {}; SA 786 (CC) (1997 (7) p BCLR 85!): dicta in paras (605 and [69] applied Government of the PeptMic of South Africa and Othen v Gvootboow and Others 2001 (1) SA 46 (CC) (2000 (11) BCLR 1)69) dictum in para (2) applied Minister if Health and Oil'ten v Treatment Action Campaign aud Others (No 2) 2002 (5) SA 721 (CC) (2002 (JO) BCLR 1033)- applied q Mkotuvjuxa v Nelson Mandela Metropolitan Alttntapulity and Another, [inset: attd Other; v Buffalo City Municipality and Others, Transfer {tights Action Campaign and Others v MEC', Local Government and Mousing, Gauicng, and Othen (Kinaztdu-Naial Law Society and Mstirtduzt Municipality as Amici Curiae; 2005 (1) SA 530 (CC) (2005 (2) BCLR 150): dictum in para (59j applied Alodderfotitein Squatters, Givatei Betioni City Council %> Modder!:!ip Bocniery (Ply) Ltd (Agri S/-1 and Legal Reunites Centre, Amici Curiae),' Prezidtm of the Republic of South Africa and Others v McdJerHip Bocniery (Pty) L(d (Agri 5/1 and Legal Resources Centre, Amici Curiae.) 2004 (6) SA 40 (SCA) (2004 (8) BCLR 821): limited leave to appeal against granted Modderhhp Boerdcry (Edms) Bph v President van die Republieh van Suid- p Afnka enAndere [2003] I All SA 463 (T) referred to Mc'ddoklip Boetdery (Ply) LtdAioddcr Bast Squatters rind Another 2001 (4 > SA 385 (W): referred to Port Elisabeth Mun lapalitvv Various Occupiers 2005 (I) SA 217 (CC) (2004 (12) BCLR 1268): dicta in paras (28] and (37] applied Statutes T h e Constitution of the Republic of South Africa Act, ss 1 i'rj and 34: see Jum's Statutes of Sotuh Africa 200415 vol 5 at 1-136 and 1-139 T h e Expropriation Act 63 of 1975, s f 2: see Jina Statute, of South Africa 200415 vol 6 at 2-263 H Application for leave to appeal against a decision of t h e S u p r e m e C o u r t of Appeal (reported at 2 0 0 4 (6) SA 4 0 ) . T h e facts a p p e a r f r o m the reasons for j u d g m e n t . D S Fourie SC (wsth S K Haintti) for the applicants. A Loiav SC (widi N Jame van Nieuzmihmzeii) for the r e s p o n d e n t G L Gwbkr S C (with J L Gildenhuys) for t h e first amicus curiae. ! W Tmigove SC (with M Morton) for the s e c o n d , third and f o u r t h amtci cunac. Cur adv vuh J

Po'.tca ( M a y 13)

PRESIDENT OF THE RSA v MGDDERKUP BOtHOERY (PTY1 tTO 2005 (5) SA 3

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A Langa ACJ:
{ ! ] This is an application for leave co appeal against the decision of the Supreme Court of Appeal, 1 in which, a m o n g other things, the State was ordered to compensate Moddcrkiip Boerderv (Pty) Ltd (Moddcrkiip), a private company, for the violation of its property rights under s 2 5 ( 1 ) 2 read with s 7 ( 2 ) 3 of the Constitution, as weU as the s 26

_ ^

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' Modderfomein Squatters, Greater Bencm City Council v Modderklip Bcsrdesy (Pty) Ltd (Agri SA and Legal Resource Ciiurt, Amict Curiae,); President of du Republic of South Africa and Others v Modderklip Bmrdiiy (Pty) Ltd (Agri $ A mid Legal Resources Cenm, Amict Curiae; 2004 (6) SA 40 (SCA). 5 Section 25 reads: '(1) N o one may be deprived of property except in terms of law of genera? application, and no law may permit arbitrary deprivation of property. (2) Property may be expropriated only in terms of law of general application (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court. (3) The amount of the compensation and the rime and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to alt relevant circumstances, including (a) , the current use of the property; (b) the history of the acquisition and m e of the property, (c) the market value of the property; (d) the extern of direct State investment and subsidy h the acquisition and beneficial capital improvement of the property; and (c) ; the purpose of the expropriation. (4) For the purposes of this section (a) the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to ail South Africa's natural resources; and (k) property is not limited to land, (5) The State must take reasonable legislative and other measures, within its available resources, to foster conditions that enable csmens to gain access to land on an equitable basis. (6) A person or community Whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress, (7) A person or community dispossessed of property after 39 June 3 933 as a result of past racially discriminatory Jaws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress. (8) No provision of this section may impede the State from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of s 36(1). (9) Parliament must enact the legislation referred to in ss (6) ' 1 Section 7(2) reads: ' T h e State must respect, protect, promote and fulfil the rights in the Bill of Rights.*

I.ANGAACJ

PRESIDENT OF THE BSA V WOODERKUP SOEflDERY (PTY) LTD 2C05 (5) SA 3

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rights'1 of the unlawful occupiers of Modderkhp's farm. T h e Supreme A Court of Appeal also held that Modderklip's equality rights under ss 9 ( 1 ) 5 and 9 ( 2 ) 6 o f the Constitution have been breached. Factual background [2] T h e facts relevant to the issues are set out in the judgment of the g Supreme Court of Appeal. It wili suffice to repeat a few salient facts. [3] T h e farm Modderkiip adjoins Daveyton Township in Benoni on the East Rand. During the 1990s, because of overcrowded conditions in the township, a number of its residents began settting on the strip of land between the township and Modderklip's farm. T h e strip bccame known C as the Chris Hani informal settlement. T h e municipality reacted by evicting the residents of the Chris Hani settlement. In May 2 0 0 0 about 4 0 0 of them moved onto Modderklip's farm where they erected s o m e 5 0 informal dwellings. {4} In May 2000 a the Benoni City Council alerted Modderkiip to the ^ unlawful occupation of its land and gave it notice in terms o f s 6(4) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the Act), 7 requiring it ro institute eviction proceedings against the unlawful occupiers. Modderkiip refused to d o so and informed the City Council that it considered it to be the Council's E responsibility to evict the occupiers. Modderkiip stated, however, that it would co-operate with the Council to the extent necessary should it cake steps to cvict the occupiers T h e Council did n o t respond to this communication, nor did it u k e any steps as suggested by Modderkiip. (5j Modderkiip then laid charges of trespass against the occupiers. F T h o s e convicted were given warnings by the court and released. T h e unlawful occupiers, however, simply went back to the farm after their * Section 26 provides; ' ( I ) Everyone has the right to have access to adequate housing. G (2) T h e State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right (3) N o one may be evictcd from their home, or have tiieir home demolished, without an order of court made after considering all the relevant circumstances. N o legislation may permit arbitrary evictions.' 5 Section 9(1) reads; 'Everyone is equal before the law and has the right to equal protection and n benefit of the law.' 6 Section 9(2) provides; 'Equality includes the full and equal enjoyment of all rights and freedoms T o promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.' | 7 Section 6(4) reads-. 'Eviction at instance of organ of State (4) An organ of State contemplated in ss ( I ) may, before instituting such proceedings, give not less than 14 days' written notice to the owner or person in charge of the land to institute proceedings for the eviction of the unlawful occupier.* J

10 IANGA ACJ

PRESSOEMT OP THE RSA v MODDERKLIP 8QER0EFW (PTY) LTD 005 (5) SA 3

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A release by the court and resumed their occupation. T h e local head of die prison then requested both Modderklip and representatives of the South African Policc Service (the police) not to proceed with further criminal prosecutions as the prison would be hard-pressed to find space to accommodate convicted unlawful occupiers should they t>e sentenced to g prison terms. [6] For its part, Modderklip continued to search for ways to resolve die problem. It sought assistance from several organs of State, including the police and officials of the Ekurhuleni Metropolitan Municipality (the municipality) into which the Benoni City Council had b e c o m e subC sumed. N o help was forthcoming from any of these organs of State. Modderklip also offered to sell to the municipality the portion of the farm that was unlawfully occupied at a negotiable price o f RIO 0 0 0 per hectare. Although the municipality initially showed some interest in the offer, nothing came of it. In the meantime, the number of unlawful q occupiers continued to grow. By October 2 0 0 0 there were approximately 4 0 0 0 residential units, occupied by s o m e 18 0 0 0 persons. Proceedings in the Johannesburg High Court [7] In October 2 0 0 0 , still within a period of six months o f die initial ^ occupation of its property, Modderklip instituted proceedings in the Johannesburg High Court 9 for an eviction order in terms of die Act. T h e occupiers and the municipality were cited as respondents and the occupiers opposed die application. In April 2001 the High Court granted die eviction order and gave the occupiers two months within which to vacate Modderklip's farm. T h e Court order also authorised F the sheriff to enlist the assistance of the police in the eviction or removal of the occupiers and the removal or demolition o f their informal dwellings, 1 0 [8] T h e order o f the Johannesburg High Court for die eviction of the occupiers was never complied with, nor was an appeal lodged against it at that stage. 1 1 Instead, the n u m b e r of the occupiers continued to increase. Later estimates put their number at approximately 4 0 0 0 0 , o f w h o m roughly a third were alleged to be illegal immigrants. T h e settlement has streets and the erven are mostly fenced and numbered. It has shops and other m o d e s t commercial ventures. There is one tap from H which the occupiers draw water and there are no other services except for pit toilets. T h e community, which is n o w fairly settled and has a
8 Section 4(7) of the Act requires a court dealing with an eviction application instituted after the expiration of six months to have regard, among other things, I to the availability of alternative accommodation to the occupiers. There is no such requirement where, as in this case, proceedings are instituted within six months. 9 Modderklip Boerdery (PiyS Ltd v Madder East Squaiisrs and Another 2001 (4) SA 385 (W). Id at 396. ' 1 A belated application for leave to appeal 18 months later was refused by the J Supreme Court of Appeal See above n 1 at paras (47J (49].

LANGA ACJ

PRESIDENT OF THE RSA w MODDERKUPS O E f t O E R Y(PTY) LTD 2005 (5) SA 3

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voluntary form of civic structure, calls itself the G a b o n Informal A Settlement, A b o u t 5 0 hectares of Modderklip's property ore now under illegal occupation, ! 2 [9] Pursuant to the judgment and order of the Johannesburg High Court; a writ of execution was issued at Modderklip's instance. T h e sheriff, however, indicated that she would have to engage a security firm ^ to assist her in carrying out the evictions and therefore insisted on a deposit o f R l , 8 million to secure the costs of the evictions. 1 3 This amount far exceeds the value of the piece of land which is illegally occupied, Modderkiip refused to pay this amount. It instead approached the President and the Ministers of Safety and Security, of Agriculture C and Land Affairs, and of Housing, respectively, for assistance, but to no avail. On being requested to enforce the eviction order, die police refused because they regarded die matter as a private civil dispute between Modderkiip and the occupiers. T h e y , however, indicated thar diey would b e prepared t o stand by w h e n the evictions were tailing place in order to q ensure that there- was n o breach of the peace. Finding itself with an eviction order that it could not enforce, Modderkiip then approached the Pretoria High Court for relief. Proceedings before the Pretoria High Courc E 110] T h e respondents in die proceedings before the Pretoria High 4 C o u r t ' were die President of the Republic of South Africa, die Minister of Safety and Security, the Minister o f Housing, the Minister of Agriculture and Land Affairs, the National Commissioner of Police and die sheriff for the district of Benoni, Modderkiip later joined the municipality as well as the occupiers, w h o were referred to in that case as F the M o d d e r East Squatters, as respondents, but sought no relief against either. [11} Although the relief sought was wide-ranging, the essence of it was that die State should be ordered to enforce the eviction order. Modder- _ klip asked for a declaration diat its s 2 5 ( 0 1 5 and its equality rights under n ss 9 ( 1 ) and ( 2 ) , a s well as the rights of the unlawful occupiers to access to adequate housing (s 2 6 ) , 1 7 had been violated. It further contended that the State had failed to ensure the protection of its property rights and was accordingly in breach of its obligations under s 7(2) of the Constitution. ! S It further sought an order compelling the State to remove the H occupiers from its property. In the alternative, Modderkiip asked the
12 In the abortive negotiations between Modderkiip and the Council, a figure of 140 hectares was mentioned. At RIO 000 per hectare, the purchase price would accordingly have been approximately R l , 4 million. j ,:> This amount later increased to R2,2 million. Modderkiip Boerdery (Edna) Bpk v P)vud<nu van dk Repubhek van StudAfnka en Andtm [2003] 1 All SA 465 CO' n Above n 2. 16 Above nn 5 and 6 ,7 Above n 4. lS Above n 3. J

12 LANGA ACJ

PRESIDENT OF THE RSA v MODDERKUP BOEROERY {PTY) LTD 2005 (5) SA 3

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A Court to order the arrest and criminal prosecution of the occupiers for the illegal occupation and for contempt of Court for their failure to comply with the eviction order. 1 9 [12] Modderklip sought to bolster its submissions o n the obligation of the State to ensure die enforcement o f die eviction order by invoking s 4 1 ( 1 ) of the Constitution, which sets out principles for co-operative government and intergovernmental relations; 2 0 s 165(4) which requires organs of State to assist and protect the courts, 2 1 and s 205, which sets out the duties and functions of the p o l i c e . 2 2 C [J3] T h e application by Modderklip was opposed by the police and by the Minister of Agriculture and Land Affairs w h o did s o on behalf of die State. Agri SA, a voluntary association representing the economic, social

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" A further claim by Modderklip that the conduct of the sheriff in demanding a deposit of R 1,8 million be declared unconstitutional, ultra vim or unreasonable and therefore invalid was not pursued at the hearing and-nothing further need be said about it. 20 Section 41(1) reads: 'Principles of co-operative government and intergovernmental relations (1) All spheres of government and all organs of State within each sphere must (a) preserve the peace, national unity and the indivisibility of the Republic; (b) secure the weH-beins of the people of the Republic; (c) provide effective, transparent, accountable and coherent government for the Republic as a whole; (d) be loyal to the Constitution, the Republic and its people, (e) respect the constitutional status, institutions, powers and functions of government in the other spheres; (j) not assume any power or function except those conferred on them in terms of the Constitution, (g) exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere; and (k) co-operate with one another in mutual trust and good faith by (i) fostering friendly relations; (ii) assisting and supporting one another; (iii) informing one another of, and consulting one another on, matters of common interest; (iv) co-ordinating their actions and legislation with one another; (v) adhering to agreed procedures; and (vi) avoiding legal proceedings against one a n o t h e r ' 21 Section 165(4) of the Constitution states that: 'Organs of State, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility snd effectiveness of the courts. ' " Section 205 of the Constitution provides: ' ( I ) T h e national police service must be structured to function in the national, provincial and, where appropriate, local spheres of government. (2) National legislation must establish the powers and functions of the police servicc and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces. (3) The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.'

LANG A ACJ

PRESIDENT OF THE RSA v MODDERKLIP BOEROERY (PTY) tTD 2005 (5) SA 3

13
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and safety interests of commercial farmers, obtained leave to submit A evidence and to present argument as amicus curiae. {14] In opposing the application, the police contended that the problem was not a police matter but one of land reform. T h e y also pointed to the expense, estimated to be at least R18 million, which would be incurred if the eviction order were to be implemented. In his affidavit articulating the attitude of the police to the application. Assistant Commissioner Van der Wcsthuizen put his finger o n what became one of the central issues o f this case. He asked the question where the occupiers, with their possessions, would be accommodated after eviction. H e pointed out that if the occupiers were simply thrown onto the street, they would either return to Modderklip's farm or occupy s o m e other property unlawfully. T h e Assistant Commissioner also questioned the wisdom of prosecuting the occupiers because it would not be possible to identify those w h o should be prosecuted for contempt of court, or those upon w h o m the eviction application or the order had been served. Because of the ^ continuing influx of unlawful occupiers onto Modderklip's farm, it would also be difficult to make a distinction between the unlawful occupiers on the one hand and transient visitors on the odier. {15] T h e relief requested by Modderklip was, to a substantial extent, granted by die Pretoria High Court. It declared that Modderklip's property rights under s 2 5 ( 1 ) of the Constitution 2 3 had been violated by the illegal occupation and die failure of the occupiers to comply with the eviction order It also held that the State had breached its obligations in terms of s 2 6 ( 1 ) and (2) of the Constitution, 2 1 read with s 2 5 ( 5 ) , " to F take reasonable steps within its available resources to realise the right of the occupiers to have access to adequate housing and land. According to the High Court, this failure by the State effectively amounted to the unlawful expropriation of Modderklip's property and also infringed Modderklip's rights to equalityunder s 9(1) and 9 ( 2 ) of die Consti- ^ t u t i o n b y requiring it to bear the burden of providing accommodation to the occupiers, 3 function that should have been undertaken by the State. [16] T h e Court held that the provision by the State of land or accommodation to the occupiers would have facilitated compliance with H the eviction order. Accordingly, it held that die State's failure to provide such land or accommodation amounted to a breach of its obligation to protect the efficacy of the eviction order as required by s 165(4) of the C o n s t i t u t i o n . ^ It further held that the police had likewise failed to comply with their duty, in terms of s 2 0 5 ( 3 ) of the Constitution 2 7 read | " Above Above 25 Above 26 Above 27 Above n n n n n 2 4 2 21. 22.

14 LAMGA ACJ

PRESIDENT OF THE RSA v MODOERKUP BOERDER f (PTY) LTD 2CS0S (5) SA 3

CC

A with s 14 of the South African Police Services Act 63 of 1995, 2 8 to investigate complaints by Modderkiip with a view to the prosecution of the occupiers and protecting Modderklip's property rights. Finally, the Court imposed a structural interdict requiring the State to present a comprehensive plan to the Court and to the other parties indicating the B steps it would take to implement the Court order. It was against this judgment and order of the Pretoria High Court that die State applied for leave to appeal to the Supreme Court of Appeal. Proceedings in the Supreme Court of Appeal C 117J In addition to Agri SA, three other non-governmental organisations active in the fields of policy advocacy and support in respect of landless and homeless communities were admitted by the Supreme Court of Appeal as aurici curiae when the matter came before it on appeal. These were the Nkuzi Development Association, the Community Law Centre q of the University of the Western Cape and the Programme for Land and Agrarian Studies, also of the University of the Western Cape. {18] T h e Supreme Court of Appeal agreed in general with the findings of the Pretoria High Court, in particular, that Modderklip's rights to property and the rights of the occupiers to have access to adequate E housing had been infringed. It is these findings that were challenged in this Court. T h e Supreme Court of Appeal, however, disagreed with the Pretoria High Court's finding that the police had failed to fulfil dieh obligations to ensure that the eviction order was executed, p [19} T h e judgment of the Supreme Court of Appeal was premised firstly on its finding that Modderklip's rights entrenched in s 25(1) have been brcached by die unlawful occupation of Modderklip's property, as well as by the refusal of the occupiers to obey the eviction order. T h e second leg to this was die Court's endorsement of the finding of the Pretoria High Court that die State had breached its obligation, under s 26(1) and (2) of the Constitution, to provide the occupiers with land. T h e provision ofland would have enabled Modderkiip to vindicate its s 25(1) right, while at the same time enabling the occupiers to comply widi the eviction order. T h e Supreme Court of Appeal held that the State has accordingly failed to protect Modderklip's rights, an obligation that flows ^ from the provisions of s 25(1) read with s 7(2) of die Constitution. 2 9 It also held that the equality provisions in terms of s 9(1) and (2) of die Constitution had been infringed,^

I " 6 Scciion 14 provides. 'Employment of Service in preservation of life, health or property The National or Provincial Commissioner may employ members for service in the preservation of life, health or property.' Above n 3 30 Above nn 5 and 6

LANGA ACJ

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\ 5 CC

[20} Citing Fose v Minister of Safety and Security/1 and Afiniiier of Health A and Others v Treatment Action Campaign attd Others (No 2)?z the Supreme Court of Appeal went on to State that the courts 'have a duty to mould an order that will provide effective relief to those affected by a constitutional b r e a c h ' . I t pointed out that 'constitutional remedies will differ by circumstance. T h e only appropriate relief B that, m the particular circumstances of the esse, would appear to be justified is that of "constitutional" damages, ie damages due to the breach or a constitutionally entrenched right. No other remedy is apparent. Return of the land is not feasible. 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. Ordering the State to pay damages to Modderklip has the advantage that C the Gabon occupiers can remain where they are while Modderklip will be recompensed for that which it has lost and the State has gained by not having to provide alternative land. Tire State may, obviously, expropriate the land, in which event Modderklip will no longer suffer any loss and compensation will not be payable (except for the past use of the land) A declaratory order to this effect ought to do justice to the case. Modderklip will not veccive more than what it has 0 lost, 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 problems can be solved as and when the State can afford it.' 3 " ( F o o t n o t e omitted.) [21] T h e relevant part of the order of the Supreme Court of Appeal was E accordingly in the following terms: (a) T h e appeal is upheld in part. (b) Paragraphs 1 to 5 of the order of die Court below are set aside and replaced with an order ("0 Declaring that the State, by failing to provide (and for F occupation by the residents of the Gabon rnformal Settlement, infringed the rights of Modderklip Boerdery (Pty) Ltd, which are entrenched in ss 7 ( 2 ) , 9(1) and (2), and 2 5 ( 1 ) , and also the rights of lire residents which are entrenched in s 2 6 ( 1 ) of the Constitution q (ii) Declaring that the applicant is entitled to payment of d a m ages by the Department of Agriculture and Land Affairs in respect of the land occupied by the Gabon Informal Settlement. (iii) Declaring that the residents are entitled to occupy the land until alternative land has been made available to them by the H State or die provincial or local authority. (iv) T h e damages are to be calculated in terms of s 12(1) of the Expropriation Act 6 3 of 1975. (v) If, in relation to the investigation and determination of the damages suffered, die parties are unable to reach agreement j regarding the pleadings to be filed;, and discovery, inspection,
51

13

1997 O) " 2 0 0 2 (5) Above n Above n

SA 786 (CC) (1997 (7) BCLR 851) at para (94). SA 721 (CC) (2002 (10) BCLR 1033) at para [102], i at para [42} I at para [43}.

<J

16 LANGAACJ

PRESIDENT OF THE ASA v MODDERKLIP COcRDERY iPTV) LTD 2005 (5) SA 3

CC

(c)

and other matters of procedure relating thereto, leave is granted to any of the parties to make application to the Court in terms o f Rule 3 3 ( 5 ) for directions. T h e third appellant is to pay the costs of appeal of die respondent, 3 5

8 T h e State's contentions in this Court [22] In its application to this Court for leave to appeal against the above order, die State essentially advanced two basic contentions. It first challenged the findings of the Supreme Court of Appeal that Modderklip's right to property under s 2 5 ( 1 ) , and the occupiers' rights to have access to adequate housing in terms of s s 2 6 ( l ) and (2) had been breached. T h e second contention by the State was that Modderklip was not entitled to the relief it claimed because it had neglected to apply for an urgent eviction order timeously, under the provisions of s 5 of the Act. 3 It was argued that if the eviction proceedings had been instituted D during May 2 0 0 0 , the evictions would have been manageable and affordable I deal with the two contentions in turn. T h e rights under ss 2 5 ( 1 ) and 2 6 ( 1 ) and (2) of the Constitution [23] Dealing with the first contention, the State argued that s 2 5 ( 1 ) has g application to State conduct only and not to the conduct of private individuals. It contended that Modderklip's property rights had been invaded by private individuals and not by any action of the State. Accordingly, in terms of the State's submission, s 2 5 ( 1 ) could not be p
35

i, "

Above n 1 at para \52}(b) and (c), Section 5 reads; 'Urgent proceedings far eviction (1) Notwithstanding the provisions of s 4, the owner or person in charge of land may institute urgent proceedings for the eviction of an unlawful occupier of thai land pending the outcome of proceedings for a final order, and the court miiy grant such an order if k is satisfied that (a) there is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land; (b) the likely hardship to the owner or any other affected person if an order for eviction is not granted, exceeds the likely hardship to the unlawful occupier against whom the order is sought, if an order for eviction is granted; and (c) there is no other effective remedy available. (2) Before the hearing of the proceedings contemplated in ss (1), the court must give written and effective notice of the intention of the owner or person in charge to obtain an order for eviction of the unlawful occupier to the unlawful occupier and the municipality in whose area of jurisdiction the land is situated. (3) T h e notice of proceedings contemplated in ss (2) must (a) state that proceedings will be instituted in terms of ss (1) for an order for the eviction of the unlawful occupicr, (b) indicate on what date and at what time the court will hear the proceedings, (c) set out die ground's for the proposed eviction, and (d) State that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid '

LANGA ACJ

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17 CC

invoked as the conduct of the unlawful occupiers was not one that was A contemplated by that provision o f the Constitution. T h i s raised the question of whedier or not s 2 5 ( 1 ) has horizontal application, that is, whether it can be invoked to govern relations between private parties. [24] T h e rights affected were characterised by the State as private-law rights for which private- and public-law remedies were provided by die State. In this, the executive's interest could only be indirect and general. It was argued that in eviction proceedings and in subsequent steps to enforce eviction Orders, this obligation or interest was limited to die provision by the Stare o f an infrastructure to 'oil the statutory machinery' 3 7 in order to facilitate the execution of court orders. T h e legislative ^ framework, which includes ss 4 and 5 of the Act, together with mechanisms such as die courts, would be part o f this infrastructure T h e State submitted that once such a statutory framework has been established and placed at the disposal o f parties desirous of engaging the mechanisms, it is not for the executive, but for institutions such as the courts, to D operate the machinery. [25] Linked to the finding of the Supreme Court of Appeal diat Modderklip's rights to property had been infringed was the conclusion reached by the Court that the rights of the occupiers to access to adequate housing under ss 2 6 ( 1 ) and (2) have been breached. This finding by the Supreme Court of Appeal was based on its acccptance that the continued unlawful occupation of Modderklip's property, even after an eviction order had been issued, occurred becausc the occupiers had nowhere else to go. T h e Court held, in effect, diat die State could have ended this occupation by purchasing the portion of Modderklip's property thai was unlawfully occupied, or by providing the occupiers with alternative land on which to settle. T h e Court accordingly held that the failure by die State to provide assistance to the occupiers in this manner amounted to a breach of dieir rights under s 26(1) and (2). It held that this finding 'leads ineluctably to die conclusion that the State simultaneously breached its s 2 5 ( 1 ) obligations towards Modderkiip' 3 S

^ ^

[26] For purposes of this judgment, and for the reasons diat will emerge below, I consider it unnecessary in this case to reach any conclusions (a) o n the question whether or not s 2 5 ( 1 ) has horizontal application and, if so, under what circumstances; and (b) whether Modderklip's s 2 5 ( 1 ) right to property and the rights of die unlawful occupiers under s 26(1) and (2) have been breached and, if so, to what extent. It will be convenient, however, to deal at this stage with the second contention advanced by the State in this Court. 3 9 I

37 Di Lange ti Sonus NO and Others 779) at para (116] yA Above n 1 at para {281 ,9 See para [22] of this judgment

(3) SA 785 (CC) (1998 (7) BCLR J

18 I.ANGA ACJ

PRESIDENT OF THE RSA v MODDERKLIP BQEROcRY (PTY) LTD 2005 (5) SA 3

CC

A T h e State's contention that Moddcrkiip was to blame [27] T h e contention that Modderklip was not entitled to the relief it claimed because it had neglected to institute eviction proceedings under the urgent provisions o f s 5 of the Act"10 assumes that Modderklip would probably have succeeded had it instituted such proceedings. It was B argued that Modderklip brought its w o e s upon itself by not taking effective steps to protect its o w n property, when ir could have done so. T h e State contended that there was n o evidence at that time that die occupiers could not be accommodated elsewhere. [28] In terms of the provisions referred to, the owner or person in charge C of land may, when certain factors which are specified in the section are present/ 1 1 institute proceedings for the eviction of an unlawful occupier pending the o u t c o m e of proceedings for a final order. T h e State, quite correctly, accepted that Modderkhp's delay in seeking to assert its rights would be material only if it were found to be culpable and q unreasonable.' 1 * {29} There is n o doubt, as was held by this Court in Mkontzmna v Nehon Mandela Metropolitan Municipality and Another/' thai owners of property bear the primary responsibility to take reasonable steps to protect their property. T h e complaint in that case was that a provision which provided E for die payment of arrear consumption charges by the owner of property before the transfer of such property could b e effected, imposed on unfair burden upon an owner wishing to effect transfer of property. Yacoob J, writing for the majority, stared: 'It is nevertheless the duty of the owner to safeguard the property, to take P reasonable steps to ensure that it is not unlawfully occupied and, if it is, to take reasonable steps to ensure the eviction of the occupier. If the owner performs these duties diligently, unlawful occupiers will not, in the ordinary course, remain on the property for a long period. It is ordinarily not the municipality but the owner who has the power to take steps to resolve a problem arising out of the unlawful occupation of her property." 1 q | 3 0 j There are, however, two answers to the State's contentions in this respect. T h e first is that, as the Supreme Court of Appeal found, it was by n o means clear that Modderklip would have been able to satisfy all the
40 Above n 36 p. ' 1 T h e factors required to be present aie that the court must firstly be satisfied " that there is a 'real and imminent danger of substantial injury or damage to any person or property 1 if the occupiers were not evicted immediately from the land (s 5(1 )(*)); second, that the likely hardship to the owner or any other person affected by the eviction order exceeds the likely hardship to the unlawful occupier (S 5(l)(iy); and third, that there is no other effective remedy odier than the order under the provisions of s 5 (s 5(\)(c)). 12 | Above n 1 at para [32]. 43 Mkontwana v Nelson Mandela Metropolitan Municipality and Another Bisseti and Others v Buffalo Ctty Municipality and Others; Transfer Rights Action Campaign and Others v MECt Local Government, and Housing, Gattteng, and Others (KwaZidu-Natal Lmu Society and Msursdttzi Municipality as Amict Curiae,) 2005 (!) SA 530 (CC) (2005 (2) BCLR 150). 44 Id at para [59] in respect of s 118(1) of the Local Government- Municipal J Systems Act 32 of 2000.

LANGA ACJ

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stringent requirements of s 5 of the A c t 4 5 if it had invoked those urgent A procedures. Modderklip's case for eviction was not based o n any o f those factors but simply o n the fact that it had been deprived of the enjoyment of its right of ownership of the land in question. [31] T h e second answer is that Modderklip had not been idle nor did it neglect to assert its rights o f ownership from the outset. It had 8 immediately engaged the municipality and the other organs of State in search of a h u m a n e way out of the impasse. T h e municipality, for its part, refased to involve itself or to co-operate with Modderklip in the search for solutions. T h e conduct of the State throughout was consistent with the view articulated on its behalf in this Court that the responsibility q for the implementation of die evictions rested solely on Modderklip. [32] It is to be noted that the provisions of die Act envisage the involvement of the State, in certain circumstances, in evictions from privately owned property. Section 4 requires that the municipality be informed of any action for eviction being undeitaken by a property Q owner. Section 6 ( 1 ) of the Act provides for the institution of eviction proceedings by a municipality against an unlawful occupier from privately o w n e d land which falls within the jurisdiction of such municipality, Before instituting such proceedings, the municipality may give notice requiring the owner or person in charge of such properly to institute eviction proceedings. 116 In this case, when Modderklip declined to bring ^ eviction proceedings pursuant to the n o t i c e / 7 the municipality could itself have instituted eviction proceedings against the occupiers."" This it did not do. As mentioned earlier in tins judgment, 1 , 9 further attempts by Modderklip to get assistance from various organs of State failed to bear fruit and the judgment and eviction order granted by the Johannesburg F High Court brought no relief to Modderklip because of the circumstances which I have already described. [33] T h e failure by the State to take the steps needed to resolve the problem must be seen against the background of its conduct dtroughout, from the time when the original group of occupiers was evicted by the G Benoni City Council from the Chris Hani settlement. T h e considerations that influenced the State are explained in the affidavits attested to by M r Mayende, the Director-General of the Department of Agriculture and Land Affairs, Mr Chainee, the municipality's executive director of housing, and Mr Odendaal, the provincial chief director of housing. ^ Briefly stated, the reason is that die State could not be seen to be rewarding 'queue-jumping 1 to die prejudice of law-abiding citizens who patiently await their turn to benefit from housing and law reform programmes, i n the words of Mr Chainee:
45 Above n 36. * b Section 6(4) of the Act. 17 Sec para (4J of this judgment. Section 6(3 }(c) of the Act provides that one of the factors to be considered by the court when proceedings arc instituted by the municipality is the availability of alternative accommodation or land. 49 See para (6) of this judgment.

20 LANGA ACJ

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'Should the view be spawned that unlawful occupations arc compensated with the expedited allocation of land and housing, the entire programme of land reform and housing would collapse.'

[34] In similar vein, M r Odendaal speaks of the need to take into account the 'existing priorities and obligation to accommodate people g according to their ranking on the waiting list' and decries the practice of 'queue-jumping*. [35] T h e Supreme Court of Appeal, however, expressed doubt whether the concern was justified o n the facts of this case. It found nothing to indicate that die occupiers acted with an intention to leapfrog others in q the queue, buc rather that the occupation took place because the occupiers, w h o mistakenly believed that die land was unoccupied municipal property, had nowhere else to go following their eviction by the Benoni City Council from the Chris Hani settlement. [36] T h e problem of homciessness is particularly acute in our society. It q is a direct consequence of apartheid urban planning which sought to exclude African people from urban areas, and enforced this vision through policies regulating access to land and housing which meant diat far too little land and too few houses were supplied to African people. T h e painful consequences of these policies are still with us U years into our new democracy, despite government's attempts to remedy them. E T h e frustration and helplessness suffered by many w h o still struggle against heavy odds to m e e t die challenge merely to survive and to have shelter can never be underestimated. T h e fact diat poverty and h o m e lessncss still plague many South Africans is a painful reminder of the chasm that still needs co be bridged before the constitutional ideal to p establish a society based o n social justice and improved quality of life for all citizens is fully achieved. 5 0 [37] T h e Supreme Court of Appeal further accepted that after their eviction was ordered by the court, the occupicrs believed that negotiations were taking place that would have enabled them to remain o n q Modderklip's farm. T h e successful conclusion of the negotiations would have meant that the unlawful occupation would have ended because the occupiers would have had a place o n which to settle lawfully. [38] I agree with die finding of the Supreme Court of Appeal diat Modderkiip cannot be blamed for any delay in instituting eviction proceedings and for the failure ro consummate the eviction order, As " already mentioned, the costs of the eviction order if implemented by the sheriff far exceed die price at which die land was offered for s a l e . 5 5 1 agree also that Modderklip's c o n d u c t in its pursuit of an effective solution has been prudent and reasonable in the circumstances. Even if a delay on the part of Modderkiip were found to have occurred, it could not, on the j facts of this case, be sufficient to deny Modderkiip the relief it is entitled to. T h e contentions of the State in this respect must accordingly fail.
50 See the preamble to the Constitution See also Govinimou of ihe Republic of South Africa and Others v Crootkwm and Others 2001 (1) SA 46 (CC) (2000 (11) BCLR 1169) at para [2]. 51 See para [9] of this judgment

21 PRESIDENT OF THE ASA v MODDERKLIP COcRDERY iPTV) LTD LANGAACJ 2005 (5) SA 3

CC

T h e rule of taw and die provisions of s 3 4 of the Constitution

[39} Section 1 (c) of the Constitution refers to die '(s)upremacy of the Constitution and the rule of law' as s o m e of the values that are foundational to our constitutional order. 52 T h e first aspect that flows from the rule of law is the obligation o f the State to provide the ncccssary mechanisms for citizens to resolve disputes thai arise between them, B This obligation has its corollary in dse right or entitlement of every person to have access to courts or other independent forums provided by the State for the settlement of such disputes. T h u s s 3 4 of the Constitution provides as follows: 'Everyone has the right to have any dispute that can be resolved by the C application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.' [40] In Chief Lesapo v North Ufot Agricultural Bank and Another,53 M o k g o i o J pointed to some of the consequences that s 3 4 and the rule of law seek to avoid w h e n she stated that: q ' T h e right of access to court is indeed foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, widiout resorting to self-help. The right of access to court is a bulwark against vigilant'ism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance As a result, very powerful considerations would be required for its limitation to be reasonable and justifiable.* (Footnote omitted.) [43] T h e mcchaoisms for the resolution of disputes includc the legislative framework, as well as mechanisms and institutions such as the courts P arid an infrastructure created to facilitate the execution of court orders. In this case, the legislative framework includes the provisions of the Act which are directed at assisting both the landowner and the unlawful occupier. In argument, the State has accepted the existence of this obligation, but claimed that it had been fulfilled. G [42] It is obvious in this case that only one party, the State, holds the Icey to the solution of Modderklip's problem. There is no possibility of the order of the Johannesburg High Court being carried out in the absence of effective participation by the State. T h e only question is whether the State is obliged to help in resolving the problem, m other words, whether h Modderklip is entitled to arty relief from the State. [43] T h e obligation on the State goes further than the mere provision of the mechanisms and institutions referred to above. It is also obliged to take reasonable steps, where possible, to ensure that large-scale disrupSection 1 (c) reads: 'The Republic of South Africa is one, sovereign, democratic State founded on the following values' (c) Supremacy of the Constitution and the rule of law.' 2000 (1) SA 409 (CC) (1999 (12) BCLR 1420) at para (22). J
52

22 LANGAACJ

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CC

A lions in the social fabric d o not occur in the wake of the execution of court orders, thus undermining the rule o f i a w T h e precise nature o f the State's obligation in any particular case and in respect of any particular right will depend on what is reasonable, regard being bad to the nature of the right or interest that is at risk, as well as on die circumstances of g each case. (44] T h e position of Modderklip, as a victim of the unlawful occupation of its property on a massive sc;?1e> is aggravated by the failure to have the eviction order earned out. Its efforts to extricate itself were frustrated by the ineffectiveness o f the mechanisms provided by the State to resolve C this specific problem because of the sheer magnitude of the invasion and occupation of ModderkJip's property. T h e judgment in the eviction case and the order granted by die Johannesburg High C o n n did not provide an answer. T h e eviction order b e c a m e unenforceable because the occupiers, in iheir thousands, would have had nowhere to go when the q order to evict them was carried out. T h e problem was c o m p o u n d e d by the inordinate increase in the number of occupiers. Indeed, in the founding affidavit, it is stated that Modderklip found itself in a chccfcmate position, having followed the correct legal procedures and having obtained a court ordetv only to find chat the organs of State were either unwilling or unable to assist in enforcing it.

[45] It is unreasonable for a private entity such as Modderklip to be forced t o bear the burden which should be borne by the State, of providing the occupiers with accommodation. Land invasions of this scale are a matter that threatens far more than the private rights of a single property owner. Because of their capacity to be socially inflammatory, diey have the potential to have serious implications for stability and public peace, Failure by the State to act in an appropriate manner in die circumstances would mean that Modderklip, and others similarly placed, could not look u p o n the State and its organs to protect them from invasions of their property. T h a t would be a recipe for anarchy.

[46] T h e execution of an eviction order d o e s not ordinarily raise problems which cannot be a c c o m m o d a t e d through the existing m e c h a nisms. T h e y allow for die execution o f court orders so that citizens have n o justification lo take die law into their own hands. Consequently, order in society is preserved and inappropriate societal disruptions are preM vented. It follows that court orders m u s t be executed in a manner that prevents social upheaval. Otherwise the purpose o f die rule of law would be subverted by the very execution process that ought to uphold it. (47] T h e circumstances of this case are extraordinary in that it is not possible t o rely o n mechanisms normally employed to execute eviction orders. This should have been obvious to the State. It was not a case of one or two or even ten evictions where a routine eviction order would have sufficed. T o execute this particular court order and evict tens of thousands of people with nowhere to g o would cause unimaginable social chaos and misery and untold disruption. In the circumstances of J this case, it would also not be consistent with the rule of law.

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23 CC

[48] T h e question diat needs to be answered is whedier the State was, in A the circumstances, obliged to do more dian it has done to satisfy the requirements of the rule of law and fulfil the s 3 4 rights of Modderkiip. I find that it was unreasonable of the State to stand by and do nothing in circumstances where it was impossible for Modderkiip to evict die occupiers because of the sheer magnitude of die invasion and the B particular circumstances of the occupiers. [49] T h e State is under an. obligation progressively to ensure access to housing or land for the homeless, 1 am mindful of the fact that diose charged with the provision of housing face immense problems. Confronted by intense competition for scarce resources from people forced ^ to live in the bleakest of circumstances, the situation of local government officials can never be easy. T h e progressive realisation of access to adequate housing, as promised in the Constitution, requires careful planning and fair procedures made known in advance to those most affected. Orderly and predictable processes are vital. Land invasions 0 should always be discouraged. At the same time, for the requisite measures to operate in a reasonable manner, they must not be unduly hamstrung so as to exclude all possible adaptation to evolving circumstances. If social reality fails to conform to the best-laid plans, reasonable and appropriate responses may be necessary. Such responses should E advance the interests at stake and not be unduly disruptive towards other persons. Indeed, any planning which leaves no scope whatsoever for relatively marginal adjustments in the light of evolving reality, may often not be reasonable. F [50] H o acceptable reason has been proffered for the State's failure to assist Modderkiip. T h e understandable desire to discourage 'queuejumping' does n o t explain or justify why Modderkiip was left to carry the burden imposed o n it to provide accommodation to such a large number of occupiers. N o reasons have been given why Modderklip's offer for the State to purchase a portion of Modderklip's farm was not taken up and ^ why n o attempt was m a d e to assist Modderkiip to extricate itself. [51] T h e obligation resting on the State in terms of $ 3 4 of the Constitution was, in the circumstances, to take reasonable steps to ensure that Modderkiip was, in the final analysis, provided with effective relief. T h e State could have expropriated the property in question or provided other land, a course that would have relieved Modderkiip from continuing to bear die burden of providing the occupiers with accommodation. T h e State failed to do anything and accordingly breached Modderklip's constitutional rights to an effective remedy as required by ( the rule o f law 5 4 and entrenched in s 34 o f the Constitution.

Vi

Section I (c) of the Constitution, See above n

24 LANGA ACJ

PRESIDENT OF THE RSA v MODDEfiKUP BQERDERY (PTY) tJO 2005 (5) SA 3

CC

A Justification [52] Section 36 of die Constitution is not applicable in this case since n o law of general application has been invoked in the limitation of M o d derklip's rights 8 Section 4 ( 1 2 ) of die Act hi an alternative argument the second, third and fourth antia argued that the Pretoria High Court should have relied on s 4 ( 1 2 ) of the Act. T h e purpose of s 4 ( 1 2 ) is to create an opportunity for the amelioration of the conditions, which could have drastic consequences to die evictees, under C which eviction orders are implemented, in order to cake into account changing circumstances. T h e eviction order itself has not been appealed against; all the panics involved are not before us and, accordingly, it would not be appropriate at this stage to invoke the provisions o f $ 4 ( 1 2 ) , Appropriate relief [53] T h e appropriateness of an award for compensation was challenged by the State on several grounds. First, the State contended that this type of relief was not foreshadowed in Modderklip's application. It stated thai diis omission precluded it from considering this form of order and placing evidence before die Court why it ought not to be granted. In its E judgment, the Supreme Court of Appeal points out that this option was put to State counsel during his opening argument and he neither resisted it nor did he 'submit that such an order would be incompetent or unfair'. 5 5 If the State was taken by surprise, it is not clear to me why it could not have requested time to get instructions to deal with an issue p which, undoubtedly, was to have important consequences for it. I agree with the observation of the Supreme Court of Appeal that: 'If a constitutional breach is established, this Court is (as was the Court below) mandated to grant appropriate relief. A claimant in such circumstances should not necessarily be bound to the formulation of the relief originally sought or the manner in which it was presented or argued [54] A number of factors that had to be taken into account in the determination o f appropriate relief for purposes of this case were listed by counsel who argued on behalf of the second, third and fourth amid. T h e s e are that: (a) die occupiers have formed themselves into a settled community and built h o m e s for themselves; (b) their investment into their own community o n Modderklip's farm must be weighed against the financial waste that their eviction would represent; (c) the cost of avoiding such a waste would be minimal; I Above n I at para [44}. 56 Id at para [18]. The Court referred to C,mwchitc v Minister of Safety and Security and Another (Ceitm for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2001 (10) BCLR 995); and Batmatym v Bannaiyne (Commission for Gender Equality, as Amicus Curiae; 2003 (2) SA 363 (CC) (2003 (2) BCLR 111) J in support of this approach.
55

P R E S I D E N T O P T H S R S A v M O D D E R K L I P B O E f l O E R V (FTY) LTD LANGA ACJ 2 0 0 5 (5) S A 3

25 CC

the State is and has always been involved in matters concerning the A unlawful occupation of Modderklip's farm; the State gave notice to Modderklip, in terms of s 6 ( 4 ) of die Act, to institute eviction proceedings and Modderklip made various requests for assistance from various organs of State; and (e) the responses of the State were consistently negative and unhelpful, g (55] There is n o doubt that some of the above factors have relevance in die determination of what constitutes appropriate relief in this case. Of importance also would be the general tone and purpose of legislation enactcd to govern evictions, read with die relevant constitutional provisions. T h e preamble to the Act states, for instance, that n o one may be evicted from their h o m e , or have their h o m e demolished without an order of court made after considering ail the relevant circumstances-'' 7 T h e underlying philosophy o f the Act ts described by Sachs J in Port Elizabeth Mwiicipality V Various Occupiers as follows''(The Act] expressly requires the court to infuse elements of grace and compassion into the forma] structures of the law It is called upon to balance D competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern , ; i 8 T h i s echoes the provisions of s 2 6 ( 3 ) of die Constitution, 5 9 which then goes o n to proscribe legislation that permits arbitrary evictions. This is not surprising in a constitutional order committed to the establishment of a society that is not only based o n democratic values and fundamental human rights, but also on social justice. 6 0 [56j Factors (a) and (b) above arc in line with die remarks in Port Elisabeth Municipality v Various Occupied1 where it was stated that 'a court should be reluctant to grant an eviction against relatively settled ^ occupiers unless it is satisfied that a reasonable alternative is available, even if only as an interim measure pending ultimate access to housing in the formal housing programme', (Footnote omitted.) [57] T h e type of relief given by the Supreme Court of Appeal was foreshadowed in Fose/'2 where Ackermann J stated: '(l)t seems to me that there is no reason in principle why "appropriate relief" should not include an award of damages, where such an award is necessary to protect and enforce ch 3 rights. Such awards are made to compensate persons who have suffered loss as a result of die breach of a statutory right if, on a proper H construction of the statute in question, it was the Legislature's intention that such damages should be payable, and it would foe strange if damages couid not be claimed for, at least, loss occasioned by the breach of a right vested in the claimant by the supreme law. When it would be appropriate to do so, and what See also s 8(1) of the Act. Pon Slizabuh Municipality v Various Occupiers 2005 ( I ) SA 217 (CC) (2004 ( U ) BCLR 1268) at para (37J. Above n 4 A0 See the preamble to the Constitution. Above n 58 at para [28]. 62 Above n 31 at para [60].
57

(d)

26 IAMGA AC.J

PRESIDENT OF THE RSA v MODOERKUP BOGRPERY (PTY) U O 2005 ($) SA 3

CC

A (he measure of damages should be will depend on the circumstances of each case and the particular right which has been infringed ' (Footnotes omitted.) This c o m m e n t is also relevant to tills case where we arc concerned with compensation in terms o f s 12(1) of the Expropriation Act 63 of 1975. B |5SJ Appropriate relief must necessarily be effective. Again as pointed out in Fose,6i ^Without effective remedies for breach {of rights entrenched in (he Constitution], the values underlying and the right entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so Qiw have the q means to enforce their rights through the courts, it is essentia! that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to "forge new tools" and shape innovative remedies, if needs be, to achieve this goal' [55] In deciding that the type of compensation awarded to Modderklip D was the m o s t appropriate remedy in the circumstances, die Supreme Court o f Appeal referred to a number of advantages which other forms o f relief did not have. It compensates Modderklip for the unlawful occupation of its property in violation of its rights; it ensures the unlawful occupiers will continue to have accommodation until suitable akerna^ tives are found and it relieves the State of the urgent task of having to find such alternatives. T h e difficulty of quantifying the compensation is met by resorting to the mechanism provided in s 12 of the Expropriation Act, thus obviating the need for Moddcrkiip to institute new proceedings. (GO] T h e State, however, suggested that a declaratory order would have p been sufficient to vindicate Modderkiip's rights. It is true that a declaratory order would go some way towards assisting Modderklip by way of clarifying its rights. It could even be o p e n to Modderklip to bring a separate delictual action against the State. What Modderklip required at that stage, however, having regard to the long history of its efforts to relieve its property from unlawful occupation, was something more G effective than the suggested clarification of its rights. [61] T h e question, however, remains whether, and under what circumstances, compensation ought to be awarded as the Supreme Court of Appeal has done. Before venturing to answer the question, it will be convenient to consider whether another alternative that was suggested, ^ that is, ordering the State to expropriate a portion of Modderklip's farm, would be more appropriate as relief. An order for the State to expropriate I [62] T h e propriety of an order by this Court that the State should expropriate Modderklip's property, instead of an award for compensation, was debated during the hearing. Strictly speaking, what is at issue is not the compulsory acquisition of property by the State irrespective of the will o f the owner. In the present matter, A c owner has indicated " W a t para [69]

IANGAACJ

PRESIDENT OF TH RSA Y MODQEFWUP BQERDESW (PTV) U O 2005 (5) SA 3

27 CC

willingness, indeed eagerness, to sell the land to the State. By awarding A compensation o n die basis of a fair market value, the Supreme Court of Appeal indirectly set out to achieve purchase by the State. [63] It was suggested with s o m e force that ordering the State to expropriate land from Modderklip would amount to this Court not only ordering the State to fulfil its obligations but also telling it h o w to do so B and that This would be a breach of the rule on separation o f powers. T h e Expropriation Act, in particular s 2 thereof, seems to reserve the decision to expropriate for the Minister of Public Works. [64] It is not necessary to decide, in this case, whether or not a court can order die expropriation of property. We have n o information about ^ whether or not the State has other land available to it which it could use to relocate the occupiers and at the same time enable its obligations to Modderklip to be fulfilled. T h a t possibility cannot be ruled out. If indeed such alternative land is available, it would not be just and equitable to order the State to acquire specific land o n Modderklip's farm. D [65] I consider that in all the circumstances the award of compensation made by die Supreme Court of Appeal was the most appropriate remedy for this case, It follows that, should the State decide to expropriate the land o n Modderklip's farm, the s u m co be awarded as compensation will be set off against compensation to be given for the expropriation. E Conclusion [66] I have found that the relief ordered by the Supreme Court of Appeal is the m o s t appropriate in die circumstances. This is notwithstanding the faci diat dtis judgment is based o n a different basis to that of the Supreme Court of Appeal. Although the State's appeal to this Court has not been successful, it is nevertheless neccssary, for the sake of clarity, to set aside the order of the Supreme Court o f Appeal and to replace it with die order set out below.

G {67] T h e State has not been successful in this Court and it is accordingly appropriate to make a costs order against it and in favour of Modderklip. In the Supreme Court of Appeal, costs were also awarded to Modderklip, the successful party in that Court T h e Court also refused to interfere with the order for costs made by the Pretoria High Court and which is contained m paras 6 and 7 of the High Court's order. 64 H Paragraph 7 of that order awarded certain costs to Agrt S A , which was
61

Above n 14. Paragraphs 6 and 7 of die order read: '6. Die eersre, rweede, derde en vyfde respondeme word geias om gesamemlifc en alsonderlik die applikant se koste te betaal met bctrekking tot die | aansoek om deurhaling so we I as die hoofaansoek, inslukcnde die koste van twee advokate in albei gevaile. Dit word noteer dat die betoog ten opsigtc van die aansoek om deurhaling sowat 'n half dag in besiag geneem het en die betoog in die hofaansoek sow.it dne en 'n half dae. 7. Die eerstc, tweede, derde en vyfde respondente word gclas om gesamenilik en afsonderltfc die amicus curiae se koste te betaal met betrekkmg tot die aansoek om deurhaling, msluitend die koste van twee advokate ' J

28 LANGAACJ

PRESIDENT OF THE ASA v MODDERKLIP COcRDERY iPTV) LTD 2005 (5) SA 3

CC

A admitted as amicus curiae in the High Court proceedings; subsequently also in the Supreme Court o f Appeal. It was admitted in this Court as the first amicus curiae. Even though it is unusual and indeed it will rarely be appropriate for costs to be awarded in favour of an amicus curiae, the State expressly stated in this Court that it was not seeking to overturn the g order of the High Court awarding those costs to Agri SA. There is accordingly no basis for this Court to interfere with those costs orders. Order {68] T h e following order is made: 1. T h e application by the State for leave to appeal is granted. 2. Save to the extent indicated in para (3) below, the appeal against the judgment of the Supreme Court of Appeal is dismissed, 3. Save for the costs order made in subpara (c) of the order of the Supreme Court of Appeal, the order o f that Court is set aside and replaced with the following order: (a) declaring that the State, by failing to provide an appropriate mechanism to give effect to the eviction order of die Johannesburg High Court, infringed the right o f Madderktip Boerdery (Pty) Ltd which is entrenched in s 3 4 read with s 1 (c) of die Constitution; (b) declaring that Moddcrkiip Boerdery (Pty) Ltd is entitled to payment of compensation by the Department of Agriculture and Land Affairs in respect of the land occupied by the G a b o n informal settlement from 31 May 2000; (c) declaring that the residents are entitled to occupy the land until alternative land h a s been made available to them by the State or the provincial or local authority; (d) the compensation is to be calculated in terms o f s 1 2 ( i ) of the Expropriation Act 6 3 o f 1975; (e) if, in relation to the investigation and determination of the compensation to be awarded, the parties are unable to reach agreement regarding the pleadings to be filed, and discovery, inspection, and other matters o f procedure relating thereto, leave is granted to any of the parties to make application to a H i g h Court having jurisdiction in terms of Rule 3 3 ( 5 ) of the U n i f o r m Rules of the H i g h Court 6 5 for directions. 4. T h e Minister o f Agriculture and Land Affairs (second applicant) is to pay the costs of the appeal of the respondent, including the costs of two counsel. Madaia j , Mokgoro J, Moseneke J, N g c o b o J, O'Regan J, Sachs j , Skweyiya j , Van der Wesduiizcn j and Yacoob J concurred in the judgment of Langa AC.J. Rule 33(5) of the Uniform Rules of the High Court provides that. 'When giving its decision upon any question in terms of this rule the court may give such judgment as may upon such decision be appropriate and may give any direction with regard to the hearing of any other issues in the proceeding which may be necessary for the final disposal thereof.'
65

PANTHO v PREMIER. FREE STATE PROVINCE. ANO OTHERS

2005 (5) SA 29

29 OPO

Applicants' Attorney: State Attorney (Pretoria). Respondent's Attor- A ncys: Rooih and Wessels. First amicus curiae instructed by: MacRobcrt Inc. Second, third and fourth amid curiae instructed by die Legal Resources Centre B

C RANTHO v PREMIER, FREE STATE PROVINCE, AND OTHERS

ORANGE FREE STATE PROVINCIAL DIVISION V A N OER MERwe J 2004 February 26, March 18 Case No 476/2004
Q

Public serviceEmployee ofDispute between employee and head of provincial department as to employee's dismissal Dispute resolved through conciliation in terms of s }9I of Labour Relations Act 66 of 1995 Settlement agreement concluded by employee and State Attorney on behalf of member of Executive Cou?icilHead of department not a necessary party to such agreementNo implication of such need arising from power of dismissal conferred on head of department m s I7( l)(h) of the Public Service Act (Proc 103 of 1994)Nor was it necessaiy for settlement agreement to be made award in terms of s 142A(2) of Labour Relations ActRight to arbitration of dispute only arising in terms of s 191(5) of Labour Relations Act if dispute remains unresolved after conciliation- Where dispute resolved, right to arbitration of dispute not arising where dispute resolved through conciliation. Labour lawCourtsHigh CourtJurisdiction ofOuster ofHigh Conn's jurisdiction ousted in terms of s 157 CI) of Labour Relations Act 66 of 1995 only in respect of matters that have to be determined by Labour Court, in terms of Labour Relations Act or in terms of any other lawDispute between employee and head of provincial department as to employee's dismissalDispute resolved by employee and Member of Executive Council through conciliation in terms of s 191 of Labour Relations Act 66 of 1995Head of provincial department disputing validity of settlement agreement on grounds thai he was necessary party thereto and whether settlement agreement capable of enforcement in absence of it being made an awani-Neither of these matters requiring determination by Labour Court in terms of Labour Relations Act or any other lataJurisdiction of High Court not ousted. T h e applicant, who w,v> employed as the Chief Director: Corporate Services m the Free State Provincial Department of Tourism, Environmental and