Illegal occupation of land - Infringement of constitutional rights of owner and of occupiers
By Natalie Hoffman
Modderklip Boerdery (Pty) Ltd launched an application during October 2000 for the eviction of the occupiers under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (colloquially referred to as 'PIE'). The application succeeded, however the occupiers failed to comply with the"1wiction.
With an eviction order in hand and no practical method of enforcing it, Modderklip launched the enforcement case. Modderklip was in a position where it had followed the correct legal procedures; it was in possession of a court order; and the state was either unwilling or unable to assist in enforcing it.
Basic to this case is Modderklip's right to its property entrenched by Section 25(1) of the Bill of Rights, which provides that "No one may be deprived of property except in terms of law of general applications". The court held that the refusal of the occupiers to obey the eviction order amounted to a breach of this right. The state failed in its constitutional duty to protect the rights of Modderklip, it did not provide for the occupiers of the land, which would have enabled Modderklip (had it been able) to enforce the eviction order. Instead, it allowed the burden of the occupiers' need for land to fall on an individual.
On the one hand there is the infringement of the rights of Modderklip. On the other there is the fact that the enforcement of its rights will impinge on the rights of the occupier. Moving or removing them is no answer and they will have to stay where they are until other measures can be advised. Requiring of Modderklip to bear the constitutional duty of the state was no recompense for having to provide land for some 40 000 people.
The only appropriate relief that would appear to be justified in the particular circumstances of this case are those of "constitutional" damages, i.e. damages due to the breach of 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 the land 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. Modderklip will not receive more than what it has lost, the state has already received value for what it had 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.