Modder East Squatters and Another v Modderklip Boerdery (Pty) Ltd, President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (187/03, 213/03) [2004] ZASCA 47 (27 May 2004)

Modder East Squatters and Another v Modderklip Boerdery (Pty) Ltd, President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (187/03, 213/03) [2004] ZASCA 47 (27 May 2004)

The Supreme Court of Appeal held that the unlawful occupation of Modderklip's land constituted a breach of its constitutional property rights under section 25(1). The state failed to fulfil its constitutional obligations to both Modderklip and the occupiers by not providing alternative land or enforcing the eviction order. The court found that requiring Modderklip to bear the burden of providing land for thousands of occupiers was inequitable and amounted to de facto expropriation. The structural interdict granted by the lower court was overly broad and encroached on policy matters, but the only effective remedy was to award constitutional damages to Modderklip, calculated in terms of the...

Citation
[2004] ZASCA 47
Parties
Appellant: Modder East Squatters; Appellant: Greater Benoni City Council; Appellant: President of the Republic of South Africa; Appellant: Minister of Safety and Security; Appellant: Minister of Agriculture and Land Affairs; Appellant: National Commissioner of Police; Respondent: Modderklip Boerdery (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 May 2004
Case Number
187/03, 213/03
Procedural Posture
Civil Appeal / Appeal and Application for Leave to Appeal
Outcome
Appeal upheld in part; application for leave to appeal dismissed; constitutional damages awarded to Modderklip; occupiers may remain until alternative land is provided.
Judges
Harms, Farlam, Cameron, Mthiyane, Southwood
Legal Topics
Bill of Rights Limitation, Illegal Occupation, Constitutional Damages, Eviction Procedure, Expropriation, Structural Interdict
Constitutional Law Land and Property Civil Procedure Bill of Rights Limitation Illegal Occupation Constitutional Damages Eviction Procedure Expropriation +1 more

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Parties

Modder East Squatters

Appellant

Greater Benoni City Council

Appellant

President of the Republic of South Africa

Appellant

Minister of Safety and Security

Appellant

Minister of Agriculture and Land Affairs

Appellant

National Commissioner of Police

Appellant

Modderklip Boerdery (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal and Application for Leave to Appeal

Legal Issues

  1. 1 Whether the unlawful occupation of Modderklip's land infringed its constitutional property rights.
  2. 2 Whether the state failed in its constitutional obligations to both the landowner and the occupiers.
  3. 3 Whether the state is liable to pay constitutional damages to Modderklip for the occupation.

Ratio Decidendi

The Supreme Court of Appeal held that the unlawful occupation of Modderklip's land constituted a breach of its constitutional property rights under section 25(1). The state failed to fulfil its constitutional obligations to both Modderklip and the occupiers by not providing alternative land or enforcing the eviction order. The court found that requiring Modderklip to bear the burden of providing land for thousands of occupiers was inequitable and amounted to de facto expropriation. The structural interdict granted by the lower court was overly broad and encroached on policy matters, but the only effective remedy was to award constitutional damages to Modderklip, calculated in terms of the...

Court Disposition

Appeal upheld in part; application for leave to appeal dismissed; constitutional damages awarded to Modderklip; occupiers may remain until alternative land is provided.

Orders

  • The application for leave to appeal in the eviction case is dismissed with costs.
  • The appeal in the enforcement case is upheld in part.