Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae)

• Jurisdiction: South Africa
• Judge: Harm JA, Farlam JA, Cameron JA, Mthiyane JA and Southwood AJA
• Judgment Date: 27 May 2004
• Citation: 2004 (6) SA 40 (SCA)
• Docket Number: 187/03 and 213/03
• Counsel: Z Omar (Attorney) for the appellant. A A Louw SC for the respondents. D S Fourie SC (with S K Hassim) for the appellant. A J Louw for the respondent. G L Grobler SC (with J L Gildenhuys) for Agri SA. M L Norton for the Legal Resources Centre.
• Court: Supreme Court of Appeal

Harms JA:

[1] This judgment deals with two related matters: the first is D an application for leave to appeal against the judgment of Marais J in Modderklip Boerdery (Pty) Ltd v Modder East Squatters and Another 2001 (4) SA 385 (W) (the eviction case); and the second is an appeal against a judgment of De Villiers J in Modderklip Boerdery (Edms) Bpk v President van die Republiek van Suid-Afrika en Andere 2003 (6) BCLR 638 (T) (the enforcement case). Both arise from the pressing - and often E charged - current issue of access to land and were heard together because of their close relationship - the enforcement case flowed from the order made in the eviction case.

[2] The applicant (and present respondent) in each instance is Modderklip Boerdery (Pty) Ltd. It is the owner of a portion of the F farm Modder East [1] , which adjoins Daveyton Township and which now falls within the jurisdiction of the Ekurhuleni Metropolitan Municipality in a part run by the Greater Benoni City Council. I shall refer to the company as Modderklip and to the local authority as the municipality. During the 1990s, due to overcrowding, residents of Daveyton began settling on a strip of land between G Daveyton and the farm. This came to be known as the Chris Hani informal settlement. During the beginning of May 2000, some 400 persons who had been evicted by the municipality from Chris Hani, moved onto a portion of the farm and erected about 50 shacks. By October 2000, there were about 4 000 residential units inhabited by some 18 000 persons. Modderklip launched, on 18 October 2000, an application for the H 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, which was opposed, succeeded and Marais J issued an eviction order on 12 April 2001. The occupiers were granted a period of two months to vacate but they failed to comply in spite of service of the order on 10 May 2001. And they I did not note an appeal.

Harms JA

[3] In fact, whilst the proceedings were pending and even after A the grant of the order, their number kept swelling. It was later estimated that there were 40 000 persons, of whom a third are illegal immigrants, on 50 hectares of the property. The settlement has streets; the erven are mostly fenced and numbered; and there are shops and other commercial facilities. There are no services apart from pit toilets. B Water is drawn from, it seems, a solitary tap. The community, which has been referred to and which called itself in the papers the Modder East Squatters, is now known as the Gabon informal settlement. Although the settlement is organised and run by a committee, the committee could not provide proper information about the inhabitants since they 'were reluctant to come forward due to unspecified problems with identity C documents'.

[4] A writ of execution was issued and the Sheriff requested to execute. The Sheriff responded by insisting on a deposit of R1,8 m in order to cover the estimated costs of a security firm which she intended to engage to assist her in evicting the occupiers and D demolishing their shacks. This amount by far exceeded the value of the part of the property occupied. Modderklip was unwilling and unable to spend this kind of money on executing its judgment.

[5] Already during May 2000, Modderklip laid charges of trespassing against the occupiers. Some were prosecuted, found guilty E and were warned and discharged, and they returned to the farm. The head of the local prison soon afterwards requested Modderklip and the SA Police Service (SAPS) not to proceed with criminal charges because, if sentenced to imprisonment, the prison would not have been able to accommodate the illegal occupiers.

[6] During the middle of 2001, after the eviction order had been F granted, the SAPS adopted the attitude that the matter was now a civil one and that it was not prepared to assist in evicting the occupiers, although it was prepared to stand by during the process in order to ensure that there was no breach of peace. The Minister for Safety and Security (the late Mr Tshwete) wrote to Modderklip expressing his G sympathy for its plight but stating that the SAPS 'is unable to intervene in what is, after all, a civil matter between an applicant and a number of respondents involved in litigation'. The Minister was not properly advised. Civil contempt of court may be criminally prosecuted. [2] Additionally, the court order did not inhibit prosecutions under the Trespass Act 6 of 1959. H

[7] With an eviction order in hand and no practical method of enforcing it, Modderklip began writing letters to the central Government invoking its aid. The President referred the matter to the Department of Agriculture and Land Affairs and to the SAPS. The department referred it to the Department of Housing. The answer of the SAPS was by way of Mr Tshwete's letter. The Department of Housing did not respond. And the I

Harms JA

Sheriff kept insisting on payment of a deposit A (the amount has since increased to more than R2 m). This led to the launch of the enforcement case. In it, Modderklip invoked the provisions of the Bill of Rights and sought a declaratory order against the President, the Ministers of Safety and Security, of Agriculture and Land Affairs and of Housing, and the National Commissioner of Police (the appellants, to whom I shall refer jointly as the State). They were required to take all steps necessary, including the provision of B assistance to the Sheriff, to remove the unlawful occupiers from the land. In addition, an order was sought requiring some of the parties named to cause the occupiers to vacate the property or to prosecute them for trespassing or contempt of court. [3]

[8] In the founding affidavit, the deponent on behalf of C Modderklip indicated that the basis for the relief sought would become apparent during argument. He nevertheless listed a number of provisions of the Bill of Rights, including ss 7 (rights), 9 (equality), 25 (property), and 26 (housing). In addition, he relied on other provisions of the Constitution, namely, ss 41(1) (principles of co-operative government and intergovernmental relations), 165(4) (the D duty of organs of State to assist and protect courts) and 205 (the duties of the police).

[9] In spite of this shotgun approach, what Modderklip effectively sought was the enforcement by the State of the eviction order. The founding affidavit stated, namely, that Modderklip was in a E checkmate position: it had followed the correct legal procedures; it was in possession of a court order; and the organs of State were either unwilling or unable to assist in enforcing it.

[10] Initially, only the SAPS opposed the enforcement application. [4] While denying its F responsibility to enforce the eviction order, the SAPS nevertheless indicated that, if tasked to perform the work, it would cost at least R18 m. Realistically, its deponent (Commissioner van der Westhuizen) posed the question: Where should the occupiers be taken and their goods dumped? To drop them next to the road would solve nothing because they would simply return whence they came or they would occupy other G property illegally. And, added the commissioner, the problem is not a police matter: it is a land reform issue involving the orderly resettlement of illegal occupiers.

[11] In any event, said he, it would be futile to prosecute that number of persons and, as past events have shown, criminal convictions H provide no solution. Furthermore, he asked: who has to be prosecuted for contempt of court? It is not possible to establish on whom the eviction application was served or on whom the order was served and it is impossible to distinguish between illegal occupiers and transient visitors.

[12] Modderklip later joined the municipality as a further respondent because of the interest the municipality has in the matter, but no relief I

Harms JA

was sought against it. I shall return to the role A of the municipality, but it may already be mentioned that it did not take part in the proceedings, save for filing an affidavit in support of the State. The Modder East Squatters were also joined as respondent and without relief being sought against them. They were represented, however, at the hearing in the Court below until it became clear to them that their immediate eviction was not sought. More B importantly, the Minister of Agriculture and Land Affairs belatedly entered the fray on behalf of the State. At the same time, Agri SA obtained leave to file evidence and to present argument as amicus curiae. [5]

[13] In requesting a postponement in order to file affidavits, the Department of Agriculture and Land Affairs, through its C Director- General, Mr Mayende, said:

'The eviction of the group of people involved will obviously impact upon the functions of the relevant public authorities. The people in question will have to resettle elsewhere. This will undoubtedly involve the relevant Government departments particularly D Land Affairs and Housing. Given the apparently large number of people involved, there is an overwhelming likelihood that any steps to evict them would place a tremendous burden on the already over-stretched infrastructure in the area and would simply shift the problem of unlawful occupation elsewhere in the vicinity. It is also no mean feat to orderly move such a large group of people. The matter is complex and E needs proper co-ordination amongst various role-players and Government departments.'

'In these circumstances applicant accepts that the Ministry and Department of Land Affairs must endeavour to place as complete a picture as possible before this Honourable Court concerning the consequences...