President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, Amici Curiae)

• Jurisdiction: South Africa
• Judge: Langa ACJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J
• Judgment Date: 13 May 2005
• Citation: 2005 (5) SA 3 (CC)
• Docket Number: 20/04
• Counsel: D S Fourie SC (with S K Hassim) for the applicants. A Louw SC (with N Janse van Nieuwenhuizen) for the respondent. G L Grobler SC (with J L Gildenhuys) for the first amicus curiae. W Trengove SC (with M Horton) for the second, third and fourth amici curiae.
• Court: Constitutional Court

President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, Amici Curiae)
2005 (5) SA 3 (CC)

2005 (5) SA p3

Citation	2005 (5) SA 3 (CC)
Case No	20/04
Court	Constitutional Court
Judge	Langa ACJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J
Heard	November 4, 2004; November 5, 2004
Judgment	May 13, 2005
Counsel	D S Fourie SC (with S K Hassim) for the applicants.; A Louw SC (with N Janse van Nieuwenhuizen) for the respondent.; G L Grobler SC (with J L Gildenhuys) for the first amicus curiae.; W Trengove SC (with M Horton) for the second, third and fourth amici curiae.

Flynote : Sleutelwoorde E

Constitutional law — Constitutional damages — Award of — Appropriateness F of — Failure by State to comply with duty to uphold rule of law as imposed by s 1(c) of Constitution — Resulting breach of citizen's right to effective remedy as entrenched in s 34 of G Constitution — State remaining passive in face of massive invasion of respondent's farm despite existence of eviction order — Magnitude of problem rendering respondent powerless — Determination of appropriate relief — Reiterated that appropriate relief meaning effective relief — Factors to be taken into account listed — Award of compensation most appropriate remedy in circumstances. H

Constitutional law — Human rights — Enforcement of — Duty of State to uphold rule of law imposed by s 1(c) of Constitution — Said obligation having as its corollary right of every citizen to access to courts as entrenched in s 34 of Constitution — State must not only provide necessary mechanisms for citizens to resolve disputes between them, but also prevent large-scale disruptions of social fabric resulting from execution of court orders — Large-scale land invasions I posing serious threat to public peace — State to take reasonable steps to ensure effective relief for landowners faced with mass invasions of their property — Although property owners bearing primary responsibility to protect property, unreasonable for State to remain passive in circumstances in which landowner powerless. J

2005 (5) SA p4

Headnote : Kopnota

The applicant applied for leave to appeal to the Constitutional Court against a decision of the Supreme Court of Appeal (SCA) in which A 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. The city council alerted the respondent to the unlawful occupation of its land and gave it notice under s 6(4) of the Prevention of Illegal Eviction from and Occupation of Land Act B 19 of 1998 (the Act) requiring it to institute eviction proceedings against the unlawful occupiers. The respondent's attitude was that it was the city council's responsibility to do so. The respondent then laid charges of trespass against the occupiers. Those convicted were given warnings and released, but they simply went back to the farm and resumed their occupation. The respondent then sought to remove C 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 to the city council at a negotiable price, but nothing came of it. The respondent then approached a Local Division for an eviction order, which was granted. The order 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 D between the respondent and the occupiers, forcing the Sheriff, however, to enlist the aid of a private security company to implement the evictions. To these costs the Sheriff wanted a deposit of R1,8 million which the respondent was unable to pay. The result was that the 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 E plan to the Court and to the other parties indicating the steps it would take to implement the Court's order. The State appealed to the SCA, which substantially upheld the judgment of the Pretoria High Court while altering the order against the State by dropping the requirement that it should show how it intended to evict the occupiers, requiring F 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, the State challenged the findings of the SCA that the respondent's right to property under s 25(1) of the Constitution G of the Republic of South Africa Act 108 of 1996 had been breached, arguing that s 25(1) applied to State conduct only and not to the conduct of private individuals. This raised the question of whether s 25(1) had horizontal application. The State also challenged the finding that the occupiers' rights to access to adequate housing as entrenched in s 26(1) and (2) of the Constitution had been breached. H The 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 under the provisions of 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 the State was in effect that the responsibility for the implementation of the evictions had rested solely on the respondent. I

Held, that the obligation that s 1(c) 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 person to have access to courts or other independent forums provided by J

2005 (5) SA p5

the State for the settlement of such disputes as provided in s 34 of the Constitution. A (Paragraph [39] at 21A - C.)

Held, further, that it was obvious that only the State held the key to the solution of the respondent's problem. The 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 [42] at 21G - H.)

Held, further, that the obligation on the State went further than the mere provision of the mechanisms and institutions referred to B 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. The precise nature of the State's obligation in any particular case and in respect of any particular right depended on what was reasonable in the light of the right or interest at risk, as well as on C the circumstances of each case. (Paragraph [43] at 21H/I - 22B.)

Held, further, that the position of the respondent was aggravated by the ineffectiveness of the mechanisms provided by the State to resolve its problem. The eviction order granted by the High Court was unenforceable because the occupiers had nowhere to go. (Paragraph [44] at 22B - E.) D

Held, further, that it was unreasonable to expect a private entity such as the respondent to bear the State's obligation to provide the 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 others in its position, would be unable to look to the State and its organs to protect them from invasions of their E property, a recipe for anarchy. (Paragraph [45] at 22E - G.)

Held, further, that it should have been obvious to the State that it was not possible in the present case to rely on the usual mechanisms for the execution of eviction orders. It would not have been consistent with the rule of law. (Paragraph [47] at 22I - J.) F

Held, further, that the State had been obliged to do more than it 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 23A - B.)

Held, further, that the State had breached its obligation to take the available reasonable steps (expropriating the property, G providing other land) to ensure effective relief for the respondent.

Held, further, that no acceptable reason had been proffered for the State's failure to act. It had been obliged to take reasonable steps to ensure that the 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 H required by rule of law and s 34 of the Constitution. (Paragraphs [50] and [51] at 23F - I.)

Held, as to the State's second contention (viz 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 the primary responsibility to take reasonable steps to protect their I property, it was by no means clear that the respondent would have been able to satisfy the requirements of s 5. The respondent's case for eviction was not based on any of those factors but...