The fate of 40 000 squatters rests on a government appeal to the Constitutional Court against a high court ruling.
The Department of Agriculture and Land Affairs said this week that it would file papers by February 28 to take the case of Modderklip farm, where 40 000 squatters have settled on privately owned land, to the Constitutional Court.
The state lost an appeal last week against Judge William de Villiers’s ruling in November ordering the government to present a plan to him on February 28 showing how it will comply with an earlier court order. That order instructed the government to evict 40 000 squatters from Braam Duvenage’s farm near Benoni. The squatters have named the settlement Gabon.
Judge De Villiers ruled that the plan must spell out how the government proposes to end violations of the owner’s property rights, state its responsibility towards the squatters and lay out how it will enforce the court order.
In its appeal, the government argued that Duvenage should pay the R2,2-million it will cost to evict the squatters.
Abbey Makoe, director of communications at the land affairs department, says the government will use all legal means available to settle the case. He says the department knows the ruling sets a precedent and plans to pursue the matter to the highest court to contest the issue.
“The ruling last week doesn’t mean that the door has shut. The department of land affairs will now turn to the highest court in the country,” he says.
“We believe that another judge sitting in another court and presiding over the same matter could easily have come to a different conclusion.”
Makoe says the department has studied the matter and believes it has a strong case for the Constitutional Court.
“Unlawful occupiers had chosen to break the law by occupying Duvenage’s farm — unlike millions of other law-abiding citizens who followed the established channels to obtain accommodation. That did not constitute proof that its official polices and programmes were inadequate,” Gadija Behardien, the state’s attorney, told the court.
She said the judge had failed to take into account that any special dispensation for the unlawful occupiers would seriously undermine the orderly implementation of land reform and the provision of adequate housing.
Makoe says his department is worried that the ruling will compel it to provide housing for anyone evicted from private property.
“This effectively allows squatters to jump housing queues.
“We have policies and mechanisms, and have put programmes in place that we believe have the capacity to reach an orderly and lawful land redistribution, as well as orderly settlement of our people, particularly the poorest of the poor,” he says.
Annelize Crosby, of AgriSA’s legal department, says the government’s attitude disappoints the farmers’ union.
“The solution is so simple, yet they are trying to stall the inevitable. Meanwhile the owners and poor squatters have to deal with the consequences. We just don’t understand what they are trying to do.”
She says the union had been delighted with the high court’s ruling on the government’s appeal. “AgriSA agrees that Judge De Villiers’s ruling in November was right. We don’t understand why the government appealed in the first place.
“The government hasn’t submitted a plan to us, but we’ve had a conversation with Duvenage about the future of his farm.”
Duvenage says he has new faith in South Africa’s judiciary since the government lost its appeal.
“The rule of law will survive. I am not against the government, but they have to come up with a plan to uphold the court decision and the rule of law,” he says.
The 40 000 squatters are less enthusiastic about the court’s decision.
Richard Zwane, a resident, says he has no idea what the future holds for him and his community. He is proud of the community the squatters have created on the farm. He says living conditions are better there than in many other squatter camps.
“We made these streets ourselves. We put up the street names. All the infrastructure that exists in Gabon we built ourselves, without the help of grants or the government,” he says.
Though Gabon has no municipal services, the camp is no slum, though 90% of the residents are unemployed. “We are a tight-knit community that has had some hard times. For many residents Gabon is the closest that they’ve ever come to a home,” says Zwane.
He says the first settlers moved to the farm after being evicted from Chris Hani squatter camp in 2000. Gabon soon grew to 2000 residents and that figure escalated to 40 000 as more people flocked to the settlement.
Eddison Mampa says the residents built houses in Gabon because they had nowhere else to go.
“When we first came to settle here there was no sign and no fence that indicated that the land belonged to Duvenage. There was only an open piece of land that was overgrown. We moved there without holding a meeting or discussing it.”
The settlers laugh when they are compared with war veterans in Zimbabwe.
“Do you see any graffiti against walls in the squatter camp declaring that they hate white people because they took the Africans’ land?” asks Mampa. “We are not like that. We are just peace-loving people trying to survive.”
Despite the work they have put into creating their own village, resident Ernest Moagi says the squatters will move if an alternative is presented to them.