Failure by the state to protect farmers from land invasions will be ”a recipe for anarchy”, the Constitutional Court found on Friday in a landmark judgement upholding farmers’ property rights.
The ruling given by acting Chief Justice Pius Langa for a unanimous court brings to an end five years of legal wrangling by Benoni farmer Braam Duvenhage over a piece of his farm occupied by squatters evicted from the Chris Hani informal settlement alongside Daveyton.
Initially a group of 400 living in 50 informal dwellings, the squatters numbered 18 000 in 4 000 homes by October 2000, swelling to the present 40 000 — a third of them alleged to be illegal immigrants — on 50ha of the farm, owned by Duvenhage’s company, Modderklip Boerdery.
Now known as the Gabon informal settlement, the area has streets, fenced and numbered erven and shops, but no services other than a single tap and pit toilets.
The Constitutional Court held that, in failing to provide a mechanism to execute an eviction order granted a year after the land invasion, the state infringed on the constitutional rights of Modderklip.
Modderklip refused to pay the R1,8-million — more than the land is worth — asked by the sheriff of the court to hire a security firm to evict the squatters, and the police refused to intervene.
Apart from regarding the matter as a private dispute, the police pointed out that if simply thrown on to the street, the squatters would either return or unlawfully occupy another property.
”I find that it was unreasonable of the state to stand by and do nothing in circumstances where it was impossible for Modderklip to evict the occupiers because of the sheer magnitude of the invasion and the particular circumstances of the occupiers,” Langa held.
It should have been obvious to the state that the case was extraordinary and that it would not be possible to rely on the normal mechanisms to execute eviction orders.
”To execute this particular court order and evict tens of thousands of people with nowhere to go would cause unimaginable social chaos and misery and untold disruption.”
It would also not be consistent with the rule of law, he found.
State’s obligation
While mindful of the immense problems facing those charged with providing housing, Langa held that the state is under an obligation progressively to ensure access to housing or land for the homeless.
”Orderly and predictable processes are vital. Land invasions should always be discouraged.”
If they do happen, the state might have to react in a ”reasonable and appropriate” way.
Langa found it was ”unreasonable” for a private entity such as Modderklip to be forced to bear the state’s burden of providing the occupiers with accommodation.
”Land invasions of this scale are a matter that threatens far more than the property rights of a single property owner.
”Because of their capacity to be socially inflammatory, they have the potential to have serious implications for stability and public peace,” Langa continued.
”Failure by the state to act in an appropriate manner in the circumstances would mean that Modderklip, and others similarly placed, could not look upon the state and its organs to protect them from invasions of their property.
”That would be a recipe for anarchy.”
The state could have expropriated the Modderklip property or provided other land.
Compensation order
Langa ordered that Modderklip is entitled to compensation for the unlawful occupation, calculated under the Expropriation Act and back-dated to May 31 2000, to be paid by the Department of Agriculture and Land Affairs.
He further ruled that the occupiers may remain on the land until alternative land is made available by the state, provincial or local authorities.
He granted Modderklip leave to appeal to any high court with jurisdiction, should agreement not be reached on the compensation.
He found that Modderklip had, from the start, been prudent in its actions and acted reasonably.
Advocate Fanie Rossouw, acting for Modderklip and its director, Braam Duvenhage, was ”overjoyed” at the decision.
”The legal fraternity has been watching this case with hawk eyes because it is of paramount importance to the rule of law in our country and to ensure the land invasions you find in Zimbabwe will not be allowed here,” Rossouw said.
He said he had been contacted by numerous lawyers in the past three years seeking his advice on similar matters.
They had all been waiting for the outcome of this case to determine how they would proceed in their own cases, he said. — Sapa