Modderklip Revisited: Can Courts Compel the State to Expropriate Property where the Eviction of Unlawful Occupiers is not Just and Equitable?

Keywords: Housing rights, non-feasible eviction, effective remedy, judicial expropriation

Abstract

This article examines whether, to give effect to the section 26 constitutional right to adequate housing, courts can (or should) compel the state to expropriate property in instances when it is not just and equitable to evict unlawful occupiers from privately-owned land (unfeasible eviction). This question was first raised in the Modderklip case, where both the Supreme Court of Appeal (Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 3 All SA 169 (SCA)) and Constitutional Court (President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)). dodged the question, opting instead to award constitutional damages to the property owner for the long-term occupation of its property by unlawful occupiers. It is clear from cases such as Ekurhuleni Municipality v Dada 2009 4 SA 463 (SCA), that, mindful of separation of powers concerns, courts have until very recently been unwilling to order the state to expropriate property in such circumstances. At the same time, it is increasingly evident that the state has failed to fulfil its constitutional obligations to provide alternative accommodation for poor communities. In this context, this article argues that there is a growing need for the judiciary to consider, as part of its role to craft effective remedies for constitutional rights violations, the issue of judicial expropriation. It does so, first, through an analysis of the relevant jurisprudence on evictions sought by private landowners and, second, through an in-depth engagement of the recent Western Cape High Court case, Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi & Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupying Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC).

 

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Author Biography

Jackie Dugard, School of Law, University of the Witwatersrand

Associate Professor, School of Law, Wits

References

Bishop M “Remedies” in Woolman S, Roux T and Bishop M (eds) Constitutional Law of South Africa 2nd ed (Juta: Cape Town 2006) ch 9

Dugard J “Beyond Blue Moonlight: The implications of judicial avoidance in relation to the provision of alternative housing” (2014) 5 CCR 265-279

Liebenberg S “Remedial Principles and Meaningful Engagement in Education Rights Disputes” (2016) 19 PER 1-43

Van der Walt A Constitutional Property Law 3rd ed (Juta: Cape Town 2011)

Published
2018-08-28
How to Cite
Dugard, J. (2018). Modderklip Revisited: Can Courts Compel the State to Expropriate Property where the Eviction of Unlawful Occupiers is not Just and Equitable?. Potchefstroom Electronic Law Journal, 21, 1-21. https://doi.org/10.17159/1727-3781/2018/v21i0a3477
Section
Notes