IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NUMBER:
CCT 20/04
In the matter between:
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA
1ST APPLICANT
MINISTER
AFFAIRS
OF
AGRICULTURE
AND
LAND
2ND APPLICANT
and
MODDERKLIP BOERDERY (PTY) LTD
RESPONDENT
RESPONDENT'S WRITTEN ARGUMENT
1.
The present application for special leave to appeal is the sequel to the
following:
1.1
An eviction application in the Witwatersrand Local Division –
hereinafter referred to as "the WLD judgment". This case was
reported1;
1.2
A further application instituted by Respondent in the Transvaal
Provincial Division – hereinafter referred to as "the TPD
judgment". This judgment is contained in the present appeal
record2;
1.3
The judgment in the Supreme Court of Appeal delivered on 27
May 2004 – hereinafter "the SCA judgment"3.
2.
The general background to the above applications and judgments has
been summarised in both the TPD judgment and SCA judgment, and
need not be repeated here.4
1
Modderklip Boerdery (Pty) Ltd v Modder East Squatters 2001 (4) 385
(WLD)
2
Record, vol 6, p 494 to 622
3
Record, vol 8, p 655 to 693
3.
It is further of importance to have regard to the findings of the WLD per
Marais J in the eviction application.
RELEVANT FINDINGS IN THE WLD JUDGMENT:
4.
The following were found:
4.1
The occupation by the unlawful occupiers (hereinafter "the
occupiers") of Respondent's property constituted a massive
encroachment with the overwhelming probability that the
settlement would, as it had in the past, continue to mushroom,
steadily eroding the remaining rights of the owner5;
4.2
Most of the occupiers alleged that they were formerly residents
of the Chris Hani squatter camp out of which they were moved
4
Record, vol 6, p 495 to 521 (the TPD judgment) and vol 8, p 655 to
667 (the SCA judgment)
by the former Benoni Town Council6. The latter town council
later became part of the Ekurhuleni Metropolitan Municipality,
and both will hereinafter be referred to as "the municipality";
4.3
The occupiers' version that at the date of occupation,
Respondent's property was undeveloped, was rejected. The
evidence of Respondent was that the land was used for cattle
farming and that there were bales of grass on the land when
the occupiers moved in7;
4.4
It was not denied that after the first 400 occupiers had moved
in, Respondent had already asserted its rights and after that
some 14,600 further occupiers moved in8;
4.5
Although the occupiers alleged that, should they be evicted,
they would be homeless, the municipality (who was Second
Respondent in the WLD case) did not provide any information
5
391D
6
392H
7
393A
8
393E
as to alternative settlement for the occupiers9. At this juncture
it should be pointed out that also in the subsequent TPD case,
the municipality did not join the fray and did not provide an
answer to the question where the occupiers should go on
eviction10;
4.6
The intention of the occupiers at all stages was to remain on
Respondent's property permanently – in any event until
alternative accommodation had been made available to them11;
4.7
Having had regard to the rights and interests of the occupiers,
Marais J granted them a humane period of two months within
which to find other accommodation12.
9
393G
10
Record, vol 8, p 661, par 12
11
394D-F
12
395G and the order at 396, par 2
APPLICANTS' ARGUMENT:
5.
This application for leave to appeal is based on three alleged
misdirections by the SCA, namely that it should have been found:-
5.1
that section 5 of PIE, i.e. the section providing for urgent
proceedings for eviction, provided a complete remedy in casu
and had Respondent availed itself thereof, the present problem
would not have existed13;
5.2
that Applicants ("the state") did not, by its conduct, breach the
constitutional rights entrenched in sections 7(2), 9(1), 9(2),
25(1) and 26(1) of the Constitution14;
that appropriate relief should not be granted15.
5.3
13
Applicants' written argument, par 19 - 25
14
Applicants' written argument, par 26 - 29
15
Applicants' written argument, par 38 and further
6.
These arguments will now be considered seriatim.
THE SECTION 5 OF PIE ARGUMENT:
7.
This argument has no merit. When the first occupiers settled on the
property in May 2000, the factors listed in subsections 5(1)(a), (b) and
(c) of PIE did not exist. These are in statutory form the well-established
requirements for an urgent interdict.
Applicants simply present this
argument without dealing with the specific subsections of section 5(1).
It is not stated what the real and imminent danger of the initial
occupation on a small part of a large farm was.
8.
In regard to the second factor, Applicants do not deal with the hardship
to the unlawful occupiers at that stage, should they have been urgently
evicted.
The same question that is still relevant today would have
arisen – where do they have to go?
9.
In regard to the last factor in section 5(1), there is an alternative
remedy, i.e. the normal procedure for eviction to be followed by
individuals in terms of section 4 of PIE.
10.
10.1
Should it be held that in the circumstances prevailing in May
2000, section 5 of PIE was applicable, then it follows that
section 5 can be used in nearly all, if not all, applications for
eviction.
10.2
This would obviously frustrate the constitutional (s 26(3)) and
legislative (PIE) imperatives of only granting evictions from
homes after consideration of all relevant circumstances.
Relevant circumstances are more properly considered in the
time frames laid down by section 4, after an opportunity for
occupiers to obtain legal representation and to present their
side of the case fully.
10.3
Practice has taught that urgent remedies are by their nature
more rough and ready, and do not provide sufficient time for
presentation and consideration of all relevant circumstances,
as do applications heard in the normal course of events.
11.
This was not the type of situation that prevailed in the Groengrascase.16
12.
A further weakness in the state's argument in this regard is that the
overarching question as to where the occupiers should go to is still not
addressed. Even if a section 5 order had been obtained and executed,
16
Groengras Eiendomme (Pty) Ltd v Elandsfontein Unlawful Occupants
2002 (1) SA 125 (T) at par 23, 26 and 30
i.e. even if the occupiers had been dumped next to the road, the
question still remains whether that in itself would have been an effective
remedy. On probabilities, these people would have returned, as they
had nowhere to go and/or other people would have settled on the
property. These probabilities are overwhelming in the light of the acute
housing shortage in the area. The facts in this regard will be further
dealt with infra, under the next heading of these heads.
13.
It is respectfully submitted that the analysis on this point in the SCA
judgment is correct.17
14.
The Respondent is harshly criticized for not immediately applying for
eviction, but instead engaging the SAPS, the head of the Modderklip
Prison, the deputy mayor of the municipality, ms Vivienne Chauke and
by negotiating with the municipality for the sale of the property.
17
SCA judgment, record, vol 8, p 678 - 681, par 33 - 38
TPD judgment, record, vol 6, p 548 - 555, par 33
15.
This course of conduct was obviously a more reasonable and humane
solution than the simple expedient of an immediate eviction. Until a
very late stage before the eviction application was instituted, the
municipality was in fact interested in acquiring the property.18
16.
In the passage just referred to, the finding in the TPD judgment is as
follows:
"Myns insiens kan dit in die lig van voorgaande nie
bevind word dat applikant [the present Respondent] sy
voete gesleep en versuim het om op te tree teen die
plakkers wat onwettig sy grond betree het nie.
Inteendeel, sy optrede was myns insiens volkome
redelik onder die omstandighede.".
17.
The finding of the SCA was similar and as follows:
"It follows that Modderklip was vigilant and that its
delay was not culpable or unreasonable and that the
state's argument in this regard has to be rejected.".19
SECOND ARGUMENT: THAT THE STATE DID NOT BREACH ANY
OF THE CONSTITUTIONAL RIGHTS:
18.
This argument will be addressed by referring, firstly, to the facts and,
thereafter, the constitutional principles involved.
19.
The finding of the SCA that the state did not do anything in executing its
18
TPD judgment, record, vol 6, p 548 - 555, par 33
19
Record, p 681, vol 8, par 38
Grootboom-type obligations in regard to the occupiers, seems to be no
longer in dispute. The SCA further found that the state, at all three
levels of government, had no plan in place for the immediate
amelioration of the circumstances of unlawful occupiers, such as those
on Respondent's property.20
20.
Applicants' argument, however, does not follow this finding through to
its logical consequence, namely that the state's breach of its obligation
to the residents "leads ineluctably to the conclusion that the state
simultaneously
breached
its
section
25(1)
obligation
towards
Modderklip." (our emphasis).21
21.
There is an obvious and conjoined relationship between the housing
shortage in the area and the infringement of Respondent's property
rights. It is common cause that the occupiers do not claim any right to
20
Record, vol 8, p 670 - 671, par 22
21
SCA judgment, record, vol 8, p 674, par 28
reside on Respondent's property, but that they only reside there
because they have nowhere else to go. That is part of the reality in
South Africa.22
22.
It is still relevant, also with regard to an appropriate remedy, to highlight
some facts in this regard. In the TPD application, the present Second
Applicant and the Minister of Housing were joined from the outset as
they have constitutional and statutory obligations in regard to land
affairs, housing and the problem of unlawful occupiers.
23.
In the founding affidavit Respondent already relied on the relevant
sections of the Constitution, which included a reference to the state's
obligations in terms of section 26.23
22
Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter
2000 (2) SA 1074 (SECLD) 1079B-H
24.
In the application for the joinder of the municipality, mention was
specifically made of the municipality's obligations in regard to alternative
housing for the occupiers to be evicted.
In spite thereof, the
municipality refused to get involved or to submit any solution to the
massive invasion of private property within its jurisdiction.24
25.
25.1
Although no specific relief was asked against the municipality
and, furthermore, the provincial authority tasked with housing
was not joined25, it is so that the state fully dealt with its
housing programmes on national, provincial and local level by
filing the affidavits of Messrs Mayende, Chainee and
Odendaal26.
23
Record, vol 1, p 26, line 12 to p 28, line 12
24
Record, vol 2, p 143, line 1 to 144, line 19
25
Record, vol 8, p 683, par 40
26
Record, vol 3, p 293 - 310 (Mayende); Record, vol 3 & 4, p 316 - 331
25.2
The amicus curiae, Agri South Africa, also played a laudable
role in this regard. It obtained a discovery order against the
municipality27
and
after
an
investigation
presented
its
conclusions to Court. That also included possible remedies in
respect of the occupiers.
26.
From all the above, it was abundantly clear that there was no plan in
place for the immediate alleviation of the plight of the occupiers. The
continued refusal of the municipality to do anything is inexcusable and,
quite correctly, the SCA regarded paragraph 87 of the Grootboomjudgment as particularly relevant.28
27.
The overall responsibility for ensuring that the state complies with the
(Chainee); and Record, vol 4, p 353 - 360 (Odendaal)
27
Record, vol 5, p 459 - 460, par 10
28
Government of the RSA and Others v Grootboom and Others 2001
(1) SA 46 (CC); SCA judgment, record, p 679, par 34
obligations imposed upon it by section 26 remains with the National
Government.29
28.
In the situation in which Respondent found itself, it could not be blamed
for, at that point in time, not knowing exactly what the appropriate
constitutional remedy would be. Much criticism has been expressed as
to the wording of the original notice of motion, but constitutional
remedies remain intricate and it is so that both Courts a quo regarded
totally different remedies as appropriate.
29.
Respondent was sent from pillar to post and ultimately relied on section
83(b) of the Constitution, namely that the President has the duty to
uphold, defend and respect the Constitution as the supreme law of the
Republic.30
29
Grootboom supra, par 66
30
Annexures "AD7.1" to "AD7.12", record, vol 1, p 47 - 64
30.
The extent of the housing shortage in Gauteng appears clearly from
Applicants' affidavits. At present the housing backlog in Gauteng is
growing by 10,000 families or housing units annually. 31
31.
From the chronology table annexed hereto, it appears that in the period
October 2000 (when the eviction application was launched) to the end
of 2001 the number of occupiers doubled from approximately 18,000 to
36,000. It was during this period that the application for eviction was
opposed and unsuccessful attempts made to execute the order. The
TPD judgment, quite correctly, took account of the effect of the spatium
created by compliance with PIE and stated clearly that it should never
be allowed to become a mechanism for unlawful land occupations to
become permanent.32
31
Odendaal, record, vol 4, p 355, par 7.1
32
TPD judgment, vol 5, record, pp 577 - 580
32.
The facts being clear, it is submitted that the interrelationship between
the section 25(1) and section 26(1) breaches are equally clear. It is
appropriate to turn attention to section 7(2) of the Constitution. The
phrase that a state must respect, protect, promote and fulfil
fundamental rights has resonance internationally and the three supranational Courts for protection and enforcement of human rights have
considered these obligations and also the state's obligation to provide
for an effective remedy.33
33.
The following quotations from the abovementioned international
tribunals are especially apposite:
"In other words, if a state neglects to ensure the rights
in the African Charter, this can constitute a violation,
33
The authorities referred to by the SCA, record, vol 8, p 673, fn 18
The case of Union des Jeunes Avocats v Chad has since been
reported in African Human Rights Law Reports (2000) p 66 to 69.
See further generally De Vos: "Pious Wishes or Directly Enforceable
Human Rights? – Social and Economic Rights in South Africa's 1996
even if the state or its agents are not the immediate
cause of the violation."34;
"Governments have a duty to protect their citizens, not
only through appropriate legislation and effective
enforcement but also by protecting them from
damaging acts that may be perpetrated by private
parties (See Union des Jeunes Avocats / Chad).
This duty calls for positive action on part of
governments in fulfilling their obligation under human
rights instruments. The practice before other tribunals
also enhances this requirement as is evidenced in the
case Velàsquez Rodríguez v. Honduras.
In this
landmark judgment, the Inter-American Court of
Human Rights held that when a State allows private
persons or groups to act freely and with impunity to the
detriment of the rights recognised, it would be in clear
violation of its obligations to protect the human rights
of its citizens. Similarly, this obligation of the State is
Constitution" 1997 SAJHR, vol 13, p 67, especially at 78 and further
34
Chad, par 20
further emphasised in the practice of the European
Court of Human Rights, in X and Y v. Netherlands. In
that case, the Court pronounced that there was an
obligation on authorities to take steps to make sure
that the enjoyment of the rights is not interfered with by
any other private person."35;
"An illegal act which violates human rights and which
is initially not directly imputable to a State (for
example, because it is the act of a private person or
because the person responsible has not been
identified) can lead to international responsibility of the
State, not because of the act itself, but because of the
lack of due diligence to prevent the violation or to
respond to it as required by the Convention."36.
34.
On the strength of the section 7(2)-obligations, as interpreted
internationally and also in recent judgments of this Court and the SCA,
35
SERAC v Nigeria, p 39, par 57
36
Velasquez Rodriquez-case in the Inter-American Court of Human
it is submitted that, in casu, it is clear that the state did not comply with
the section 7(2), 25(1) and 26(1)-obligations.37
35.
That leaves for consideration sections 9(1) and (2) of the Constitution.
The finding in this regard was already made in the TPD judgment where
it was held that "gevolglik die applikant [present Respondent] in stryd
met artikel 9 van die Grondwet ongelyk behandel [word] deurdat hy as
enkeling die las van die besetting deur die agste respondent [unlawful
occupiers] van sy grond ten behoewe van die gemeenskap moet dra".38
36.
The SCA stated that the correctness of this finding by the TPD cannot
be doubted – the heavy burden, which rests on the state to provide land
to some 40,000 people cannot be shifted onto the shoulders of
Rights, par 172
37
SCA judgment, record, vol 8, p 673 - 674, par 27 and 28
38
TPD judgment, record, vol 6, p 619, par 1.6.4
Respondent.39
37.
It is enlightening to have regard to the treatment of similar problems in
other open democracies. In a wide-ranging comparative overview Prof
Van der Walt deals with international constitutional practice in regard to
regulatory takings.40
38.
In the USA, regulatory takings which fall into one of the undermentioned
categories, are treated as "per se" takings. These are takings that are
always subject to compensation, without a case-specific inquiry into the
public interest advanced by the regulation or the effect it has on the
property owner. These categories are:
"•
Regulations that involve permanent physical
39
Record, vol 8, p 676 - 677, par 31
40
Van der Walt AJ: "Compensation for Excessive or Unfair Regulation:
A Comparative Overview of Constitutional Practice Relating to
Regulatory Takings" (1999) 14 SAPR/PL, p 273 - 331
invasion or occupation of the property
(mostly land).
•
Regulations
that
destroy
or
deny
all
economically viable use of property (mostly
land).
•
Regulations that destroy a core property
right, such as the right to exclude others from
one's property or to dispose of the property."
(footnotes omitted)41.
39.
In Germany, since 1952, the civil courts have also awarded
expropriatory compensation whenever a property holder is forced by
regulatory action to make an extraordinary sacrifice. The effect of these
judgments is that non-expropriatory sacrifices imposed by lawful, but
excessive, regulation has to be compensated by the state.42
41
Van der Walt: SAPR/PL, p 285
42
Van der Walt: SAPR/PL, p 288 - 290
40.
40.1
Van der Walt's article proceeds to analyse various other legal
traditions, including the First Protocol to the European
Convention on Human Rights and Fundamental Freedoms.
Article 1 of this protocol reads as follows:
"Every natural or legal person is entitled to
the peaceful enjoyment of his possessions.
No one shall be deprived of his possessions
except in the public interest and subject to
the conditions provided for by law and by
the general principles of international law.
The
preceding
provisions
shall
not,
however, in any way impair the right of a
State to enforce such laws as it deems
necessary to control the use of a property in
accordance with the general interest or to
secure the payment of taxes or other
contributions or penalties."
40.2
Van der Walt comments as follows:
"The inquiry into the proportionality of the regulatory
action is based on the notion of a fair balance between
the public interest and the protection of the individual's
fundamental rights. This balance would be lacking if
an individual has to bear an excessive burden" (our
emphasis)43.
41.
We further refer to the article writer's conclusions after his review of
various international traditions as regards regulatory behaviour.44
43
Van der Walt: SAPR/PL, p 299
44
Van der Walt: SAPR/PL, p 315 - 320 for a summary
42.
It is submitted that the following general principle is particularly
apposite:
"Compensation for loss resulting from changes in laws
and regulations should be based on the principle of a
fair and equitable balance between the public interest
served by regulation and the private interests affected
by it. Whenever a regulatory scheme or amendment
fails
to
establish
or
maintain
that
balance,
compensation should be required. Indications that a
regulatory scheme or amendment fails to establish or
maintain such a balance are that the regulation singles
out an individual or a small number of property owners
to bear the burden of regulation imposed for the
general interest;
that the regulation empties the
property right of all economic meaning or completely
destroys it;
that the regulation infringes on the
principle of equality; or that the regulation acquires
some financial benefit or gain for the state even
though it does not actually appropriate the property or
use of it that is lost."45
43.
Although this review by Prof Van der Walt focuses on regulatory
takings, it is submitted that this often goes hand in hand with the
concept of constructive expropriation and more importantly, for present
purposes, the equal treatment of individuals in respect of burdens that
the state should carry for the benefit of the whole republic.
Respondent's argument in this regard is not premised on the desirability
of recognition of constructive expropriation in South African law, and it
is submitted that it is unnecessary to decide thereon for present
purposes.
In Harksen v Lane this Court drew a clear distinction
between "deprivation" and "expropriation" as provided for in section
26(1) and 26(2) respectively.46
45
Van der Walt: SAPR/PL, p 319
46
Harksen v Lane 1998 (1) SA 300 (CC) at par 32 - 35
44.
In a later judgment by the SCA, applying the dictum in paragraph 33 of
Harksen, the SCA nevertheless stated that there might be room for the
development of a doctrine akin to constructive expropriation in South
Africa47. See also academic discussions of this decision by Profs Van
der Walt and Freedman48.
45.
In summary, Respondent's argument based on the international
overview regarding regulatory takings and constructive expropriation, is
simply that an individual cannot be expected to carry a burden like that
"imposed" on Respondent in casu, where the benefit derived by
imposing the burden or by "taking" is a benefit to the whole community.
Should an individual bear that burden alone as in casu, sections 9(1)
and (2) are breached.
47
Steinberg v South Peninsula Municipality 2001 (4) SA 1243 (SCA) at
par 8
48
Van der Walt:
"Moving Towards Recognition of Constructive
Expropriation?" 2002 (65) THRHR, p 459 - 473; and
Freedman W:
"The Constitutional Protection of Property, the
Conservation of the Environment, and the Doctrine of Constructive
46.
We therefore submit that the finding in the SCA judgment in paragraph
(i) of the order is correct.49
47.
Furthermore, in principle, damage caused by the state to an individual
by omission should not be treated differently from damage caused by
the specific exercise of a power such as a regulatory taking.
By
analogy, reference can be made to the fact that in the law of delict an
omission is not treated differently from a commission, i.e. an act50.
Expropriation" (2002) 9 SAJELP, p 61 - 71
49
Record, vol 8, p 692
50
e.g. Minister van Polisie v Ewels 1975 (3) SA 590 (A), on 596F-H and
authorities there cited
APPROPRIATE REMEDY:
48.
It is respectfully submitted that the remedy granted by the SCA is apt 51.
The remedy strikes a balance, in the sense that it has regard to
Respondent's property rights, whilst at the same time the desperate
need of the occupiers is solved. The order is not unduly intrusive on the
terrain of the executive as it did not, for example, order the state to
expropriate.
49.
In terms of the order, Second Applicant only has to pay for what benefit
the state receives from the continued occupation of property by the
occupiers. That is, the state has to pay for the "right to use" of the
property, as set out in the Expropriation Act52.
51
Record, vol 8, p 692(ii) - (v)
52
e.g. Expropriation Act 63 of 1975, ss 2 and 12
50.
Should the state eventually decide to expropriate, the same Act will
apply, and the order is wide enough to cater for this eventuality.
51.
With respect, the SCA judgment deals fully with the jurisprudence of
this Court in regard to appropriate relief and is an example of
application of the dicta thereof, by shaping new and effective remedies.
In the absence of an effective remedy the values embodied in the rule
of law and the dignity and effectiveness of courts will suffer.53
COSTS:
52.
Respondent has fought a long and expensive battle in order to vindicate
its rights. The state throughout exhibited a totally unaccommodating
stance. At the TPD hearing it took three points in limine, two of which
were persisted with in the SCA. These were all points of no substance
"but a diversion without merit".54
53.
The state has still not offered any plan, i.e. any solution, to the problem
of both Respondent and the occupiers.
54.
It is therefore submitted that this is an appropriate case for granting
costs, including the costs of two counsel.55
55.
Respondent asks that Applicants' application for leave to appeal be
refused with costs, such costs to include costs of two counsel.
53
Constitution s1(c) and 165(4)
54
SCA judgment, record, vol 8, p 687 - 688, par 45 - 46
55
Record, vol 8, p 738, par 19
SIGNED AT PRETORIA THIS ________ DAY OF SEPTEMBER 2004
__________________________________
ANDRE LOUW SC
___________________________________
NICOLINE JANSE VAN NIEUWENHUIZEN