|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South Africa: Supreme Court of Appeal |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
Last Updated: 4 September 2004
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case Nos 187/03 and 213/03
In the matters between:
1. MODDER EAST SQUATTERS
First Appellant
GREATER BENONI CITY COUNCIL Second
Appellant
and
MODDERKLIP BOERDERY (PTY) LTD Respondent
2. PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA First Appellant
THE MINISTER OF SAFETY AND
SECURITY Second Appellant
THE MINISTER OF AGRICULTURE AND
LAND AFFAIRS Third Appellant
THE NATIONAL COMMISSIONER OF
POLICE Fourth Appellant
and
MODDERKLIP BOERDERY (PTY) LTD Respondent
Coram: HARMS, FARLAM, CAMERON, MTHIYANE JJA and SOUTHWOOD AJA
Heard: 3 & 4 MAY 2004
Delivered: 27 MAY 2004
Subject: Illegal occupation of land – infringement of constitutional rights of owner and of occupiers – constitutional damages
J U D G M E N T
HARMS JA/
HARMS JA:
[1] This judgment deals with two related matters: the first is
an application for leave to appeal against the judgment of Marais J
in
Modderklip Boerdery (Pty) Ltd v Modder East Squatters and another 2001
(4) SA 385 (W) (‘the eviction case’); and the second is an appeal
against a judgment of De Villiers J in Modderklip Boerdery (Edms) Bpk v
President van die RSA en andere 2003 (6) BCLR 638 (T) (‘the
enforcement case’). Both arise from the pressing – and often charged
– current
issue of access to land and were heard together because of their
close relationship – the enforcement case flowed from the
order made in
the eviction case.
[2] The applicant (and present respondent) in each
instance is Modderklip Boerdery (Pty) Ltd. It is the owner of a portion of the
farm Modder East, [1] which adjoins
Daveyton Township and which now falls within the jurisdiction of the Ekurhuleni
Metropolitan Municipality in a part
run by the Greater Benoni City Council. I
shall refer to the company as ‘Modderklip’ and to the local
authority as the
‘municipality’. During the 1990s, due to
overcrowding, residents of Daveyton began settling on a strip of land between
Daveyton and the farm. This came to be known as the Chris Hani informal
settlement. During the beginning of May 2000 some 400 persons,
who had been
evicted by the municipality from Chris Hani, moved onto a portion of the farm
and erected about 50 shacks. By October
2000 there were about 4 000 residential
units inhabited by some 18 000 persons. Modderklip launched on 18 October 2000
an application
for the eviction of the occupiers under the Prevention of Illegal
Eviction and Unlawful Occupation of Land Act 19 of 1998 (colloquially
referred
to as ‘PIE’). The application, which was opposed, succeeded and
Marais J issued an eviction order on 12 April
2001. The occupiers were granted a
period of two months to vacate but they failed to comply in spite of service of
the order on 10
May 2001. And they did not note an appeal.
[3] In fact,
whilst the proceedings were pending and even after the grant of the order their
number kept swelling. It was later estimated
that there were 40 000 persons of
whom a third are illegal immigrants on 50 hectares of the property. The
settlement has streets;
the erven are mostly fenced and numbered; and there are
shops and other commercial facilities. There are no services apart from pit
toilets. Water is drawn from, it seems, a solitary tap. The community, which has
been referred to and which called itself in the
papers the ‘Modder East
Squatters’, is now known as the Gabon informal settlement. Although the
settlement is organised
and run by a committee, the committee could not provide
proper information about the inhabitants since they ‘were reluctant
to
come forward due to unspecified problems with identity documents’.
[4] A writ of execution was issued and the sheriff requested to execute. The
sheriff responded by insisting on a deposit of R1,8m
in order to cover the
estimated costs of a security firm which she intended to engage to assist her in
evicting the occupiers and
demolishing their shacks. This amount by far exceeded
the value of the part of the property occupied. Modderklip was unwilling and
unable to spend this kind of money on executing its judgment.
[5] Already
during May 2000, Modderklip laid charges of trespassing against the occupiers.
Some were prosecuted, found guilty and
were warned and discharged, and they
returned to the farm. The head of the local prison soon afterwards requested
Modderklip and
the SA Police Service (‘SAPS’) not to proceed with
criminal charges because, if sentenced to imprisonment, the prison
would not
have been able to accommodate the illegal occupiers.
[6] During the middle
of 2001, after the eviction order had been granted, the SAPS adopted the
attitude that the matter was now a
civil one and that it was not prepared to
assist in evicting the occupiers although it was prepared to stand by during the
process
in order to ensure that there was no breach of peace. The Minister for
Safety and Security (the late Mr Tshwete) wrote to Modderklip
expressing his
sympathy for its plight but stating that the SAPS ‘is unable to intervene
in what is, after all, a civil matter
between an applicant and a number of
respondents involved in litigation’. The minister was not properly
advised. Civil contempt
of court may be criminally
prosecuted.[2] Additionally, the court
order did not inhibit prosecutions under the Trespass Act 6 of 1959.
[7] With
an eviction order in hand and no practical method of enforcing it, Modderklip
began writing letters to the central government
invoking its aid. The President
referred the matter to the Department of Agriculture and Land Affairs and to the
SAPS. The department
referred it to the Department of Housing. The answer of the
SAPS was by way of Mr Tshwete’s letter. The Department of Housing
did not
respond. And the sheriff kept insisting on payment of a deposit (the amount has
since increased to more than R2m). This led
to the launch of the enforcement
case. In it Modderklip invoked the provisions of the Bill of Rights and sought a
declaratory order
against the President, the Ministers of Safety and Security,
of Agriculture and Land Affairs and of Housing, and the National Commissioner
of
Police (the appellants, to whom I shall refer jointly as ‘the
state’). They were required to take all steps, including
the provision of
assistance to the sheriff, necessary to remove the unlawful occupiers from the
land. In addition an order was sought
requiring some of the parties named to
cause the occupiers to vacate the property or to prosecute them for trespassing
or contempt
of court.[3]
[8] In the
founding affidavit the deponent on behalf of Modderklip indicated that the basis
for the relief sought would become apparent
during argument. He nevertheless
listed a number of provisions of the Bill of Rights, including s 7 (rights), 9
(equality), 25 (property),
and 26 (housing). In addition he relied on other
provisions of the Constitution namely s 41(1) (principles of co-operative
government
and intergovernmental relations), 165(4) (the duty of organs of state
to assist and protect courts) and 205 (the duties of the police).
[9] In
spite of this shotgun approach, what Modderklip effectively sought was the
enforcement by the state of the eviction order.
The founding affidavit stated
namely that Modderklip was in a checkmate position: it had followed the correct
legal procedures; it
was in possession of a court order; and the organs of state
were either unwilling or unable to assist in enforcing it.
[10] Initially
only the SAPS opposed the enforcement
application.[4] While denying its
responsibility to enforce the eviction order, the SAPS nevertheless indicated
that, if tasked to perform the work,
it would cost at least R18m. Realistically,
its deponent (Commissioner van der Westhuizen) posed the question: Where should
the occupiers
be taken and their goods dumped? To drop them next to the road
would solve nothing because they would simply return whence they came
or they
would occupy other property illegally. And, added the commissioner, the problem
is not a police matter: it is a land reform
issue involving the orderly
resettlement of illegal occupiers.
[11] In any event, said he, it would be
futile to prosecute that number of persons and, as past events have shown,
criminal convictions
provide no solution. Furthermore, he asked: who has to be
prosecuted for contempt of court? It is not possible to establish on whom
the
eviction application was served or on whom the order was served and it is
impossible to distinguish between illegal occupiers
and transient
visitors.
[12] Modderklip later joined the municipality as a further
respondent because of the interest the municipality has in the matter but
no
relief was sought against it. I shall return to the role of the municipality but
it may already be mentioned that it did not take
part in the proceedings save
for filing an affidavit in support of the state. The ‘Modder East
Squatters’ were also joined
as respondent and without relief being against
them. They were represented however at the hearing in the court below until it
became
clear to them that their immediate eviction was not sought. More
importantly, the Minister of Agriculture and Land Affairs belatedly
entered the
fray on behalf of the state. At the same time Agri SA obtained leave to file
evidence and to present argument as amicus
curiae.[5]
[13] In requesting
a postponement in order to file affidavits, the Department of Agriculture and
Land Affairs, through its Director
General, Mr Mayende, said:
‘The
eviction of the group of people involved will obviously impact upon the
functions of the relevant public authorities. The
people in question will have
to resettle elsewhere. This will undoubtedly involve the relevant government
departments particularly
Land Affairs and Housing. Given the apparently large
number of people involved, there is an overwhelming likelihood that any steps
to
evict them would place a tremendous burden on the already over-stretched
infrastructure in the area and would simply shift the
problem of unlawful
occupation elsewhere in the vicinity. It is also no mean feat to orderly move
such a large group of people. The
matter is complex and needs proper
co-ordination amongst various role-players and government
departments.’
‘In these circumstances applicant accepts that the
Ministry and Department of Land Affairs must endeavour to place as complete
a
picture as possible before this honourable court concerning the consequences to
the government of the relief sought by [Modderklip].
This would clearly be in
the interests of justice and of all the interested parties. It is particularly
important to ensure that
effective remedies are given in the
circumstances.’
In this regard the deponent echoed the views of the
SAPS, namely that the issue is not simply one relating to enforcement of a court
order but that it is intimately connected to the larger legal, social and
political issue of access to land.
[14] Agri SA, a voluntary organisation
representing commercial farmers, adopted a similar approach. It went to the
trouble of obtaining
through a court order access to the plans of the
municipality in relation to this settlement and obtaining expert advice on
resettlement
of the community. The conclusion of its expert was that the
occupied land is probably unsuitable for formal township development
since it
may be undermined. Other land has therefore to be found. Adjoining land has been
identified. Developing it by providing
services and building houses will take
time. But that will not necessarily solve the problem because only those who
qualify can be
relocated. Illegal immigrants do not qualify, nor do those who
are not entitled to subsidies. Agri SA, accordingly, suggested that
the occupied
land be expropriated and the occupiers remain in situ until the problems
are solved. Another suggestion it made was that the state should provide a plan
setting out how and when the occupiers
could be relocated. This could be
prioritised in order to accommodate both Modderklip and the occupiers. It may be
added that Agri
SA tried to solve the matter by engaging the Minister of
Agriculture and Land Affairs and also the Gauteng Province, but to no
avail.
[15] Mr Mayende, in the state’s answering affidavit, responded
to Modderklip’s founding affidavit and also to the evidence
of Agri SA.
For my immediate purposes he made three points. The first is that land invasion
cannot be tolerated:
‘The absolute opposition of Government to land
invasions is publicly known. Apart from the fact that it is unlawful, invasions
also undermine the entire land reform and housing programmes of Government. It
prejudices law abiding citizens who await their turn
on the waiting-lists to
benefit from these programmes. The Government accordingly unequivocally supports
all lawful steps to curb
land invasions as well as action taken against unlawful
occupiers of land.’
The second point was rather
blunt:
‘Applicant can vindicate its property through the simple
expedient of having the eviction order executed.’
‘The issue in
this case simply relates to the execution of the eviction order which is a
mundane matter regulated by the private
law and civil proceedings.’
And
the third point was that –
‘issues of alternative accommodation
which [Agri SA] attempts to raise do not arise in this matter and fall, in any
event, within
the ambit of matters constitutionally reserved for the
Executive.’
[16] The first point shows some acceptance at a political
level of what the Constitutional Court had said in
Grootboom:[6]
‘The
issues here remind us of the intolerable conditions under which many of our
people are still living. The respondents are
but a fraction of them. It is also
a reminder that, unless the plight of these communities is alleviated, people
may be tempted to
take the law into their own hands in order to escape these
conditions. The case brings home the harsh reality that the Constitution's
promise of dignity and equality for all remains for many a distant dream. People
should not be impelled by intolerable living conditions
to resort to land
invasions. Self-help of this kind cannot be tolerated, for the unavailability of
land suitable for housing development
is a key factor in the fight against the
country's housing shortage.’
However, the change reflected in the
second point if compared to his first affidavit is notable. Exactly two years
after the Grootboom judgment it does not reflect an adequate appreciation
of the wider social and political responsibilities that case identified in
respect of persons such as the present occupiers.
[17] The third point,
namely, that issues relating to the rights of the Gabon occupiers to land did
not arise in the litigation and
were matters for the executive, is plainly
wrong. Unless they can be relocated sensibly, as the same deponent earlier said
and the
SAPS recognised, the ‘simple’ expedient of executing the
court order simply does not exist.[7]
[18] In the light of the aforegoing it is not surprising that at the hearing
before De Villiers J, Modderklip and Agri SA accepted
that the unconditional
removal of the occupiers was not a viable option. Instead they proposed an order
in two parts: the first was
a declaratory order relating to the state’s
constitutional obligations towards not only Modderklip but also the occupiers,
and the second part was a mandamus requiring of the state to submit to court a
comprehensive plan to solve the problems of Modderklip
and the
occupiers.[8] In the court below the
state objected to the new direction, wishing to hold Modderklip to the relief
originally sought. This objection
was overruled by De Villiers J (at para 52),
correctly so. If a constitutional breach is established, this court is (as was
the court
below) mandated to grant appropriate relief. A claimant in such
circumstances should not necessarily be bound to the formulation
of the relief
originally sought or the manner in which it was presented or argued. That much
is apparent from the course the litigation
took in
Carmichele[9] and
Bannatyne[10] and why the
further amici, the Nkuzi Development Association, the Community Law
Centre and the Programme for Land and Agrarian Studies (University of the
Western
Cape), were admitted to the proceedings.
[19] The order that issued
was substantially in accordance with the draft submitted. Paragraphs 1 and 2
read as
follows:[11]
‘1. Dit word
verklaar dat:
1.1 daar op die applikant se regte soos uiteengesit in artikel
25(1) van die Grondwet inbreuk gemaak word deur die 8ste respondent
[the Gabon
occupiers] se weiering om die betrokke grond van die applikant te ontruim in
terme van die uitsettingsbevel in saak no
23013/2000 in die Witwatersrandse
Plaaslike Afdeling van die Hooggeregshof [the eviction case];
1.2 die
regering verplig is om in terme van artikel 26(1) en (2) gelees met 25(5) van
die Grondwet redelike maatreëls daar te
stel binne sy beskikbare middele om
die 8ste respondent se reg op toegang tot geskikte behuising en grond te
verwesenlik;
1.3 die regering verplig is in terme van artikel 165(4) van die
Grondwet om die nodige maatreëls in plek te stel om die hof by
te staan en
te beskerm ten einde die doeltreffendheid van die hof te verseker ten aansien
van die uitvoering van die vermelde uitsettingsbevel;
1.4 die regering nie
aan sy verpligtinge uiteengesit in subparagrawe 1.2 en 1.3 hierbo en sy
verpligtinge bedoel in artikel 7(2) van
die Grondwet ten opsigte van die
applikant se regte in terme van artikel 25(1) voldoen het met betrekking tot die
besetting deur
8ste respondent van die applikant se grond nie.
1.5 Die 2de
[the Minister of Safety and Security] en 5de [the National Commissioner of
Police] respondente nie hulle verpligtinge
in terme van artikel 205(3) van die
Grondwet, gelees met artikel 14 van die Wet op die Suid-Afrikaanse Polisiediens
68 van 1995,
nagekom het nie deur hulle versuim om:
1.5.1 klagtes ten
opsigte van die 8ste respondent volledig te ondersoek met die oog op
strafregtelike vervolging; en
1.5.2 die applikant se eiendom te beskerm en
te beveilig.
1.6 Die regering se bestaande beleid, optrede en programme met
betrekking tot die voorgaande tekort skiet ten aansien van die grondwetlike
verpligtinge hierbo uiteengesit deurdat:
1.6.1 dit nie voorsiening maak vir
die prioritisering van ’n projek of projekte vir die hervestiging van die
lede van die 8ste
respondent onder omstandighede waar op die applikant se regte
in terme van artikel 25 van die Grondwet inbreuk gemaak word en daar
’n
bevel van die hof bestaan vir onmiddellike uitsetting van die 8ste respondent
vanaf die applikant se grond nie;
1.6.2 dit nie voorsiening maak vir die
uitvoering van die regering se verpligtinge in terme van artikel 165(4) van die
Grondwet nie;
1.6.3 dit die de facto onteiening van die applikant se
grond in die hand werk en gedoog;
1.6.4 dit gevolglik die applikant in stryd
met artikel 9 van die Grondwet ongelyk behandel deurdat hy as enkeling die las
van die
besetting deur die 8ste respondent van sy grond ten behoewe van die
gemeenskap moet dra.
2. Dat die regering gelas word om voor of op 28
Februarie 2003 ’n omvattende plan onder eed af te lewer aan die hof en die
partye
wat voorsiening maak vir:
2.1 die beëindiging van die
inbreukmaking deur die 8ste respondent op die vermelde regte van die applikant
binne ’n redelike
tydskaal, hetsy by wyse van onteiening van die applikant
se betrokke grond, hetsy by wyse van ander maatreëls;
2.2 die nakoming
van die regering se verpligting in terme van artikel 165(4) van die
Grondwet;
2.3 die nakoming van die regering se verpligtings in terme van
artikel 25(5) gelees met artikels 26(1) en (2) van die Grondwet;
2.4 die
prioritisering van ’n skema of skemas vir die verskaffing van huisvesting,
alternatiewelik toegang tot grond vir sodanige
van die lede van die 8ste
respondent as wat daarvoor kwalifiseer;
2.5 die verwydering, alternatiewelik
akkommodasie van sodanige lede van die 8ste respondent as wat nie kwalifiseer
soos voormeld nie;
2.6 die monitering van die uitvoering en instandhouding
van die voormelde plan.
[20] To decide the issues that have arisen it is
necessary to consider the different fundamental rights involved, determine
whether
they were breached and then to judge whether and what appropriate relief
should be granted. In doing this I shall discuss the matter
with reference to
the terms of the order rather than to the judgment because it tends, from time
to time, to overstate matters and
be inappropriately critical of state organs.
Much of counsel’s complaint was directed not at what the judge said but to
how
he said it.
[21] Basic to this case is Modderklip’s right to its
property entrenched by s 25(1) of the Bill of Rights, which provides that
‘no one may be deprived of property except in terms of law of general
application’. De Villiers J found that the refusal
of the occupiers to
obey the eviction order amounted to a breach of this right. That finding is
reflected in para 1.1 of the order.
Counsel for the state accepted that the
finding was justified. Counsel also accepted that the unlawful occupation of
Modderklip’s
land per se, even had an eviction order not been
granted, amounted to a breach of the s 25(1) right. I agree.
[22] The
occupiers have a right of access to housing under s 26(1). That it exists is not
in issue. Nor is the extent of the right
at stake in this case – it is
limited to the most basic, a small plot on which to erect a shack or the
provision of an interim
transit camp. The people of Gabon have never asked for
more, at least as far as we know. And the state does not have any real objection
to para 1.2 of the order, which provides for the recognition of that right. But
the real issue is not the existence of the right;
it is whether the state has
taken any steps in relation to those who, on all accounts, fall in the category
of those in ‘desperate
need’.[12] The answer appears
to be fairly obvious; it did not. Does the state have any plan for the
‘immediate amelioration of the circumstances
of those in
crisis’?[13] The state, at all
three levels, central, provincial and local, gave the answer and it is also no.
The medium and long-term plans
at present also provide no apparent
solution.
[23] As predicated by the first point of Mr Mayende, the state
justifies its refusal to make current provision for the Gabon residents
now
located on the land with what I shall call the ‘queue-jumping’
exception. Grootboom
explained:[14]
‘This
judgment must not be understood as approving any practice of land invasion for
the purpose of coercing a State structure
into providing housing on a
preferential basis to those who participate in any exercise of this kind. Land
invasion is inimical to
the systematic provision of adequate housing on a
planned basis. It may well be that the decision of a State structure, faced with
the difficulty of repeated land invasions, not to provide housing in response to
those invasions, would be reasonable. Reasonableness
must be determined on the
facts of each case.’
[24] The point was developed in general terms by
the executive director of housing of the municipality, Mr Chainee. Unlawful
occupation
of land, he said, cannot be allowed to undermine plans and programmes
for orderly settlement, and in particular to prejudice law
abiding citizens who
patiently await their turn to benefit from housing and law reform programmes. To
prioritise the Gabon project
at the expense of older projects would be a
disaster. He concluded:
‘Should the view be spawned that unlawful
occupations are compensated with the expedited allocation of land and housing,
the
entire programme of land reform and housing would collapse.’
Mr
Odendaal, the chief director of housing of the province, added to this. The plan
presented by Agri SA, he said,
‘does not take into account the existing
priorities and obligation to accommodate people according to their ranking on
the waiting
list. The kind of “queue-jumping” which the deponent
advocates would be disastrous for the existing programs. Once it
becomes
apparent that the acquisition of housing can be expedited through invasion of
land, the system will collapse. There would
then be no motivation or reason for
abiding by the rules, leaving the land reform and housing programs in
chaos.’
[25] There is no doubt merit in the concern expressed but
whether the concern is justified on the facts of this case is open to
doubt.[15] There is no evidence that
the occupation took place with the intent to obtain precedence over any other
person. It took place, and
this appears from the eviction case, because the
people had nowhere else to go and because they believed that the land, which to
them did not appear to have been cultivated, belonged to the municipality. After
the eviction application they were brought under
the impression that the
municipality was negotiating to purchase the land and, they say, for that reason
they remained on the land.
[26] There is another angle. To the extent that we
are concerned with the execution of the court order, Grootboom made it
clear that the government has an obligation to ensure, at the very least, that
evictions are executed humanely.[16]
As must be abundantly clear by now, the order cannot be executed –
humanely or otherwise – unless the state provides
some land. This factor
must be taken into account without granting the Gabon residents
priority.
[27] Section 7(2) of the Bill of Rights commands the state to
‘respect, protect, promote and fulfil the rights’ in the
Bill of
Rights. With reference to judgments of diverse international
tribunals,[17] De Villiers J held
(para 44) that this duty exists also if the damaging act is caused by third
parties. These judgments are all to
the effect that
–
‘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.’[18]
The state did
not argue that this conclusion was incorrect and since the CC judgment in
Carmichele[19] and the
subsequent judgments of this court in Van
Duivenboden,[20] Van
Eeden,[21]
Hamilton[22] and
Carmichele[23] the contrary
is not open for
argument.[24]
[28] De Villiers J
found that the state had failed to protect Modderklip’s rights entrenched
in s 25(1). Para 1.4 of the order
is premised on this finding. There are two
legs to this part of the order. First, there is the cross-reference to s 26(1)
and (2),
namely the breach of the duty to provide the Gabon residents with land,
a matter I have already dealt with. The finding in that regard,
namely that the
state was in breach of its obligation to the residents, leads ineluctably to the
conclusion that the state simultaneously
breached its s 25(1) obligations
towards Modderklip.
[29] The other cross-reference in the order was to s
165(4) of the Constitution, which requires of organs of state, through
legislative
and other measures, ia, to assist the courts to ensure their
effectiveness. As far as this is concerned, De Villiers J found that
the SAPS
had failed in its duty to investigate the complaints laid and to protect the
property of Modderklip. That finding is reflected
in para 1.5 of the order. The
eviction order authorised the sheriff to request members of the SAPS to assist
her in evicting –
something envisaged by s 4(11) of
PIE.[25] Modderklip apparently
thought that this placed a duty on the SAPS to effect the eviction. This appears
from the formulation of the
notice of motion. But Modderklip erred. The order
did not and could not require the SAPS to execute it. Concerning the failure to
investigate and prosecute, it is true that the SAPS did neither but that does
not mean that it failed in its constitutional duties.
In the circumstances
sketched earlier, its failure is both understandable and reasonable.
Consequential to para 1.5, para 2.2 of
the order required of the state to
present a plan setting out how it intended to comply with its s 165(4)
obligations. Counsel for
Modderklip was asked what the order envisaged. He did
not know. Neither do I, nor can I fathom how the state should know.
[30] To
an extent the state did comply with its s 165(4) duties. There are the
provisions of PIE which create a mechanism, although
sometimes burdensome, to
evict unlawful occupiers. There is a sheriff who has to execute court orders.
The SAPS, to prevent lawlessness,
is prepared to police the execution of the
eviction order. But the state does not serve as insurer of litigants and if an
order is
unenforceable because of practical considerations the loss is usually
that of the litigant. However, in a material respect the state
failed in its
constitutional duty to protect the rights of Modderklip: it did not provide the
occupiers with land which would have
enabled Modderklip (had it been able) to
enforce the eviction order. Instead, it allowed the burden of the
occupiers’ need
for land to fall on an
individual,[26] which leads to the
next point, namely s 9 of the Bill of Rights.
[31] Section 9(1) provides
that everyone is equal before the law and has the right to equal protection and
benefit of the law while
s 9(2) states that equality includes the full and equal
enjoyment of all rights and freedoms. As appears from para 1.6.4 of the order,
De Villiers J found that Modderklip was not treated equally because as an
individual it has to bear the heavy burden, which rests
on the state, to provide
land to some 40 000 people. That this finding is correct cannot be doubted.
Marais J, in the eviction case,
said that the 'right' of access to adequate
housing is not one enforceable at common law or in terms of the Constitution
against
an individual land owner and in no legislation has the state transferred
this obligation to such owner.[27]
As to the second point he is no doubt correct but I would qualify the first.
Circumstances can indeed be envisaged where the right
would be enforceable
horizontally but the present is not such a case.
[32] The state impliedly
accepted the correctness of the aforegoing but attempted to justify its breach
by submitting that Modderklip
was to blame for its own predicament. It accepted,
however, that Modderklip could be denied relief only if it were established that
there was culpable and unreasonable delay in seeking to assert its rights. Both
in evidence and argument, somewhat mischievously,
reference was made to the
phenomenon of ‘shack
farming’[28] as if Modderklip
may have been guilty of this social evil. The evidence is clear: Modderklip did
not engage in shack farming.
[33] The state submitted that Modderklip should
have applied for an urgent eviction, availing itself of s 5 of PIE, which
reads:
‘(1) Notwithstanding the provisions of section 4, the owner or
person in charge of land may institute urgent proceedings for
the eviction of an
unlawful occupier of that land pending the outcome of proceedings for a final
order, and the court may grant such
an order if it is satisfied
that-
(a) there is a real and imminent danger of substantial injury or
damage to any person or property if the unlawful occupier is not
forthwith
evicted from the land;
(b) the likely hardship to the owner or any other
affected person if an order for eviction is not granted, exceeds the likely
hardship
to the unlawful occupier against whom the order is sought, if an order
for eviction is granted; and
(c) there is no other effective remedy
available.’
It is conceivable that Modderklip would have been able to
discharge the onus in (a) and
(b),[29] although it is somewhat
doubtful, but that does not mean that not engaging in urgent proceedings was at
the time unreasonable. Modderklip
realised right from the beginning that more
than a simple eviction was involved, and it engaged the municipality immediately
properly
and prudently.
[34] To assess Modderklip’s culpability (if
any) it is useful to have regard to the role played by the municipality. That
the
municipality had a duty to act is clear from Grootboom. Dealing with
the facts of the case, Yacoob J said (at para 87):
‘The respondents
began to move onto the New Rust land during September 1998 and the number of
people on this land continued
to grow relentlessly. I would have expected
officials of the municipality responsible for housing to engage with these
people as
soon as they became aware of the occupation. I would also have thought
that some effort would have been made by the municipality
to resolve the
difficulty on a case-by-case basis after an investigation of their circumstances
before the matter got out of hand.
The municipality did nothing and the
settlement grew by leaps and bounds.’
[35] In this case the
municipality became aware of the invasion during May 2000 and instead of
engaging with the occupiers –
it will be recalled that the original
occupation was the result of an eviction effected by the municipality – it
gave notice
to Modderklip by letter dated 19 May to institute proceedings to
evict them under PIE. Modderklip responded the next day by pointing
out that the
situation had arisen from a spill-over from overcrowding at Daveyton and Chris
Hani and that eviction should therefore
be the responsibility of the
municipality. Modderklip nevertheless offered to join in any action which the
municipality deemed advisable.
[36] The municipality did not respond to this
offer and took no steps to evict the occupiers. Its reluctance or failure to
take steps
flowed from the provisions of PIE. Section 6, which permits an organ
of state to apply for the eviction of illegal occupiers (and
the court may order
the owner to foot the bill), requires of the court to have regard to the
question whether there is available
to the occupiers suitable alternative
accommodation or land (s
6(3)(c)).[30] If, on the other hand,
the owner is the applicant and applies within six months of the settlement (s
4(6))[31] the requirement of the
availability of alternative accommodation does not apply but it does if the
owner applies thereafter (s
4(7)).[32] The municipality could or
would not provide alternative accommodation or land.
[37] The attorneys of
Modderklip and of the municipality soon entered into negotiations in terms of
which Modderklip was to sell two
portions of land to the municipality.
Modderklip in consequence of the negotiations, by letter of 12 June, made an
offer to sell
the occupied land at R10 000 per hectare. After having repeatedly
requested an answer, the municipality eventually responded on 22
August,
indicating that it would be prepared to purchase the Gabon land at the proposed
price during the next financial year subject
to certain conditions. It stated
that unless its offer was acceptable, Modderklip should immediately evict the
occupiers. On 1 September
Modderklip indicated its agreement. It mentioned that
the actual size of the land occupied had to be determined because Modderklip
doubted whether the municipality’s estimate was correct. On 8 September,
however, the municipality stated firmly that it was
not interested in purchasing
the Gabon land and instructed Modderklip to apply for
eviction.[33]
[38] After some
further correspondence and the obtaining of expert evidence concerning the
health hazards in informal settlements,
Modderklip launched the eviction
application on 18 October 2000. It was within the six-month period envisaged by
s 4(6) of PIE. PIE
orders are not given for the asking. A lengthy procedure has
to be followed. In the event the case was heard six months later and
judgment
was given on 12 April 2001. 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.[34]
[39] As mentioned, the court below granted, in terms of s 38 and 172(1), a
declaratory order and a mandamus in the form of a ‘structural
interdict’ (ie an order where the court exercises some form of supervisory
jurisdiction over the relevant organ of
state).[35] The declaratory order
was too broadly formulated. Simply to declare what the Constitution states
serves no purpose.[36] Declaring
that a breach of a constitutional duty occurred is however on another
level.[37] Structural interdicts, on
the other hand, have a tendency to blur the distinction between the executive
and the judiciary and impact
on the separation of powers. They tend to deal with
policy matters and not with the enforcement of particular rights. Another aspect
to take into account is the comity between the different arms of the
state.[38] Then there is the problem
of sensible enforcement: the state must be able to comply with the order within
the limits of its capabilities,
financial or
otherwise.[39] Policies also change,
as do requirements, and all this impacts on enforcement.
[40] The structural
interdict contained in para 2 of the order suffers from some of these defects.
In addition, the time limit appears
to be unrealistic and there is no indication
of what is expected of the state apart from the generalised obligation to comply
with
constitutional duties in some unspecified way. It also encroached on policy
matters by requiring a prioritisation of the Gabon resettlement
while there is
no evidence that these people are entitled to it. The order justifies, it seems,
queue-jumping, which is inappropriate.
Then there is the fact that much of what
is required may fall within the field of either the province or the municipality
while the
former was not cited and the latter, though cited, was informed that
no relief was being sought against it.
[41] But merely criticising structural
interdicts provides no solution to the problem. The problem, as must by now be
apparent, lies
on two fronts. On the one hand there is the infringement of the
rights of Modderklip. On the other there is the fact that enforcement
of its
rights will impinge on the rights of the occupiers. Moving or removing them is
no answer and they will have to stay where
they are until other measures can be
devised. Requiring of Modderklip to bear the constitutional duty of the state
with no recompense
to provide land for some 40 000 people is also not
acceptable. Although in an ideal world the state would have expropriated the
land
and have taken over its burden, which now rests on Modderklip, it is
questionable whether a court may order an organ of state to
expropriate
property.
[42] Courts should not be overawed by practical problems. They
should ‘attempt to synchronise the real world with the ideal
construct of
a constitutional world’[40]
and they have a duty to mould an order that will provide effective relief to
those affected by a constitutional
breach.[41] Fose v Minister of
Safety and Security[42] held
that –
'(a)ppropriate relief will in essence be relief that is required
to protect and enforce the Constitution. Depending on the circumstances
of each
particular case the relief may be a declaration of rights, an interdict, a
mandamus or such other relief as may be required to ensure that the
rights enshrined in the Constitution are protected and enforced. If it
is
necessary to do so, the courts may even have to fashion new remedies to secure
the protection and enforcement of these all-important
rights.'
[Para
19.]
'I have no doubt that this Court has a particular duty to ensure that,
within the bounds of the Constitution, effective relief be
granted for the
infringement of any of the rights entrenched in it. In our context an
appropriate remedy must mean an effective remedy,
for without effective remedies
for breach, the values underlying and the right entrenched in the Constitution
cannot properly be
upheld or enhanced. Particularly in a country where so few
have the means to enforce their rights through the courts, it is essential
that
on those occasions when the legal process does establish that an infringement of
an entrenched right has occurred, it be effectively
vindicated. The courts have
a particular responsibility in this regard and are obliged to ''forge new
tools'' and shape innovative
remedies, if needs be, to achieve this
goal.'
[Para 69.]
[43] What ‘effective relief’ entails will
obviously differ from case to case. Where a trespasser invades an owner-occupied
household, more immediate intervention will be required from the state than in
the case of unoccupied or unutilised land. This is
not to deny the fact of the
breach of rights in the latter case. It is merely to assert that constitutional
remedies will differ
by circumstance. The only appropriate relief that, in the
particular circumstances of the case, would appear to be justified is that
of
‘constitutional’ damages, ie, damages due to the breach of a
constitutionally entrenched right. No other remedy is
apparent.[43] Return of the land is
not feasible. There is in any event no indication that the land, which was being
used for cultivating hay,
was otherwise occupied by the lessees or inhabited by
anyone else. Ordering the state to pay damages to Modderklip has the advantage
that the Gabon occupiers can remain where they are while Modderklip will be
recompensed for that which it has lost and the state
has gained by not having to
provide alternative land. The state may, obviously, expropriate the land in
which event Modderklip will
no longer suffer any loss and compensation will not
be payable (except for the past use of the land). A declaratory order to this
effect ought to do justice to the case. Modderklip will not receive more than
what it has lost, the state has already received value
for what it has to pay
and the immediate social problem is solved while the medium and long term
problems can be solved as and when
the state can afford it.
[44] This option
was put to counsel for the state during his opening argument. Counsel did not
resist and did not submit that such
an order would be incompetent or unfair. It
does, however, raise a number of issues. The first is the appropriate measure of
damages.
Two spring to mind immediately: should it be the market value of the
land or the value of the right of occupation (as long as it
lasts), calculated
according to the principles applicable to expropriation? This could depend on
the probable length of the occupation
which, prima facie, appears to be
indefinite since informal settlements tend to become permanent. On the other
hand, the value of
the land may have to be discounted taking into account the
possibility of the reversion of the occupation. Another issue is the date
on
which the loss should be calculated considering that this is probably a case of
a continuing wrong in which case the loss may
have to be calculated on
present-day values. Then there is the question of whether the value of the land
should be calculated as
vacant land or as land occupied by illegal occupiers who
are difficult to evict. The answer may be that since a party (in this case
the
state) may not derive any benefit from its own default it has to be determined
ignoring the presence of the illegal occupiers.
However, since these issues were
not canvassed it would be inappropriate to come to a definite finding in
relation to them. As far
as procedure is concerned, it seems to be appropriate
to order an inquiry into damages.
[44] Although this may appear to be
extraordinary, it will serve the interests of justice not to require Modderklip
to institute new proceedings.
ANCILLARY MATTERS
[45] Two of the
points in limine raised by the state in the court below were again argued
before us. They are dealt with at this stage of the judgment because they
were
nothing but a diversion without merit. The first was that the Transvaal
Provincial Division had no jurisdiction to hear the
enforcement case because the
eviction case was brought in the Witwatersrand Local Division. However, s
19(1)(a) of the Supreme Court
Act 59 of 1959 invested the Transvaal Provincial
Division with jurisdiction because all the respondents ‘reside’
within
the area of jurisdiction. The enforcement application was not merely an
application concerned with execution of the eviction application
or ancillary
thereto. It was a self-contained substantive application.
[46] The second was
based on uniform rule 49(11), which provides that where an appeal has been noted
or an application for leave to
appeal made, the operation and execution of the
order is suspended. In this case, as will appear soon in more detail, the
‘Modder
East Squatters’ lodged their application for leave to appeal
together with an application for condonation some 18 months after
the order had
issued. The right to apply for leave to appeal by then had lapsed. Rule 49(11)
presupposes a valid application for
leave to appeal to effect the suspension of
an order.[45] In this case there
was none.
[47] To revert to the application for leave to appeal in the
eviction case, I have mentioned already that the application for leave
to appeal
was filed 18 months after the order while it should have been lodged within 15
days. The ‘Modder East Squatters’
had, at the time of the order,
legal representation and there can be little doubt that they knew their rights
and elected not to
appeal. Their election was based on a belief that the
municipality would purchase the land but when after a few months it became
obvious that it would not, they still did nothing. Under somewhat unusual
circumstances their present attorney became involved, probably
as a rearguard
action to ward off the enforcement application – whence the second point
in limine.
[48] The nature of the delay was such that on that ground
alone relief could have been refused. As counsel submitted, the delay induced
a
reasonable belief in the mind of Modderklip that the order had become
unassailable in consequence of which the enforcement application
was lodged at
great expense. Marais J nevertheless carefully considered the grounds of appeal
and came to the conclusion that they
were without merit. With his reasons and
conclusion I agree and it is unnecessary to spend much time in repeating the
same matter.
In summary, the one argument was that the applicant had failed to
prove ownership, something not raised in the papers or before Marais
J in the
first instance, in spite of the fact that the applicant repeatedly referred to
the property as the ‘applicant’s
farm’. Then it was submitted
that the occupiers may have been on the property with Modderklip’s
consent, something controverted
by the facts and not raised by them in
opposition. The next submission was that the court had failed to consider all
the relevant
circumstances, which is incorrect as the reported judgment shows.
Marais J, it was further argued, should have called for oral evidence
despite
the fact that the then respondents, who were represented, did not suggest that
there was a factual dispute which required
oral evidence. It was also argued
that the order for substituted service was irregular because it did not name the
occupiers by name,
even though it accorded with s 4(4) of
PIE.[46] Last, the learned judge was
taken to task for not varying his order mero motu, the point being that
it allegedly covered all the occupants, whether they occupied at the time of
service of the application or
later. As Marais J said, the order accorded with
his intention and did not allow for a variation. In any event, the fact that the
order may be difficult to enforce because of the lack of specificity concerning
the parties to it does not per se raise an arguable issue.
[49] It
follows that the application for leave to appeal in the eviction case has to be
dismissed with costs. Modderklip, however,
asked for a costs order de bonis
propriis against the attorney. There can be little doubt that the
attorney’s intervention was a cause of much aggravation and irrecoverable
costs by his pursuit of a matter obviously lacking merit. Misguided and
over-zealous he may have been but there is no reason to doubt
his bona fides and
a special order consequently cannot be justified.
[50] In the enforcement
case Modderklip was successful in the court below and although on appeal much of
the order of De Villiers
J will be replaced, the state did not have substantial
success and must pay the costs of the
appeal.[47] De Villiers J made the
following order in relation to costs, which remain unaffected:
‘6. Die
1ste, 2de, 3de en 5de respondente word gelas om gesamentlik en afsonderlik die
applikant se koste te betaal met betrekking
tot die aansoek om deurhaling sowel
as die hoofaansoek, insluitende die koste van twee advokate in albei gevalle. .
. .
7. Die 1ste, 2de, 3de en 5de respondente word gelas om gesamentlik en
afsonderlik die amicus curiae se koste te betaal met betrekking
tot die aansoek
om deurhaling, insluitend die koste van twee
advokate.’
ORDERS
[51] In Modder East Squatters v
Modderklip Boerdery (Edms) Bpk (the eviction case 187/2003):
The
application for leave to appeal is dismissed with costs.
[52] In President
van die Republiek van Suid-Afrika en andere v Modderklip Boerdery (Edms) Bpk
(the enforcement case 213/03):
(a) The appeal is upheld in part. (b) Para 1 to 5 of the order of the court below is set aside and replaced with an order – (i) Declaring that the state, by failing to provide land for occupation by the residents of the Gabon Informal Settlement, infringed the rights of Modderklip Boerdery (Pty) Ltd which are entrenched in s 7(2), 9(1) and (2), and 25(1) and also the rights of the residents which are entrenched in s 26(1) of the Constitution. (ii) Declaring that the applicant is entitled to payment of damages by the Department of Agriculture and Land Affairs in respect of the land occupied by the Gabon Informal Settlement. (iii) Declaring that the residents are entitled to occupy the land until alternative land has been made available to them by the state or the provincial or local authority. (iv) The damages are to be calculated in terms of s 12(1) of the Expropriation Act 63 of 1975. (v) If, in relation to the investigation and determination of the damages suffered, the parties are unable to reach agreement regarding the pleadings to be filed, and discovery, inspection, and other matters of procedure relating thereto, leave is granted to any of the parties to make application to the court in terms of Rule 33(5) for directions.
(c) The third appellant is to pay the
costs of appeal of the respondent.
__________________
L T C HARMS
JUDGE OF
APPEAL
Agree:
FARLAM JA
CAMERON JA
MTHIYANE JA
SOUTHWOOD
AJA
[1] The remaining extent of the
farm Modder East 72, registration division IR, Gauteng, 731,3308 ha, held in
terms of deed of transfer
T3691/66.
[2] S v Beyers
1968 (3) SA 70 (A); Jayiya v MEC for Welfare, Eastern Cape 2004 (2) SA
611, [2003] 2 All SA 223 (SCA) para
18.
[3] The order sought against
the sheriff declaring her request for a deposit to be unconstitutional or
ultra vires was not pursued and can be
ignored.
[4] As mentioned, the
opposition by the sheriff does not concern
us.
[5] Before this court there
were further amici who presented argument only, namely the Nkuzi
Development Association, the Community Law Centre (University of the Western
Cape)
and the Programme for Land and Agrarian Studies at the same
university.
[6] Government of
the Republic of South Africa and others v Grootboom and others 2001 (1) SA 46 (CC) para 2 per Yacoob J for the court.
[7] It should be noted that the
state applied, in the court below, for the striking out of much of Agri
SA’s evidence. This was
refused by De Villiers J (at para 31). The issue
was not resuscitated on appeal.
[8] Their intervention on behalf of
the occupiers was permissible: s 38 of the
Constitution.
[9] Carmichele v
Minister of Safety and Security and another (Centre for Applied Legal Studies
intervening) 2001 (4) SA 938
(CC).
[10] Bannatyne v
Bannatyne (Commission for Gender Equality, as amicus curiae) 2003 (2) SA 363
(CC).
[11] The other parts of the
order contained in para 3, 4 and 5 were consequential to para 1 and 2 and need
not be quoted.
[12]
Grootboom para 63.
[13]
Grootboom para 64.
[14]
Grootboom para 92.
[15] Cf
City of Cape Town v Unlawful Occupiers, Erf 1800, Capricorn (Vrygrond
Development) and others 2003 (6) SA 140
(C).
[16] Grootboom para
88.
[17] X & Y v The
Netherlands [1986] 8 EHRR 235; two judgments of the Africa Commission:
Union des Jeunes Avocats v Chad 9th Annual Activity Report 72
and The Social and Economic Rights Action Center and the Center for Economic
and Social Rights v Nigeria 15th Annual Activity Report 30;
Velásquez Rodriguez v Honduras, 28 ILM 291 (1989) part XI, the
Inter-American Court of Human
Rights.
[18] The Social and
Economic Rights Action Center and the Center for Economic and Social Rights v
Nigeria at para 57.
[19]
Carmichele v Minister of Safety and Security and another (Centre for Applied
Legal Studies intervening) 2001 (4) SA 938
(CC).
[20] Minister of Safety
and Security v Van Duivenboden 2002 (6) SA 431 (SCA).
[21] Van Eeden v Minister of
Safety and Security (Women’s Legal Centre Trust as amicus curiae)
2003 (1) SA 389 (SCA) para
13-14.
[22] Minister of Safety
and Security v Hamilton [2003] 4 All SA 117
(SCA)
[23] Minister of Safety
and Security and another v Carmichele 2004 (3) SA 305, [2003] 4 All SA 565
(SCA).
[24] See also Cheadle et
al South African Constitutional Law: The Bill of Rights p 16-18; City
of Cape Town v Rudolph and others 2003 (11) BCLR 1236 (C) 1266-1267;
Jaftha v Schoeman and others, Van Rooyen v Stoltz and others 2003 (10)
BCLR 1149 (C) para 31 and
39.
[25] It reads: ‘A court
may, at the request of the sheriff, authorise any person to assist the sheriff
to carry out an order for
eviction, demolition or removal subject to conditions
determined by the court: Provided that the sheriff must at all times be present
during such eviction, demolition or
removal.’
[26] Cf East
London Western Districts Farmers’ Association and others v Minister of
Education and Development Aid and others 1989 (2) SA 63 (A) 75I-76B:
‘In our system of law, however, the bureaucratic solution of problems,
however intractable, must
be achieved with due regard to the legitimate property
rights of ordinary citizens. The situation no doubt called for prompt action
by
the respondents. Such action, however, required not merely the alleviation of
the lot of the refugees but simultaneously therewith
the protection of the
farming community into whose midst so many distressed persons were being
precipitately introduced. The respondents
failed to secure the latter.’
(Per Hoexter JA.)
[27] At 395A-B and referred to
with approval in Theewaterskloof Holdings (Pty) Ltd, Glaser Afdeling v Jacobs
en andere 2002 (3) SA 401 (LCC) para 18: ‘Wat die posisie met
betrekking tot alternatiewe akkomodasie ookal mag wees, dit kan nie van
die
applikant verwag word om die respondente onbepaald op sy plaas te huisves nie.
Die reg op behuising vervat in art 26 van die
Konstitusie is nie gemeenregtelik
of ingevolge die Konstitusie teen indiwiduele grondeienaars afdwingbaar
nie.’
[28] ‘Shack farming’
refers to the case of a landowner permitting persons to erects shacks on its
land, which is not zoned
as a township and which does not have basic facilities,
against payment of compensation – usually
exorbitant.
[29] Cf Groengras
Eiendomme (Pty) Ltd and others v Elandsfontein Unlawful Occupants and others
2002 (1) SA 125 (T).
[30]
‘In deciding whether it is just and equitable to grant an order for
eviction, the court must have regard to-
(a) the circumstances under which
the unlawful occupier occupied the land and erected the building or
structure;
(b) the period the unlawful occupier and his or her family have
resided on the land in question; and
(c) the availability to the unlawful
occupier of suitable alternative accommodation or
land.’
[31] ‘If an
unlawful occupier has occupied the land in question for less than six months at
the time when the proceedings are initiated,
a court may grant an order for
eviction if it is of the opinion that it is just and equitable to do so, after
considering all the
relevant circumstances, including the rights and needs of
the elderly, children, disabled persons and households headed by
women.’
[32] ‘If an
unlawful occupier has occupied the land in question for more than six months at
the time when the proceedings are initiated,
a court may grant an order for
eviction if it is of the opinion that it is just and equitable to do so, after
considering all the
relevant circumstances, including, except where the land is
sold in a sale of execution pursuant to a mortgage, whether land has
been made
available or can reasonably be made available by a municipality or other organ
of state or another land owner for the relocation
of the unlawful occupier, and
including the rights and needs of the elderly, children, disabled persons and
households headed by
women.’
[33] The
municipality’s assertion that did not negotiate in respect of the land in
issue is refuted by the
correspondence.
[34] See further
the enforcement case para
33.
[35] Minister of Health
and others v Treatment Action Campaign and others (No 2) 2002 (5) SA 721
(CC) para 107.
[36] Cf Ex
parte Noriskin 1962 (1) SA 856
(D).
[37] S 172(1)(f) of the
Constitution.
[38] President of the Republic of South Africa and others v South African Rugby Football Union and others 2000 (1) SA 1 (CC) para 234. Compare the judgment of the Supreme Court of Ireland in D. (T.) v. Minister for Education [2001] 4 IR 259, [2001] IESC 86 where Hardiman J said at para 362: ‘Accordingly, the fundamental requirement for constitutional harmony and modulation imperatively requires that the courts, as well as the other branches of government, recognise and observe the boundaries between them.’
[39] Minister of Health and
others v Treatment Action Campaign (No 2) and others 2002 (5) SA 721 (CC)
para 37-38.
[40] Fose v
Minister of Safety and Security 1997 (3) SA 786 (CC) para 94 per Kriegler
J.
[41] Minister of Health and
others v Treatment Action Campaign and others (No 2) 2002 (5) SA 721 (CC)
para 102.
[42] 1997 (3) SA 786
(CC) per Ackermann J.
[43] Cf
Olitzki Property Holdings v State Tender Board and another 2001 (3) SA
1247 (SCA) esp para 42.
[44]
Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd and another 1977 (1) SA
316 (T) 330A-B.
[45] Cf
Schmidt v Theron and another 1991 (3) SA 126
(C).
[46] It reads:
‘Subject to the provisions of subsection (2), if a court is satisfied that
service cannot conveniently or expeditiously
be effected in the manner provided
in the rules of the court, service must be effected in the manner directed by
the court: Provided
that the court must consider the rights of the unlawful
occupier to receive adequate notice and to defend the
case.’
[47] Cf the costs
order on appeal in Minister of Health v Treatment Action Campaign (No 2)
2002 (5) SA 721 (CC) para 135.
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/cases/ZASCA/2004/47.html
.RTF of original document