Judges tell our law makers to keep their promises to owners and squatters

Government may have to compensate owners of houses and flats amounts of "staggering proportions", say property and housing lawyers, following the May 27 Modderklip judgment by the appeal court.

Government will almost certainly appeal to the constitutional court, says the housing department's legislative framework director, Richard Thatcher.

Five judges, led by Judge Louis Harms, decided unanimously that the state had infringed the constitutional rights of the 40 000 land invaders and the owner of Modderklip farm near Daveyton township in Benoni, Gauteng, by not providing alternative land.

But they go further.

Citing a string of sections of the constitution (see table) and previous judgments, they order that the squatters can be evicted only when government provides them with new land. Until then, the department of land affairs must pay damages to the owner.

At the heart of the judgment is that government must provide access to housing and cannot make private property owners liable to do it . If government does not, it must compensate the owners.

"This can have far-reaching effects beyond just land invasions," says Natalie Hoffman of property lawyers Buchanan Boyes. "It could mean - but it's not certain - that government will have to compensate owners of houses and flats for damages they suffer when the Prevention of Illegal Eviction & Unlawful Occupation (Pie) Act stops them from evicting unlawful occupants."

The act is in the process of being amended. And once the amendments are effected, the act will not be applicable to the landlord-tenant relationship.

Last year, in the celebrated Ndlovu case, Judge Harms declared that Pie applied to tenants whose leases had been cancelled but who refused to move out and to home owners whose houses were repossessed by banks. Landlords and banks must now go through onerous, lengthy and often bizarre procedures, designed for large groups of land invaders, to evict nonpaying occupants.

For instance, the landlord or bank must make sure the summons is issued in a language the occupant understands. And the municipality must get a copy of the papers so it can give the occupant access to an alternative home.

However, government immediately announced that Pie was intended for land invasions and would be changed.

Amendments to the act have been finalised and are to go through parliament this year. But all those affected in the interim since Harms's judgment have potential claims for compensation.

But the amendment (see Property August 29 2003) will not free landlords entirely. A person who moves into a house or flat without the owner's consent becomes an unlawful occupant and his eviction is regulated by the act.

Landlords will get an eviction after months of expensive legal action in most cases. But some unlawful occupants cannot be evicted until alternative housing is found for them. These include elderly people, single parents and children, and people who have illegally occupied a property for more than six months.

If a woman with children illegally occupies a flat, the court may decide that she can be evicted only when a new home is found for her. The latest judgment says government must find that home.

"It is not automatic that the owner will get damages from government," says the Legal Resources Centre's Steve Kahanovitz. But the judgment indicates that direction.