Nick Wilson

THE recent Constitutional Court judgment in the Modderklip squatter case could set a precedent whereby farmers and landowners experiencing large-scale land invasions could claim compensation from the state.

But your average landlord trying to evict a tenant who has not paid rent and refuses to vacate the premises will still have to bear the costs of any court procedures and cannot seek compensation, says attorney Natasha Kapp of Jan S De Villiers Attorneys in Cape Town.

The agriculture and land affairs department was ordered in May to pay compensation to Modderklip Boerdery for the occupation of its land.

Kapp says the facts of this case are extraordinary in that 400 people originally occupied the property in question.

"That number subsequently grew to 40000 when the eviction application was heard, and later to 70000 by the time the matter was heard in the Supreme Court of Appeal," says Kapp.

The landowner had obtained an eviction order, but the sheriff of the court refused to carry out the order unless the landowner provided the sheriff with payment of R1,8m, to remove the squatters and their belongings.

This was far more than the property was worth and the farmer refused to pay.

He approached various state departments for assistance with providing alternative accommodation for the people on his land, and did all he could to try to find a solution, including offering to sell the property to the state.

When that failed, he returned to court on the basis that his constitutional right to property had been infringed.

Kapp says that by finding in favour of the landowner, the Constitutional Court is saying it will not pass the buck to private landowners to provide alternative accommodation.

"It is a victory for two sides," says Kapp. It is a victory for other landowners in a similar situation, as well as for squatters because ultimately the court said in this case that government had not met its obligations to provide alternative housing.

"Although most people regard this a victory for all private property owners, this would apply only in very limited circumstances," says Kapp.

She says that if, for example, someone owns a flat in Sea Point, Cape Town, and has an unlawful occupier, a court will have to be approached for an eviction order.

"You’ve got to pay the costs of going to court as well as the costs of the eviction order, and this can take a long time.

"Even if you take two years to get the person evicted, this is not the (kind of) case where you could claim damages from government," Kapp says.

She says that in this kind of case, there is no infringement of property rights because government has put in place the mechanisms making eviction possible.

"In Modderklip there was an infringement of his rights because despite having obtained an eviction order he was unable to execute it because there was nowhere else for the people to go."