## Facts

- A private farming company owned land near Daveyton, Gauteng.
- After removals from a nearby informal settlement, unlawful occupiers moved onto the land in 2000; the settlement rapidly grew to tens of thousands of people.
- The owner obtained an eviction order under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), served it, and the occupiers did not comply or appeal.
- Execution was practically impossible: the sheriff required a large security/logistics deposit exceeding the land’s value; arrests and detention at that scale were infeasible; the occupiers had nowhere else to go.
- The owner brought constitutional proceedings against national, provincial, and local state actors seeking enforcement assistance, alternative land for occupiers, and related relief.
- The state argued the owner should pay to execute the order through ordinary civil process and that providing alternative accommodation was not required in this context.
- The High Court held the state had to protect the owner’s property rights and take steps relating to enforcement and provision of land/accommodation; both the occupiers and the state appealed.

## Issues

1. Whether the Constitution requires the state to take positive steps to secure effective enforcement of a private landowner’s valid eviction order when ordinary execution is practically unworkable.
2. How to reconcile the owner’s protection against arbitrary deprivation of property with unlawful occupiers’ housing- and dignity-related interests where eviction would likely cause homelessness.
3. What remedy is just and equitable when state inaction leaves the owner bearing a disproportionate burden from a large-scale housing crisis.

## Decision

- The court held the owner’s constitutional property interest was infringed because the eviction order could not be made effective in practice.
- The court rejected the state’s position that its role ended with ordinary civil execution rules where the scale of occupation made enforcement unrealistic without state action.
- The court declined to require immediate mass eviction in circumstances that would likely produce homelessness and be ineffective.
- The court awarded constitutional damages payable by the state, assessed by reference to the land’s value, compensating the owner for loss of effective use and control while the occupiers remained pending state action.
- The result preserved the validity of the eviction order while shifting the financial burden created by public housing failures from the owner to the state.

## Legal Principles

- Constitutional protection of property includes an entitlement to effective legal protection; a court order cannot be rendered meaningless by practical non-enforcement where the state is responsible for maintaining effective remedies.
- The state may have positive duties to act where large-scale unlawful occupation and lack of alternative accommodation make private enforcement practically impossible and place an excessive burden on a single owner.
- Courts must account for the occupiers’ housing and dignity interests when crafting remedies, particularly where eviction without relocation would predictably cause homelessness and further disorder.
- In constitutional matters, courts may grant “appropriate relief,” including constitutional damages, when coercive relief (such as immediate eviction) is impracticable or would cause disproportionate harm, and compensation is a fair method to address the rights violation.

## Conclusion

The court held that the state’s failure to make a valid eviction order practically enforceable, while also failing to address the occupiers’ lack of alternatives, resulted in an unconstitutional deprivation of the owner’s effective property enjoyment; it fashioned a just and equitable remedy by awarding constitutional damages against the state rather than ordering immediate mass eviction.


Modder East Squatters v. Modderklip Boerdery (Pty) Ltd., (S. Afr. Sup. Ct. App. 2004)