## Facts

- Modderklip Boerdery (Pty) Ltd owned a farm near Daveyton; after evictions from nearby municipal land, a large group unlawfully occupied a portion of the farm.
- Modderklip sought assistance from municipal and police authorities and laid trespass charges; enforcement efforts were ineffective and occupiers returned after criminal warnings.
- Modderklip obtained a final eviction order from the Johannesburg High Court, authorizing police assistance, but the order was not executed because the sheriff required a security deposit (about R1.8 million) that exceeded the property’s value.
- By the time of later proceedings, roughly 50 hectares were occupied by an estimated 40,000 people.
- Police and other officials did not enforce the eviction order, treating the situation as a private civil dispute and citing the lack of alternative land or accommodation for the occupiers.
- The Pretoria High Court found infringements of both the owner’s property rights and the occupiers’ housing-related rights and issued a structural interdict requiring the state to produce and implement a plan to address the situation.
- The state appealed to the Supreme Court of Appeal (SCA), challenging the Pretoria High Court’s order and remedy.

## Issues

1. Whether the state’s failure to enforce a valid eviction order, and related inaction, amounted to an unconstitutional deprivation of the owner’s property rights.
2. Whether the state’s inaction also violated the occupiers’ housing-related constitutional and statutory protections that constrain eviction absent a just and equitable process.
3. What remedy was appropriate where eviction was practically and socially unworkable absent state provision of alternatives: structural supervision of state planning, or compensation to the owner while occupation continued.

## Decision

- The SCA upheld the conclusion that the state’s sustained inaction violated Modderklip’s constitutional rights, including protection against arbitrary deprivation of property.
- The SCA accepted that the occupiers’ housing-related protections meant that mass eviction without alternative accommodation would not be just and equitable.
- The SCA replaced the Pretoria High Court’s structural interdict with a compensation-based remedy.
- The SCA ordered the state to pay Modderklip compensation for the continued unlawful occupation for as long as the occupiers remained, while allowing the occupiers to stay until alternative land was made available.

## Legal Principles

- A state’s failure to take effective steps to give practical effect to a final court order may result in an unconstitutional deprivation of property where the owner is effectively stripped of meaningful use and control.
- Property rights disputes involving large-scale informal occupation are not purely bilateral; courts may treat them as involving a triangular relationship among owner, occupiers, and the state, given the state’s constitutional and statutory duties.
- Housing-related constitutional and statutory protections can constrain eviction and require consideration of alternative accommodation or land to ensure an outcome that is just and equitable.
- Where state inaction makes eviction practically impossible and continued occupation is tolerated to avoid rights violations against occupiers, the state may be required to internalize the public cost through compensation to prevent a single owner from bearing an excessive public burden.
- Remedial choice may favor concrete, administrable relief (such as compensation tied to ongoing occupation) over ongoing judicial supervision, depending on feasibility and separation-of-powers concerns.

## Conclusion

The SCA held that the state’s prolonged failure to enforce an eviction order and address the occupiers’ need for alternative accommodation unconstitutionally burdened the landowner, and it crafted a remedial order allowing continued occupation while requiring the state to compensate the owner for the period of occupation until alternatives were provided.


President of the Republic of S. Afr. v. Modderklip Boerdery (Pty) Ltd, 2004 (6) S. Afr. L.R. 40 (S. Afr. S.C.A. 2004)