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Farmer wins landmark judgement

Farmer wins landmark judgment
13/05/2005 11:45 - (SA)

Johannesburg - Failure by the State to protect farmers from land invasions would be "a recipe for anarchy", the Constitutional Court found on Friday in a landmark judgment upholding property rights.

The obligation on the State went further than the mere provision of mechanisms and institutions with which to enforce rights, deputy chief justice Pius Langa held in a unanimous judgment of the court.

The court also held that it was unreasonable for a private entity to be forced to bear the burden which should be born by the State of providing informal settlers with accommodation.

The case arose from the occupation five years ago of about 50 hectares on the Benoni property of Modderklip Boerdery by 40 000 informal settlers.

The court found, in the circumstances of the case, "it was unreasonable of the State to stand by and do nothing when it was impossible for Modderklip to evict the occupiers because of the sheer magnitude of the invasion and the particular circumstances of the occupiers.

"Land invasion of this scale threatened far more than the private rights of a single owner and have the capacity to be socially inflammatory and the potential to have serious implications for stability and public peace. They should always be discouraged," Langa said.

The State was obliged to ensure that Modderklip was provided with effective relief.

"The State could have expropriated the property in question or provided other land, a course that would have relieved Modderklip from continuing to be forced to provide the occupiers with accommodation."

Constitutional rights

In failing to do anything, the State breached Modderklip's constitutional rights to an effective remedy.

The Constitutional Court found that Modderklip had been prudent in its actions and had acted reasonably. The court upheld a Supreme Court of Appeal decision that the State compensate Modderklip for the unlawful occupation.

Advocate Fanie Rossouw acting for Modderklip and its director Braam Duvenhage were "overjoyed" at the decision which brought to an end a five-year legal battle.

"The legal fraternity has been watching this case with hawk eyes because it is of paramount importance to the rule of law in our country and to ensure the land invasions you find in Zimbabwe will not be allowed here," Rossouw said.

He said he had been contacted by numerous lawyers in the past three years seeking his advice on similar matters.

They had all been waiting for the outcome of this case to determine how they would proceed in their own cases, he said.






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© Christoph von Kalckreuth, Kapstadt, Südafrika 2005