Brief Summary

Land — Unlawful occupation — Applications for eviction of unlawful occupiers — Applicants claimed violation of constitutional rights to property and housing — Court examined obligations of the state under sections 7(2), 25, and 26 of the Constitution — Held that the state has a duty to respect and protect the rights of individuals, including those unlawfully occupying land, and must consider all relevant circumstances before ordering eviction.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerned three related applications heard together in the Western Cape Division of the High Court, Cape Town, in which private landowners sought relief arising from the large-scale unlawful occupation of their respective properties in Philippi, Cape Town. Although the matters were brought by different applicants under different case numbers, they raised substantially similar questions about how to resolve an entrenched occupation affecting tens of thousands of people, in circumstances where the local authority stated that it could not provide alternative land or accommodation and where eviction was presented as practically and humanely unfeasible.

The applicants were (i) Iris Arrilda Fischer (an elderly owner-occupier), (ii) Manfred Stock and associated corporate entities owning multiple erven, and (iii) Copper Moon Trading 203 (Pty) Ltd (a development company). The principal respondents across the three matters were the unlawful occupiers (some identified and others unknown), the City of Cape Town, and relevant national and provincial housing/human settlements authorities. In the Stock matter, the national and provincial Ministers responsible for policing were also cited. The occupiers’ areas of occupation became known as “Marikana”.

The procedural histories were extensive. Each matter included urgent or semi-urgent steps taken at earlier stages (including anti-land invasion operations, interdicts, PIE-related processes, postponements for municipal reports, and in some instances counter-applications by occupiers). Ultimately, the cases came before the court with the applicants seeking, primarily, orders compelling purchase (or negotiation toward purchase) of the affected properties by the City (with funding assistance from provincial and/or national government where necessary), and in the alternative, expropriation, constitutional damages, or eviction.

The general subject-matter of the dispute was the interaction and conflict between section 25 property rights of private owners and section 26 housing rights of unlawful occupiers, together with the scope of the state’s positive constitutional obligations to respond to a large-scale housing emergency, and the court’s remedial competence under section 38 to grant appropriate relief.

2. Material Facts

Across all three matters, it was common cause that the applicants were owners of the properties in question and that large numbers of people had occupied those properties unlawfully during 2013 and/or 2014, with the occupations escalating rapidly. It was also accepted in substance (and treated by the court as undisputed for purposes of determining remedy) that eviction on this scale was not feasible in a manner consistent with the occupiers’ circumstances, and that the City was unable to provide alternative accommodation or land for all occupiers in any realistic time horizon.

In the Fischer matter, Mrs Fischer (86 years old at the time of the litigation history described) had lived on the property since 1969, and her family had held the land for more than half a century. The occupation commenced in earnest during 2013, initially involving repeated cycles of structure erection and dismantling with the involvement of the City’s Anti-Land Invasion Unit. Attempts to secure legal assistance and to institute eviction proceedings were delayed, but interim relief was obtained in January 2014. The proceedings became protracted, including a counter-application by occupiers about demolitions and temporary dwellings, which was decided by Gamble J and then overturned on appeal by the SCA. By 2015–2016 the litigation posture shifted: Mrs Fischer pursued alternative relief aimed at compelling state action, including an order requiring the City to purchase the property, with state funding support if necessary. The occupiers later brought a counter-application seeking declaratory relief that the City and housing authorities had infringed both Mrs Fischer’s section 25 rights and the occupiers’ section 26 rights by failing to provide land, together with a direction to negotiate purchase or expropriate.

In the Stock matter, Mr Stock and associated companies owned multiple properties acquired over decades for various purposes (including farming, commercial or industrial development, and in some instances intended housing development that was impeded by the airport noise corridor). A temporary relocation area had been established on neighbouring land from 2005/2006 and remained in place far beyond its stated intended duration. In April 2013 and again during 2014, large-scale occupation attempts occurred, with some initial successes by property owners, SAPS, and the Anti-Land Invasion Unit in dismantling structures and preventing occupation. By August 2014, the occupation intensified; a high-level meeting involving senior officials occurred; and after a joint operation on 22 August 2014 the SAPS and the Anti-Land Invasion Unit indicated that they would not continue assisting beyond that point (a contention disputed by the policing respondents). Within days, occupiers returned and the occupation persisted. When the substantive application was brought, the Stock applicants sought purchase, constitutional damages, expropriation under section 9(3) of the Housing Act, or eviction, together with declaratory relief that multiple organs of state had violated their property rights by failing to protect the properties.

In the Coppermoon matter, Coppermoon acquired Erf 149, Philippi in 2007 and pursued rezoning and planning for industrial development. Occupation began in August 2014 shortly before development was due to commence. Interdictory relief was obtained early in August 2014, and there were multiple days of structure dismantling by the Anti-Land Invasion Unit, SAPS, and metro police amid increasing tensions and violence. By mid-August 2014, the number of structures across the broader area had grown substantially; by October 2014 there were estimates of approximately 3000 structures on the Coppermoon property. The eviction proceedings under PIE were repeatedly postponed for municipal reporting. Coppermoon later amended its notice of motion to seek relief similar to that sought by the Stock applicants and Mrs Fischer, including purchase (with market-value determination premised on valuing the land as vacant), alternative expropriation, constitutional damages, or eviction. The Coppermoon occupiers contended that they had occupied out of necessity, that eviction would render them homeless, and that the state had failed to engage meaningfully or to apply for emergency housing funding.

A further material fact central to the court’s approach was the scale of the occupation: the court framed the matter as implicating approximately 60 000 people, and proceeded on the basis that the City’s position was that it might never be able to accommodate the occupiers elsewhere. The court also treated as material the existence of the applicable housing policy framework in the National Housing Code (including emergency housing assistance provisions), and the City’s asserted reliance on waiting lists for emergency housing without a concrete plan that could address the situation.

3. Legal Issues

The central legal questions the court was required to determine were whether, on the facts, the relevant state respondents had breached constitutional obligations in a manner that infringed (i) the applicants’ section 25 property rights and (ii) the occupiers’ section 26 housing rights; and, if so, what constituted “appropriate relief” under section 38 of the Constitution in circumstances where eviction was not a viable solution and where the City denied the ability (and, in parts of its argument, denied the duty) to provide alternative accommodation or land.

Closely connected to this was the remedial question whether a court may grant orders that effectively compel the state to acquire occupied private land, whether by directing purchase, by directing negotiations aimed at purchase, or by directing consideration of expropriation under section 9(3) of the Housing Act. These questions implicated the extent to which judicial relief might intrude into executive decision-making, and therefore raised separation-of-powers concerns addressed in prior jurisprudence, including the SCA’s criticism of a compelled purchase order in Ekurhuleni Metropolitan Municipality v Dada NO and Others 2009 (4) SA 463 (SCA).

In addition, the court had to decide whether constitutional damages were an appropriate remedy for the applicants, particularly given the jurisprudence in Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) and the approach to constitutional damages adopted in the Modderklip litigation. The Stock applicants also sought relief against the Ministers of Police, requiring the court to decide whether the SAPS had infringed the applicants’ constitutional rights through alleged inaction or insufficient action in preventing occupations, and whether damages or declaratory relief could competently follow.

These issues involved a combination of questions of law (the scope of constitutional and statutory duties, and the permissible forms of judicial relief), questions of application of law to largely common-cause facts (the reasonableness of the City’s conduct and planning), and an element of evaluative judgment in crafting a remedy that would be effective while remaining within judicial bounds.

4. Court’s Reasoning

The court approached the matter within what it described as the broader constitutional matrix, emphasising the state’s duty under section 7(2) to respect, protect, promote, and fulfil rights in the Bill of Rights, and focusing on the interaction between section 25 (property) and section 26 (housing). The court further identified section 38 as empowering courts to grant appropriate relief, including remedies crafted to vindicate rights effectively.

In considering remedy, the court relied on Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) for the propositions that appropriate relief must be effective, and that courts may be required to fashion new remedies where necessary to protect and enforce constitutional rights. The court treated the relief question as inseparable from the practical realities: the occupation involved an exceptionally large group; eviction would render occupiers homeless; and the City effectively accepted that it could not provide alternative accommodation for all.

The court considered the remedial and separation-of-powers concerns reflected in the Dada/Ekurhuleni litigation. It noted that the SCA had set aside an order compelling a municipality to purchase land in Ekurhuleni Metropolitan Municipality v Dada NO and Others 2009 (4) SA 463 (SCA) as not “appropriate relief”. However, the court distinguished the present matters on the basis of scale and feasibility, emphasising that (unlike Dada) these cases were not about relocating a small group and were marked by the City’s stance that it could not accommodate the occupiers elsewhere. On the court’s assessment, the absence of a realistic alternative made it untenable to frame the dispute as one solvable through eviction coupled with later municipal assistance.

The court also drew on the Modderklip jurisprudence, particularly the recognition that state inaction in the face of mass unlawful occupation can constitute a breach of constitutional obligations affecting both owners and occupiers, and that an effective remedy may be required where ordinary enforcement is impractical. The court treated the present situation as similarly involving the state’s failure to respond reasonably over time, with the consequence that private owners were left bearing the burden of accommodating large numbers of people, while the occupiers remained in precarious circumstances.

A significant component of the court’s reasoning was its evaluation of the City’s asserted compliance through placing occupiers on emergency housing lists. The court found that this stance was not reasonable because it did not explain what practical assistance would be delivered, and because the City’s own indications suggested only partial relief for some occupiers in a limited timeframe. The court also rejected the City’s contention that accommodating the occupiers would disrupt existing housing plans, holding that constitutional obligations require a flexible response to emerging emergencies and adaptation of plans and priorities. In that context, the court regarded the City’s own reference to “reactive land acquisitions” as undermining the argument that acquisition would necessarily be disruptive.

The court evaluated and rejected several grounds advanced by the City for refusing acquisition, including claims that the land was unsuitable for permanent settlement, within an airport noise corridor, or potentially needed for other infrastructure (such as power lines or transport). The court reasoned that the immediate problem concerned emergency accommodation and land availability, that the emergency housing programme does not require permanence, and that the City’s infrastructure-related submissions did not address the fact that the City did not own the land and would in any event need to acquire it to implement such plans.

The court placed weight on the National Housing Code and emergency housing provisions, treating the situation as an emergency housing circumstance and observing that the policy framework allows for purchase of land where a municipality has no alternative land, with procedures for valuation and acquisition. The court considered that the City had failed to invoke the remedies available in the policy instruments and had failed to plan proactively despite being aware of the situation for a considerable period.

In crafting differentiated relief, the court treated Mrs Fischer’s position as materially distinct from that of the commercial or development-oriented owners, emphasising her age, her long-standing residence, and the character of the property as apparently her only immoveable property. The court considered that “time is of the essence” in her case and that an effective remedy required urgency.

On the claim against the Ministers of Police in the Stock matter, the court accepted submissions that it was not reasonable to expect the police to prevent occupation of large, unfenced, accessible private properties, and that the execution of court orders rests primarily with the sheriff and landowners, with SAPS assistance contingent upon appropriate direction. The court treated the absence of recorded court orders requiring SAPS action (other than limited trespass charges) as significant, and concluded that the Stock applicants had not established that the SAPS had infringed their constitutional rights. On that basis, the court was not persuaded that the Ministers of Police should be ordered to pay damages.

Overall, the court concluded that the state’s conduct was unreasonable and that the state had breached obligations in a manner that infringed both owners’ and occupiers’ constitutional rights. The court’s remedial choice was to direct good faith negotiations for purchase within fixed time periods, to require funding support from relevant national/provincial respondents where municipal budgets were insufficient, and (in the Stock and Coppermoon matters) to require reporting on whether expropriation under section 9(3) of the Housing Act had been considered if negotiations failed. The eviction applications were dismissed, reflecting the court’s view that eviction was not a viable solution in the circumstances before it.

5. Outcome and Relief

The court granted substantive declaratory and mandatory relief in each matter, with differences in timeframes and reporting requirements, and dismissed the eviction applications.

In the Fischer matter (Case No. 9443/14), the court declared that the City and the national and provincial housing respondents had infringed Mrs Fischer’s section 25 property right. The court ordered the City to enter into good faith negotiations with Mrs Fischer to purchase her property within one month, and ordered the relevant national and/or provincial housing respondents to provide the City with necessary funds if required. If agreement was not reached, the City was ordered to report to court within one month on the progress of negotiations and in particular to explain why valuation had not been undertaken on the basis of the land being treated as vacant (disregarding the informal settlement). The eviction application was dismissed. The occupiers’ counter-application succeeded to the extent that the court declared that the City and the national and provincial housing respondents had infringed the occupiers’ section 26 rights by failing to provide land. Costs were awarded against the City and the national and provincial housing respondents, jointly and severally.

In the Stock matter (Case No. 11705/15), the court declared that the City and cited state respondents (including provincial and national housing/human settlements authorities and other cited state entities in that matter) had infringed the Stock applicants’ section 25 property right. It also declared that those respondents had infringed the occupiers’ section 26 rights. The court ordered the City to enter into good faith negotiations to purchase the properties within two months, with funding support to be provided by relevant state respondents if the purchase price exceeded the City’s budget. If agreement could not be reached, the City was ordered to report within two months whether expropriation under section 9(3) of the Housing Act had been considered, and if not, why not. The City was also ordered to report within two months on the progress of negotiations. The eviction applications were dismissed. Costs were awarded against the City and relevant state respondents, jointly and severally. The judgment did not grant damages or other relief against the Ministers of Police, consistent with the court’s finding that no constitutional infringement by SAPS had been established.

In the Coppermoon matter (Case No. 14422/14), the court declared that the City and the relevant national and provincial housing/human settlements respondents had infringed the Coppermoon applicants’ section 25 property right, and declared that the City and relevant housing respondents had infringed the occupiers’ section 26 rights. The court ordered the City to enter into good faith negotiations to purchase the property within two months, with funding support from national and/or provincial respondents if necessary. If agreement could not be reached, the City was ordered to report within two months whether expropriation under section 9(3) of the Housing Act had been considered, and if not, why not. The City was also ordered to report within two months on the progress of negotiations. The eviction applications were dismissed. Costs were awarded against the City and relevant state respondents, jointly and severally.

Cases Cited

S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC).

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).

Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) 2004 (6) SA 40 (SCA).

President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, Amici Curiae) 2005 (5) SA 3 (CC).

Dada and Others NNO v Unlawful Occupiers of Portion 41 of the Farm Rooikop and Another 2009 (2) SA 492 (W).

Ekurhuleni Metropolitan Municipality v Dada NO and Others 2009 (4) SA 463 (SCA).

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2011 (4) SA 337 (SCA).

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC).

Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC).

Odvest 182 (Pty) Ltd v Occupiers of Portion 26 (Portion of Portion 3) of Farm Klein Bottelary No 17, Botfontein Road (“The Property”) and Others (19695/2012) [2016] ZAWCHC 133 (14 October 2016).

Legislation Cited

Constitution of the Republic of South Africa, 1996, sections 7(2), 25, 26, and 38 (with section 34 also referred to in the Modderklip discussion).

Housing Act 107 of 1997, section 9(3).

Expropriation Act 63 of 1975 (referenced through incorporation in section 9(3) of the Housing Act).

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), including reference to section 4 processes.

Native Land Act 27 of 1913 (historical reference).

National Housing Code, including Chapter 13 (Upgrading of Informal Settlements Programme).

National Housing Programmes, including Chapter 12 (Housing Assistance in Emergency Housing Situations).

Rules of Court Cited

No specific Uniform Rules of Court provisions were expressly cited in the judgment excerpt provided, although the procedural history referred to instruments such as a rule nisi and to matters being placed on the semi-urgent roll.

Held

The court held that, on the circumstances before it, the relevant state respondents had acted unreasonably in failing to respond effectively to a large-scale occupation that implicated both the landowners’ rights to property and the occupiers’ rights of access to housing, and that declaratory relief recognising infringement of section 25 (for owners) and section 26 (for occupiers) was warranted.

The court further held that eviction was not an appropriate or viable resolution on the facts as presented, and that effective relief required a remedy aimed at regularising the occupiers’ continued presence through state acquisition of the occupied land. The court accordingly directed the City to enter into good faith negotiations to purchase the properties within specified timeframes, ordered senior spheres of government to provide funding support where municipal budgets were insufficient, and required reporting back to court, including reporting on consideration of expropriation under section 9(3) of the Housing Act where negotiations failed (in the Stock and Coppermoon matters).

In relation to the Stock matter’s claim against the Ministers of Police, the court held that the applicants had not established an infringement of constitutional rights by SAPS sufficient to justify declaratory relief or damages against those respondents.

LEGAL PRINCIPLES

The judgment applied the principle that the state bears a constitutional duty under section 7(2) to respect, protect, promote, and fulfil the rights in the Bill of Rights, and that housing- and property-related disputes must be assessed within a constitutional framework that recognises the interplay between section 25 and section 26.

It applied the principle from Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) that courts must grant effective and appropriate relief under section 38, and that, where necessary to vindicate constitutional rights, courts may craft remedies beyond traditional forms, provided they remain appropriate to the circumstances.

The judgment applied the understanding, reflected in the Modderklip and Blue Moonlight line of cases discussed, that the state’s obligations regarding access to housing and emergency housing needs are not merely abstract policy commitments but require reasonable, proactive planning, and that failure to respond reasonably to known emergencies may infringe constitutional rights of both occupiers and private owners.

It further applied the principle that remedial choices must be sensitive to feasibility and to the risk of creating remedies that are either ineffective or that improperly displace executive functions. Within that constraint, the judgment treated negotiation-directed acquisition (with reporting obligations, and consideration of expropriation where necessary) as a mechanism aimed at vindicating rights without implementing eviction on a scale the court considered unworkable on the facts before it.

Finally, in respect of policing responsibilities, the judgment applied the principle that the reasonableness of expecting SAPS to prevent occupation depends on practical realities such as the nature of the land (large, unfenced, accessible), and that the execution of court orders primarily falls to the sheriff and landowners, with SAPS assistance dependent on appropriate legal direction and feasibility.

Fischer v Persons Listed on Annexure X and Others (9443/14; 11705/15; 14422/14) [2017] ZAWCHC 99; 2018 (2) SA 228 (WCC) (30 August 2017)