LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

152 Chapter 5
demolishing their shacks. This amount by far exceeded the value of
the part of the property occupied.
The landowner was unwilling and unable to spend this kind of
money on executing the judgment it lodged an application against the
state to force the sheriff to carry out the eviction order. Modderklip’s
case against the state was that failure on the part of the state to carry
out the eviction order undermined its right to property as guaranteed
by section 25 of the Constitution. The occupants, who had by this time
swelled to 40 000, also resisted the eviction and argued that they
could not be evicted without the provision of alternative
accommodation. It was contended on their behalf that this would
undermine their right of access to adequate housing as guaranteed by
section 26(1) of the Constitution.
The Modderklip case is very significant from the perspective of
the notion of distributive justice. Other than merely protect
Modderklip’s individual right to property, the Court was called upon
to consider the impact of an eviction order on the occupants’ right of
access to adequate housing. The case also indicates that in certain
circumstances the award of individualised compensatory damages
may produce a distributive effect. The SCA found in favour of both
Modderklip and the occupants. The Court ruled that the occupiers
could not be evicted without alternative accommodation as this
would undermine their right of access to adequate housing. Yet there
was a need to protect Modderklip’s right to property and to
compensate it for the loss suffered by past and future use of the
property. This loss was deemed to arise from the state’s failure to
provide housing to the occupiers. The Court held that this was a
burden that could not be placed on Modderklip because it was a
constitutional obligation which fell squarely on the shoulders of the
state and not on private persons.
The SCA held that the only appropriate relief in the circumstances
was constitutional damages to Modderklip. The Court observed that
ordering the state to pay damages to Modderklip had the advantage
that the occupiers could remain where they were, while Modderklip
would be recompensed for that which it has lost, and the state has
gained by not having to provide alternative land immediately. 117
The distributive effect of this order does not lie in the monetary
benefits deriving from the award of damages as these went to
Modderklip. Instead, the distributive effect lies in the fact that the
award produced a benefit for persons other than Modderklip. The
award made it possible for Modderklip’s right to property to be
117 2004 8 BCLR 821 (SCA) 839.