Vital court decisions pending on land question

The state has drafted an application for leave to appeal against a Pretoria High Court decision ordering it to fulfil its duty to protect the rights of Braam Duvenage, a farmer whose land near Daveyton on the East Rand was invaded by 40 000 squatters, most of them people from neighbouring states. (Focus 28).

The presiding judge, William De Villiers, chastised the government for neglecting to uphold the law and, in addition, for failing to provide housing for the squatters. He gave the government until February 28 2003 to file a comprehensive plan with the court on how it proposed to protect Duvenage's property rights and fulfil its duty to the squatters.

But more than a month before the February 28 deadline, Agricultural and Land Affairs minister, Thoko Didiza, criticised the judgement sharply on two grounds. Firstly, she said, if the order was fulfilled and housing was provided to squatters, it would be unfair to homeless people waiting patiently to occupy government-built houses and might lead to similar "queue jumping" in future. Secondly, she added, it might encourage "shack farming" by landowners, a reference to farmers who allegedly do little or nothing to prevent squatters from occupying their land in a bid to force the government to buy it.

In her written notice for leave to appeal, the state attorney, Gadija Behardien, states that the court erred in holding that the minister of safety and security and the commissioner of police are legally empowered or obliged to become "physically involved in evicting unlawful occupiers". She re-emphasises the queue jumping argument, noting that the "unlawful occupiers had chosen to break the law and occupy the applicant's farm, unlike millions of law-abiding citizens who follow the established channels to obtain accommodation".

If leave to appeal is granted and the appeal in upheld by either the appeal court or the constitutional court, the judgement might serve as an inducement to landless people to occupy what they see as vacant land in the belief that the government does not have the will or the resources to evict them.