A Re Shomeng Holdings Proprietary Limited and Another v Sibeko and Others (LCC 02/2024) [2024] ZALCC 7 (19 February 2024)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

(RANDBURG)

CASE NUMBER: LCC02/2024

REPORTABLE: No

OF INTEREST TO OTHER JUDGES: Yes

REVISED. No

19 February 2024

Before the honourable Judge Cowen on 14th February 2024.

In the case of: -

A RE SHOMENG HOLDINGS PROPRIETARY LIMITED 1st APPLICANT

A RE SHOMANG PROJECTS PROPRIETARY LIMITED 2ND APPLICANT

and

LETTA SIBEKO (MTHIMUNYE)

1ST RESPONDENT

CHRISTINA SOKO

2ND RESPONDENT

MEISI EMILINAH NKOSI

3RD RESPONDENT

AARON FATSHI SOKO

4TH RESPONDENT

ELIZABETH MINAH NKOSI

5TH RESPONDENT

SIPHO MAHLANGU

6TH RESPONDENT

PHAKAMANI JOHANNES MAHLANGU

7TH RESPONDENT

CHIEF ALBERT LUTHULI LOCAL MUNICIPALITY 8TH RESPONDENT

DEPARTMENT OF AGRICULTURE,

RURAL DEVELOPMENT AND LAND REFORM 9TH RESPONDENT

JUDGMENT

COWEN J

Introduction

1. The applicants, A Re Shomeng Holdings (Pty) Ltd and A Re Shomang Projects (Pty) Ltd (the applicants, or ARS) have applied, on an urgent basis, for interim relief relocating the first to eighth respondents, so as to enable their open cast coal mining activities in Mpumalanga to continue. The first applicant is the owner of and operates a coal mine on several farms in Mpumalanga Province, including Portion 35 of the Farm Kromkrans 208 IS (Portion 35). It operates the coal mine pursuant to a mining right granted to the second applicant by the Minister of Mineral Resources and Energy in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (the MPRDA). The mining area on Portion 35 is known as the Motshaotshile Colliery

2. The first to seventh respondents are the duly authorised family representatives of seven families, some related, who reside on Portion 35 and who have resided there over many years since 1997, more specifically members of the Mthimunye family, the Soko family,

the Nkosi family and the Mahlangu family. The first respondent is Letta Sibeko, the head of the Mthimunye family; the second

respondent is Christina Soko, the head of her family, residing with Jhabi Makhazi Soko and Jerry Soko; the third respondent is Meisi Emilinah Nkosi, the head of the Meisi Nkosi family; the fourth respondent is Aaron Fatshi Soko, the head of the Soko family; the fifth respondent is Elizabeth Minah Nkosi, the head of the Nkosi family including Kalfan David Mahlangu, Thabo Mahlangu and Nkosinathi Mahlangu; the sixth respondent is Siphoe Mahlangu, the head of his family and the seventh respondent is Phakamani Johannes Mahlangu, the head of his family.[1] It is common cause that the first to seventh respondents are occupiers as defined in the Extension of Security of Tenure Act 62 of 1997 (ESTA). I refer to these respondents collectively as ‘the respondent families’. The eighth respondent is the Chief Albert Luthuli Local Municipality and the ninth respondent is the Department of Agriculture, Land Reform and Rural Development (the Department). The respondent families and the Department are participating in the proceedings.

3. The application was instituted in terms of section 15 and section 11 of ESTA. Section 15 is titled ‘Urgent proceedings for eviction’ and makes provision for an owner or person in charge of land to approach the Court urgently for the removal of any occupier from land pending the outcome of proceedings for a final order. Under the section a court may grant an order

for the removal of that occupier if it is satisfied that a) there is a real and imminent danger of substantial injury or damage to any person or property if the occupier is not forthwith removed from the land; (b) there is no other effective remedy available; (c) the likely hardship to the owner or any other affected person if an order for removal is not granted, exceeds the likely hardship to the occupier against whom the order is sought, if an order for removal is granted; and (d) adequate arrangements have been made for the reinstatement of any person evicted if the final order is not granted.

4. The application was instituted on 15 January 2024 and came before Acting Judge President Meer who issued directions. The matter was set down for hearing on Friday 2 February 2024, when it was to come before me. However, before the application was heard, the applicants approached the Court to expedite the hearing. It is not necessary for me to detail the events surrounding that approach, suffice to state that it culminated in my hearing the parties’ representatives on a critically urgent basis during the afternoon of Friday 26 January 2024. On that day I also heard oral evidence from Mr Joseph Masekwameng, the Chief Executive Officer of both applicants. I thereafter granted an order (the 26 January 2024 order) enabling blasting operations on an already charged block to be conducted on 27 January 2024 on Portion 35 for which purpose I directed the families temporarily to vacate their existing homes until the blasting operations had been concluded and the area declared safe. This order was granted in circumstances where explosives were already in place and needed to be detonated in a controlled fashion and the Department of Minerals and Energy (DME) had authorized that process. I was subsequently informed that the blasting took place that day and the families then returned to their homes. In the 26 January 2024 order, I also ordered that the urgent application be heard on 14 February 2024 to enable the respondents to deliver their answering affidavits. The respondents had not been able to comply with the initial directions but by that stage had secured legal representation through Legal Aid South Africa and wished to deliver answering affidavits.

5. The application was argued before me on 14 February 2024. Adv Riaan Booysen and Adv Sanele Sibisi appeared for the applicants. Mr Ramollo appeared for the respondent families and Adv Mkhari appeared for the Department. The application is in two parts, Part A and Part B. Although framed somewhat unusually, Part A essentially concerns urgent interim relief under section 15 of ESTA whereas Part B is intended to secure final relief. However, both parts entail the initial and temporary relocation of the respondent families to temporary accommodation in mobile homes on Portion 35 whereafter they will move to permanent new accommodation the applicants are constructing for them on Portion 35, some 600 metres from their current homes. It is common cause on the affidavits that the families have agreed, following a process of consultation and engagement, to leave their existing homes and relocate to the permanent new homes. However, the need for urgent interim relief arises from unanticipated circumstances. In brief, there was an unexpected delay in building the new permanent homes for the respondent families and in order to continue with mining operations, and indeed generate funds to keep operations and the construction process going,[2] it is now necessary for the applicants to relocate the families first to temporary accommodation. They would then move to the new homes once they are built. The respondents are refusing to do this. However, the applicants say that if they cannot do this, the mine will not be able to meet its commitments and will close resulting not only to hardship to the mine but in significant job losses and related economic hardship for those who are benefiting from the mining program. The respondent families are resisting the temporary relocation saying that this was not the subject of the engagement process with them, is highly disruptive to their lives and the temporary accommodation is not suitable for their needs.

The legal basis of the application

6. At the outset is it is necessary to clarify the legal basis of this case, an issue that I canvassed with the parties’ representatives during the hearing. Although the language of relocation is used in the affidavits, the case has been advanced as an eviction case: In Part A, on the basis of section 15 and Part B as an eviction in terms of section 11 of ESTA.[3] Compliance with section 11, of course, is only one consideration relevant to whether an eviction can be granted under section 9 of ESTA. No eviction can be granted until all of the requirements of section 9 are met. However, on Supreme Court of Appeal authority, this is not an eviction case. As this Court held in Boplaas Landgoed (Pty) Ltd and Another v Jonkies and Others:[4]

‘It is settled law that a relocation in terms of ESTA is the removal from one housing unit to another on the same farm, and that removal off the land or farm, as in the instant case, is an eviction. In Pharo’s Properties CC and Others v Kuilders and Others at paragraph 13, this court found that relocation in terms of ESTA was movement from one housing unit to another on the same registered

farm. A similar finding was made in Drumearn (Pty) Ltd v Wagner and Others at 504F, and in Mjoli v Greys Pass Farm (Pty) Ltd at paragraph 11. The Supreme Court of Appeal has confirmed this. In Chagi, at paragraphs 19 and 20, it was similarly held that a relocation from one house to another on the same land does not constitute an eviction. Likewise in Rouxlandia where, as aforementioned, with reference to Chagi, it was held that an eviction in terms of ESTA is confined to an eviction from the land, not from one dwelling to another.’[5]

7. Relocation orders are sought pursuant to this Court’s power to grant interdicts conferred by section 20(1)(b) of ESTA.[6] Importantly, although the protections conferred by section 9 of ESTA do not apply, the SCA has held that the protections

afforded by sections 5 and 6 of ESTA do apply. In Rouxlandia, the SCA held (footnotes omitted):

‘[17] … [T]here can be little doubt that the right to refuse relocation can be accommodated within the rubric of s6 of ESTA.

The specified rights and duties conferred on an occupier in terms of s6 are not exhaustive. The right to security of tenure in terms os6(2)(a) could, conceivably, have application in such situations. Relocation to an uninhabitable dwelling would offend an occupier’s right to live in accordance with basic human dignity, as was found by the Constitutional Court in Daniels. In such circumstances, where a relocation infringes an occupier’s human dignity, this could be successfully resisted by invoking ss 5(a) and 6(2)(a) of ESTA.

[18] What of the situation where a relocation does not impact on the human dignity of the occupier? The Constitutional Court has acknowledged that the right of residence conferred by s8 of ESTA is not necessarily tied to a specific house. The protection afforded by those parts of ss 5 and 6 of ESTA on which the appellants rely, is to ensure that an occupier will not be subjected to inhumane conditions violating human dignity. To this extent, an occupier’s right to resist relocation is protected. But these sections do not amount to a blanket prohibition on relocation under any circumstances. If indeed the relocation were to impair an occupier’s human dignity, then the provisions of s 5 and s 6 would apply and the occupier could invoke his or her constitutional rights. This does not mean that all relocations necessarily suffer the same fate.’

8. Also relevant is the recent decision of this Court in Du Plessis and another v Kriel NO and others, in which the majority concluded that the protections of section 8 of ESTA, which regulates the termination of a right of residence, and imposes requirements of both procedural and substantive fairness,[7] applies to relocations. Accordingly, in this case, the applicants would only be entitled to final relief if they satisfy the requirements of section 8 of ESTA and subject to the respondent families’ section 5 and 6 rights and their prima facie rights, must be viewed through this lens.

9. The parties’ representatives were not in a position to make detailed submissions on whether section 15 of ESTA applies to an application for an urgent relocation and not only an eviction.[8] In the urgent circumstances of the case, I do not consider it necessary to address this issue, as I am satisfied that a case is made out for at least some urgent interim relief both applying the test under section 15 of ESTA and applying the usual requirements for urgent interim relief in this Court.[9] In this regard, the applicants ultimately sought to persuade me to grant final relief. However, I am of the view that they are not entitled to material aspects of the relief they seek on a final basis on the evidence to hand or on the case as advanced in the papers. The permanent structures have not yet been built and the case is pleaded as one for interim relief without due reference to the legal principles underpinning relocations (or indeed evictions having regard to section 9). There are too many uncertainties that face the respondent families, the process of engagement has not been wholly adequate as regards the temporary accommodation and they have legitimate concerns about their ongoing security of tenure not least in the apparently tenuous position the mine is facing on its own version.

Urgency

10. In my view, there can be no real debate that the application is urgent. In short, mining activities have ground to a halt and indeed, in early January, the DME issued a directive in terms of section 54 of the Mine Health and Safety Act 29 of 1996 (the section 54 notice) to stop all blasting activities, primarily because under the applicable regulations, blasting activities may not be undertaken within a horizontal distance of 500 metres of occupiers’ homes (the blasting radius). At this juncture, in order for mining to continue, it is necessary for blasting to take place within a radius which includes – most imminently – the homes of the first and fourth respondent’s families, but which will in the next few months extend to a radius that includes the homes of the other affected respondent families. The DME has made it quite clear that it will not allow further blasting until the affected occupiers – ie those within the blasting radius at the relevant time – are duly relocated. Moreover, it is established on the papers that unless blasting continues in the near future, the applicants will be unable to meet their contractual commitments to deliver coal to Eskom to supply the Hendrina Power Station and other nearby stations as well as other export contractors, and the mine will close. This will result in a loss of numerous jobs, livelihoods and social benefits emanating from the mine.

11. It was submitted on behalf of the respondent families that the urgency in the situation had abated since the grant of the 26 January 2024 order. However, while that order catered for the critical threat of danger that flowed from the explosives that were already charged, it did not cater for the relief sought in Part A. It was distinct relief sought on critically urgent safety grounds. The respondents also submitted that any urgency was self-created because, in effect, the applicants have failed adequately to mine and construct the new homes to plan. I am however not persuaded by this argument when regard is had to all of the circumstances that have given rise to the application. Moreover, it does not ultimately counter the reality, sufficiently established on the affidavits, that if no relief is obtained, the mine will close with all attendant consequences.

Background facts

12. The material background facts are largely common cause. When the second applicant purchased Portion 35, the employees of the previous owner who resided there all remained, including the respondent families.

13. It is common cause that the applicants developed a Social and Labour Plan, approved by the Department of Mineral Resources (DMR), in compliance with the MPRDA and the Broad-based Socio-economic Empowerment Charter for the Mining and Minerals Industry 2018 (the Charter). The first applicant has committed, in terms thereof, to source 60% of its employees from the nearby Carolina area.

14. To further consultation and interaction with affected communities, the first applicant established a Mine Forum which convenes regularly. This is the platform where all stakeholders can voice, ventilate, discuss, debate and record the employment needs of the people they represent. The applicants have appointed Sefala Strategic Solution (Pty) Ltd (Sefala) to represent them on the Mine Form and Sefala’s Ms Mahlako Mahapa is primarily responsible for executing community liaison duties on their behalf. Sefala have held various meetings including as regards the impact of the mining activities on the families. The applicants employ approximately 132 employees and 10 subcontractors employing about 83 people, all of whose livelihood depend on continued mining activities.

15. During November 2021, ARS conducted a household survey covering each household on Portion 35, being the respondent families. A civil engineer inspected the state of the infrastructure of the existing households, which yielded concerns about whether they would withstand mining activity. In January 2022, the applicants conducted household visits to inform residents of mine processes and to establish communication channels. The outcomes of the consultation processes are detailed in the founding affidavit and were reported to the DMR. It is common cause that this resulted in an agreement on the part of the respondent families

to relocate to new stands on Portion 35 on which new homes would be constructed, approximately 600 metres from their current homes.

There is no dispute that the mining activities create a real and imminent danger of substantial injury and damage. Indeed,

it was understood, at least by May 2023 that the state of some of the structures required the applicants to implement temporary measures like Park Homes for already unstable structures. This culminated in the first and fourth respondent families moving into Park Homes which were erected next to their existing homes. Customised housing plans were devised for the new stands.

16. According to the applicants, the construction of the new homes was intended to commence on 1 August 2023 and be completed by 8 November 2023. However, there were delays in reaching agreement regarding the new plans. The respondent families lay blame on the applicants for the delays. What is noteworthy in this regard is that the Court has not been supplied with the original construction time-frames save in respect of two houses which were scheduled for construction in that period. It is common cause that did not happen.

17. By November 2023, at a community meeting, the applicants communicated that the construction project would begin only in the second quarter of 2024. Blasting matters were discussed and it was mentioned that the mine had decided to move people out of their homes to a safe area when blasting is to take place. This was agreed to and documents signed. The mine would take responsibility should the blasting have any negative impact on the houses. After blasting, families would move back into their homes.

18. Ultimately, however, the delay in the construction of the permanent homes means that for mining activities to continue, the respondent families, initially the first and fourth respondents, would have to move temporarily, pending the construction of the permanent structures. The remainder of the families would have to move in a phased way, with ongoing communication ensuing between the applicants and the families.

19. There is a dispute on the papers as to whether the respondent families agreed to this. In other words, to the phased move via temporary accommodation, a prospect that was only mooted from November 2023 but which the applicants sought to implement in respect of the first and fourth respondent families in December 2023.

20. In this regard, it is clear from the papers that a meeting was held between the applicants’ representatives and representatives of the first and fourth respondent families on 15 December 2023, and the Court has been supplied with notes of this meeting. According to the applicants it culminated in an agreement that these families would relocate to temporary accommodation in mobile homes also on Portion 35 but outside the blasting radius but that the move would be delayed until January 2024 to accommodate family plans over the December period. According to the respondents, there was no such agreement either with these two families or with the remaining respondent families. Indeed, they say there was no consultation with the remaining respondent families. All of the respondent families ultimately refused to relocate to the temporary accommodation. What is also apparent is that there has been a breakdown of communication and trust between the parties over recent months. Indeed, on the applicants’

version, which is only baldly denied, there has been active hostility involving the second and third respondents and a member of the seventh respondent family, ultimately leading to the applicants obtaining an interdict in the Mpumalanga High Court.

21. The inability to continue mining flows from the section 54 notice which the Chief Inspector of Mines issued on Friday 12 January 2024 after attending the Motshaotshile Colliery. The reason this ensued was because the respondent families refused to vacate their homes and be relocated to new accommodation.

22. There is no dispute that the applicants and their employees will suffer irrecoverable financial loss if the mining activities cannot continue. There is also no dispute that the unless the respondent families relocate, ARS will be unable to exercise its mining rights and honour contractual obligations to supply coal to Eskom. Although the applicants were able to blast the charged block on 27 January 2024, they have been unable to continue mining thereafter and this has severely impacted its cash flow to the extent that it cannot continue its operations. The applicants have already informed its employees of the possibility of mine closure and retrenchment.

23. In my view the prudent manner to approach this dispute is to accept, for present purposes, but without deciding, that indeed none of the respondent families agreed to relocate to the temporary accommodation, and then to determine whether the applicants are, nevertheless, entitled to the relief that they seek. Moreover, it appears to me to be relatively clear on the affidavits that save for discussions with the first and fourth respondent families, there have been no meaningful discussions about the temporary relocation program with the remaining respondent families.

24. The respondents raised issues and concerns in the answering affidavits. First, concerns are raised about the disruptive effect of temporary arrangements and an absence of clarity about how it will practically impact upon their movements practically. This concern is understandable as save for the intended building programme affecting the first and fourth respondent families, there is no clarity as to how it will unfold. Secondly, concerns are raised about access to water and electricity, which were only clarified in the replying affidavit and during engagement that I requested counsel to embark upon during the course

of the hearing. Thirdly, concerns are raised about the size and suitability of the accommodation, issues that were also clarified in reply. Fourthly, concerns are raised about access to grazing for the family’s cattle. Fifthly, concerns are raised about the failure adequately to consult and engage with the respondent families about the temporary arrangements. These concerns are raised not only by the respondent families in their answering affidavit but also by the ninth respondent, who refers the Court to the Mine Community Resettlement Guidelines of 2022 published on 30 March 2022 by the Minister of Mineral Resources and Energy. One of the reasons for doing so is that these guidelines emphasise the need for ongoing consultation and established dispute resolution mechanisms in the resettlement process, which the DME contends should be invoked in the present case.

25. As for the proposed temporary plan, the applicants have explained that each family will be provided with more than one mobile home, thereby providing sleeping, kitchen and bath facilities commensurate with their requirements. The delivery and relocation plan is a staggered approach whereby, as the blasting radius approaches each homestead, the applicants will provide temporary accommodation to the affected households. The intention is first to provide temporary accommodation to the first and fourth respondents. The construction plan supplied to the Court envisages that their permanent housing will be completed by 23 May 2024. At this stage, these families can move to their permanent new housing and the blasting radius can then extend further onto Portion 35. The next two affected families – not identified – can then move into the temporary accommodation while their permanent homes are built. The estimated cost of building the new homes runs into several millions of rands.

26. The mobile homes – which were occupied temporarily by the first and fourth respondents albeit close to their existing homes – have three bedrooms (each 4m X 3m), an open plan lounge and dining room and a kitchen. Each family is to be given more than one mobile home so as to provide sleeping, kitchen and lounge / dining room and bath facilities commensurate with the family’s requirements. Water, electricity and sanitation are available at the mobile homes, although connections will only be made when people move for security reasons. The manner in which water and electricity is to be supplied was clarified

during the hearing. It was also clarified both in reply and at the hearing that there will be no disruption or impediment to grazing arrangements.

Entitlement to relief

27. In my view, the applicants should succeed in obtaining such relief as will enable them to continue mining activities safely and lawfully while simultaneously ensuring that the legitimate concerns of the respondent families, their dignity and security of tenure are duly protected. A case has been made that the mining activities, which the applicants are entitled to pursue – subject to lifting the section 54 notice – pose real and significant safety threats that can result in injury to the respondent families’ person and property. The applicants are without alternative remedy. The respondent families have agreed to relocate to the permanent accommodation once built. There are ways to accommodate the hardships and inconvenience that the

temporary relocation process will place on the respondent families whereas if no temporary relocation plan is in place, the mine will close with the attendant hardships and inconvenience not only to it but to its many employees and beneficiaries. This must include imposing requirements on the provision of the temporary accommodation and related services, the process of movement and an ongoing process of consultation and dispute resolution, should it arise. This is particularly important as regards the respondents other than the first and fourth respondents with whom it appears there has not to date been any effective engagement regarding the temporary accommodation plans, in other words, there has to date been no formal process with these respondents whereby the applicants have terminated their rights on the basis that there will be an interim temporary relocation. Furthermore, there are adequate arrangements for reinstatement or, as planned, the construction of permanent structures as agreed. In this regard, the applicants have tendered full reinstatement if a final order is not granted. It is just and equitable that the applicants obtain temporary and interim relief.

28. The order I grant caters for the substitution of the seventh respondent, initially cited as Samual Mahlangu with Mr Phakamani Johannes Mahlangu. I make no order as to costs in accordance with this Court’s usual practice.

29. The following order is made.

29.1. Mr PHAKAMANI JOHANNES MAHLANGU is substituted as the seventh respondent in the application.

29.2. The first and fourth respondents and all persons claiming rights of residence through them are ordered, by 16h00 on 23 February 2024, to vacate their existing homes on Portion 35 of the farm Kromkrans 208 IS ("Portion 35") and relocate to the temporary housing made available for them by the applicants on Portion 35.

29.3. The applicants must ensure that the temporary housing provided to the first and fourth respondents includes sleeping, kitchen, lounge / dining room and sanitation facilities commensurate with each family’s requirements. Water and electricity must be supplied as follows: -

29.3.1. Generator power will be supplied at the applicants' costs until the applicants have installed solar electricity or have provided an Eskom connection. Once the Eskom connection is supplied, the relevant occupiers will be responsible for their own electricity costs.

29.3.2. Water will be supplied in a JOJO tank, and the applicants will ensure the tank remains adequately filled to address the mobile homes' occupiers' reasonable needs.

29.3.3. The first and seventh respondents' livestock will continue to graze Portion 35 at all relevant times.

29.4. The applicants must forthwith facilitate an ongoing process of engagement with the first and fourth respondents, either directly or through their legal representatives, to communicate the temporary relocation plan and decision, to facilitate the relocation process, to ensure that the temporary accommodation is commensurate with the respondents’ reasonable needs having regard to their existing living arrangements.

29.5. The applicants must provide such assistance with transport and labour as is required to move the furniture and belongings of the families in a safe, orderly and dignified manner.

29.6. The applicants must construct the first and fourth respondents' permanent houses on Portion 35 in accordance with the plans signed off by the first and fourth respondents, FA4 to the applicants' founding affidavit and take such steps as are reasonably necessary to follow the programme in F5 to the founding affidavit (attached). The first and fourth respondents must relocate to the permanent houses, once

constructed, on no less than 14 days’ notice and the provisions of paragraph 29.5 apply.

29.7. The applicant will endeavour to expedite the construction of the second, third, fifth, sixth and seventh respondents' permanent houses to avoid them having to first relocate to the temporary mobile homes. Save where otherwise agreed, these permanent houses must be constructed following the plans signed off by the first to sixth respondents, FA4 to the applicants' founding affidavit and in accordance with the seventh respondent's existing home plans.

29.8. The applicants shall, within ten court days of the date of this order deliver a report to Court and the respondents detailing the proposed sequence in which the applicants will construct the second, third, fifth, sixth and seventh respondents’ permanent houses, the anticipated time-frames within which construction will take place and advising of the order in which and likely time-frames in which any of these respondent families may need to relocate to temporary housing on Portion 35 to ensure mining activities are not unduly interrupted. The report must include details of the intended ongoing process of engagement and assistance in accordance with paragraph 29.4 and 29.5.

29.9. The applicants shall, upon delivery of the report, conduct a meaningful engagement with these respondents about the proposed plan and their accommodation needs should it be necessary for them to relocate to the temporary accommodation at any stage.

29.10. The applicants may thereafter approach the Court, on no less than ten days’ notice, on the same papers duly supplemented, for an interim order regulating the relocation of the second, third, fifth, sixth and seventh respondents, including the notice period for vacating their existing homes to either the temporary or, when built, permanent new housing.

29.11. The first to seventh respondents are ordered to comply with any direction given to them by the first applicant's mine manager or other authorised official to move to a safe place during blasting operations.

29.12. The Sheriff for the district of Carolina is authorised to remove the first and fourth respondents from their existing homes on Portion 35 if they have not complied with paragraph 29.2 or 29.6 of the order by moving to the temporary or permanent housing made available for them by the applicants on Portion 35.

29.13. The South African Police Service and the Sheriff of the High Court and/or any other entity or person(s) delegated/instructed by the South African Police Service and/or the Sheriff of the Court are authorised to take all such steps as may be necessary to enforce this Court Order.

29.14. Service of this order and any process under it may be effected electronically upon the relevant party’s legal representatives, who shall thereafter promptly ensure it is delivered to the relevant respondent, save that this order must be served by the Sheriff or otherwise physically delivered to the first and fourth respondents by a representative of the applicants or the applicants’ legal representatives by no later than 10am on 20 February 2024.

29.15. The above order operates on an interim basis pending the determination of Part B of the application, in respect of which, the applicants are directed to deliver any amended notice of motion and supplementary founding affidavit within one month of the date of this order whereafter the ordinary Rules of Court will apply.

29.16. No final relocation order may be granted unless and until the permanent new homes are constructed and the applicants are authorised to update their affidavits accordingly and the grant of this order does not prejudice any rights of any respondent to claim compensation for which the applicants may be liable arising from the relocation process.

29.17. Should any dispute arise in respect of the implementation of this order, the relevant parties must first attempt to resolve the dispute by engagement failing which they may approach the Court on such notice as is reasonable in the circumstances.

29.18. In the event that the relief sought in Part B is not granted, the second applicant is ordered to remediate any damage caused to any occupier’s existing homes situated on Portion 35 due to the second applicant’s blasting activities.

S J COWEN

Acting Judge President

Land Claims Court

Date Heard: 14 February 2024

Date of Judgment: 19 February 2024

For the Applicant

Webber Wentzel Attorneys

E-Mail: Manus.Booysen@Webberwentzel.Com

Ref: Mr M Booysen

For the 1st to 7th respondents and all persons claiming rights of residence through them

Legal Aid South Africa

Ermelo Local Office

E-Mail: Thabor@Legal-Aid.Co.Za

Ref: Mr Thabo Ramollo

For the 9th Respondent represented at the hearing by Adv

State Attorney Nelspruit

E-Mail Gingobeni@Justice.Gov.Za

Ref: Mr G.O. Ngobeni

[1] The seventh respondent was originally cited as Samual Mthwalose Mahlangu, substituted by the order made below by Phakamani Mahlangu.

[2] The latter point – ie the need to generate funds to construct the homes - was advanced from the bar but it must be noted as it highlights the potential vulnerability of the family respondents.

[3] Section 11 of ESTA applies to an eviction of persons who become occupiers after 4 February 1997.

[4] [2022] ZALCC 38 at para 12

[5] The references to the cases referred to in this paragraph are as follows: Pharo’s Properties CC and Others v Kuilders and Others 2001 (2) SA 1180 (LCC); Drumearn (Pty) Ltd v Wagner and Others 2002 (6) SA 500 (LCC), at 504F; Mjoli v Greys Pass Farm (Pty) Ltd [2019] ZALCC 25 Chagi v Singisi Forest Products (Pty) Ltd 2007 (5) SA 513 (SCA).Oranje and Others v Rouxlandia Investments (Pty) Ltd 2019 (3) SA 108 (SCA) [2019] ZALCC 25

[6] Section 20(1) provides that this Court has jurisdiction throughout the Republic and ‘shall have all the ancillary powers necessary or reasonably incidental to the performance of its functions in terms of this Act, including the power – (a) …; (b) to grant interlocutory orders, declaratory orders and interdicts …’ See Rouxlandia, supra n 4 para 24.

[7] See Snyders and Others v De Jager and Others (Appeal) [2016] ZACC 55; 2017 (5) BCLR 614 (CC); 2017 (3) SA 545 (CC)

[8] Cf Sibanyoni v Umcebo Mining (Pty) Ltd 2021 JDR 0360 (LCC).

[9] The requirements for interim relief are set out in Chief Nchabeleng v Chief Phasha 1998(3) SA 578 at para [6] to [8]. They are a) that the right which is the subject matter of the main action and which the applicant seeks to protect is clear or, if not clear, is prima facie established though open to some doubt; b) that, if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim interdict is not granted and he ultimately succeeds in establishing his right (it is implicit in this requirement that the harm apprehended must be the consequences of an actual or threatened interference with the right referred to in (a); c) that the balance of convenience favours the granting of interim relief; and d) that the Applicant has no other remedy.” This Court follows the approach expounded in American Cyanamid Co v Ethican Ltd [1975] UKHL 1; [1975] 1 All ER 504 (HL) which departs from a rigid approach of a ‘strong prima facie right’ and emphasizes flexibility and the importance of the balance of convenience criterion. The Court must be satisfied that the claim isnot frivolous or vexatious, in other words, that there is a serious question to be tried. In this regard, the House of Lords held in American Cyanamid: ‘It is not part of the Court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult question of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.’ In Macassar Land Claims Committee v Maccsand CC [2003] ZALCC 21 at p 14, this Court held that ‘… where the grant of the interim interdict results in significant inconvenience for the respondent, a higher standard of proof is required of the applicant under the ‘serious question to be tried’ criterion. Conversely, where the inconvenience to the respondent is insignificant, a lesser standard of proof may be accepted.’