Dutch Reformed Presbytery: Mafikeng v Minister of Public Works and Others (LCC 43/2021) [2022] ZALCC 23 (11 March 2022)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC 43/2021

In the matter between:

DUTCH REFORMED PRESBYTERY: MAFIKENG

Applicant

and

MINISTER OF PUBLIC WORKS

First Respondent

MINISTER OF DEFENCE AND MILITARY VETERANS

Second Respondent

MINISTER OF AGRICULTURE,

RURAL DEVELOPMENT AND LAND REFORM

Third Respondent

KAGISANO-MOLOPO LOCAL MUNICIPALITY

Fourth Respondent

JUDGMENT

COWEN J

Introduction

[1] These proceedings concern the provision of services to occupiers in terms of the Extension of Security of Tenure Act, 62 of 1997 (ESTA). The affected community is known as the Pomfret Community, which lives in a village called Pomfret, an old asbestos mining village located on state-owned land in the North West Province, some two hours’ drive north of Vryburg. There is no dispute in these proceedings that the residents of Pomfret are occupiers as defined in ESTA and they

are entitled to its protections. There are currently about 328 households residing in Pomfret, which has an estimated population of about 3200 people.

[2] The Applicant is the Dutch Reformed Presbytery: Mafikeng,[1] a voluntary association, which is one of 144 presbyteries of the Dutch Reformed Church, and part of its Northern Cape Synod. The

Applicant brings the application in the interests of the people who reside in Pomfret. Pomfret is situated on state-owned land known as Portion 10 of the Farm Pomfret No 189, Registration Division JM, North West Province (Pomfret Farm).[2]

[3] The First Respondent is the Minister of Public Works, cited in her official capacity as the nominal owner of Pomfret Farm. The Second Respondent is the Minister of Defence and Military Veterans, cited in her official capacity as the person allegedly in charge of Pomfret Farm as contemplated by ESTA. The Third Respondent is the Minister of Agriculture, Rural Development and Land Reform, the Minister responsible for ESTA, and the Fourth Respondent is the Kagisano-Molopo Municipality (the Municipality). Pomfret Farm falls within the Fourth Respondent’s municipal jurisdiction.

[4] The Applicant seeks various relief against the First and Second Respondents.[3] The relief sought is declaratory and interdictory in nature and is intended to secure the restoration of services to the Pomfret Community to the levels enjoyed by the Community prior to 2005. During that year, a process of relocation of the Pomfret Community commenced and with it, according to the Applicant, a substantial reduction of services to inadequate and unacceptable levels. The relocation process has now been halted by virtue of an interim interdict granted in 2008 by Ellis AJ but adequate services have not been restored. The Applicant also seeks relief against the Municipality aimed centrally at ensuring compliance with the orders sought.

[5] The application was instituted in April 2021. The founding affidavit is deposed to by a Professor Knoetze.[4] A notice of appearance was entered on 24 May 2021 on behalf of the First, Second and Third respondents. However, no answering affidavits

were filed, even in the face of a notice to deliver dated 24 June 2021. On 29 July 2021, the First to Third Respondents delivered an affidavit styled an explanatory affidavit deposed to by Ramabele Matlala, the Regional Manager for the Mmabatho Regional Office of the Department of Public Works and Infrastructure. The affidavit confirms that the relief sought is not opposed. The Applicant opposes the admission of the affidavit as precluded by the Rules, but has replied to it.

[6] The application first came before me on the unopposed roll on 25 October 2021. The Applicant was represented by Mr Vorster and the First and Second Respondents were represented by Ms Mteto, who confirmed, again, that her clients were not opposing the application. After hearing the parties, and in accordance with Ms Mteto’s request, I postponed the application until 19 November 2021 to enable the First and Second Respondents to file an affidavit (by 12 November

2021) setting out how they intended to provide water on an urgent basis to the Pomfret Community and setting out their proposals

regarding the provision of services more generally. However, as matters transpired, the affidavit filed did not materially address

these issues. Rather, Mr Matlala explained that a meeting was held on 27 October 2021 with some stakeholders, namely, officials from the Office of the Premier of the North West Province and the Municipality. Further meetings were to be held with additional

stakeholders but did not materialise. On 19 November 2021, I was informed that the First and Second Respondents wished to oppose the application on a point of non-joinder of government departments responsible for the provision of services, specifically, those

responsible for the provision of water, sanitation, health services and electricity.

[7] I then postponed the application again until 8 December 2021 to allow the issue of non-joinder to be ventilated. On that day, Mr Vorster again appeared for the Applicant and the First and Second Respondents were represented by Mr Matebesa SC, who appeared with Ms Mteto. As I explain below, I have concluded that the non-joinder of these parties

is not a bar to the granting of appropriate relief against the First and Second Respondents, provided there is due appreciation of the nature of the duties that reside with the state respondents as owners of property and persons in charge of it.

ESTA and the legislative framework

[8] The Constitutional Court has held that ESTA is remedial legislation umbilically linked to the Constitution of the Republic of South Africa (Constitution), which protects people whose tenure to land is insecure.[5] ESTA protects occupiers[6] of certain land[7] in various ways. Various protections are material for purposes of these proceedings including:

8.1 ESTA occupiers are granted rights in terms of section 6 of ESTA which provides, in relevant part:

“(1) Subject to the provisions of this Act, an occupier shall have the right to reside on and use the land on which he or she resided and which he or she used on or after 4 February 1997, and to have access to such services as had been agreed upon with the owner or person in charge, whether expressly or tacitly.

(2) Without prejudice to the generality of the provisions of section 5 and subsection (1), and balanced with the rights of the owner or person in charge, an occupier shall have the right - …

(e) not to be denied or deprived of access to water; and

(f) not to be denied or deprived of access to educational or health services.”

8.2 ESTA protects occupiers from eviction[8] without a court order obtained under section 9.

8.3 Where occupiers have been evicted contrary to the provisions of ESTA, courts are empowered under section 14 of ESTA and specifically section 14(3) to grant various orders, subject to conditions the Court may impose, specifically:

“(a) for the restoration of residence on and use of land by the person concerned, on such terms as it deems just;

(b) for the repair, reconstruction or replacement of any building, structure, installation or thing that was peacefully occupied or used by the person immediately prior to his or her eviction, in so far as it was damaged, demolished or destroyed during or after such eviction;

(c) for the restoration of any services to which the person had a right in terms of section 6;

…”

[9] Put simply, the Applicant is requesting this Court to grant declaratory and interdictory relief in terms of sections 6 and 14 of ESTA in respect of services to which the Pomfret Community had access prior to the events that commenced in 2005. Those events, it is contended, ultimately resulted in the unlawful deprivation of access to adequate services in breach of ESTA which has continued to date.

Factual background

[10] The factual background is set out primarily in the founding affidavit of Professor Johannes Knoetze. As mentioned, the Respondents did not timeously file any opposing affidavit. In circumstances where no answering affidavits were filed in response thereto, this Court may accept the facts averred. The Respondents did, however, thereafter file an affidavit styled as an explanatory affidavit, albeit late and without seeking

condonation. The Applicants objected, as they were entitled to do. The Rules of this Court make provision for state respondents to file a report whether or not they are participating in the proceedings.[9] That is not what occurred. It is indeed troubling that parties, not least state parties, consider themselves entitled to file affidavits

in proceedings without complying with the Rules of Court and without seeking condonation for the conduct. I have nevertheless concluded

that even if I have regard to the content of the explanatory affidavit filed on behalf of the First and Second Respondents, the

facts averred by the Applicant are materially supported. There are only limited points of difference, which on careful scrutiny do not, at least in the main, create genuine disputes of

fact at least on material issues.[10] Where there are genuine disputes of fact, I do not have to resolve them in order to decide the application before me. In these

circumstances, I have had regard to the content of the explanatory affidavit. However, I return to the State’s conduct when

dealing with costs.

[11] Socially and historically, the origin of Pomfret village is intimately linked to South Africa’s brutal past and more specifically the activities of the former South African Defence Force (SADF) in Angola, the former South West Africa and South Africa’s own townships. Given the limited information before me and the risks attendant on courts venturing into historical narrative,[11] I don’t intend to attempt any determinative historical narrative, but the history does matter, because it partly explains

the vulnerability of Pomfret’s residents which informs the issue of standing, and the vulnerability of the Community, and in turn, informs my assessment of what is appropriate and effective relief. Furthermore, the history as I recount it is materially common cause. In this regard, Professor Knoetze explains the roots of the community in the Angolan civil war - which saw some defeated

combatants of the Frente Nacional de Libertacao de Angola and civilians fleeing south to a town known as M’pupa located on

the Angolan border with what was then South West Africa. Amongst those who ended up in M’pupa include people who became part of a unit of the former SADF initially known as the Bravo Group and later renamed 32 Battalion, which was based at a military base called ‘Buffalo’ in the Caprivi Strip. When Namibia obtained independence in 1990 and South Africa withdrew, members of the battalion were withdrawn to Pomfret Farm. Professor Knoetze suggests that it was not politically possible for battalion members to return to Angola. A settlement emerged on Pomfret Farm constituting, at its peak, some 5000 people of whom some 1000 were soldiers. In a process facilitated by the former SADF, residents were given South African citizenship. Pomfret soldiers were then deployed in the early 1990’s to police townships in Johannesburg’s East Rand and in KwaZulu-Natal, part of what has notoriously become known as the ‘third force’. The unit was disbanded in March 1993 and some soldiers were integrated into the new South African National Defence Force (SANDF). Older veterans and family members remained in Pomfret and still live there today. Many of the residents of Pomfret are of Angolan descent and speak Portuguese, although the younger generation is increasingly multi-lingual, learning SeTswana, English and Afrikaans at school.

[12] The Pomfret Community has apparently faced various challenges since 1994, when South Africa’s democratic era commenced. Again, I do not have sufficient information to attempt any determinative historical or social narrative but what is apparent from the information before me is that today the Pomfret Community remains defined by its history, and has faced and continues to face a profoundly uncertain existence. One important feature of this is ongoing efforts to resettle and relocate the Community to which I now turn. In dealing with this, I also deal with certain factual disputes.

[13] Prof Knoetze explains, and it is not disputed, that in the late 1990’s, the SANDF wanted to resettle the Pomfret Community in Rustenburg and Zeerust. However, he continues: “the Community approached Popo Molefe, then-Premier of North West, who agreed to let them stay in exchange for their support of the ANC”. On 18 July 2003, Cabinet took a decision to relocate Pomfret’s residents[12] and mandated the Department of Defence to implement the relocation. There is a dispute about whether the relocation decision was taken with or without consultation. However, there is no suggestion that there is any court order authorising any eviction in terms of ESTA or otherwise. And it is clear that even if some members of the Pomfret Community have agreed to relocate, many have not.

[14] It is common cause that the State’s stated reason for the decision to relocate the Pomfret Community is asbestos contamination resulting from the historical mining activities. Professor Knoetze explains that this explanation is not accepted by aggrieved members of the Pomfret Community.[13] Mr Matlala, the deponent for the state respondents,[14] reiterates their view that the continued inhabitation of the town poses serious health risks to its residents: he says that when mining activities ceased the mine was not properly decommissioned. It is not necessary for me to seek to resolve these issues because wherever the truth lies, any eviction of ESTA occupiers must still be authorised by court order and none has been sought or obtained under ESTA.

[15] Professor Knoetze explains that in 2005, officials of the Second Respondent informed the Pomfret Community that they would be relocated in June 2005. As matters transpired, there was no relocation at that time and a rumour surfaced that a new date for removal was set for December 2005. However, by that time and in the months that followed, service delivery was significantly scaled down. For example, as regards policing, the police station was closed down and vandalism and petty crime increased without consequence. The water situation deteriorated – about half of the houses receive running water for a few hours every two to three days. Access to health services was affected: the local clinic was closed down and the community now rely on a mobile clinic which attends the town only once a week. The nearest hospital is in Vryburg, nearly 200 km away. Electricity supply was ultimately disrupted.

[16] Nearly three years later, on March 12 2008, some 50 armed police officers under the command of a Superintendent Masilo arrived. They claimed, according to Professor Knoetze, to be there to protect those residents who had agreed to relocate. About 15 families were relocated that day. If Professor Knoetze’s account of the events that took place that day is accurate, there can be no doubt that the Pomfret Community was subjected to brutal and profoundly inhumane treatment. What is clear is that the relocation efforts were indeed at the instance of the State. Mr Matlala explains in this regard that in June 2007, the government had established an Inter-Governmental Task Team which included both the First and Second Respondents and other entities in order to, amongst other things, facilitate relocation. It is however, not necessary for me to make findings regarding the legality or illegality of what transpired that day, or precisely what happened, and I accordingly refrain from doing so as these events are likely to be the subject of ongoing court process. As indicated above, there is no court order authorising any

eviction at this stage and the rights of the ESTA occupiers remain enforceable.

[17] What is material for present purpose is not disputed. Specifically, the events of March 2008 led to the institution of legal proceedings which have served to halt the relocation process. In this regard, on 22 March 2008, about 300 heads of households representing more than 3000 residents attended a community meeting to consult with legal representatives. The full litigation history is not before me but on 11 September 2008, Ellis AJ granted an interim interdict operating against the Minister of Safety and Security, the Minister of Public Works and the Minister of Defence, pending the resolution of application proceedings to stop an alleged constructive eviction of Pomfret Community at the hands of the State. The Community’s rights of access to various services is asserted in those proceedings against various parties, but not under ESTA. That application is

still pending before the Gauteng High Court in Pretoria. In the meantime, the interim interdict restrains the Respondents from

relocating any person from Pomfret to any other place and damaging, vandalising or demolishing any habitable property in Pomfret. The interim interdict was varied by Makgoba J on 23 September 2008 in respect of certain persons who indeed wished to be relocated without disturbance.

[18] In 2017, the Department of Planning, Monitoring and Evaluation commissioned a diagnostic evaluation of the current situation in Pomfret. The evaluation was undertaken by a company called Quest Research Services (Pty) Ltd (Quest). Quest submitted a report to the Department in 2017 (the Quest Report). The authors of the Quest Report are not ultimately opposed to a relocation and there is a recognition that the challenges relating to asbestos pollution must be confronted. However, the Quest Report simultaneously confirms that Pomfret is without adequate basic services such as water, sanitation, electricity, solid waste removal and health and that there has been limited provision of services since 2008 after the suspension of the relocation process by court order. In this regard, the Eskom power supply to Pomfret was apparently cut in December 2014, which affected the water supply, and since then the Community has been left without access to these services. This in turn has resulted in the boreholes

not working and the Pomfret Community, in the result, has no adequate supply of water. Only 4 of the 6 boreholes are working but only partially as two transformers that provide electricity to the area are not working. Only 23% of the Community had access to water. Sedibeng Water was providing 6 Jojo tanks into which water is intermittently pumped to address the water shortage. Pomfret

previously had access to waterborne sanitation services but the lack of water provision has adversely affected this and sanitation

services are in a deplorable condition. This results in spillage of sewage in the streets when the reticulation system is put to use which affects households and the two schools. Other households use bucket water to flush or create their own pit latrines. The clinic in Pomfret was closed due to lack of water and electricity and at present there is access to health care services only via a weekly mobile service. There is a health facility in Setabeng used by 77% of the Community while 18% use a clinic in Ganyesa, about 135km away. As few as 1.2% of the Community drive their own private vehicles, about 66% rely on public transport to commute and 22.3% walk.

[19] Prof Knoetzer thus explains that the Pomfret Community is currently without access to adequate basic services such as electricity, water, sanitation, health and policing services and he confirms that there has been only limited provision of such services following the grant of the order of Ellis AJ in 2008, which halted the relocation process.

[20] As regards service provision, Mr Matlala points to events in 2015 when the Pomfret school apparently complained to the office of the President about the cutting off of water and electricity. After an investigation it was resolved that the Municipality must provide potable water and that solar panels would be installed. During the investigation, Eskom Holdings (SOC) Limited reported that its infrastructure had been vandalised, with the result that there was a hazard to the community. This in turn resulted in boreholes not being able to function properly.

[21] Mr Matlala contends that services are being provided to the Pomfret Community albeit at a limited scale. He avers that the reason why water is not being provided is the disconnection of the electricity supply as explained above. Water is only provided twice a week through the Municipality. He accepts that water supply is inconsistent and inadequate. He notes that there are structural problems with the boreholes that are supposed to provide water to the Community which are being attended to with the assistance of the Municipality. As regards electricity, he says that Eskom took a decision to disconnect the provision of electricity due to vandalism and the resultant health hazards. Challenges include illegal connections, non-compliance with electricity safety standards and a failure on the part of Pomfret residents to pay for electricity. Mr Matlala confirms that there is a mobile clinic available once a week to the community and a hospital approximately 200km away (the norm in rural areas). He says that there is a police station attending to the Community’s safety in the area and that there is no problem regarding the provision of educational services.

[22] In reply, the Applicant points out that there has at no stage been any attempt to comply with the requirements of ESTA to evict the Pomfret Community. Regarding the claim that the Pomfret Community members did not pay for electricity, it is pointed out that it is common cause in the High Court proceedings that the Department of Public Works had refused to pay the electricity bill and that Eskom was willing to reconnect it if the bill was paid. The imminent eviction is said to be the reason for the disconnection. In response to the allegations about vandalism, the deponent points out that the vandalism occurred after the electricity supply was interrupted and fell into disrepair and that this is not a reason to deprive a community of access to electricity on an ongoing basis. Similarly, it is pointed out that the supply of water was interrupted long before the electricity supply was compromised. The water infrastructure fell into disrepair because the Department of Public Works refused to do maintenance on the basis that the Pomfret Community should be relocated. As regards the adequacy of access to health care, Prof Knoetzer demonstrates that in effect, only one member of a household will be seen per annum, and the mobile clinic is inadequate. Mention is made of an incident where a pregnant female delivered her baby in the bush next to the road while walking from Pomfret to the nearest clinic.

The position of the Second Respondent

[23] It is common cause that Pomfret farm is owned, nominally, by the First Respondent, the Minister of Public Works. The position of the Second Respondent is less clear. Counsel for the Second Respondent, Mr Matebesa submitted that the Second Respondent no longer has any role in respect of Pomfret or Pomfret farm. In this regard, the Applicant alleges that the Second Respondent remains in charge of Pomfret farm. Mr Matlala explains, and it is confirmed by Lieutenant-General Jabulani Sydney Mbuli, Chief of Logistics in the Department of Defence, that during the democratic negotiations, the Department of Defence was entrusted with providing support infrastructure in the form of electricity, water reticulation and purification of waste water amongst other services. He continues that since the decommissioning of the 32 Battalion, the Department of Defence “no longer uses the property”. The Department of Defence, however, is part of the Inter-Governmental Task Team which was set up by the government in June 2007, amongst other things, “to facilitate relocation” of the Pomfret Community. Indeed, it is apparent from Mr Matlala’s explanatory affidavit that the Department of Defence is entrusted with “the funding of the relocation process.” In a subsequent affidavit, Lieutenant-General Jabulani Sydney Mbuli confirms that the Department of Defence does not own Pomfret Farm and he alleges, in the result, that there has been a misjoinder of the Second Respondent.

[24] I do not agree that there has been any misjoinder. First, the Second Respondent was not joined as the owner of Pomfret Farm: the First Respondent nominally owns the farm and was joined in that capacity. Second, although the nature of the Second Respondent’s responsibilities in respect of Pomfret Farm may have changed over time, the Second Respondent has confirmed on affidavit that it retains important responsibilities regarding its control. Importantly, it is not in dispute that the Second Respondent facilitated the settlement of the Pomfret Community on Pomfret Farm in the first place and the Second Respondent’s officials confirm that the Department of Defence was directly responsible for providing services to Pomfret and its residents when Pomfret Farm was used for military purposes. Although the property is no longer used for military services, Pomfret village remained occupied by its residents, and the Second Respondent has been and remains directly involved in government’s ongoing attempts to relocate the Pomfret Community. These attempts – as I conclude below – are one of the reasons for the current absence of adequate services. The Second Respondent thus cannot seek to wash her hands of any responsibility for the exercise of the State’s duties in terms of ESTA at this time. The Department of Defence may not be the only state department responsible for control of Pomfret Farm, but it does have some ongoing control and its ongoing control over the property is the reason for the Second Respondent’s joinder and why relief is sought against her together with the First Respondent.

The joinder argument

[25] Put simply, the First and Second Respondents contend that they have no mandate to provide services as such water, electricity, health services, policing or education. The Minister of Public Works contends that she is, simply, the custodian of the State’s fixed assets. Mr Matebesa submitted at the hearing on 8 December 2022 that the Ministers responsible for the provision of these services must be joined to the proceedings. In response, Mr Vorster (counsel for the applicant) submitted – in effect – that the Applicants are not seeking relief against these other Ministers. Rather, the relief sought is sought against the First and Second Respondents in their capacities as the owners and persons in charge of Pomfret Farm in terms of ESTA and is limited to compelling them to do what is within their power to do both constitutionally and under ESTA or any other law including the common law of ownership. I agree with Mr Vorster that, in these circumstances, there is no need to join these other Ministers. Moreover, this conclusion is fortified once the nature of the rights that vest in the State as an owner of property is appreciated, an issue that has received the attention of the Constitutional Court in Kyalami Ridge,[15] and to which I return below.

Entitlement to relief

[26] In considering whether the Applicant is entitled to relief, various issues arise. In circumstances where the application is, in substance, unopposed, I deal briefly with three main issues.

[27] First, in its notice of motion, the Applicant sought, as its first prayer, an order that it be granted leave to prosecute the application as a class action or as a public interest action. However, Mr Vorster clarified during argument that the Applicant is not seeking to prosecute a class action of the sort requiring certification, in other words matters such as Ngxuza,[16] Pioneer Foods[17] or Harmony Gold Mining.[18] Rather, the Applicant is acting in the interests of those living in Pomfret Community (including but not limited to its congregants) and in the public interest and the sufficiency of their interest or their standing to do is not in issue.[19] I am moreover satisfied that it is entitled to do so.[20] The Applicant has a large congregation in Pomfret and knowledge of its history, is concerned not only about the interests and welfare of its congregants but the interests of the broader Pomfret Community. Pomfret is a remote and poor village, making access to courts

challenging, and its residents are vulnerable in part as a result of their history, and in part as a result of its poverty profile and the relief sought can facilitate the effective realisation of important constitutional rights.

[28] Secondly, I have considered the duty the State assumed to provide services to the Pomfret Community. There is no written or express agreement to provide services. But this does not mean that there is no such duty. By relocating the community to Pomfret, establishing the village and providing adequate services over the years until 2005 including in respect of water, sanitation, electricity and health care services until about 2005, initially through the Second Respondent, a tacit agreement[21] must be in place that the owner and persons in charge of the State-owned land would take such steps as are necessary to ensure

that adequate services are available to its residents. Indeed, Mr Matebesa accepted that a duty of that nature is present subject to due recognition of the constitutional and statutory powers and duties of the First and Second Respondents. What is not clear in his concession, however, is whether the First and Second Respondents appreciate the nature and full scope of their powers and duties as landowners and persons in charge of Pomfret Farm, as articulated in Kyalami Ridge.[22]

[29] In Kyalami Ridge, the Constitutional Court held in this regard that where the government owns property, it has at least the same rights as any other owner of property which it must assert within the framework of the Constitution and the restrictions of any relevant legislation.[23] It is only where legislation prescribes the manner in which particular functions are to be performed by government that such legislation overrides any powers the government might have as owner of the property.[24] It accords with these established principles that where the State owns property to which ESTA applies and occupiers protected by ESTA reside on that property, the State’s rights and duties as landowner must be exercised in accordance with ESTA and in a manner that gives effect to the important constitutional rights that ESTA fulfils.[25] That includes, amongst others, the rights of occupiers to human dignity[26] and to live in habitable conditions consistent with human dignity.[27] The Constitution specifically requires the State to respect, protect, promote and fulfil the rights in the Bill of Rights and the State is bound by the Bill of Rights.[28] In circumstances such as in this case, where a State functionary – as owner or the person in charge of property – has agreed to provide services in terms of section 6 of ESTA, it must diligently comply with those obligations consistently with the right to human dignity and other rights protected in the Bill of Rights.[29]

[30] Importantly, owners and persons in charge of property, and a fortiori State owners, are well placed to facilitate access to services provided by the organs of State entrusted with related responsibilities.[30] But they are also empowered to do much themselves, subject to lawful restriction. For example, an owner or, where appropriate, the person in charge of property, may, subject to applicable laws, install pumps, boreholes, tanks and erect solar power on their property and they can erect and maintain buildings that can be used for health care or other purposes related to service provision. They can effect repairs, reconstruct and replace items used to facilitate access to services. They can, furthermore, conduct the necessary investigations and engagements, and process the necessary applications, with relevant organs of State to facilitate access to services. There will be many other things they can do. These are powers associated with ownership itself and, in some instances, control over property.

[31] Thirdly, I have considered whether the First and Second Respondents have breached their duties. On the evidence before me, I have concluded that they have. It is common cause that there is inadequate access to water and that there is no longer access to electricity. At the very least, access to adequate water and access to electricity must be restored as soon as possible. Mr Vorster contended that it is established on the papers that the residents of Pomfret were deprived of their access to adequate water when the efforts to remove the residents commenced in 2005. The First and Second Respondents’ explanatory affidavit, in some measure, put in issue whether this is the correct date and rather suggest that it was only when electricity was cut off (for disputed reasons) in 2014 that the borehole pumps were no longer fully operational. But the Applicants are entitled to appropriate relief whatever the correct date of deprivation. And the disputed reasons for the termination of electricity supply do not constitute sufficient reason to refuse to take such steps as are necessary to ensure that access to electricity is restored in an appropriate way. A denial of access to water linked to the right of residence under ESTA is an “eviction” as defined in ESTA, and if effected without a court order, entitles the evictee to restoration under section 14(3)(c) of ESTA. Moreover, the duties assumed by the landowner and persons in charge of the property to provide access to adequate services in accordance with their tacit agreement can be enforced not only in terms of section 14(3)(c) of ESTA but in accordance with the tacit agreement. The Applicants also complain about deprivation of access to health services and sanitation. On the evidence before me, I am satisfied that, as a result of the lack of provision of water, access to sanitation is no longer adequate. I am also satisfied that access to health services is no longer provided at adequate levels as a result of the process of relocation that ensued in and after 2005.

[32] Importantly, instead of actively pursuing their powers as landowners and persons in control of Pomfret Farm to redress the situation, the First and Second Respondents seek largely to pass on responsibility to other State functionaries. It is true that the First and Second Respondents have sought to call a meeting or two to engage with certain stakeholders, but they have failed to convene the necessary meetings to date, or with all relevant stakeholders. Moreover, they must do more - must diligently fulfil their obligations in terms of ESTA by asserting the powers they have as owners and persons in charge of Pomfret Farm. On the evidence before me, they simply have not done so. In all of these circumstances, the Applicants are entitled to appropriate relief in terms of section 6 and 14 of ESTA and the question is what relief should be granted.

Appropriate relief

[33] The Applicants seek various relief, both declaratory and interdictory in nature. The relief is sought primarily against the First and Second Respondents, but certain relief is also sought against the Municipality. They also seek costs against the First and Second Respondents.

[34] The declaratory relief is to declare that the First and Second Respondents are denying or depriving the Pomfret Community of access to water, electricity, sanitation and health services. In my view, the Applicants are entitled substantially to this relief. I insert the word ‘adequate’ before ‘water’.

[35] The interdictory relief sought against the First and Second Respondents is in two separate prayers, prayer 3 and 4. Prayer 3, if granted, would direct the First and Second Respondents to repair, reconstruct and replace the water, electricity, sanitation and health service infrastructure in Pomfret ‘to the same standard prior to 2005’ and prayer 4, if granted, would order the restoration of these goods ‘to the same levels enjoyed by the community prior to 2005.’ While the Applicants are entitled to appropriate relief, I am not satisfied that this relief, if granted, would be effective.[31] The prayers do not explain precisely what it is that must be done to repair, reconstruct or replace the infrastructure in question, nor what level of services must be attained in order to comply with the order and precisely what was in place prior to 2005. Moreover, the relief, as sought, fails to recognise that there is no fixed moment at which the deprivation and denial of access to adequate services occurred. This does not, however, mean that effective relief cannot be granted on the papers before me. I propose to grant two alternative orders which are aimed at achieving the same objective as the relief sought but which, in my view, can provide effective relief to a vulnerable community. First, I direct the First and Second Respondents to take such steps as are necessary in their capacities as landowner and persons in charge of the property (to the extent that they are) to provide access to adequate water, electricity, sanitation and health services. Second, I direct them to report back to this Court what has been done to achieve this and in doing so to specify their assessment of accessibility. Should further relief then be required because the adequacy of service provision pursuant to this order is disputed, it can be sought on the same papers, duly supplemented.

[36] The relief sought against the Municipality, if granted, would require the Municipality to report to this Court regarding the compliance by the First and Second Respondents of their duties under the order and to provide the Court with detailed information regarding the provision of adequate services. In my view, the Municipality’s assistance with ensuring the compliance of the First and Second Respondents with the order is an important element of securing effective relief. But the order sought may be too onerous on the Municipality and I accordingly grant more limited relief in this regard while still requiring the assistance of the Municipality in view of its constitutional and statutory responsibilities regarding the provision of services.

Costs

[37] The Applicant seeks costs against the First and Second Respondents. This Court only grants costs in special circumstances subject to the principles articulated in in Affordable Medicines Trust[32] and Biowatch[33]. In my view, the Applicant is entitled to its costs on a party and party scale. This is because the Applicant has approached this Court in the interests of others to secure their constitutional rights against the State. I am, furthermore, mindful that the participating State respondents failed to comply with the rules of this Court when prosecuting this application, specifically as regards the belated filing of the “explanatory affidavit” without seeking condonation, the failure to make proposals for the resolution of the matter (being the purpose of the initial postponement) and the very belated efforts to oppose the application on questions of joinder, all of which resulted in unnecessary delays.

Order

[38] The following order is made:

1. It is declared that the First and Second Respondents are denying or depriving the Pomfret Community of access to adequate water, electricity, sanitation and health services.

2. The First and Second Respondents are directed to take such steps as are necessary in their respective capacities as owner and persons in control of the property to restore the residents of Pomfret Community with access to adequate water, electricity, sanitation and health services and, where relevant, to facilitate their restoration through

any responsible organ of State.

3. The First and Second Respondents, shall, within six months of the date of service of this order on the State Attorney, deliver a report under oath detailing:

a. the steps that have been taken by each respondent to comply with paragraph 2 above;

b. detailing whether the Pomfret Community has access to water,

electricity, sanitation and health services and the extent, quality and adequacy thereof;

c. detailing the type, source, quantity and quality of water,

electricity, sanitation and health services accessible to each occupier and the basis upon which it is contended that the service

levels are adequate;

d. indicating, as far as possible, whether the service levels are in accordance with service levels prior to 2005.

4. The Kagisano-Molopo Local Municipality shall, within six months of the date of service of this order, report to the Court regarding compliance by the First and Second Respondents with this order with reference to the matters identified in paragraph 3 above.

5. Following the delivery of the report, the Applicant is granted leave to approach the Court for further relief on the same papers, duly supplemented where necessary.

6. The First and Second Respondents are directed to pay the costs of the application, jointly and severally, the one paying, the other to be absolved.

Judge of the Land Claims Court

APPEARANCES

Applicant: Adv A Vorster instructed by Moolman & Pienaar Incorporated

First to Third Respondents: Adv Matebesa SC and Adv Mteto instructed by the State Attorney, Pretoria

[1] The city formerly known as Mafikeng is now officially known as Mahikeng.

[2] Pomfret Farm is held under title deed number T311/1989 as is 2569.2962 hectares in extent.

[3] In the notice of motion, the following relief is sought, in addition to further or alternative relief: 1. That leave be granted to the applicant to prosecute this application, either as a class action, alternative as a public interest action. 2. That it be declared that the Department of Public Works and Defence are denying or depriving the Pomfret Community of access to water, electricity, sanitation and health services. 3. That the Department of Public Works and Defence be ordered and directed to repair, reconstruct and replace the water, electricity, sanitation and health service infrastructure in the village of Pomfret, to the same standard prior to 2005. 4. That the Departments of Public Works and Defence be ordered and directed to restore the water, electricity, sanitation and health services to the village of Pomfret to the same levels enjoyed by the community prior to 2005. 5. That the Department of Public Works and Defence pay the cost of the application, jointly and severally, the one paying, the other to be absolved. 6. That the Kagisano-Molopo Local Municipality, within six (6) months of the date of the order, file a report under oath with the Court, which report shall detail compliance by the Department of Public Works and Defence with the obligations imposed on them by the terms of this order. 7. The report by the Kagisano-Molopo Local Municipality shall further identify all the occupiers residing in the Village of Pomfret and the extent to which the Departments of Public Works and Defence complied with the terms of this order, with specific reference to the following: a. Whether each occupier has access to water, electricity, sanitation and health services; b. If the occupiers have access to water, electricity, sanitation and health services: i. Indicate the type and source of water, electricity, sanitation and health services; ii. Indicate the quality and quantity of water, electricity, sanitation and health services; iii. Indicate the accessibility of water, electricity, sanitation and health services.

[3] In the notice of motion, the following relief is sought, in addition to further or alternative relief:

1. That leave be granted to the applicant to prosecute this application, either as a class action, alternative as a public interest action.

2. That it be declared that the Department of Public Works and Defence are denying or depriving the Pomfret Community of access to water, electricity, sanitation and health services.

3. That the Department of Public Works and Defence be ordered and directed to repair, reconstruct and replace the water, electricity, sanitation and health service infrastructure in the village of Pomfret, to the same standard prior to 2005.

4. That the Departments of Public Works and Defence be ordered and directed to restore the water, electricity, sanitation and health services to the village of Pomfret to the same levels enjoyed by the community prior to 2005.

5. That the Department of Public Works and Defence pay the cost of the application, jointly and severally, the one paying, the other to be absolved.

6. That the Kagisano-Molopo Local Municipality, within six (6) months of the date of the order, file a report under oath with the Court, which report shall detail compliance by the Department of Public Works and Defence with the obligations imposed on them by the terms of this order.

7. The report by the Kagisano-Molopo Local Municipality shall further identify all the occupiers residing in the Village of Pomfret and the extent to which the Departments of Public Works and Defence complied with the terms of this order, with specific reference to the following:

a. Whether each occupier has access to water, electricity, sanitation and health services;

b. If the occupiers have access to water, electricity, sanitation and health services:

i. Indicate the type and source of water, electricity, sanitation and health services;

ii. Indicate the quality and quantity of water, electricity, sanitation and health services;

iii. Indicate the accessibility of water, electricity, sanitation and health services.

[4] Professor Knoetze is an Associate Professor in Practical Theology and Mission Studies at the University of Pretoria and, over many years, a Minister of the applicant with personal involvement with the Pomfret Community.

[5] Klaase and another v Van der Merwe NO and others [2016] ZACC 17 at paragraph 51.

[6] As defined in section 1 of ESTA.

[7] As contemplated in section 2 of ESTA.

[8] “Evict” is defined in section 1 of ESTA to mean “to deprive a person against his or will of residence on land or the use of land or access to water which is linked to a right of residence in terms of this Act, and ‘eviction’ has a corresponding meaning.”

[9] Rule 26(4) of the Land Claims Court Rules.

[11] In this regard, I am mindful of the cautions expressed by Cameron J in Daniels and Scribante and another [2017] ZACC 13 (Daniels) at paras 145 – 152.

[12] Allegedly recorded in Cabinet Memorandum No 9 of 2003 (dated 18 July 2003) (MOD/501/10158910).

[13] Prof Knoetze explains in these terms. Pomfret is near the site of an asbestos mine which closed in 1987 and which was rehabilitated

by the mine operators, Griqualand Finance and Exploration Company. Members of the Pomfret Community have questioned whether concerns about asbestos are the true reason for attempts to relocate them for the following reasons: (a) despite the lapse of over a decade, nothing had been done to mitigate any exposure to asbestos, (b) no scientific data had ever been brought to the community’s attention regarding the concerns, (c) despite community members having undergone tests for asbestos related illness, no one had been diagnosed with asbestosis or malignant mesothelioma and (d) other communities affected by asbestos were not removed but their surroundings were, rather, scheduled for rehabilitation. Moreover, in January 2006, members of the Pomfret Community visited Heuningvlei, a town north west of Pomfret, also the site of an asbestos mine, in January 2006. Although the town was visibly affected by asbestos, there were no efforts to move its residents. Rather, a public tender in October 2005 for asbestos mine rehabilitation projects notably did not include Pomfret in its scope. There is a perception in the Pomfret Community that attempts to relocate them are driven by their unpopularity flowing from their political history and a perception that the community is a “cesspool of mercenary activity”.

[14] See above para [5].

[15] Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another (Mukhwevho Intervening) 2001 (3) SA 1151 (CC) (Kyalami Ridge).

[16] Ngxuza v Permanent Secretary, Department of Welfare, Eastern Cape 2001 (2) SA 609 (E); Permanent Secretary, Department of Welfare, Eastern Cape and another v Ngxuza and others [2001] ZASCA 85.

[17] Children’s Resource Centre Trust v Pioneer Foods 2013 (2) SA 213 (SCA); Mukkadam v Pioneer Foods (Pty) Ltd and Others (Legal Resources Centre as Amicus Curiae) 2013 (5) SA 89 (CC).

[18] Nkala and Others v Harmony Gold Mining Co Limited and Others 2016 (5) SA 240 (GJ).

[19] Section 38(a), (c) and (d) of the Constitution.

[20] Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at paras 229 and 234; Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC) at para 17; and Albutt v Centre for the Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC) at para 34.

[21] In terms of section 6(1) of ESTA.

[22] Above n15.

[23] Kyalami Ridge above n15 at para 40. In accepting this principle, the Constitutional Court had regard to Hogg’s description of the

Canadian government’s rights as owner of property in the following terms: “….(U)nless there are legislative or constitutional restrictions applicable to a piece of property, it may be sold, mortgaged, leased, licensed or managed at the pleasure of the responsible government, and without the necessity of legislation. The Crown’s power to do these things is not a prerogative power, because the power is not unique to the Crown, but is possessed in common with other legal persons.”

[23] Kyalami Ridge above n15 at para 40. In accepting this principle, the Constitutional Court had regard to Hogg’s description of the

Canadian government’s rights as owner of property in the following terms:

“….(U)nless there are legislative or constitutional restrictions applicable to a piece of property, it may be sold, mortgaged, leased, licensed or managed at the pleasure of the responsible government, and without the necessity of legislation. The Crown’s power to do these things is not a prerogative power, because the power is not unique to the Crown, but is possessed in common with other legal persons.”

[24] Kyalami Ridge above n15 at para 41.

[25] Sections 7(2), 8(1) and 39(2) of the Constitution.

[26] Section 5(a) of ESTA and section 10 of the Constitution.

[27] Daniels above n11. See also Government of the Republic of South Africa and Others v Grootboom and Others [2000] ZACC 19.

[28] Section 7(2) and 8(1) of the Constitution.

[29] It is not necessary for me in this judgment to consider whether these obligations are more onerous on the State than a private party.

[30] And in doing so would be bound to comply with Chapter 3 of the Constitution dealing with Co-operative Governance and the legislation made to give effect thereto.

[31] Fose v Minister of Safety and Security [1997] ZACC 6 at para 69.

[32] Affordable Medicines Trust and Others v Minister of Health and Another [2005] ZACC 3; at paras 138 and 139.

[33] Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14.