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2022
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[2022] ZANCHC 33
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Sishen Iron Ore Company (Pty) Ltd v Mosala and Another (661/22) [2022] ZANCHC 33 (1 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
CASE NO.: 661/22
Date Heard: 27 May 2022
Date Delivered: 1
June 2022
Reportable:
NO
Circulate
to Judges: NO
Circulate
to Regional Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
SISHEN
IRON ORE COMPANY (PTY) LTD
Applicant
and
LAZARUS
MOSALA
First Respondent
THE
GAMAGARA LOCAL MUNICIPALITY
Second Respondent
ORDER
1.
The first respondent, and all persons occupying the Remaining Portion
2 of the Gamagara Farm 541 (“
the Property
”), are
evicted.
2.
The first respondent, and all persons occupying the Property, must
vacate the Property, as aforesaid, within a period of 14 days
from
the date of this order.
3. Should the first
respondent and all persons occupying the Property neglect and/or fail
to vacate the Property within the aforesaid
period, the Sheriff of
the High Court or his lawfully appointed deputy is authorised and
directed to evict them from the Property,
and to demolish all
structures on the Property.
4.
The applicant and first respondent are to comply with the terms of
the Relocation Agreement (as defined in the founding affidavit),
and
in addition to those terms, the applicant shall after the
relocation of the first respondent as aforesaid,
4.1.
inspect the gravel road providing access to
Farm Sacha 468 (“
the Farm
”),
and where any issues are identified by the first respondent, the
applicant will, at its own costs, attend to the necessary
repairs to
the surface of the gravel road that provides access to the Farm to
enable a normal vehicle to traverse the relevant
portion or portions
of such gravel road; and
4.2.
at its cost, to erect a metal shed on the
Farm, with a metal or other roof covering and a concrete base, and
where animal feed may
be stored by the first respondent.
JUDGMENT
Tlaletsi
JP
[1]
The applicant in these proceedings is Sishen Iron Ore Company (Pty)
Ltd a private company with limited liability duly incorporated
in
terms of the company laws of the Republic of South Africa having its
registered address at no:124 Akkerboom Road, Centurion
Gate, Gauteng.
[2]
The first respondent is Mr Lazarus Mosala (the respondent), an adult
male residing at the Remaining Potion 2 of Gamara Farm
541, Northern
Cape Province.
[3]
The second respondent is the Gamagara Local Municipality, cited in
these proceedings by virtue of its statutory and Constitutional
duty
to provide temporary accommodation to any occupiers found on the
property that are not included in the Dingleton Resettlement
Project. The second respondent is not opposing the proceedings.
[4]
The
applicant is the owner of the Remaining Portion 2 of the Gamagara
Farm 541 (the Property) which is currently occupied by the
respondent. The applicant launched this application
on urgent basis seeking an order evicting and or relocating
the
respondent from the Property. The relief sought was in two
parts. In terms of Part A, the applicant sought leave
to serve
the application including a Notice contemplated in section 4(2) of
the Prevention of Illegal Eviction and Unlawful Occupation
of Land
Act
[1]
(PIE Act). Relief
in terms of Part A was granted by Nxumalo J on 5 April 2022.
[5] The relief sought in
Part “B” which remains for determination in these
proceedings, is on the following terms:
“
1.
Dispensing with the forms, service and time periods prescribed in
terms of the Uniform Rules of Court
and directing that the matter be
disposed of as one of urgency in terms of Rule 6(12) of the Uniform
Rules of Court.
2.
That the first respondent, and all persons occupying through him, be
evicted form Remaining Portion
2 of the Gamagara Farm 541 (“the
Property”)
3.
That the first respondent, and all persons occupying through him,
must vacate the property, as
aforesaid, within a period of 10 days,
from the date of this order; alternatively, on another date which the
Court finds to be
just and equitable in the circumstances.
4.
That, if the first respondent and all persons occupying through him,
neglect and/or fail to vacate
the Property within aforesaid period,
the Sheriff of the High court or his/[her] lawfully appointed deputy
is authorised and directed
to evict them from the Property.
5.
That the first respondent be ordered to pay the costs of this
application.
6.
Further and/or alternative relief.”
[6]
A factual
background is apposite. There is little, if any, that is not
common cause. The property which is the subject
to these
proceedings was part of the property which was owned by the Doornvlei
Vereeniging vir Gemeenskape Eiendom (“the
Association”)
[2]
.
The respondent was a member of the Association. On 22 August
2005 the applicant and the Association concluded a written
agreement
in terms of which the Association sold the property to the
applicant. Transfer of the property to the applicant
took place
on 21 December 2005.
[7] The property is zoned
for the carrying of mining. The applicant as the owner of the
entire property and the holder of
the mining right over the property
requires vacant possession thereof to pursue its mining activities.
All other members of the
community who resided on the property due to
their membership and as beneficiaries of the Association, have
vacated the property
and reside at a property provided by the
applicant being Siyathemba and parts of Kathu. The respondent
is the only person
who has not vacated the aforesaid property.
[8] On or about 16
January 2018, at Johannesburg, the applicant and the respondent duly
represented by his erstwhile attorneys,
Richard Spoor Inc, entered
into a written Settlement Agreement in terms whereof the parties
reached an agreement in full and final
settlement of the issues
relating to the terms of the respondent’s relocation from the
Property.
[9]
The relevant terms of the Settlement Agreement provided that - the
applicant would secure alternative land for the respondent,
which
would accommodate all his livestock and suitable structures for him
and his immediate family to live in; the structures
would
include access to water suitable for human consumption, adequate
sanitation and electricity. Where the structure is
located in
an isolated area away from other people, security feature would be
included, including burglar bars. It was further
agreed that
once an alternative location was identified by the applicant, and
confirmed by Dr Koos Pretorius (BVet) (Dr Pretorius)
or another
suitably qualified expert agreed to by the parties, the applicant
would ensure that the respondent and his livestock,
family, and
possessions are relocated to the alternative location by 28 February
2018.
[10] It was further
agreed that the applicant would carry the costs of removal and the
transport of goods, personal items, furniture
and clothing of the
respondent to the alternative location. The applicant would
also be responsible for the moving insurance
cover in respect of all
of the respondent’s items, to their full replacement value, as
provided for in the agreement with
the removal company. The
applicant would not pay any excesses which may arise as a result of a
claim. It was further agreed
that the applicant’s entitlements
to the new land would never be worse than those which he enjoyed in
respect of the Property
he was occupying. And the respondent
would relinquish any rights he may have had, in respect of the
Property.
[11]
On or about 15 September 2021 the parties concluded a further written
agreement commonly known as the Relocation Agreement.
The
purpose of the latter agreement was to record the terms of the
respondent’s relocation and his entitlements as provided
for in
the Settlement Agreement. The relevant provisions of the
Relocation Agreement provided for the nature of the housing/dwelling
that would be provided and the number of livestock that could be
supported on the land to be provided to the respondent.
The
applicant was to erect a livestock ramp on the new or alternative
land. Dr Pretorius was identified to provide advice
on the
suitability of the land for purposes of agriculture and livestock
grazing. The respondent would together with the
applicant’s
land manager conduct an inspection of the land to ensure compliance
with the terms of the parties’ agreements.
[12] It is the
applicant’s case that it has complied in full with the terms
and conditions of the Settlement and the Relocation
agreements.
It has provided the suitable structure to accommodate the respondent
with his immediate family up to a maximum
of four members. It
also provided access to water which is safe for human consumption,
adequate sanitation and solar power.
The batteries for the
solar power are to be replaced by the applicant every three to five
years as anticipated. The applicant
is also tendering payment
of a curtain allowance of R15 000-00 and an inconvenience
allowance of R50 000-00 to the respondent
once he has vacated
the property, as provided for in the Relocation Agreement.
[13] There were other
benefits that the respondent would enjoy after his relocation.
These included provision for reasonable
additional livestock feed for
a period of 24 months from the date of relocation and a guaranteed
enjoyment of his new rights in
the land provided to him for the
duration of the agreement. According to the applicant, it has
to date spent an amount of
R8 625 934-77 to provide for the
respondent in compliance with the parties’ agreements.
[14] The relocation date
was subsequently agreed to lapse on 10 January 2022. By this
date, the respondent refused to be relocated.
Instead, on 12
January 2022, contrary to the agreement, which was in full, and final
settlement of all claims by the parties, the
respondent made further
demands. He demanded a shed for his livestock and repairs to
the gravel road that provided access
to the new property. The
applicant without any obligation to do so, undertook to inspect the
gravel road in the presence
of Dr Pretorius and do the necessary
repairs and erect a simple metal shed on the property. It
undertook to provide for these
services only after the respondent had
relocated, failing which the offer would lapse. The respondent
has however, not responded
to the offer and remain in occupation of
the Property.
[15] The applicant
contends that this matter is urgent for the following reasons.
It conducts mining activities that are of
critical economic
importance to the Gamagara Local Municipality, the Northern Cape
Province and the country at large. It
operates the largest open
cast iron mining activity in the world. Its activities are
carried on in terms of a Mining Plan
that has been carefully designed
to enable the exploitation of the iron ore to its maximum potential
and keep production costs
within such parameters that will allow the
applicant to sell the ore it mines profitably.
[16]
The
respondent’s refusal to vacate the Property the applicant
contends, has very serious consequences for the applicant.
He
occupies an area which is within 500m of the outskirt of the area
which the applicant needs to blast as prescribed by the
Regulations
[3]
. The area
used by the respondent for grazing has been demarcated for dumping
mining waste. It will be costly for the
applicant to travel a
distance of more than 4km to dump the waste at an alternative site.
The entire area should be prepared
for the mining operations.
Delays in mining due to the respondent’s refusal to vacate the
Property will affect the
quality of the product to be produced and
will not have enough ore available in future.
[17]
The applicants submitted that further delays would not place the
applicant in the same position it is, unless urgent relief
is
granted. Furthermore, the applicant is one of the largest
employers in the Northern Cape employing approximately 79% of
all
mining employees in the province and with a current staff complement
of more than 10 000 (including contractors), 7855
of whom are
employed by the applicant. It provides countless indirect jobs
to local and provincially based suppliers and
service providers.
Some of its employees are people who used to live in the property and
agreed to relocate to Siyathemba
and other parts of Kathu.
These employment beneficiaries are likely to suffer should the
applicant not proceed with its mining
operations in the area.
[18] The applicant has
been able to demonstrate that its mine contributes a significant
amount to the local economy annually and
provides a significant
centre of socio-economic activity in the area and is also an
important source of welfare for the community.
For example in
2021, alone, more than R21 billion in tax reserve and minimal
royalties went to supporting government and South
African’s;
the applicants increased its capital investment in the Northern Cape
by 30% to R8 billion; the applicant supported
BEE suppliers with
R10.3 billion of spend, of which R4.1 billion went to host community
suppliers and it contributes R258 million
towards building thriving
communities, including its Covid-19 support. There is no doubt
that the applicant plays a meaningful
role in the socio-economic
upliftment of the Northern Cape Province.
[19] On 6 May 2022, which
was the date of hearing of Part B of this application, the respondent
appeared in person. He challenged
the legality of the sale of
the property to the applicant by the Association as well as the
Settlement and Relocation agreements.
He mentioned that he was
forced to sign these documents by his erstwhile attorneys against his
will. This Court gave him
an opportunity to obtain legal
representation of his choice, alternatively to approach the Legal Aid
South Africa for assistance,
so that he can file opposing papers.
He subsequently filed an affidavit dated 4 May 2022 in which he
confirmed his challenge
to the conclusion of the Settlement Agreement
and his signature on the Relocation Agreement.
[20] On 20 May 2022, the
respondent again appeared in person. The Legal Aid South Africa
confirmed that he applied for assistance
on 6 May 2022 as directed.
However, they only contacted him telephonically the previous day in
the afternoon to inform him
that his application had been
unsuccessful. Since this was short notice, the court gave him a
further opportunity to obtain
legal advice and representation. The
matter was postponed to 27 May 2022 for hearing.
[21] In the meantime, the
applicant filed an affidavit deposed to by Mr George Ivor Butela Kahn
of Richard Spoor Inc attorneys.
He refuted the verbal
allegations made by the respondent that he was forced to agree to the
Settlement Agreement and to sign Relocation
Agreement. And that
he did not understand these documents which were written in the
English language which is not his mother
tongue. It is not
necessary to repeat the details of the affidavit of Mr Kahn because
of the subsequent position taken by
the respondent. It suffice
to mention that Mr Kahn confirms that the respondent was assisted by
their firm in the negotiations
conducted in accordance with
International Finance Corporation Performance Standards for
resettlements (also known as the IFCPS5,
and further explained in the
IFC Guidance Note 5) with the applicant.
[22]
According to Mr Kahn, he was part of a team consisting of his well
experienced senior director Mr Richard Spoor, and Dr Gwendolyn
Wellman (PhD), who is an expert in the IFC PS5 and community
resettlements. He mentioned that it was clear during those
settlement negotiations and that the respondent was aware and
accepted that he was not the owner of the Property he occupied and
only gained occupation by virtue of being a member of the
Association. He stated that the respondent had agreed to
relocate
the Property and for that reason, inter alia, Dr Koos
Pretorius (BVet), a veterinarian and independent farmer was requested
to
assess whether the alternative land was adequate for the
respondent’s purposes and needs. Mr Kahn confirmed that the
applicant
complied with the strict requirements set by Dr Pretorius
in organising a new farm for the respondent’s needs. He
concluded
that he signed the Settlement Agreement on behalf of the
respondent in January 2018 and the respondent signed his Settlement
Agreement
in September 2021 well aware of the circumstances applying
to him. He mentioned that he was treated fairly throughout the
negotiations and he made his own valuable inputs. Therefore,
the respondent was surrounded by numerous parties acting in
his best
interests, consulting with him and advising him from time to time.
Mr Kahn mentioned further that it was only when
the respondent
decided not to comply with the terms of the agreements, against their
advice and the risk and consequences of his
new stance, that they on
15 February 2022 withdrew from acting on his behalf.
[23] On 23 May 2022 the
respondent filed an opposing affidavit drafted with the assistance of
his new attorney Mr Alexander Mathewson
of PGMO Attorneys.
In this affidavit the respondent disputes the urgency of this
application on the basis that
the applicant allege that he was to be
relocated during January 2022 and only brought this application in
April 2022.
[24] Regarding the merits
of the application, the respondent mentioned that he is willing to
relocate, something that he told the
applicant numerous times.
He only demanded compliance by the applicant with the agreement
between them by providing an accommodation
similar to what he is
presently occupying. He mentioned that he lives in a six roomed
brick and mortar structure and the
applicant has only provided a zinc
structure, which according to him is too small for his family of four
people. Secondly,
he contended, the applicant should also have
put burglar bars before the windows and doors, for his safety.
Thirdly, the
condition of the road leading to the farm is likely to
cause damage to his vehicle. It is only if these demands are
met that
he will relocate.
[25] At the hearing of
the application on 27 May 2022, the respondent appeared in person.
The Registrar made telephonic enquiries
at the PGMO Attorneys.
Mr Mathewson advised that he did not have instructions to appear on
behalf of the respondent.
The respondent elected to personally
present his case. The court gave him an opportunity during the
proceedings to consult
with the person who accompanied him. He
indeed took advantage of this opportunity.
[26] In his address to
the Court the respondent reiterated that he did not refuse to
relocate but wanted the applicant to
comply with the demands he
made. He made further ‘requests’ namely, that he be
paid an amount of R1,5 million
and monthly royalties since the
applicant is going to make a lot of money with its mining
operations. He further had a problem
with the fact that the
duration of the settlement agreement was for twenty years only, and
was concerned about what would happen
to him thereafter if he is
still alive, or to his family.
[27]
The sudden change by the applicant that he is willing to relocate
provided that new demands are met is significant. I
am willing
to accept, and indeed the respondent personally indicated to the
court on previous occasions, that he did not comply
with the
Settlement and Relocation agreements because those were not his
instructions and were forced on him. He made it
clear that it
is only the Association and or the government that will tell him to
vacate the land. That sharply contradicts
his latest position
that he had always been willing to vacate.
[28]
As to the
urgency of the matter, I am satisfied that the applicant has
succeeded in making such a case.
[4]
It has been demonstrated that the continued employment of its
employees and job opportunities created by its mining operations,
the
economy of the area, the Province and the country at large, the
social upliftment of the communities in the area, are at enormous
risk. A hearing in due course would cause irreparable harm to
the applicant. Section 34 of the Constitution guarantees
the
applicant the right of access to court and to have its dispute
resolved expeditiously in these circumstances.
[29] The applicant
required the property in order to exercise its legitimate and lawful
mining rights and has been preparing the
land surrounding the
property for several years in accordance with its plans to optimize
the return. All that is left is
the operations to begin.
It cannot do so for as long as the respondent is still occupying the
property. To conduct
its operations around and to the exclusion
of the area occupied by the respondent would not only be a
contravention of the Health
and safety Act and Regulations but would
also be dangerous to the respondent, his family members, livestock
and his belongings
in general.
[30] It is clear that
further delays would exacerbate the financial losses to be suffered
by the applicant. Given the circumstances
of the respondent,
the applicant would in all likelihood not be in a position to recover
such losses. Without doubt, everyone
is at the risk of
suffering just for one man who wants to prolong his stay with a view
to extracting more personal financial benefits
from the applicant.
[31]
The respondent has ultimately conceded that the applicant is in fact
the owner of the property and he has to vacate the land.
The
applicant has at enormous expense, complied with the Settlement
Agreement and the subsequent Relocation Agreement. It
has spent
in excess of R8.6 million to provide for the respondent.
Although the respondent’s continued occupation makes
him an
“unlawful occupier” for the purposes of the PIE Act, what
is at stake is strictly speaking, not his eviction
from the property
but his relocation as agreed in the Relocation Agreement he concluded
with the applicant.
[32]
The
respondent was requested to place before this Court, circumstances
that would persuade the Court to conclude that it would not
be just
and equitable to order his ‘eviction’ or relocation from
the property.
[5]
The only
factors which he mentioned were the nature of the dwelling structure,
the provision for burglar bars for security,
a shed and repairs to
the gravel road.
[33]
It is evident from the Settlement Agreement and annexures thereto,
that the dwelling structure that was ultimately constructed
complies
with what was envisaged. The structure and its details are as
set out in Annexure ‘C’ to the Relocation
Agreement and
was confirmed to meet the respondent’s needs by Dr Pretorius.
The photographs of the completed structure
show that the dwelling has
burglar bars inside, solar heating system, toilet, shower and basin
in the bathroom. The kitchen
area is fitted with a Gas Stove
and a Purified Water Supply System. The entire dwelling has
ceramic tiled flooring.
[34] The Settlement
Agreement as well as the Relocation Agreement specifically provided
that their terms were in full and final
Settlement and that the
respondent shall not have any further claim or action against the
applicant in relation to the new
land. Despite these
clauses, the applicant has offered to inspect the gravel road
providing access to the new land and to
repair any issues identified
by the respondent at its costs. It further undertook to erect a
metal shed on the new land with
a metal or other roof covering and a
concrete base, and where animal feed may be stored by the respondent.
[35] In the
circumstances, the relocation of the respondent will not render him
homeless. In fact, he will be moved to a place which
is better than
that he currently occupies and which accommodated his preferences.
In conclusion, it would therefore be just
and equitable to grant the
relief sought. On the contrary, failure to grant the relief sought by
the applicant would cause more
harm than good to the applicant, its
employees, the community, the economy of the province and the country
at large: just for one
person.
[36]
What remains is the period within which the respondent has to be
relocated. He knew from the time that the settlement
negotiations took place and when other members of the Association
relocated that he would also be required to relocate. The
inordinate delays has been caused by his reluctance or refusal to
cooperate. It is not him but the applicant who has to carry
the
costs associated with his relocation. A period of fourteen days
from the date of this order would in the circumstances
be reasonable.
[37] Regarding costs, the
applicant has indicated that despite the respondent’s conduct
throughout the period of delay and
the manner in which he conducted
this lititgation, it would nevertheless not persist with a cost order
against him. This
is a commendable gesture.
[38] In the result the
following order is made:
1. The first respondent,
and all persons occupying the Remaining Portion 2 of the Gamagara
Farm 541 (“
the Property
”), are evicted.
2. The first respondent,
and all persons occupying the Property, must vacate the Property, as
aforesaid, within a period of 14 days
from the date of this order.
3. Should the first
respondent and all persons occupying the Property neglect and/or fail
to vacate the Property within the aforesaid
period, the Sheriff of
the High Court or his lawfully appointed deputy is authorised and
directed to evict them from the Property,
and to demolish all
structures on the Property.
4. The applicant and
first respondent are to comply with the terms of the Relocation
Agreement (as defined in the founding affidavit),
and in addition to
those terms, the applicant shall after the relocation of the
first respondent as aforesaid,
4.1.
inspect the gravel road providing access to
Farm Sacha 468 (“
the Farm
”),
and where any issues are identified by the first respondent, the
applicant will, at its own costs, attend to the necessary
repairs to
the surface of the gravel road that provides access to the Farm to
enable a normal vehicle to traverse the relevant
portion or portions
of such gravel road; and
4.2.
at its cost, to erect a metal shed on the
Farm, with a metal or other roof covering and a concrete base, and
where animal feed may
be stored by the first respondent.
_______________________
L.
P TLALETSI
JUDGE
PRESIDENT
On
behalf of the Applicants:
Adv. A Pullinger
Assisted
by:
Adv. P.J Daniell
Instructed
by:
Haarhoffs Inc.
On
behalf of the Respondent:
In Person
[1]
Act 19 of 1998.
[2]
Communal Property Association.
[3]
Regulation 4.16(2) of the Regulations relating to explosives in
terms of the
Mine Health and Safety Act, 1996
.
[4]
Section
5 of the PIE Act.
[5]
Id
s
4(7).