About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2024
>>
[2024] ZANCHC 34
|
|
Minister of Defence v Khosis Community and Others (2248/2019) [2024] ZANCHC 34 (5 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 2248/2019
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
MINISTER
OF
DEFENCE
Applicant
and
KHOSIS
COMMUNITY
1
st
Respondent
ALL
OTHER PERSONS OCCUPYING
PORTION
OF LOHATLA MILITARY BASE
(KHOSIS
AREA)
2
nd
Respondent
TSANTSABANE
LOCAL
MUNICIPALITY
3
rd
Respondent
GA-SEGONYANE
LOCAL MUNICIPALITY
4
th
Respondent
Coram: Lever J
JUDGMENT
Lever
J
1. This
is an application to evict the first and second respondents from a
military training ground in the Northern
Cape. There is a long
history that precedes the matter. The history will be dealt with
where it is relevant to the case put before
this court.
2. The
matter was first argued before me on the 19 February 2021. At the end
of oral argument, there were two
issues raised in the papers that
concerned me. The first was whether the correct local authority had
been cited at that stage of
the proceedings. The second issue was
whether those that were entitled to compensation had in fact been
compensated. On the 19
February 2021 I made the following order to
partially deal with my concerns:
“
1)
The applicant is given 5 weeks from today to furnish satisfactory
evidence from the Land
Demarcation Board or the appropriate
Government Gazette supported by an appropriate affidavit to establish
which Local Municipality
is responsible for the geographical area
where the respondents currently reside, known as the Khosis area.
2)
The first and second respondents will be given two weeks from the
date on which
the applicant supplies the information contemplated in
Order 1 above to deal with such evidence.
3)
Should the applicant fail to provide the evidence sought in Order 1
above within
the contemplated time period I will issue an Order of
Absolution from the Instance with costs in favour of the first and
second
respondents.
4)
The matter is postponed
sine die
and judgment is reserved
pending the fulfilment of the orders set out above.”
3. On
the 25 March 2021, in compliance with the said order quoted above,
the applicant filed the affidavit of
MALETE DANIEL SEBAKE (Mr
Sebake). Mr Sebake described himself as an adult male Senior Manager:
Operations Technology employed by
the Municipal Demarcation Board. Mr
Sebake purported to confirm that the first and second respondents
resided in the area that
fell under the authority of the Tsantsabane
Local Municipality.
4. Then
on the 21 April 2021 the first and second respondents filed an
affidavit showing that Mr Sebake was dealing
with a property with a
similar name, but which had nothing to do with the present
application.
5. Then
in an interlocutory application whose Notice of Motion is dated 18
August 2021, the applicant sought leave
to re-open its case and join
as a fourth respondent the Ga-Segonyane Local Municipality. The
founding affidavit in this application
to re-open the case was
deposed to by BRIGADIER GENERAL DIAMOND MESHAK MADIE (the General).
The General deposed that after receiving
the first and second
respondents answer to Mr Sebake’s affidavit, they referred the
evidence provided by the first and second
respondents to the
Demarcation Board for their consideration. On the strength of the
information provided by the first and second
respondents, the
Demarcation Board, according to the General, changed their position.
It is on this basis that the applicant sought
to re-open its case and
join the Ga-Segonyane Local Municipality as the fourth respondent.
6. The
General expressed the view that as nobody was able to produce an
official document confirming which Local
Authority carried
responsibility, he still had his doubts. It was on this basis that
the applicant sought to join the Ga-Segonyane
Local Municipality as
the fourth respondent.
7.
Initially, the first and second respondents opposed this application
to re-open the case and join the fourth
respondent. However, the
first and second respondents never filed an answering affidavit. Then
on the 11 March 2022 the first and
second respondents withdrew their
opposition to the application to re-open and join the Ga-Segonyane
Local Municipality. On the
same date the first and second respondents
also filed a Notice to Abide the decision of the court in the said
application to re-open
and join the fourth respondent.
8. The
matter was set down before me on the 18 March 2022. I then made an
Order in the following terms:
“
1)
Leave be and is hereby granted to re-open its case under case number
2248/2019.
2)
The Fourth Respondent (Ga-Segonyane Local Municipality) be and is
hereby joined
in the main application under case number 2248/2019.
3)
The Applicant be and is hereby granted leave to file a further
affidavit incorporating
only averments relating to the Fourth
Respondent within ten (10) days of the date of the order in this
application.
4)
The Fourth Respondent be and is hereby ordered to file its answering
affidavit
within fifteen (15) days of the receipt of the further
affidavit as stated in prayer 3 of the notice of motion, if it
intends to
oppose the main application under case number 2248/2019.
4a)
The First and Second Respondent may file a further affidavit if it is
necessary for them to respond
to any new matter that may emerge from
either the Applicant’s or the Fourth Respondent’s
affidavits filed as a result
of this order. The First Respondent and
the Second Respondent shall have 15 days from the date that the
Fourth Respondent files
its affidavit or such affidavit becomes due.
5)
There is no order as to costs.”
9.
Neither Third nor the Fourth Respondents opposed the main
application. They also did not file any affidavits
in this
application.
10. The parties then
informally requested some time to enter into negotiations with each
other. This request was informally accommodated.
11. Then on the 29 July
2022 the applicant filed two memoranda from the Commission on
Restitution of Land Rights. The first memorandum
is dated the 14
March 2022 and relates to the Gatlhose Community claim. The second
memorandum is dated the 9 May 2022 and refers
to the case number of
the present matter. These memoranda deal with the compensation
question, which is the second issue referred
to above with which I
had and still have concerns.
12. On the 17 August 2022
the first and second respondents’ attorney responded to the
said memoranda. It is clear from the
said response that the question
of compensation has not been resolved. Should this court grant an
eviction as sought by the applicant,
it remains one of the questions
that has to be managed by this court.
13. I addressed a letter
dated 31 August 2022 to the litigating parties inviting them to a
conference in my chambers at a mutually
convenient time.
14. Then on the 12
September 2022 as I had requested, representatives of the applicant
and the first and second respondents attended
a meeting in my
chambers. The applicant was represented by Ms Unibe and the
respondent was represented by Mr Motlhamme. At the
conclusion of this
meeting, I issued the following directive:
“
1)
The applicant and the first and second respondents are to make
representations to me on whether
it is appropriate that this court
make an order as part of its structured order that any eviction that
might result from the application
be suspended until this court is
satisfied that appropriate compensation has been made (monetary or
comparable land) to the first
and second respondents entitled to such
compensation.
2)
Such representations should also address the form that such
structured order
on the question of compensation should take.
3)
Such submissions will be written submissions.
4)
The applicant to file such written submissions on or before the 31
October 2022.
5)
The first and second respondents to file their written submissions on
30 November
2022.”
15.
Neither the applicant nor the first and second respondents made the
written submissions sought in the above directive.
16.
Preceding
the current eviction application herein, the applicant and the
Premier of this Province sought a declaratory order before
the Land
Claims Court (LCC) invoking the provisions of section 34 of the
Restitution of Land Rights Act
[1]
that no part of the reserves known as the Maremane and Gatlhose shall
be physically restored to any claimant. The Land Claims Court
granted
such Order substantially in the terms sought.
[2]
The matter went on appeal to the Supreme Court of Appeal (SCA), who
dismissed the appeal.
[3]
Thereby
upholding the ruling of the LCC.
17.
This is the background in which I write the present judgment.
18.
The first and second respondents opposed the application for
eviction, principally on preliminary matters, being: a pending
eviction application launched in 1993 that was stayed pending a
restitution claim in respect of the relevant land; a claim that
the
first and second respondents acquired the relevant land by way of
acquisitive prescription and that the right to evict the
first and
second respondents had prescribed; the applicant had failed to
disclose a cause of action; the court does not have jurisdiction
to
entertain this matter; the deponent to the applicant’s founding
affidavit lacks the authority to bring this application;
the
applicant did not comply with section 4(2) of the PIE Act; and the
municipality having jurisdiction over the land in question
was not
joined.
19.
Turning first to the plea of
Lis Alibi Pendens,
the applicant
admits that indeed the applicant brought an eviction application in
1993. However, the applicant goes on further
to add that indeed the
matter was stayed pending the outcome of the restitution proceedings
but that currently no one could trace
the said 1993 eviction
application. The applicant asserts that the first respondent who
raises the issue has not supplied a copy
of the Notice of Motion in
that 1993 application and by implication has also not supplied the
case number of the 1993 application.
20.
Mr Mene SC who appeared for the applicant submitted, firstly, that
the first respondent who has the onus of proof has not discharged
that onus by not producing a Notice of Motion with a case number on
it. Secondly, having regard to the lapse of time from 1993
and the
fact that the 1993 application cannot be traced, the practical effect
of allowing a plea of
lis alibi pendens
to succeed in those
circumstances would be a permanent bar on the applicant from bringing
a new application for eviction. Mr Mene
submitted that such an
approach cannot be sustained in the circumstances.
21.
Mr Mene’s first submission on the onus of proof cannot be
sustained. The applicant has indeed admitted the 1993 application
for
eviction. From the context, it is apparent that the said 1993
eviction application has not been finalised. The first and second
respondents have no further onus to discharge on this question.
22.
However, Mr Mene’s second submission is far more persuasive. In
circumstances where nearly three decades have passed since
the
institution of the 1993 eviction application. Which was apparently
stayed for the Land Claims proceedings to run its course.
Where no
record of the 1993 application can be found or traced. Where nobody
has knowledge of the relevant case number. Where the
proceedings in
the Land Claims Court and the subsequent appeal to the SCA had run
its course and no further steps had been taken
in the 1993
application since it was initially stayed and also subsequent to the
outcome of the appeal to the SCA, in practical
terms, in the
circumstances set out above, one must simply regard the 1993 eviction
application as having been abandoned. It cannot
be pursued in the
circumstances which have been placed before this court.
23.
Clearly, in the said circumstances the 1993 eviction application
cannot, on the facts set out above be revived. The first and
second
respondents will suffer no prejudice if the 1993 eviction application
is regarded as having been abandoned.
24.
The arguments of Mr Mongala that the applicant ought to have
disclosed the 1993 application especially in the
ex parte
section 4(2) proceedings of the PIE Act are not persuasive, appear to
be opportunistic, and certainly show no prejudice to the
first and
second respondent.
25.
On the other hand, as Mr Mene points out if the effect of the
untraceable 1993 application acts as a permanent bar to the applicant
seeking the eviction of the first and second respondents, the
applicant will suffer great prejudice. Mr Mene further submits it
would not be reasonable to expect the applicant to search for the
1993 application indefinitely.
26.
In my view Mr Mene’s submissions on this aspect are correct. I
find as a fact in the circumstances outlined above that
the
applicant’s 1993 eviction application cannot be revived. I find
that the correct and pragmatic approach in the circumstances
is to
regard the applicant’s 1993 application as having been
abandoned. That as a result of this finding should the relevant
court
papers ever be traced in the future; such 1993 application can never
be revived.
27.
This disposes of the first preliminary point. Moving to the next
raised by the first and second respondent being the contention
that
the first and second respondents have acquired the land in question
by way of acquisitive prescription.
28.
Mr Mongala on behalf of the first and second respondents has
submitted that the applicant has not denied that the first and
second
respondents had been in possession of the land in question prior to
the coming into operation of the Natives Land Act of
1913 and had
remained on the land subsequently. That in 1976 those in the
community that were identified as “Black”
were removed
from the Gatlhose and Maremane reserves. That that applicant took
occupation of the Gatlhose and Maremene Reserves.
I take it that Mr
Mongala means that the predecessor of the applicant took possession
of the Gatlhose and Maremane Reserves. That
the applicant’s
occupation of the Gatlose and Maremane Reserves in 1978 encircled the
first and second respondents until
the present time. That prior to
the 1943 Prescription Act coming into operation the first and second
respondents had occupied the
relevant land for more than 30 years.
29.
Mr Mongala relied on the contention made by Mr Free, the deponent to
the first and second respondents answering affidavit, that
the first
respondent had been in civil possession of the land for over 100
years.
30.
Therefore, Mr Mongala submitted that the first and second respondents
could not now be evicted.
31.
Mr Mene, on behalf of the applicant, pointed out that the version put
forward now by Mr Free is at odds with the version accepted
by the
Land Claims Court and specifically referred to paragraph 9 of the
judgment of Meer AJ in the Land Claims Court. This version
was also
accepted by the SCA. The relevant paragraph reads as follows:
“
In
about early 1978 after the removal of the Gatlhose and Maremane
Communities the Government decided to establish a battle school
on
the former Reserves for training of the Defence Force, and the
reserves were allocated for this purpose. The Khosis community
was
consequently moved from the different parts of the Reserves over
which they were scattered and confined to an area of some
14000
hectares. As the Defence Force extended the Battle School, the Khosis
area came to be encircled by it and the community found
itself
increasingly restricted. The army placed constant pressure on the
community to vacate the Khosis area and negotiations for
their
relocation ensued for more than a decade. These culminated in the
greater part of the community voluntarily moving to Jenn
Haven in
1992, where farms and grazing land were allocated to them. However, a
small part of the Khosis community, led by one Joseph
Free, refused
to move. Despite increasing pressure to force them out of the Khosis
area, they managed to continue in occupation
in the middle of the
Battle School. The ‘Free Group’, as they have come to be
called, is steadfast in its determination
to remain in the Khosis
area.”
[4]
32.
Despite Mr Mene specifically referring to this paragraph in argument,
quoting it directly in his Heads of Argument filed on
behalf of the
applicant, Mr Mongala did not deal with it and merely contented
himself by standing by his own Heads of Argument.
33.
The pertinent issue relied upon by Mr Mene for the applicant is that
the Khosis community were gathered up from all over the
two reserves
and settled on the land now in question in 1978 when the Battle
School was established. Mr Mene further contended
that when the first
respondent lodged its land claim in 1994 as the first respondent sets
out in paragraph 4.11 of its answering
affidavit, a period of 30
years had not run in respect of the land now in question.
34.
In my view, Mr Mene is correct in his submission that the 30-year
period had not in fact run. However, the applicant takes it
further
and Mr Mene points out that the title deed for the relevant property
was registered in 1961. He points out that the title
deed is annexed
to the papers, and it was not seriously placed in dispute. Mr Mene
Submitted that in these circumstances it makes
no sense to go back to
1913 and before.
35.
Further, Mr
Mene referred the court to
section 3
of the
State Land Disposal Act
of 1961
[5]
, and submitted the
provisions of that act taken in conjunction with the fact that the
relevant piece of land was only occupied
by the relevant community
from 1978 onwards that acquisitive prescription of the relevant land
was not possible in law.
36.
Accordingly, having regard to the history of the Khosis community
placed before and accepted by the Land Claims Court and the
submissions made by Mr Mene on behalf of the applicant, I find that
the first respondent could not have acquired the relevant land
by way
of acquisitive prescription.
37.
Although, the finding set out above is sufficient to dispose of the
matter, I am also not satisfied that on the case made out
by the
first and second respondents on the papers filed on their behalf in
this matter, that they occupied the relevant land
nec precario
for the periods in which they occupied the two reserves referred to
above as well as the piece of land relevant to the present
eviction
application.
38.
Accordingly, I find that the first and second respondents cannot
claim to have acquired the land in question by way of acquisitive
prescription.
39.
The next contention made by the first and second respondents is that
the applicant has failed to make out a cause of action.
In support of
this contention, Mr Mongala on behalf of the first and second
respondents submitted that the applicant had not made
out a case that
dealt with the first and second respondents right of occupation and
the termination thereof.
40.
Mr Mene counters that the applicant has produced the title deed for
the property concerned. Has, in the papers placed before
this court,
referred to the SCA judgment in the matter and particularly
paragraphs [18] and [19] thereof which dealt with the history
of the
dispute and the decision of the overwhelming majority of the Khosis
community to relocate to Jenn Haven where they were
allocated
alternative land. Special emphasis was placed on the last sentence of
that paragraph shows that the ‘Free Group’
had resisted
the State for a period of 17 years prior to 1994. Clearly, Mr Mene
submits on the strength of the SCA finding the
first and second
respondents did not have consent for the continued occupation of the
relevant land.
41.
Mr Mene
continues that it is clear from paragraphs 9.1 and 9.2 of the
applicant’s founding affidavit herein that the applicant
relies
on the provisions of the PIE Act.
[6]
42.
In short Mr Mene argues that applicant has established its right by
providing the title deed and establishing applicant’s
custodianship of the land in question in applicant’s founding
affidavit and showing on the strength of the SCA judgment that
the
first and second respondents no longer had consent to occupy the
land.
43.
I believe Mr Mene is correct that the applicant has established a
valid cause of action under PIE. This preliminary point also
stands
to be rejected.
44.
The next
preliminary point taken by the first and second respondents is that
this court does not have jurisdiction to hear the matter
in that the
land is rural land and that the application should have been brought
under the provisions of ESTA.
[7]
45.
Central to both the arguments relied upon by both the applicant on
the one hand and the first and second respondents on the
other is the
question of ‘consent’ required for the application of
ESTA.
46.
Mr Mongala argues that in 1978 when the first and second respondents
were relocated from other parts of the reserve to the land
presently
occupied by them, the first and second respondents had at least tacit
consent to occupy the relevant land if not actual
consent. Mr Mongala
further argued that tacit consent was enough for ESTA to find
application.
47.
On the face of it, Mr Mongala’s argument seems sound. However,
Mr Mene countered that before the ESTA came into operation
on the 28
November 1997 and before PIE came into operation on the 5 June 1998,
the applicant lodged an eviction application in
1993. Mr Mene’s
argument is that this 1993 eviction application would have
effectively terminated any ‘consent’
to occupy be it
tacit or actual.
48.
The
Constitutional Court in the matter of RESIDENTS OF JOE SLOVO
COMMUNITY, WESTERN CAPE v THUBELISHA HOMES & OTHERS (CENTRE
FOR
HOUSING RIGHTS AND EVICTIONS AND ANOTHER, AMICI CURIA)
[8]
,
supports the argument made by Mr Mene. Accordingly, I find that any
‘consent’ that may have existed prior to the 1993
eviction application was terminated by the said eviction application.
In the circumstances, I also find that the ESTA is not applicable
to
the present case. Thus, this court does have jurisdiction in this
matter under the PIE act.
49.
The next preliminary point raised by the first and second respondents
is that the deponent to the founding affidavit BRIGADIER
GENERAL
RENIER JOHANNES COETZEE did not have the authority to bring the
present application on behalf of the Minister of Defence.
50.
The first and second respondents did not challenge the authority of
the said deponent in the manner set out in Rule 7 of the
Uniform
Rules of Court. In my view the deponent and the applicant set out
sufficient to show the authority of the deponent to institute
the
proceedings on behalf of the applicant. Accordingly, I find that
there is no substance to this preliminary point raised by
the first
and second respondents.
51.
The next preliminary point is that there was non-compliance with
section 4(2) of the PIE Act. The complaint here is that the
members
of the first respondent are “coloured” people the
majority of them are Afrikaans speaking and that the relevant
notice
was not accompanied with an Afrikaans translation.
52.
It is not contested that the relevant notice was served by the
Sheriff on members of the first respondent who refused to identify
themselves. It is clear from the first respondent’s own
evidence that the first respondent has been functioning as a
community
for many years. It is clear from Mr Free’s opposition
to this application that he either received notice of the application
himself or received a copy of it from another source. It is also
clear from the opposition mounted by Mr Free he clearly understood
the statutory notice and reacted accordingly. Mr Free did not put an
affidavit before the court that as a result of the statutory
notice
not being in Afrikaans certain persons were not able to mount a
defence. In any event Mr Free purports to act for both the
first and
second respondents as a community. Clearly the relevant statutory
notice performed its intended function. There is no
merit or
substance in this ground of opposition as well.
53.
The final preliminary point is that the wrong Local Municipality was
cited. As already set out above the applicant re-opened
its case and
joined the fourth respondent. After their initial opposition the
first and second respondents withdrew their opposition
to the
applicant reopening its case and joining the fourth respondent to the
main application and simultaneously filed a Notice
to Abide. As set
out above an Order was granted reopening the applicant’s case
and joining the fourth respondent. In these
circumstances, this
preliminary point falls away.
54.
In these circumstances the first and second respondents have not put
forward a substantive defence to the eviction application
itself. The
applicant is entitled to an order evicting the first and second
respondents. However, that leaves the two concerns
initially raised
with the parties and set out above. I cannot set a date for the
eviction of the first and second respondents without
being in a
position to establish that there is indeed alternative accommodation
available for such of the first or second respondents
that cannot
provide such accommodation for themselves.
55.
Also given the history of the first and second respondents and the
finding of the LCC which was confirmed by the SCA those who
trace
their linage to the original occupiers of the two reserves are
entitled to some form of compensation. It is the applicants
position
that compensation has already been made. If that is correct it would
be easy to establish and prove that fact. If the
applicant is not
correct in its position that compensation has already been made, then
provision needs to be made to ensure appropriate
compensation is made
to those entitled to such compensation.
56.
In these circumstances I believe it is appropriate to grant the
applicant its eviction order but suspend putting it into operation
until the issue of alternative accommodation and the issue of
appropriate compensation for those who are entitled to such
compensation
have been resolved.
57.
It seems to me that the first step in managing both of these issues
is for the applicant in co-operation with the first and
second
respondents to conduct a proper census of those living in the Khosis
area. In such census it needs to be established as
to: how many
households live in the Khosis area; who is the head of each
household; details as to whether the respective household
is headed
by a single parent or a child; the names, age and gender of each
member of each respective household (including in respect
of the head
of each household); whether or not such household is entitled to
compensation under the provisions of the LCC ruling;
if such
household is not entitled to such compensation the reason for
reaching that conclusion; and the reasonable requirements
for
accommodation of each respective household.
58.
The conduct of the said census will require the co-operation of the
first and second respondents.
59.
Once the exercise of conducting a census has been completed, the
applicant can establish from the government body responsible
for
compensating land claimants whether or not the head of each household
as revealed from the above census has received such compensation
in
respect of their individual right to claim such compensation. If such
compensation is established, then the applicant is to
file a report
setting out in respect of each head of a household identified in the
said census: the type of compensation given
(ie alternative land or
cash compensation); if alternative land was given sufficient
particulars to enable the identification of
such land as well as the
particulars of the person that such land was awarded; if compensation
was in the form of cash, then the
amount of such cash compensation,
the method and date and particulars of the person to whom payment was
made.
60.
If no compensation was made and the head of the household concerned
is entitled to such compensation, the applicant is to make
proposals
for suitable compensation. If the applicant is not in a position to
deliver such compensation, it is to liase with the
member of the
Cabinet responsible for making such compensation and report to this
court what has been done to ensure the compensation
that is due.
61.
The census and the reports compiled in compliance with the Order to
be made herein are to be served on the first and second
respondents
attorney of record, and if that is not possible the applicant is to
seek directions from this court on how to serve
such documents.
62.
The applicant will report back to this court as directed by this
court on the progress it has made in fulfilling the terms of
this
court Order.
63.
The last outstanding issue is the question of costs. It seems to me
that the Order contemplated would require the cooperation
of the
first and second respondents. It seems to me that the manner in which
they cooperate in this process should have a bearing
on the final
order made in respect of the question of costs. In these
circumstances I will reserve the question of costs until
the two
issues referred to herein are resolved.
In
the circumstances, the following order is made:
1)
That the first and second respondents together with their family
members, if there are any, or anyone using
and/or residing on Portion
of Lohatla Military Base (Khosis area) and/or any area which they
occupy within the Lohatla Military
Base, through their relationship
and/or association with the first and second respondents together
with their belongings, equipment
and/or livestock (if any) to vacate
the portion of the Lohatla Military Base (Khosis area) and/or any
area which they occupy within
the Lohatla Military Base on a date to
be determined by this court after the orders set out hereunder are
complied with.
2)
That the Sheriff is hereby authorised and directed to evict the first
and second respondents as contemplated
in the Order set out in order
1 above.
3)
That the operation of the order set out in 1 and 2 above are
suspended pending the fulfilment of the orders
set out below and a
determination of the date for such eviction by this court.
4)
That the applicant conducts a census of all the persons making up the
first and second respondents.
5)
In such census it needs to be established as to: how many households
live in the Khosis area; who is the head
of each household; details
as to whether the respective household is headed by a single parent
or a child; the names, age and gender
of each member of each
respective household (including in respect of the head of each
household); whether or not such household
is entitled to compensation
under the provisions of the LCC ruling; if such household is not
entitled to such compensation the
reason for reaching that
conclusion; and the reasonable requirements for accommodation of each
respective household.
6)
Once the exercise of conducting a census has been completed, the
applicant is to file a report setting out
in respect of each head of
a household identified in the said census: the type of compensation
given (ie alternative land or cash
compensation); if alternative land
was given sufficient particulars to enable the identification of such
land as well as the particulars
of the person that such land was
awarded; if compensation was in the form of cash, then the amount of
such cash compensation, the
method and date and particulars of the
person to whom payment was made.
7)
If no compensation has been made and the heads of the respective
households, or some of them are entitled to
compensation, the
applicant is to file a report setting out proposals for reasonable
compensation.
8)
Once the census has been completed the applicant is to liase with the
fourth respondent, being the Ga-Segonyane
Local Municipality to
ascertain the availability of alternative housing for the members of
the first and second respondents as
evidenced by the abovementioned
census. If the Ga-Segonyane Local Municipality is unable to assist
for any reason the applicant
may liase with any other Local
Municipality who might be able to assist.
9)
The applicant is to file a report on the availability of suitable
alternative housing.
10)
The applicant is to serve the census and all reports compiled in
compliance with this order on the first and second respondents’
attorney of record.
11)
If its not possible to serve the said census and/or reports on the
said attorney, then directions for service are to be sought
from this
Court.
12)
The applicant and the first and second respondents are to report to
this court periodically on dates specified by this court
for such
reports on the progress made in compliance with the orders set out
above.
13)
The first report to this court will be on Monday 3rd June 2024 and
thereafter as specified by this court.
14)
The costs in respect of this application are reserved until the
orders set out above are fulfilled or substantially fulfilled.
Lawrence
Lever
Judge
Northern
Cape Division, Kimberley
Representation:
For
The Applicant:
Adv
BS Mene (SC)
Instructed
by:
Office
of the State Attorney
For
The 1
st
& 2
nd
Respondents:
Adv
JK Mongala
Instructed
by:
BL
Motlhamme Inc.
Date
of Hearing:
19
February 2021
Date
of Judgment:
05
April 2024
[1]
Act 22 of 1994.
[2]
Min of Defence & Another v Khosis Community at Lohatla &
Others Case No: LCC 16/97 and in which judgment was handed down
26
August 2002.
[3]
Khosis Community at Lohatla & 2 Others v Min of Defence & 4
Others, Case No: 665/2002 and in which judgment was handed
down on
the 18 March 2004.
[4]
Land Claims Court Judgment., above at para [9].
[5]
Act 48 of 1961.
[6]
The Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998.
[7]
The
Extension of Security of Tenure Act 62 of 1997
.
[8]
2010 (3) SA 454
(CC) at para [84].