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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG

Case numbers : LCC 115/2008
LCC 026/2007
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
DATE 4 February 2025
SIGNATURE

In the matter between:

CINDI FAMILY PLAINTIFF

Concerning R[...] 4[...] , Standerton district municipality, Mpumalanga

and

MINISTER OF RURAL DEVELOPMENT AND LAND
REFORM FIRST DEFENDANT

CASPARUS JANSE VAN RENSBURG SECOND DEFENDANT

MARTHA MARIA GEYSER THIRD DEFENDANT

THE REGIONAL LAND CLAIMS COMMISSIONER:
MPUMALANGA PARTICIPATING PARTY


JUDGMENT ON RULE 30(6) APPLICATION BY LANDOWNERS
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This judgement is delivered by upload to the digital data base of the court and
by transmission email to the parties on 3 February 2025
SPILG, J

INTRODUCTION

1. The issue before the court is whether or not the claimant community , which is the
Cindi family , had agreed to settle their land claim in respect of certain properties
collectively described as the Farm Rondavel (“ the farm ”) owned by Mr van
Rensburg and Ms Geyser . The landowners contend that the claimant agree d to
accept equitable redress instead of restoration.

2. The matter comes to this court by way of a court order which , at the instance of
the landowner s, effectively compelled the Regional Land Claims Commissioner ,
Mpumalanga (“RLCC ”) to refer the claim to this court . In consequence of the
referral the claimant community became the plaintiff and the landowners were
cited as the seco nd and third defendants .

3. The landowners raise d the issue of settlement by way of a Rule 30 (6) notice of
application1 in which t he following relief was sought:

a. Declaring that the land claim lodged in respect of the Rondavel farm has
been settled on the basis that the plaintiff has opted for restitution in the
form of equitable redress and no longer claims restoration of any rights in
respect of the f arm;

b. The landowners are released from further participation in the referral
action


1 Rule 30(6) provides:
“Insofar as may be practical, a party must deliver prior notice of all information, admissions,
directions and orders which he or she will seek at a conference. ”
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c. Declaring that the farm is no longer subject to the restrictions in section
11(7) of the Restitution of Land Rights Act 22 of 1994

d. Directing the RLCC to withdraw the Government Gazette publication
relating to the farm

e. In the event that the plaintiff and the Minister of Rural Development and
Land Reform (who is the first defendant ) are unable to agree on the
amount of compensation or equitable redress payable to the plaintiff, then
the latter shall be entitled to enroll the action for determination of the
quantum of its claim and for appropriate orders for payment or the granting
of other redress

f. The Minister and the RLCC pay the costs , including certain enumerated
costs relating to the claim on the ordinary party and party scale

g. The plaintiff claimant , the Minister and the RLCC pay the cost of the
application itself on the scale as between attorney and client

4. The application is opposed by the claimant . The State Attorney , on behalf of the
two organs of state , being the Minister and the RLCC , did not file any papers but
did attend the hearing

THE SUBMISSIONS

5. The landowner s rely on a series of communications between them, the plaintiff
and the State, which they contend amount to a settlement or compromise of the
claim in terms of which the plaintiff agreed to accept equitable redress and not
restitution in the form of the restoration of rights in land the effect of which
thereby released the landowners ’ farm from the claim . The only issue arising out
of the referral would therefore be the nature and quantum of the equitable
redress - an issue solely between the plaintiff and the State.

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6. The claimant relies on two submissions which it avers negates a settlement or
compromise.

The first is that while there may have been discussions which indicated that the
claimant was amenable to financial compensation from the State as opposed to
restoration of the propert ies claimed , neither the State nor the plaintiff were ad
idem that the matter would be settled in this fashion ; More especially because no
offer had been made by the State regarding financial compensation and it was
certainly not clear that any such offer would be forthcoming . At best the re may
have been a promise to contract but nothing more .

The second is that , for there to be an agreement , the plaintiff would have to waive
its right to restoration . This it argues would have required a clear and unequivocal
intention on its part, which was absent.

BASIC PRINCIPLES

7. The following principles appear to be relevant in ord er to determine whether there
was a binding agreement between the landowners and the plaintiff ;

a. there must be an offer and unqualified acceptance of its terms (save
where a counteroffer in turn is met with an unqualified acceptance)

b. the parties must be capable of concluding a binding agreement in respect
of the subject matter.

In the present case , this requirement fell away. However the court
considers that sight should not be lost of this critical consideration , which
arises in cases where no agreement between the parties inter se can be
given effect to because the subject matter is governed by legislation which
the c ourt must apply and which i n its terms requires the concurrence of an
organ of State. 2

2 See e.g. Blou Bul Boorkontrakteurs v McLachlan 1991 4 SA 283 (T) 284 ; LAWSA Contract at para 330
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c. In determining whether there is a binding agreement the reliance theory
prevails in that “whatever a man’s real intention may be, he so conducts
himself that a reasonable man would believe that he was assenting to the
terms proposed by the other party, and that other party upon that belief
enters into the contract with him, the man thus conducting himself would
be equally bound as if he had intended to agree to the other party’s
terms .3”

In order to apply, the party relying on a contract must have been led to
believe that consensus was ac tually achieved ; not that the other party was
still continuing with negotiations.

d. In determining whether there is a binding agreement, the court can have
regard to relevant background and surrounding circumstances 4

8. In regard to waiver , the following applies:

a. the party relying on a waiver must demonstrate that the other party
evinced a clear and unequivocal intention to waive the right , the existence
of which it was fully aware it enjoyed. 5

b. In Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and another
2009 (4) SA 529 (CC) at paragraph 81 Kroon AJ confirmed that waiver “is
first and foremost a matter of intention ”; the test is objective (Ie an
application of the reliance principle ) , the alleged intention being judged by
its outward manifestations from the perspective of the other party, as a
reasonable person.6

3 Smith v Hughes (1870) 6 QB 597 607. The r eliance theory was accepted in Sonap Petroleum
SA (Pty) Ltd v Pappadogianis 1992 3 SA 234 (A)
4 See KPMG Chartered Accountants v Securefin Ltd 2009 4 SA 399 (SCA ), per Harms DP at para 39
on the inclusion of “surrounding circumstances ” and Bothma -Batho Transport (Edms ) Bpk v S Bothma
& Seun Transport (Edms ) Bpk 2014 2 SA 494 (SCA) per Wallis JA at para 12 on the proper method
of interpretation of contracts and the cases which have followed them
5 Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and another 2009 (4) SA 529 (CC) at
paragraph 81
6 See also Road Accident Fund v Mothupi 2000 4 SA 38 (SCA).
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c. The onus is strictly on the person asserting a waiver and a court takes
cogni sance of the fact that “ persons do not as a rule lightly abandon their
rights . …. Waiver is a question of fact and is difficult to establish .”7

d. Waiver of a right can take place not only expressly but “by conduct plainly
inconsistent with the intention to enforce it ”. 8

9. Prof R einecke deals in vol 12(2) of LAWSA at para 160 in some detail with
various aspects of what may amount to a waiver or an election. 9

Essentially there are different views ; the one being that waiver takes the form o f
an agreement in terms of which a right is abandoned while the o ther view is that it
may amount to an election which does not require agreement but is a unilateral
act.

10. The author suggests that waiver which requires agreement is more in the form of
a release. As such it requires that the person who waives is fully aware of the
right being waived and must have communicated it to the other party (who in turn
must have been aware of the right in question) . This situation is said to arise
where the other party is the debtor . In such a case the creditor is said to offer to
waive a right which the person who owes the obligation accepts and that it is
appropriate to characterise the legal position in this way when dealing with the
“abandonment ” of rights involving a relationship of debtor and creditor.

11. The author also refers to the other view which considers that waiver does not
require consensus but is a unilateral juristic act in cases where ;

“a person has an election between inconsistent remedies, such as upholding
or cancelling a contract on the ground of misrepresentation, he or she may

7 Lufuno at para 81
8 Id.
9 The subject matter under which the general principles of waiver were being considered is
Insurance .
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decide unilaterally which course to take. By choosing one alternative, he or
she is said to have waived the other. ”10

It is argued that in this type of case the person takes a deliberate decision , with
full knowledge of the material facts, to abandon the right and the abandonment
becomes effective when the other party becomes aware of it. The author
contends that this unilateral act can only apply
“to rights and legal competences other than personal rights involving an
ordinary debtor and creditor relationship …” 11

In such a case an election is made, which unlike waiver is “a unilateral juridical
act by which a party exercises a choice between inconsistent alternatives. ” 12

12. These different views may come down to whether the relationship is one which
originally involved reciprocal obligations or whether it was founded on a n
independent right or interest (including to a remedy) a ccruing in law . Since the
outcome in the present case will yield the same result i t is unnecessary to deal in
greater detail with these different views , save to observe that circumstances may
not allow for a clear timing delineation if , for instance, the person had a remedy
exercisable independently of t he relationship with the other party (such as a real
right or interest in land derived from statute which fall s outside an ordinary debtor
creditor relationship ) but agrees to waive that remedy because , by not doing so ,
obligations may realistically arise in the future vis a vis that other party (such as
adverse cost orders) .

BACKGROUND FACTS
13. This case proceeded to trial with the holding of an inspection in loco conducted
by the court ; namely, the assessor Mr Maodi and myself . The inspection was held
over a period of two days from 10 to 11 February 2021. 13


10 LAWSA vol 12( 2) at para 160
11 Id.
12 Id.
13 The inspection in loco is referenced in the judgment o f Cindi Family v Minister of Rural
Development and Land Refor m and others 2021 (6) SA 133 (LCC)
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14. By that stage , the claimant had already produced its witness statement and
expert notices had been exchanged . The experts attended the inspection and
gave necessary assistance to their clients. The historians and archeologists had
prepared expert notices and their report s prior to the inspection. Shortly after the
inspection and prior to the end of February 2021 , both the historians and the
archeologists had prepared their joint minute s.

15. At the time of the inspection, the dates for the hearing of evidence w ere already
allocated, being from 1 February to 4 March 2022, a period of just over a month.

16. The case was ready to proceed with the hearing of oral evidence on 1 February
2022.

17. The matter however did not proceed on that date, the reason for it not proceeding
being germane to the issue now before me as to whether the case had been
settled by 12 December 2021 or not. I believe it is correct to observe that by this
time, i.e. December 2021 , all the parties were fully cogni sant of the strength s and
weaknesses of their respective cases .

THE COMMUNICATIONS BETWEEN THE PARTIES BETWEEN NOVEMBER
2021 and FEBRUARY 2022
18. It is common cause that on 16 November 2021 the landowners ’ attorneys
address ed a letter to both the plaintiff’s attorneys and to the State Attorney who
represented the Minister and the RLCC .

19. The letter adopted the position that the outcome of the inspection in loco
illustrated that the plaintiff would not be able to prove its case and , based on
Macassar Land Claims Committee v Maccsand CC & another 2017 (40 SA 1
(SCA) , the landowners will contend that the plaintiff is not entitled to be restored
ownership rights in land because the claimant’s ascendan ts had, at best , been
dispossessed of informal rights in land

20. The letter then proposed that the parties consider settling the claim on the basis
that the plaintiff seek s restitution by way of equitable redress . If that occurred
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then the landowners would fall out of the picture and would not have to spend
further costs on trial preparation .

21. The other parties confirmed their agreement to attend a settlement meeting . This
took place on 3 December 2021 and was held without prejudice . The meeting
discussed the proposals made by the landowners

22. After the meeting , and on 8 December 2021 the plaintiff’s attorney advised that

“… our client is prepared to consider equitable redress in the form of
monetary compensation.”

The e -mail continued :

“The plaintiff reserved his right to proceed to trial on the current dates in the
event that the compensation is insufficient, the dat e of payment is too far in
the future or that the State is not in agreement with the landowner's proposal
to pay compensation .”

23. The e -mail of 8 December concluded that , while the plaintiff d id not wish to have
the matter removed from the trial ro ll, in order to avoid preparation costs the
RLCC and State Attorney were requested to re vert to all the parties with their
feedbac k.

24. It is clear that by 8 December the plaintiff’s response to the settlement proposed
by the landowners was subject to the former receiving sufficient compensation ,
payment of compensation to be within a reasonable time and the State being
agreeable “with the landowners ’ proposal to pay compensation ”.

25. In a f ollow up letter of 9 December , the landowners’ attorneys contended that the
plaintiff had to indicate (in terms of their earlier meeting) by 8 December whether
it would be prepared to settle the claim on the basis of equitable redress , which
the plaintiff’s attorney claimed the plaintiff has now done ; not that the State had to
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indicate by that date whether it would be prepared to settle the claim on that
basis .

The landowner’s attorney added that it was now for the State to indicate whether
they were prepared to settle the case on the basis of equitable redress and that ,
if the answer is affirmative , the trial in February would not proceed except
perhaps on the question concerning the extent of the plaintiff's rights (but that
would not involve the landowners ).

26. The letter concluded that the plaintiff cannot hold the parties to ransom and keep
the trial date open until such time as the family is satisfied with the amount of
compensation offered . Furthermore the trial issues had already been separated
with the first set of issues being the question of entitlement to restitution (i.e. the
merits of the claim ) and not the form of restitution . The letter continued, that if the
plaintiff and the State c ould not agree on the amount , then that can be decided in
the following hearing , but not during the one set down for February 2022

To this end the landowners’ attorneys put the plaintiff on terms that if the State
Attorney confirm ed that they were willing to settle the claim on the basis of
equitable redress , then the matter must be removed from the roll, but if the
plaintiff forces the landowners to keep the trial dates open and prepare for trial,
they will seek a cost order if the plaintiffs are ultimately unsuccessful

27. it is evident from this correspondence that in response to the landowners’
suggested settlement of the matter , the plaintiff was prepared to settle provided
three conditions were met ; namely , the State agrees to pay compensation , the
compensation is sufficient and finally that it is p aid within a reasonable time .

The landowner s’ response was not to accept a settlement on that basis but only
on the basis that the plaintiff pursues a claim for equitable redress even if that
mean t carrying on with the case against the State.

28. At this stage , therefore , a settlement had not been reached , only a counter
proposal from the plaintiff which was unacceptable to the landowners who then
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sought to put the plaintiff on terms with an agreed settlement confined solely to
the two of them and without the plaintiff obtaining at least some commitment from
the State as to the parameters under which they would be prepared to settle , be it
as to area of land , value of land or both .

29. In short , the substantive point of departure between the landowners (as
propose rs of the settlement ) and the plaintiff , is that the former saw the
settlement as only having to concern itself with the relationship between the two
of them , whereas the plaintiff was only prepared , at least as appears from the
exchanges at that stage , to agree to a settlement where the State was brought
into the equation, not as part of a tripartite agreement, but one as between it and
the State to which it was agreeable, or at least have received assurances
regarding the parameters the State was prepared to negotiate around in respect
of a financial compensation claim.

30. It was already evident from the inspection in loco that the area of land in respect
of which the State would consider paying compensation might no longer be as
extensive as the area i t had supported when Gazetting the claim .

In these circumstances , it is unlikely that the plaintiff would forgo , as negotiating
leverage with the State, the ability to pursu e both remedies in the alternative , but
rather to only commit itself to equitable redress when it had a fair idea of the
parameters to which the State was prepared to commit themselves in turn, Only
once the plaintiff obtained clarity as to th e parameters which the State were
working on in respect of the payment of compensation, would it be in a position to
take an informed decision as to whether to forego restoration even if negotiations
with the State had not yet resulted in a concluded settlement - that was an option
still open for the plaintiff to weigh once it had clarity from the State as to their
thinking on the variables involved in comput ing compensation.

31. The reply from the plaintiff’s attorneys , which was also forwarded to the State’s
representatives . came on 12 January . The full text reads as follows :

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“As requested by Ms … Singh, we together with our counsel, had sent a letter
to Ms Singh and Mr Mathebu la, on 21 December 2021 concerning your
client’s proposal. Our client is in agreement to accept compensation in lieu of
restitution. As no urgent response was received a reminder was sent on 6 Jan
2022 . We are unable to take this any further without their response ,

We both require a response from Ms Singh and Mr Mat hebula to avoid
preparation and trial costs. They are copied on this e -mail for ease of
convenience.”

32. Superficially t he letter is unclear . On the one hand the plaintiff indicates that it
remains unable to take the matter further without a commitment from the State
(the nature of the commitment it sought form the State was not identified) . On the
other hand the letter states that the plaintiff “is in agreement to accept
compensation in lieu of restoration .”

33. it is however evident from the 12 January reply that the plaintiff has not
expressly, or by necessary implication , remove d the conditions under which it
would be prepared to settle. To the contrary ; the last sentence resolves any
ambiguity because it unequivocally states that the plaintiff would still proceed with
preparation despite advising that it is agreeable to accept compensation in lieu of
restitution . This indicates more clearly that an agreement to accept
compensation remains one element of the plaintiff’ s proposal. The other element
is dependent on events that are taking place between the plaintiff and the State
and which require resolution in a way that enables the plaintiff to understan d the
parameters with which the State is working to formulate an offer of financial
compensation .

34. Interpreting the letter of 12 January in the context of the communications as a
whole , the relevant circumstances and the stage reached in the progress of the
claim , sight should not be lost of the fact that the letter was intended to be read
not only by the landowners but also be the State , and with the additional objective
of prompting the State to act constructively and expeditiously in giving the plaintiff
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the comfort it required before it would commit to abandoning, or electing not to
pursue, its claim for restoration and accept monetary compensation instead.

35. I should add that in interpreting all the wording in the communications relied on
by the landowners to support the settlement of the claim vis a vis it, the court
applies the principles of interpretation of documents, including contracts, as set
out by Wallis JA in Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA) (“ NJMPF ”) at paras 18 and 19 and later also in Bothma -
Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2)
SA 494 (SCA) at para 12 . 14

In Sasol Gas (Pty) Ltd v Competition Commission of South Africa and Others
[2024] ZACAC 2 at paras 35 and 36 I attempted to summarise the accepted
interpretational process by reference particularly to Bothma -Botha as follows:

“35. The “unitary” nature of the interpretational task is the common thread
running through the judgments of the Constitutional Court and the
SCA. It was again emphasised by Wallis JA in Bothma -Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014
(2) SA 494 (SCA) at para 12. The relevant extract reads:

“Whilst the starting point remains the words of the document,
which are the only relevant medium through which the parties
have expressed their contractual intentions, the process of
interpretation does not stop at a perceived literal meaning of
those words, but considers them in the light of all relevant and
admissible context, including the circumstances in which the
document came into being. The former distinction between
permissible background and surrounding circumstances, never

14 See more recently in relation to interpr eting statutes Minister of Police and others v Fidelity Security
Services (Pty) Ltd (Sakeliga NPC and others as amici curiae) 2023 (3) BCLR 270 (CC) at para 34 per
Madjiedt and Rogers JJ
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very clear, has fallen away. Interpretation is no longer a process
that occurs in stages but is 'essentially one unitary exercise' 15

36. Ultimately the purpose of interpreting a statute is simply stated; to
discern the intention of the legislature having regard to the only form of
expressions open to it, namely words which because they are by
nature imprecise also requires an understanding of their context which
includes legally acceptable factors extrinsic the legislation. ”

36. Returning to the communications relied on by the landowners, on 17 January the
plaintiff’s attorney wr ote to the landowner s' attorney as follows :

“We have received confirmation today from the RLCC that they are
amenable to settle the matter by means of financial compensation hence
we have delivered a formal notice of removal from the trial roll. Therefore
there is no need for the parties to prepare for trial.”.

37. The letter clearly indicates that the State has agreed to pay financial
compensation and as a consequence that the matter w ould be removed from the
roll and no further preparation would be necessary .

The question which now arises i s whether the other two conditions fell away
because the plaintiff was removing the matter from the roll, or whether it was
removing the matter from the rol l because there was n o point in going into the
merits while negotiations were still pending between the plaintiff and the State, at
least in respect of the amount of compensation and the time within which it would
be paid .


15 It is accepted that the method of interpreting a document, whether it be a statute or an agreement,
are essentially the same, save of course that s 39(2) of the Constitution brings a consideration of the
Bill of Rights into sharper focus when a statute requires interpretation and issues of parole evidence
may intrude when discerning the terms of a contract (see University of Johannesburg v Auckland Park
Theological Seminary and another 2021 (8) BCLR 807 (CC) at paras 88 -92 and the cases cited)

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38. On the same date the landowners ’ attorney responded . Its understanding of
whether there was an agreement to settle or an abandonment by the plaintiff of
its claim for restoration is set out in paragraph s 3 which read s:
“As we understand the position , the claimant no longer insists on physical
restoration of rights in land, and now claims alternative re dress. The state is
willing to settle the matter with the claimant on this basis. As previously
discussed, the effect of those two decisions is that the landowners are
released from the land claim . For the sake of legal certainty , we are of the
opinion that this should be recorded, at least at a pretrial conference with the
judge, but preferably in a court order ”
(Emphasis added)
39. This paragraph indicates that the landowners ’ attorney required “ legal certainty”
that the matter had been settled .

40. The plaintiff’s attorney immediately replied that it had forward ed the letter to its
coun sel and to the RLCC for a response .

The fact that the RLCC was asked to respond to the letter is consistent with the
court’s analysis of the plaintiff’s position which still required the involvement of the
State before it could commit to an abandonment of the restoration claim. in favour
of monetary compensation.

41. This was followed by a deafening silence of over a month which prompted the
landowners ’ correspondent attorneys , on 22 April , to forward to the plaintiff’s
attorney and the State’s representatives a draft court order confirming that there
had been a settlement. The letter request ed that if the other parties are in
agreement with the order, then they should consent to arrange a pretrial
conference and h ave it made an order of court .

42. On 6 May the plaintiff’s attorney advised that they could not consider consenting
to the draft order until they received a response from the State Attorney
concerning equitable redress and added that :

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“all discussions to date were premised on the fact that our client would be
prepared to consider equitable redress if an offer was made. To date, no offer
has been received.”

43. It is therefore evident that the plaintiff's position remained that it was still awaiting
some f orm of offer so that it could understand the parameters governing the basis
on which the State was prepared to settle .

44. All subsequent communications reinforce the respective position s taken by the
plaintiff and the landowners with regard to what was agreed , the latter contending
that the settlement was not dependent on agreement being reached on the
amount of compensation because the plaintiff ”… was not prepared to remove
the trial on the merits of the claim from the roll until the State confirmed that it
would be prepared to settle the claim by paying compensation to the plaintiff
which it did . It was only after this confirmation by the RLC C that the plaintiff's
attorney removed the m atter from the roll.”

45. To the extent that subsequent events may have a bearing on the matter , the
landowners in their affidavit referred to the plaintiff’s attorney advising on 28 April
2023 that they were on their way to the farm for a further inspection with the State
in order to determine the extent of the rights that the claimant allegedly lost . The
landowners assisted and enabling the inspection and mapping exercise to take
place ,

46. it is also evident from the landowners ’ affidavit that there were still negotiations
taking place between the State’s representatives and the plaintiff and that by
June 2023 , after a further inspection was held on the farm between the State and
the plaintiffs , they had :

“… concluded a satisfactory mapping of the land with the department .
Unfortunately , they must now present an offer based on that mapping
exercise we have no control over how long that will take and it must be
approved at various levels within the department however . I will follow
up asap and let you know .”
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47. When there were no further developments , the landowners called for a pretrial
conference . This was held and in the expectation that the entire matter was close
to resolution , certain orders were made to expedite the possibility of finalising the
claim based on the final mapping of the area . The meeting was to be held
between the State and the plaintiff ’s representatives by no later than 16 February
2024 to negotiate a settlement o f the area and the amount of compensation
payable . A joint minute was to be prepared if no agreement could be reached
and it was also to be forwarded to the plaintiff’s attorneys .

48. Pursuant to further requests made by the landowners ’ correspondent , on 19
February 2024 the plaintiff’s attorney advised that settlement discussions were
held between the plaintiff and the Department of Agriculture, Rural Development
and Land Reform and that agreement was reached that the Department w ould
appoint a valuer to determine the value of the claim so that a settlement offer
could be made to the plaintiff . It was indicated that the offer would only be made
during March . The impression given was that a strong possibility of settlement
existed and the plaintiff’s attorney requested the court and the parties to consider
new direct ions which placed the Department on terms by when it was to provide
its valuation report , present its offer and finalise a settlement.

49. It is clear that the landowners were compelled to approach this court after
receiving an e -mail on 23 February 2024 from the plaintiff’s attorney advising that
the plaintiff’s position remained unchanged in that no settlement had been
reached with the State . This was because a valuation report had yet to be
provided to the plaintiff.

50. The landowners ’ position remain ed that it was of no concern to them whether the
valuation was provided or accepted , since the remedy l ay in the plaintiff’s hands
to enroll the matter against the State and pursue a claim for equitable redress .

51. I must respectfully disagree with the plaintiff’s understanding of the matter . While
that may be its perspective of th e situation , it is evident to the court that from the
plaintiff ’s perspective , it needed to have an understanding of at least the area of
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land in respect of which the State would be prepared to consider provid ing
compensation , and possibly even the value per hectare , before it made an
elect ion to abandon it s claim f or restoration .

52. While it may not have been necessary to finally settle the claim between itself
and the State before electing to abandon its remedy of restoration , it may have
been sufficient for the plaintiff’s purposes to at least know the minimum area that
the State was considering and upon which financial compensation would be
determined.

53. The State’s representatives have not filed any affidavit s in this application . During
the hearing of argument , Mr. Mathebula for the State advised that there was still
no offer made and that the issue really concerned the size of the land in respect
of which the State was prepared to pay compensation.


FINDINGS

54. It appears to the court that in respect of the legal requirements to prove a
settlement, as set out earlier the landowner needed t o demonstrate that the
plaintiff had moved away from the position set out in its email of 8 December to
the effect that there would only be a settlement provided three conditions were
met. Since the issue is whether there was a settlement or not , the
reasonableness of the conditions imposed for a settlement to be concluded are
not relevant , provided they constitute conditions and are clear ly stated .

55. The evidence which the landowner s seek to rely on is that in the letter of 12
December the plaintiff’s attorney said that it agreed to settle on the basis of
equitable redress and had the matter removed from the trial roll .

56. The court’s concern is that this letter is not sufficiently clear to make a finding in
favour of the landowners.

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57. The letter , read as a whole and in its context, is also consistent with the plaintiff
confirming that it was agreeable to accept equitable redress , not that the
requirements under which it was prepared to do so, and abandon restoration , had
been met at that stage . The reference to there being no point in proceeding with
the trial on the allocated dates was not necessarily linked to there being a
settlement , but can be seen in the context that the plaintiff was optimistic of the
prospects of final settlement and that there was n o point in incurring the
substantial costs of preparing and running a month -long trial in such
circumstances .

58. The court can appreciate that without knowing at least the parameters of the area
which the State was prepared to consider for purposes of paying compensation ,
the plaintiff could not make an informed decision to abandon its claim for
restoration and would therefore more likely than not keep its options open , even if
only for the purposes of negotiation . There was little to no downside for it doing
so, provided it had played its part in pushing the State to provide a valuation
report and not frustrating the finalisation of the mapping exercise undertaken by
the State to establish the size of the area which it was prepared to consider for
purposes of determining compensation.

59. The fact that the landowners ’ attorney requested “legal certainty ” from the
plaintiff’s attorney does pose a problem for the case they are obliged to make out.

60. This is not an ordinary commercial agreement which is sought to be enforced. It
is an agreement concluded in the arena of a restitution claim where the State is
also a material party , as it is still required to determine the size of the land in
respect of which the plaintiff may have had an interest , the value of the land per
hectare and then is obliged to provide the funds to pay compensation .

These considerations would reasonably be expected to impact on the plaintiff’s
position . The plaintiff is unlikely to want to be in a position where the State offers
a pittance if it were to already have abandoned its case for restoration . This
appears clear enough from the original response from the plaintiff’s attorney of 8
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December and there is nothing advanced by the landowners to suggest that the
plaintiff felt compelled to change its position or why it would do so .

61. Whereas the landowners ’ attorney so ught to impose a settlement on the basis
that the only issue that required agreement was that the plaintiff would pursue
only a claim for equitable redress and there fore abandon a claim for restoration , it
cannot impose the way in which terms are to be constructed on a party who , at
that stage , is still seeking as best it can to protect its position , including for the
purposes of negotiat ing a favourable settlement with the State.

62. Before concluding this aspect, had the terms of the settlement as between the
plaintiff and the landowner provided t hat the former would only pursue equitable
redress, I can see no difficulty in such an agreement being binding in the context
of land restitution legislation , provided that the State was amenable to not insist
on restoration (assuming it is entitled to do so in the interests of achieving the
true objectives of the Restitution Act). In the present case the point is moot
because the S tate was amenable to equitable redress.

63. The way I consider this case is that the landowner s understood the issue to be
whether or not the plaintiff would pursue a claim for equitable redress only and
thereby abandon its claim for restoration . While the landowner s attempted to
insist that this had to be the basis of the negotiations, the plaintiff responded that
it was (so to speak) not prepared to put all its eggs in one basket but needed to
know at least the parameters within which the State was prepared to negotiate
compensation.

64. I therefore do not read the withdrawing of the matter from the trial role as
unequivocal conduct sufficient to demonstrate that the initial terms under which
the plaintiff was prepared to settle (i.e. with the provisos ) had changed .

65. Accordingly I find that the landowner s have not satisfied the court in relation to a
number of material requirements for the consummation of a settlement
agreement , compromise or binding election by the plaintiff, which by their nature
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involve the abandonment of a right to claim restoration as an alternative to
equitable redress . In particular ;

a. the court cannot be satisfied that there was an unqualified acceptance by
the plaintiff of the landowners’ proposal to settle;

b. the plaintiff's conduct was sufficiently unclear for the landowner s to
reasonably conclude that it was amenable to settling without having some
understanding from the State attorney of at least the size of the land they
were considering for purposes of making a compensation award ;

66. It appears that this is a case where any settlement agreement would amount to
an abandonment of a right or remedy and therefore it would be necessary for the
landowners to show that the plaintiff’s conduct was clearly inconsistent with an
intention to keep open restoration as an alternative to equitable redress . For the
reasons already given I am satisfied that the landowner s are not able to produce
the necessary evidence to support their contention .

COSTS AND SETTLEMENT
67. At this stage it is premature to make any cost order

68. The pri ncipal reason is that the application ought to have precipitated a resolution
of the matter between the plaintiff and the State. And going forward , if there is a
failure to finali se the matter before further substantial costs are incurred in what
will be a trial lasting a month , then there should be consequences for either the
State or the plaintiff depending on the reason for the delay in finalising the
settlement of the case.

69. If this case is settled before or during the next court hearing , consideration will be
given to whether the landowner s are entitled to attorney and client costs as from
the time they brought the present application , and if so whether the State can be
absolved even if it is only partly responsible for delaying the settlement .

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70. In saying this, the court respects that the case involves rights issue s and not
simply personal commercial interests . However the Land Court Act 6 of 2023 and
other relevant legislation impacting on the functioning of this court , and which
have substantive law implications in addition to procedural ones , consider finding
resolution by way of negotiation, including mediation, as conducive to advancing
the interests of justice and its administration. At this stage it is unnecessary to
consider whether this is a situation where the plaintiff or the State is entitled to
pursue the rights issues they contend for if it should be found that a reasonably
prudent litigant would have had little difficulty in resolving even the rights issues
through negotiation rather than in a lengthy and expensive trial which
unnecessarily debilitates not only private resources but State resources and court
resourc es.

71. At this stage there appears to be no reason to delay the continuation of the trial
by directing mediation. The plaintiff and the State should be able to find each
other by now , provided there is compliance with the previous court directions.

ORDER

72. In the result the following order is made :

1. The application brought under rule 30 (6) is dismissed

2. Costs are reserved

3. The court is satisfied that the parties have been afforded sufficient time
and opportunity to mediate or otherwise settle the claim and that the trial
continues , since there are other parties that have a vested interest in
securing the finalisation or expeditious determination of the referral

4. A pretrial conference will be held on Thursday 20 February 2025 at 15.30
to determine trial dates and put the plaintiff and the State on terms with
regard to any outstanding matters which inhibit one or other party from
making an inform ed decision with regard to the fair settlement of the case.
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5. At the trial, or if settled earlier then on the first day set down for the
resumption of the trial , the court will hear argument as to who , if anyone,
should be responsible for the costs of any other party and on what scale ,
one of the considerations being whether the matter should have been
settled sooner .



SPILG, J

DATE OF JUDGMENT AND ORDER: 4 February 2025
FOR PLAINTIFF: Adv D Whittington
Bhayat Attorneys Inc
FOR 2nd and 3rd DEFENDANTS : Adv H Havenga SC
Van Heerden Schoeman Attorneys
FOR 1st DEFENDANT &
PARTICIPATING PARTY Mr S Mathebula
State Attorney