2
CHIEF LAND CLAIMS COMMISSIONER: COMMISSION
ON RESTITUTION OF LAND RIGHTS First Respondent
REGIONAL LAND CLAIMS COMMISSIONER, LIMPOPO
PROVINCE Second Respondent
DIRECTOR-GENERAL: DEPARTMENT OF RURAL
DEVELOPMENT AND LAND REFORM Third Respondent
MINISTER OF RURAL DEVELOPMENT AND LAND REFORM Fourth Respondent
ORDER
1. The Respondents’ failure to fulfil their obligations under the settlement
agreement concluded with the Hlomela Community in terms of section 42D of
the Restitution of Land Rights Act 22 of 1994 (the s 42D Agreement ) is
declared unconstitutional and invalid.
2. The Respondents are directed to comply with all their obligations under the
s 42D Agreement diligently and without delay , and in accordance with this
order.
3. The Court shall retain supervision of the matter until it determines that the
Respondents have discharged all their obligations under the s 42D Agreement.
4. The Respondents shall, within one month of the date of this order, file an
affidavit setting out the current status of its forensic investigation into its
non-compliance with the s 42D Agreement (the forensic report), what steps
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still need to be taken to complete it, and the estimated date by which it will be
completed.
5. The Court shall determine the date by which the forensic report shall be
completed.
6. Within one month of the completion of the forensic report, the Respondents
shall file a copy of the report and a detailed workplan setting out the steps that
will be taken to comply with their obligations under the s 42D Agreement (the
workplan).
7. The Applicants shall be entitled, within one month, to file a response to the
workplan.
8. The Court shall consider reject, approve or amend the workplan and, if
necessary, issue further directions in order to secure an approved workplan.
9. The Respondents shall, every six months after the Court approves the
workplan, file a report on affidavit detailing their progress. The Applicants shall
be entitled, within one month, to comment on each report.
10. The parties shall be entitled to approach the Court, on notice to the other
parties, for an amendment of this order, or for additional relief.
11. The Court shall be entitled, after hearing argument from the parties, to amend
this order, or to grant additional relief.
12. The Respondents shall pay 50% of the Applicants’ costs, including the costs of
two counsel where employed.
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JUDGMENT
BISHOP, AJ
[1] Our Constitution is founded on righting the wrongs of the past. One of the
deepest and unresolved wrongs is the forced removal of Black people from their land.
The Constitution promises those who lost the land the right to restitution of the land
or, at least, equitable redress.
[2] But as Cameron J pointed out in Mwelase, “delays in processing land claims
have debilitated land reform.”1 In Mwelase, it was the failure of the Department of Rural
Development and Land Reform to process labour tenant claims. In this case it is the
failure of the Commission on Restitution of Land Rights (the Commission) and the
other Respondents to implement a settlement agreement settling a restitution claim.
[3] The Applicants are the victims of that failure. I set out the history of that failure
in my earlier judgment in a related rescission application.2 Here is the short version.
[4] The Xitsonga -speaking members of the Hlomela Community people were
removed from their land in 1969 in terms of the Bantu Authorities Act 68 of 1951 and
forced to relocate to the Gazankulu “homeland”. The Community applied timeously for
restitution in terms of the Restitution of Land Rights Act 22 of 1994 (Restitution Act).
1 Mwelase and Others v Director -General for the Department of Rural Development and Land Reform
and Another [2019] ZACC 30; 2019 (11) BCLR 1358 (CC); 2019 (6) SA 597 (CC) at para 1.
2 Chief Land Claims Commissioner Commission on Restitution of Land Rights and Others v Hlomela
Land Claims Malamulele Steering Committee and Other [2025] ZALCC 23 at paras 2-6.
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[5] In 2004, the Community’s restitution claim was settled in terms of s 42D of the
Restitution Act . The settlement agreement provided for the state to improve the
Community’s conditions where they now live. That included providing electricity, a
community office, a clinic, and approximately 240 “RDP type of houses” on the land
the claimants now occupy.
[6] By 2012, the Respondents had provided electricity, built a community office,
and constructed a clinic. But they had not built the houses they had promised the
community. In a letter sent to the Community in 2012, the Chief Land Claims
Commissioner explained: “Unfortunately, the fourth project, which is housing
development, has experienced major challenges whereby two of three Contractors
who were appointed to build houses failed to complete the houses.” The
Commissioner promised action – a status report , a plan for “remedial action”, and
monthly progress reports.
[7] Yet in 2014, no concrete progress had been made. The Community complained
to the Public Protector who concluded that “the Department has failed to comply with
the terms of the land claims settlement agreement”. The Public Protector’s intervention
ended with another detailed plan for completing the project. The Regional Land Claims
Commissioner: Limpopo (RLCC) was required to produce a progress report within a
month identifying the status of the various houses. The RLCC would then “ conduct a
forensic engineering structural integrity assessment” and a “geo -technical
investigation”. A list of beneficiaries would be identified and verified. Funding would be
secured and the Department of Cooperative Government Human Settlement and
Traditional Affairs would be responsible for “delivery/rectification/completion of the
houses”.
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[8] The first step – a task team report – was eventually produced in 2016. It reached
the following depressing findings. 91 houses were “not plastered, no window glasses,
poor flooring slab, no roofing and shaky walls ”. 30 houses were in a similar state b ut
had been improved by claimants. 31 houses were in a similar condition plus roofs –
but “there are gaps between the walls and the roof, poor quality roofing tiles, and the
houses are leaking.” Six claimants had improved houses in that state. 25 houses had
been completed by owners. 30 houses had not been built at all. Eleven houses were
completed but were leaking. Three houses “cannot be traced” (it is difficult to know
what that means, but presumably it means they were not built). One house had been
sold and demolished.
[9] In the kind of understatement one often reads in this type of document, the task
team concludes that “it is apparent that the affected claimants did not derive value
from the project.” That is certainly one way of putting it. The report notes that the
service providers “were fully paid even though the project was unfinished”. How that
happened is not explained.
[10] In order to remedy the problem, th e task team identified that more money is
needed. There will need to be an expert “to quantify the costs” so that the RLCC can
“request the necessary funds from the Department”. As the RLCC explained:
budget has to be allocated to the Commission to redo the project. It is not a simple
process. There are government rules and procedures that must be satisfied, including
the Auditor-General's requirements, before the refinancing can be approved. This is
so because the State financed the project initially. Lots of money was spent on the
project; only to discover years later that something was not done right. Now therefore,
the project must be redone, which means the refinancing from National Treasury to
the Department. It is a process that can not happen overnight.
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[11] At this point, one would think that the Respondents had recognized their failure,
but were at least taking some steps to remedy the problem. But since 2016, no
concrete steps have been taken to complete the project. The “refinancing” has not
occurred. More importantly, n o dilapidated house has been repaired, and no unbuilt
house has been built.
[12] In the answering affidavit the Respondents claim that th e task team’s report is
evidence that “ contrary to the applicants’ allegations that the Commission is doing
absolutely nothing about the housing project, there is a lot of administrative work going
on within the Department to realise the finalization of the project.” But the task team
completed its work nine years ago – four years after the Commissioner promised to
complete the project.
[13] The next active step seems to have occurred five years later in 2021 when the
Commission sent officials to Hlomela “to re -assess the status of the housing project,
this time with a view to verify the statuses of the beneficiaries”. This attempt led to the
current litigation which has taken an unnecessarily tortuous procedural path.
[14] Following the 2021 visit, the Hlomela Community complained about a decision
they believed the Commission had taken to provide financial compensation to some,
but not all, of those who had not received the houses promised by the s 42D settlement
agreement. The Commission denies that it ever took such a decision.
[15] The Hlomela Community sought to interdict the implementation of that
supposed decision, and then to review and set it aside. The Commission blames that
litigation – which I describe below and ultimately led to this application – for the failure
to take any further tangible steps to implement the s 42D agreement.
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[16] The interdict was granted unopposed. So too was the review; but only because
the review application was not properly served on the Commission and it was unaware
of it. This Court granted an order reviewing and setting aside the Commission’s
supposed decision on 29 August 2022. That prompted the Commission to bring a
rescission application which the Applicants opposed. That rescission application only
came before me on 26 May 2025. I granted the rescission on 30 May 2025.
[17] I granted the rescission because the review application had not been served on
the Respondents. The Respondents also argued for rescission on the basis that the
Commission had not taken a decision to compensate or not compensate any of the
beneficiaries. Despite expressing skepticism that the Commission had taken any
decision about compensation, I did not decide the issue as it would pre -empt the
determination of the review.
[18] As part of my order following the rescission, I provided for an expedited
timetable to determine the Applicants’ review which, after the rescission, now had to
be decided. The timetable required the Commission to file a notice stating whether it
had taken the decision which was subject to challenge, and permitted the Applicants
to supplement their founding affidavit.
[19] The Commission duly filed a notice stating that it had not taken any decision
about compensating beneficiaries.
[20] The Applicants did not continue their attack on the decision that, plainly, did not
exist. Nor did they abandon their application. I nstead they used the opportunity to
supplement their founding affidavit to also file a new notice of motion. In the new notice
of motion they seek three heads of relief – two reviews and substitution relief.
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[20.1] First, they seek to review and set aside “the conduct of the
[Respondents] in failing to comply with the terms of the section [42D]
settlement agreement, finalise the developmental restitution agreement
and/or remedy the improper housing project they have conducted for the
Hlomela Community.”
[20.2] Second, they seek the reviewing and setting aside of the “failure of [the
Respondents] to make a decision regarding the financial compensation
to the Hlomela Community following their failure to complete the housing
project.”
[20.3] Third, they ask for substitution orders to compel the Respondents to:
[20.3.1] Comply with the s 42D agreement, “finalise the developmental
restitution agreement and/or remedy the improper housing
project they have conducted for the Hlomela Community”; and
[20.3.2] Financially compensate those “members of the community
who were frustrated by the failure of the developmental
projects who built their own houses and/or completed the
houses using their own resources”.
[21] The Respondents objected to the Applicants seeking this new relief on t wo
procedural grounds. First, that it was not open to the Applicants to use the opportunity
to supplement their review of the non-existent decision to compensate to launch an
entirely new application reviewing the failure to implement and the decision not to
compensate. They argued this constituted an irregular step. Second, they contend it
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is not competent to review and set aside “conduct” . And the only decision the
Respondents have ever taken is to conclude the s 42D settlement agreement.
[22] I must mention the latest step the Respondents have taken. They have
commissioned a “forensic investigation”. Exactly what the forensic investigation will
investigate is unclear – is it looking at why the project failed, or what needs to be done
to refinance it so that the project can finally be completed? But the outsourcing process
was due to be complete at the end of August 2025. The parties agreed that the forensic
investigation was a necessary first step towards implementation.
[23] As I discuss in more detail below, t here is some merit to th e Respondents’
procedural objections. If this was a different court, and this was a dispute where only
commercial interests were at stake, I would be tempted to reject the application on the
basis that it was not properly brought.
[24] But this is not that type of case. It is a case about fundamental constitutional
rights, and inexcusable state failure. It is a case that cries out for a pragmatic remedy
that will ensure that the Hlomela Community receives what was promised to them as
soon as possible.
[25] There is no dispute that the original attempt to build the houses required by the
s 42D settlement agreement failed miserably. While the Commission has taken steps
over the years to attempt to remedy that failure, these have been manifestly
inadequate. Reports have been prepared, but the Respondents have still not complied
with the s 42D agreement. While the Respondents acknowledge they must implement
the agreement, and continue to take some steps to do so, there is no prospect that
houses will be repaired or built any time soon.
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[26] At the hearing, I put it to Adv Toma, who appeared on behalf of the
Respondents that, while I appreciated his clients’ procedural objections, there was no
answer to the underlying complaint – the failure to implement the s 42D agreement. I
suggested that it would not serve either of the parties’ interests to resolve the dispute
on procedural grounds because it would not resolve what actually brought the Hlomela
Community to court. I asked if the Respondents would object to a structural order that
would oblige the Respondents to take steps to implement the s 42D agreement, and
allow the Court to supervise that process.
[27] Adv Toma took instructions and indicated that his clients would support that
type of order. Adv Malatji, who acted for the Applicants, also said his client would
support that form of order. This agreement was welcome. The Court appreciates the
willingness of both parties – and particularly the Respondents – to embrace a remedy
designed to ensure the rapid implementation of the s 42D agreement.
[28] I asked the parties to discuss the issues and propose the form of a structural
order. I also asked them to identify what issues remained in dispute between them.
[29] The parties filed a joint practice note in which they agreed on the form of the
structural order the Court should grant. They proposed the following:
1. The respondents are ordered and directed to file the first report on the
appointment and progress of the forensic investigation within 3 months
from the end of August 2025. The report will provide the period within
which the forensic investigation shall be completed and finalised.
2. Upon the filing of the forestated first report, the Respondent shall file bi-
annual reports detailing the progress made and steps taken, as well as
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the steps to be taken, towards the completion of the housing project.
Within its supervisory powers, the Honourable Court may prescribe
specific dates and time periods within which certain steps should be
taken and be completed.
3. After the completion and finalisation of the forensic investigation, the
Respondents must provide a detailed workplan that indicates the
necessary steps that the respondents will take to remedy the Hlomela
RDP situation.
4. That the respondents will send a report to the Honourable Court every
6 months until the completion of the Hlomela RDP situation
[30] The parties did not, however, agree on the merits of the application, or on the
question of costs, which they asked this Court to decide.
[31] As a result, the Court needs to decide the following issues:
[31.1] Should the Court decide the Applicants’ review?
[31.2] Should this Court grant a structural interdict and, if so, in what form?
[31.3] Who should pay the costs of the application?
The Review Application
[32] The Respondents’ two procedural objections – that there was no right to amend
the notice of motion, and that there was no reviewable decision – are not without merit.
[33] This application began as a review of a decision to pay compensation to some
members of the Community and not others. When it became apparent there was no
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such decision, the Applicants converted the application into one reviewing the
respondents’ conduct in not implementing the s 42D agreement, and the failure to
decide on whether to award financial compensation. Was it open to them to do so?
[34] The order allowing them to supplement their founding affidavit read simply: “The
applicants in the review application may, by 23 June 2025, supplement their founding
affidavit if they wish to do so.” It did not permit them to amend their notice of motion.
The purpose was not to allow an entirely new review , but to supplement the grounds
for the review as it had been framed. It was always open to the Applicants to seek to
amend their notice of motion according to the ordinary rules, or to bring a new review
of whatever decisions they wished to challenge. But the order did not entitle them to
morph their existing review – with a built-in expedited timetable – into a new case.
[35] Whether the Respondents had taken another decision, and whether it is
possible to review conduct is a difficult question. Normally reviews relate to decisions.
The definition of “administrative action” in the Promotion of Administrative Justice Act
3 of 2000 requires a “decision” or a “failure to take a decision”. But s 172(1)(a) of the
Constitution requires that, when they decide a constitutional matter, courts “must
declare that any law or conduct that is inconsistent with the Constitution is invalid”.
[36] Often there will be little difference between an organ of state’s decision and its
conduct. The conduct will manifest its decision to act or not to act , or its failure to
decide whether to act or not . In the context of failure, I am not sure there is much to
distinguish a failure to act from a failure to decide. Drawing a stark line between the
two may create more confusion than clarity.
[37] Yet inherent in the idea of a “decision” is something that has, in the language
[37] Yet inherent in the idea of a “decision” is something that has, in the language
of PAJA, “direct, external legal effect”. If conduct does not have that type of effect,
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what is the point of reviewing and setting it aside? The conduct may have an impact,
but because of its practical consequences, not its legal ones. In those cases, is a
review the proper remedy? Case law too suggests that there must be some form of
decision and finality.3
[38] I prefer not to resolve either of the preliminary issues. I do not believe the parties
will be served by a decision on those grounds that might then preclude me from
granting the supervisory relief they have agreed to. Fortunately, it is not necessary to
resolve either the review itself, or the Respondents’ procedural objections. I say so for
two reasons.
[39] In the first place, while framed as a review, the relief the Applicants really want
is the proper implementation of the s 42D agreement. The first “review” is of the
Respondents’ “conduct … in failing to comply with the terms of the” s 42D agreement.
That is why they seek an order “ compelling the said respondents to comply with the
terms of the section [42D] settlement agreement”.
[40] While it is framed as review of conduct and substitution relief, it is, in truth, an
interdict to enforce the Applicants’ rights under the agreement. For the Applicants, the
reviews are a means to an end, not an end in themselves. But the reviews are not
necessary to reach that end; it is possible to simply direct the Respondents to meet
their obligations under the s 42D agreement.
[41] Second, the parties agree on the substantive remedy – a structural interdict.
That remedy responds to the substantive reason that brought the Applicants to Court
– the Respondents’ failure to implement. If the Respondents had objected to that
3 See, for example, Bhugwan v JSE Ltd 2010 (3) SA 335 (GSJ) at para 10.
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remedy, it would have been necessary to consider whether it was a competent remedy
flowing from the relief sought , and whether the Respondents were prejudiced by the
way in which the Applicants had brought their case.
[42] But in light of the agreement, the only purpose of determining the procedural
objections or the merits of the review would be to assign responsibility for costs. I
believe that costs are best decided on a different basis that takes account of the
difficulties in the way the Applicants brought their case.
[43] In these unusual circumstances, a decision on the review applications would
not aid the parties. It would only unnecessarily complicate the relationship and make
it more difficult for the parties to move forward. I prefer, instead, to focus on the
justification for, and form of, the structural relief.
Structural Relief
[44] The premise for the structural relief is that, since 2004, the Respondents have
failed to implement the s 42D agreement. They have admitted their failure since 2012.
Despite various further investigations and promises, no actual action has been taken
in the 13 years since then to comply. The reasons for their non -compliance seem to
be multi-faceted. There is no unwillingness; the Respondents rightly accept they have
failed to comply with their obligations and must make good. The primary delay seems
to be in securing the financing. But that issue was identified in 2016, and there is no
adequate explanation for why, nine years later, the financing has not been found.
[45] This is a constitutional violation. The Restitution Act was enacted to give effect
to the right in s 25(7) of the Constitution to restitution of land or equitable redress.
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Where the government agrees to provide equitable redress, but does not do so for
more than 20 years, it has failed to fulfil not only its obligations under the Restitution
Act and the s 42D agreement, but also its constitutional obligations.
[46] That triggers this Court’s powers under s 172(1) of the Constitution. This Court
is entitled to grant relief not sought in the notice of motion.4 In this case, where there
is no objection to the grant of supervisory relief, the fact that it was not specifically
sought is no obstacle to this Court granting it.
[47] This Court’s duty is to grant a remedy that will “address the real dispute between
the parties by requiring them to take steps aimed at making their conduct to be
consistent with the Constitution. ”5 As the parties’ agreement indicates, a supervisory
order does just that. But it is worth explaining briefly why supervisory relief is
appropriate.
[48] The goal of supervisory relief is not to punish parties, but to resolve difficult
problems. Supervision is appropriate when a court cannot finalise the dispute between
the parties with a once-off order, and where the ordinary mechanisms of enforcement
are unlikely to be effective.6 It is a pragmatic approach to the joint resolution of difficult
problems. “An order of supervision is a judicial commitment to work together with other
4 Economic Freedom Fighters and Others v Speaker of the National Assembly and Another [2017]
ZACC 47; 2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC) at para 211.
5 Ibid. See also Head of Department: Mpumalanga Department of Education v Hoërskool Ermelo [2009]
ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC) at para 97 (“This ample and flexible remedial
jurisdiction in constitutional disputes permits a court to forge an order that would place substance above
mere form by identifying the actual underlying dispute between the parties and by requiring the parties
to take steps directed at resolving the dispute in a manner consistent with constitutional requirements.”)
6 Meadow Glen Home Owners Association and Others v City of Tshwane Metropolitan Municipality and
Another [2014] ZASCA 209; [2015] 1 All SA 299 (SCA); 2015 (2) SA 413 (SCA) at para 35.
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branches to resolve a constitutional infringement, or realise a constitutional
commitment.”7
[49] Supervision is necessary here because the Respondents accept that they have
failed to implement the s 42D agreement, accept that they remain obliged to do so,
but have taken no meaningful steps to fulfil their obligations . In light of that
longstanding non-compliance, a simple order to meet those obligations is unlikely to
succeed. Whatever the underlying reason for the non -compliance it is unlikely to
vanish merely be cause the Court orders the Respondents to do what they already
know they must do.
[50] As the Supreme Court of Appeal has explained, when faced with crafting orders
to implement constitutional rights, “courts must also consider how they are to deal with
failures to implement orders; the inevitable struggle to find adequate resources;
inadequate or incompetent staffing and other administrative issues; problems of
implementation not foreseen by the parties ’ lawyers in formulating the order and the
myriad other issues that may arise with orders the operation and implementation of
which will occur over a substantial period of time in a fluid situation.”8
[51] An unsupervised interdict will likely just result in more litigation; either
applications for contempt, applications for variation, or new applications for additional
relief. A supervisory order recognizes that the difficulties that have delayed
implementation up to now are likely to persist, and that ongoing judicial intervention
will likely be needed to navigate throu gh those difficult waters. For example, if the
7 Sechaba Protection Services CC (Pty) Ltd and Others v Passenger Rail Agency of SA Ltd and Others
[2023] ZAWCHC 280 at para 99.
8 Meadow Glen (n 6) at para 35.
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difficulty is obtaining budget from National Treasury, this Court can join National
Treasury and require it to explain why it has not provided a budget to meet the State’s
clear commitment. The need to report regularly to the Court on its progress will also,
hopefully, place pressure on the Respondents to prioritise the Hlomela Community
and ensure that they meet their obligations as soon as possible.
[52] What is needed is a supervisory order that establishes a detailed plan for
implementation, requires them to regularly report on their progress, and provides a
mechanism to resolve difficulties as and when they arise without the need for contempt
proceedings or fresh litigation.
[53] That brings me to the form the structural order should take. I have no difficulty
with the general structure of the parties’ proposal. As I see it, in envisages three steps:
[53.1] The finalization of the forensic investigation. The parties accept that this
needs to be completed in order to enable the Respondents to take the
next steps to actually build or repair the houses.
[53.2] Once the forensic investigation is complete, the Respondents must file
“a detailed workplan that indicates the necessary steps that the
respondents will take to remedy the Hlomela RDP situation”. This is
generally the correct next step. The responsible government agent must
develop its own plan for the implementation – the Court’s role is to check
that the plan is adequate, and then to hold the government to its plan.
[53.3] The third stage is ongoing monitoring of the implementation of the plan.
That will occur through six -monthly reports. I may have preferred more
regular reports – every three or four months. But I prefer not to interfere
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with the parties’ agreement on this issue; they are best placed to balance
the need for reporting and the burden that imposes.
[54] While I intend to keep that basic structure, it is necessary to make a few
changes:
[54.1] The structure of supervision needs to be linked to an order that the
Respondents implement the s 42D agreement. I have considered
precisely how that order should be framed. The Court cannot, at this
stage, order that the agreement be implemented immediately or by a
defined date; I do not have enough information to know what is possible.
But the order must also recognize the urgency with which the
Respondents must act. Implementation cannot be left to linger
indefinitely. I have settled on the phrase “diligently and without delay”
because that is the standard set in s 237 of the Constitution.9 While the
term lacks legal precision, it conveys the core message – this must be
done as soon as reasonably possible.
[54.2] There needs to be a date for the finalization of the forensic report. That
cannot be left hanging. I do not know how long the Respondents
reasonably require for that. So the first step is for them to commit to a
date by which it will be finalised.
9 Section 237 of the Constitution reads: “All constitutional obligations must be performed diligently and
without delay.” I had thought about using the term “with all deliberate speed”. This was the term used
by the United States Supreme Court in ordering the desegregation of schools. See Brown v Board of
Education of Topeka 349 US 294 (1955) . I think s 237 seeks to convey the same idea – government
must act as swiftly as reasonably possible, and with a real sense of urgency.
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[54.3] The Respondents’ workplan needs to be subject to comment by the
Applicants and approval by the Court. The workplan may be inadequate
or fail to appreciate the urgency that is required.
[54.4] There needs to be an opportunity for the Applicants to comment on the
Respondents’ bi-annual reports.
[54.5] There needs to be a right for the parties to approach the Court for further
directions, or for the Court to mero motu require the parties to take
additional steps.
Costs
[55] Neither party has achieved exactly what they set out for. I hope they will all
conclude that they have achieved something better . The question is who should pay
when there is no real winner or loser.
[56] The Applicants argue that the structural order is , in effect, an order to compel
which is “encapsulated” in their amended papers. The Respondents ’ position is that
each party should pay its own costs because the structural order is a “logical position
encouraged by the Court within its mediatory powers” and does not constitute success.
[57] In my view, the Applicants have been substantially successful. Their error was
in framing their relief as a review, rather than simply as an order to compel. But – as I
have explained – the heart of their case was clear. Nonetheless, if they had framed
their case properly, it may have reduced or even avoided the disputes between the
parties. The Respondents may – as they did after the hearing – have consented to an
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order that required them to implement the s 42D agreement (with or without
supervision).
[58] In these circumstances, an order that the Respondents should pay 50% of the
Applicants’ costs seems just. It recognizes the Applicants’ success on the real issue
in dispute, but also that they took the wrong route to enforce those rights.
Conclusion and Order
[59] This order must be a turning point for the Hlomela Community. It represents a
a fresh promise from the Respondents and the Court to work together to ensure that
their houses are built or repaired as soon as possible. It must be implemented with a
sense of urgency – “diligently and without delay”. I have no doubt that, together, that
can be achieved.
[60] I make the following order:
1. The Respondents’ failure to fulfil their obligations under the settlement
agreement concluded with the Hlomela Community in terms of section
42D of the Restitution of Land Rights Act 22 of 1994 ( the s 42D
Agreement) is declared unconstitutional and invalid.
2. The Respondents are directed to comply with all their obligations under
the s 42D Agreement diligently and without delay, and in accordance
with this order.
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3. The Court shall retain supervision of the matter until it determines that
the Respondents have discharged all their obligations under the s 42D
Agreement.
4. The Respondents shall, within one month of the date of this order, file
an affidavit setting out the current status of its forensic investigation into
its non -compliance with the s 42D Agreement ( the forensic report ),
what steps still need to be taken to complete it, and the estimated date
by which it will be completed.
5. The Court shall determine the date by which the forensic report shall be
completed.
6. Within one month of the completion of the forensic report, the
Respondents shall file a copy of the report and a detailed workplan
setting out the steps that will be taken to comply with their obligations
under the s 42D Agreement (the workplan).
7. The Applicants shall be entitled, within one month, to file a response to
the workplan.
8. The Court shall consider reject, approve or amend the workplan and, if
necessary, issue further directions in order to secure an approved
workplan.
9. The Respondents shall, every six months after the Court approves the
workplan, file a report on affidavit detailing their progress. The Applicants
shall be entitled, within one month, to comment on each report.