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[2026] ZALCC 7
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Rustenburg Platinum Mines and Another v Langa and Others (LCC96/2024) [2026] ZALCC 7 (2 February 2026)
IN
THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
CASE
NO
:
LCC
96/2024
(1)
REPORTABLE: Yes☐/ No ☐
(2)
OF INTEREST TO OTHER JUDGES: Yes☐ / No ☐
(3)
REVISED: Yes ☐ / No ☐
Date:
04 February 2026
Before:
The Honourable Judge Ncube and Acting Judge
Maluleke
Heard on:
03 – 04 November 2025
Delivered on: 04
February 2026
In the matter between:
RUSTENBURG
PLATINUM MINES LIMITED
First
Applicant
MOGALAKWENA
PLATINUM LIMITED
Second
Applicant
and
ELISA
RAMASELA LANGA
First
Respondent
ALBERT
LESETJA CHABA
Second
Respondent
GLEN
PHAKGADI
Third
Respondent
FRANS
RENELANE PHAKGADI
Fourth
Respondent
POLVIANCE
RANKOTSANA PHAKGADI
Fifth
Respondent
JACK
MADIMETJA PHAKGADI
Sixth
Respondent
PINNY
MOKGAETJI PHAKGADI
Seventh
Respondent
RENNIE
PHAKGADI
Eighth
Respondent
SELINAH
MOKGAETJI MOTHAPO
Ninth
Respondent
LERATO
MOTHAPO
Tenth
Respondent
MARIA
NONG
Eleventh
Respondent
THE
MINSTER OF MINERAL RESOURCES
AND
ENERGY
Twelfth
Respondent
THE
DIRECOR-GENERAL OF THE DEPARTMENT
OF
MINERAL RESOURCES AND ENERGY: MINERAL
AND
PETROLEUM REGULATION
Thirteenth
Respondent
THE
DEPUTY DIRECTOR-GENERAL
DEPARTMENT
OF MINERAL RESOURCES
AND
ENERGY
Fourteenth
Respondent
THE
REGIONAL MANAGER: LIMPOPO REGION
THE
DEPARTMENT OF MINERAL RESOURCES
AND
ENERGY
Fifteenth
Respondent
THE
MOGALAKWENA LOCAL MUNICIPALITY
Sixteenth
Respondent
THE
CHIEF DIRECTOR, LIMPOPO: DEPARTMENT
OF
AGRICULTURE AND RURAL DEVELOPMENT:
WATERBERG
DISTRICT
Seventeenth
Respondent
ORDER
1.
The
application is dismissed.
2.
The Applicants
are ordered to pay party and party costs on scale “C,” of
this application, such costs to include costs
of two counsel, where
such employed.
JUDGMENT
MALULEKE AJ (Ncube J
concurring)
Introduction
[1] The First and
Second Applicants apply to evict and relocate the First to Eleventh
Respondents from the farm Zwartfontein
818 LR (Zwartfontein),
situated within the jurisdiction of the Mogalakwena Local
Municipality, Limpopo. The eviction application
is instituted in
terms of section 10 of the Extension of Security of Tenure Act 62 of
1997 (ESTA). The relief sought by the
Applicants is as follows:
1.
A declaration that the process in terms of
section 54 of the Mineral and Petroleum Resources Development Act, 28
of 2002 (MPRDA)
has concluded, save for the right of the First to
Eleventh Respondents to, in terms of section 54(4) of the MPRDA,
refer any dispute
regarding compensation to arbitration in accordance
with the
Arbitration Act, 42 of 1965
or to a competent court;
2.
An order evicting the First to Eleventh
Respondents and all persons claiming rights of residence through
them, from the farm Zwartfontein
in the Mogalakwena Local
Municipality, Limpopo within 30 days of the granting of the order;
3.
An order conforming that the Applicants are
entitled to demolish the dwellings occupied and / or retained by the
First to Eleventh
Respondents on Zwartfontein upon their vacating of
Zwartfontein, and the return of any salvaged material to such
Respondents;
4.
In respect of the Third to Eleventh
Respondents, a final order directing them to make a selection of
alternative permanent housing
in accordance with the Relocation
Agreement concluded in August 2012, and the Addendum thereto
concluded in February 2018 to be
constructed for them by the
Applicants.
[2] Historically,
the mining area was occupied by the communities comprising almost
1000 households that made up Motlhotlo
community. It included the
Ga-Sekhaolelo community which resided on the farm Overysel 815 LR and
the Ga-Puka community which resided
on the farm Zwartfontein, which
the First to Eleventh Respondents are part of.
[3] The Applicants
state that the Ga-Sekhaolelo community that occupied Overysel has
successfully resettled and the vast majority
of the households that
resided on the farm Zwartfontein have vacated in accordance with the
relocation agreements concluded with
the communities. The Applicants
contend that the Respondents, who are presently living on the farm
Zwartfontein and claiming rights
over it, are unreasonably refusing
to vacate the property. They argue that this refusal violates the
binding relocation agreement
entered into between the community (to
which the Respondents are part of) and the Second Applicant, and it
is in breach of the
First Applicant’s mining right.
Parties
[4] The First
Applicant is Rustenburg Platinum Mines Limited (RPM), a holder of a
mineral right in terms of the Mineral
and Petroleum Resources
Development Act 28 of 2002 (MPRDA), which includes a part of the
mining area within the Zwartfontein.
[5] The Second
Applicant is Mogalakwena Platinum Limited (MPL), a lessee of farm
Zwartfontein.
[6] The Applicants
are wholly owned subsidiaries of Anglo-American Platinum Limited
(AAPL). Mr Tebogo Makhubedu (Mr Makhubedu)
is a Senior Land Rights
Manager at AAPL. He is the deponent to the founding affidavit.
[7] The First to
Eleventh Respondents are, Elisa Ramasela Langa, Albert Lesetja Chaba,
Glen Phakgadi, Frans Renelane Phakgadi,
Polviance Rankotsana
Phakgadi, Jack Madimetja Phakgadi, Penny Mokgaetji Phakgadi, Rennie
Phakgadi, Selina Mokgaetji Mothapo, Lerato
Mpthapo and Maria Nong,
respectively.
[8]
The Twelfth to Seventeenth Respondents are, the Minister of Mineral
Resources and Energy (Minister) who is cited in his
capacity as the
Head of the Department of Mineral Resources and Energy (DMRE), the
Director General of the Department of Mineral
Resources and Energy:
Mineral and Petroleum Regulation (Director General)
,
the Director General of the Department
of Mineral Resources and Energy (DDG), the Regional Manager,
Department of Mineral Resources
and Energy (Regional Manager), the
Mogalakwena Local Municipality and the Chief Director, Limpopo
Department: Agriculture and Rural
Development: Waterberg District
respectively
.
The process leading to
the eviction application
[9] In the founding
affidavit, Mr. Makhubedu, sets out in detail the processes RPM
engaged in to reach agreements with the
affected communities,
including the First to Eleventh Respondents.
[10] RPM is the
holder of a mining right converted in terms of item 7 of Schedule II
of the MPRDA which was originally granted
to Potgietersrus Platinum
Limited (PPL) on 23 July 2010. PPL later changed its name to MPL and
ceded its mining right to RPM on
2 December 2016. The mining right
commenced on 23 July 2010 and is in force for a period of 30 years
ending 22 July 2040.
[11] The mining
right covers the following properties situated in Mokopane
Administrative District measuring a total of 13675,
9721 hectares in
extent: Overysel 815 LR; Zwartfontein 818 LR; Vaalkop 819 LR; Portion
1, Remaining Extent of Portion 2 and Portion
3 of Tweefontein 238 KR;
Sandsloot 236 KR; Rietfontein 240 KR; and Knapdaar 234 KR,
(Collectively, the “Mining Area”)
[12] The farms
Overysel, Vaalkop, Rietfontein, Knapdaar and Sandsloot are owned by
the Government of South Africa and are
held in trust on behalf of the
Langa-Mapetla Tribe. Portion 1, Remaining Extent of Portion 2 and
Portion 3 of Tweefontein are owned
by the Government of South Africa
and are held in trust on behalf of the Kekana Traditional Authority.
The farm Zwartfontein is
owned by the Langa-Mapetla Tribe on behalf
of the Ga-Puka community.
[13] Historically,
members of the Ga-Puka community resided on the farm Zwartfontein in
a village known as the Ga-Puka village,
whilst the members of the
Ga-Sekaolelo community resided on the adjoining farm, Overysel, in
the village known as Ga-Sekaolelo
village. These communities are
jointly known as the Motlhotlo Community.
[14]
Except for the First to the Eleventh Respondents, the communities
that occupied the mining area have been successfully
resettled to
areas and housing of their choosing, in accordance with the
Relocation Agreement and the Relocation Addendum respectively.
[1]
[15] The mining
right granted in terms of section 5 (2) of the MPRDA is a limited
real right in respect of the mineral and
land to which such right
relates; and the holder of the mining right is entitled to rights
referred to in section 5 and such other
rights as may be granted to
or acquired by or conferred upon such holder under the MPRDA or any
other law. The entitlements of
a mining right holder are set out
under section 5 (3) and include the entitlement to,
inter alia
:
‘
Section
5 (3) subject to this Act, any holder of a prospecting right, a
mining right, exploration right or production right may—
(a)
enter the land to which such right relates together with his or her
employees, and may bring onto that land any plant, machinery
or
equipment and build, construct or lay down any surface, underground
or under sea infrastructure which may be required for the
purposes of
prospecting, mining, exploration or production, as the case may be;
(b)
prospect, mine, explore or produce, as the case may be, for his or
her own account on or under that land for the mineral or
petroleum
for which such right has been granted;
(c)
remove and dispose of any such mineral found during the course of
prospecting, mining, exploration or production, as the case
may be;
(cA) subject to section
59B of the Diamonds Act, 1986 (Act No. 56 of 1986), (in the case of
diamond) remove and dispose of any diamond
found during the course of
mining operations;
(d)
subject to the National Water Act, 1998 (Act No. 36 of J 998), use
water from any natural spring, lake, river or stream, situated
on, or
flowing through, such land or from any excavation previously made and
used for prospecting, mining, exploration or production
purposes, or
sink a well or borehole required for use relating to prospecting,
mining, exploration or production on such land;
and
(e)
carry out any other activity incidental to prospecting, mining,
exploration or production operations, which activity does not
contravene the provisions of this Act.’
[16] MPL
established Mogalakwena Mine in 1993, in that year, during the
establishment of the Mogalakwena mine, MPL, identified
the need to
resettle the community. At the time, the community comprised of 956
households.
[17] On or about 6
October 1993, at Lebowakgomo and Mokerong, MPL represented by Jimmy
Johnston, duly authorised, and the
Self-Governing Territory of
Lebowakgomo, represented by Morawangwato Matlebjane Marishane, duly
authorised, concluded a Memorandum
of Agreement of Lease (the “1993
Lease Agreement”).
[18] Some of the
relevant material express terms of the 1993 Lease agreement are as
follows:
a.
The Langa-Mapetla Tribe would be entitled
to occupy and use, free of any rental, a portion of the farm Armoede
for the duration
of the agreement (clause 3.3);
b.
MPL would have exclusive right to occupy
and use the leased area for prospecting, mining, refining and for any
other purpose incidental
thereto, including but not limited to the
construction of plant, rock dumps, reservoirs and slimes dams, as
well as the laying
of pipelines and electric cables (clause 4);
c.
No person would be entitled to erect any
dwelling or immovable structure in, on or under the leased area
(clause 5.5).
Negotiations for the
resettlement of the Motlhotlo Community
[19] In the
Founding Affidavit, Mr. Makhubedu declares that, in 1998, MPL
started engaging the community on the issue
of relocation. These
engagements were undertaken through the Mapetla Traditional
Authority, as well as the Department of Land Reform
and Rural
Development (the Department), as the custodian of the two villages
comprising of the community. The Steering Committee
was established
and legal advisers were appointed to represent them in the
resettlement process.
[20] A site
selection process commenced in 2002, through which households were
able to indicate the areas of preference for
purposes of relocation.
The site selection was necessitated by the expansion of operations at
the mine, which was a culmination
of years of consultation and
negotiations involving communities, tribal authorities and provincial
government.
[21]
In 2004, MPL initiated the process of compiling and implementing a
Resettlement Action Plan
[2]
(RAP), at the time there was no legislation, or legally binding
directive regulating the manner in which relocations were to be
effected. The RAP set out the framework for the provision of
compensation and livelihood-restoration measures. Such measures
included
compensating members of the community for any losses
suffered as a result of the resettlement process, in order to restore
the
community members’ livelihood and standards of living of
the affected households.
[22]
The physical relocation of households commenced on 29 May 2007. By
2008, the majority of the 956 households had agreed
to relocate to
the nearby locations of Armoede, and Rooibokfontein.
[3]
Approximately 64 households resisted resettlement. However, by 2010,
the number of households resisting resettlement had grown
to 176
households. Therefore, the process of negotiations ensued.
[23]
On or about 15 August 2012 at Motlhotlo and at Johannesburg, MPL
(represented by Mr. Ben Magara, duly authorised) and
Motlhotlo
Community (represented by ten members of the Motlhotlo Community duly
authorised, namely David Masubelele, Solomon Masubelele,
Selinah
Mokgaetji Phakgadi (the Ninth Respondent), Solomon Mphela, Johannes
Chaba, Peter Mphela, Hellen Matjui, Johannes Mothupi,
James Notwana
and Maria Ledwaba) entered into the Motlhotlo Community Relocation
Agreement (the “2012 Relocation Agreement”
[4]
).
[24]
Clause 21.2 of the 2012 Relocation Agreement provides that: “Should
any household or member of any household not
have relocated within 30
days of the date, upon which suitable alternative accommodation was
made available to that person or household,
then MPL would be
entitled to approach an appropriate court of jurisdiction for the
eviction of the person or household and to
do all things incidental
to such process including the giving of notice, terminating rights of
residence or occupation and noting
or opposing any appeal or
review”.
[5]
[25]
On or about 12 December 2012 at Sandton, MPL represented by Mr.
Etienne Espag, duly authorised, concluded a Notorial
Lease Agreement
with the Langa Tribe (also known as Langa-Mapela Tribe), represented
by Kgoshi David Kgabagare Langa, duly authorised
and acting in his
capacity as Kgoshi and trustee of the Tribe in respect of
Zwartfontein (the “2012 Zwartfontein Notarial
Lease”).
The 2012 Zwartfontein Notarial Lease pertains to Zwartfontein, which
was part of the leased area in the 1993 Lease
Agreement.
[6]
[26]
In February 2018, Environmental Resources Management (ERM), an
independent consultant firm, was appointed to progress
engagement
activities to support the preparation of the 2018 Relocation
Addendum
[7]
and lay the basis
for implementation of the 2018 Relocation Addendum.
[27] Prior to the
conclusion of the 2018 Relocation Addendum, in March 2018, an asset
and census survey of the community was
conducted to determine
appropriate resettlement options. The 68 households that remained in
the Motlhotlo community were represented
by the
CPA
and Richard Spoor Inc. These households are referred to as the CPA
occupiers; they were engaged fortnightly with the broader Motlhotlo
community.
[28] However, while
the majority households surveyed expressed a preference for a
relocation to Mokopane Extension 14A, 18
households refused to engage
in the census process, and distanced themselves from the Communal
Property Association (CPA). The
breakaway group comprised of
inter
alia
, the Phakgadi family, to which the Third to Eight
Respondents belong (the “Phakgadi Group”) and the
Mothapo/ Masubelele
family, to which the Ninth to Eleventh
Respondents belong (the “Masubelele Group”). The Phakgadi
Group and Masubelele
Group are referred to collectively as the
“Breakaway Group”.
[29] Engagements
with the Breakaway Group revealed that its members did not identify
with the majority of the Motlhotlo Community
and sought a relocation
option tailored to their individual preferences.
[30]
Despite several meetings between 2019 to 2020, and attempts to
engage, the Breakaway Group and the CPA occupiers did
not relocate
.
On 9 December 2020, RPM issued a notice in
terms of section 54 of the MPRDA to the Regional Manager, expressly
referring to the
First, Second and Tenth Respondents. To date the
First, Second and Tenth Respondents have failed to take occupation of
their houses.
Only 22 out of 43 households forming part of the CPA
occupiers had taken occupation of their completed homes.
[31] The Regional
Manager failed to take any of the steps prescribed by section 54 of
the MPRDA.
[32] On 1 February
2023, RPM issued a further notice in terms of section 54 of the MPRDA
to the Regional Manager, on certain
individuals (including the Third,
Sixth, Seventh, Ninth and Eleventh Respondents), who despite being
party to the 2012 Relocation
Agreement, had unreasonably refused to
take occupation of houses that had been constructed for them at Ext
14A,
[33] There were
further facilitated engagements between the DMRE, AAPL and the
remaining Motlhotlo Community (which the First
to Eleventh
Respondents are part of) However, despite all RPM’s efforts,
the parties deadlocked and the facilitated negotiations
had to be
terminated.
[34] The Applicants
state that there is no obligation in terms of the MPRDA for a mining
right holder to consult with occupiers
of land regarding its mining
once it has obtained the mining right and once it has commenced
mining. Further, that RPM has gone
above and beyond good faith
obligation it might owe to the First to Eleventh Respondents by
extensively consulting them.
[35] The Applicants
state that they issued and served section 8 notices of termination of
right of residence, in terms of
ESTA by the sheriff at each of the
First to Eleventh Respondents’ households on 14 May 2024. The
Applicants argue that the
farm Zwartfontein does not fall within the
exclusion under section 2 of ESTA.
[36] The Applicants
submit that when regard is had to the events and interactions
described above, it is clear that the rights
of residence of the
First to Eleventh Respondents have been terminated on lawful grounds
and that such termination is just and
equitable, having regard to the
factors identified in sections 8 to 10 of ESTA.
The Respondents’
Defence
[37] Ms. Selinah
Makgaetji Mothapo is the Ninth Respondent and the deponent to the
Second to Eleventh Respondents’ answering
affidavit. The
answering affidavit mounts a defence to issues raised in the founding
affidavit and states:
“
The
Applicants create an impression in the founding papers, read as a
whole that there has been compliance with all the relevant
or
applicable statutory provisions. They further create an impression
that they have complied with all their obligations in terms
of the
purported relocation agreement and the purported addendum thereto. In
particular, an impression is created in this regard
that all the
houses which they have already built for members of the community for
purpose of relocation are suitable standards.
In fact, they make it
sound as if the houses we built in Zwartfontein are nothing compared
to those houses [size of the houses
built by RPM compared to the
yards in rural areas]. They place emphasis on the amount of money
they have spent and still have to
spend on the relocation. They
present us to the Court as individuals who are completely
unreasonable, greedy and incapable of being
satisfied by anything
from them
…”
.
[38]
The Respondents state that the Applicants are aware that there has
been no compliance with any relevant or applicable
legislation at
all, which is clear from prayer 1 of the notice of motion, that there
has been no compliance with section 54 of
the MPRDA. They referred to
the Constitutional Court’s decision of
Maledu
and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and
Another
[8]
that emphasized that Applicants “
were
required to take all reasonable steps to exhaust the section 54
process-which they had in fact initiated – before approaching
a
court for an eviction and an interdict
.”
[39] The
Respondents state that the relocation agreement, and the addendum
thereto, is not binding on them at all, because
of the failure by the
Applicants to comply with the relevant provisions, in particular
section 2(4) of the Interim Protection of
Informal Rights Act 31 of
1996 (IPILRA) before that agreement, and the addendum thereto were
purportedly concluded between MPL
and the community.
[40] The
Respondents state that the Applicants seek their eviction on the
ostensible basis that their refusal to vacate and/or
relinquish their
rights over Zwartfontein is unreasonable and aver that their refusal
to vacate and/or relinquish their rights
over Zwartfontein is
reasonable. Apart from the fact that there was no compliance with
IPILRA, they do not want to be exposed to
the same intolerable
conditions which other members have been exposed to.
[41] The
Respondents argue that there was no legitimate basis for the
Applicants to institute this application. The Respondents
argue that
the Applicants seem to be of the view that the mining right trumps
the Respondents’ right to Zwartfontein, which
is wrong, they
say.
[42] The
Respondents further, argue that the Applicants allege that
Zwartfontein is owned by the Langa-Mapela Tribe on behalf
of the
Ga-Puka community. This suggests that their residence on or their
occupation of the land, “was” informal as
they are not
the registered owners of the land. Effectively, the Applicants claim
that the Respondents have disposed of that informal
right.
[43] The
Respondents then outline the fact that section 2(1) of IPILRA
prohibits the deprivation of any informal rights to
land without the
holder’s consent. Further that, in terms of section 2 (2),
where land is held on a communal basis, the deprivation
of the right
should occur “
in accordance with the custom and usage of
that community
”. In terms of section 2 (3), ‘
where
the cause of the deprivation is a disposal of the land or right in
land by the community, the community is obliged to pay
compensation
to the person deprived of the land as a result of such deprivation
’.
Section 2(4) provides:
“
For
the purposes of this section the custom and usage of a community
shall be deemed to include the principle that a decision to
dispose
of any such right may only be taken by a majority of the holders of
such rights present or represented at a meeting convened
for the
purpose of considering such disposal and of which they have been
given sufficient notice, and in which they have had a
reasonable
opportunity to participate.”
[9]
[44] The
Respondents refer to the mechanisms provided in section 54 of
the MPRDA for resolving disputes between a mining/prospecting
right holder and a landowner or lawful/informal right occupier.
Further that it provides a framework for consultations, negotiations
and compensation if mining activities are likely to cause loss or
damage, and a path for the right holder to gain land access if
the
landowner refuses, by referring the dispute to the Regional Manager
for resolution. They argue that the Applicants have
not
exhausted the dispute resolution mechanism provided for by the MPRDA.
They argue that ESTA finds no application in this case.
[45] The
Respondents state that the Applicants allege that they are bound by
relocation agreement, whether they personally
signed it or not, as
provided for in clause 21.3.1 of the relocation agreement. The
Respondents argue that the relocation agreement
is with the Mapela
Tribal Council and therefore does not comply with section 2(4) of
IPILRA and that there is no evidence that
their community consented
to being deprived of their informal right to Zwartfontein.
[46] The
Respondents further challenge the suitability of the houses built by
the Applicants, that they are not suitable for
habitation, that there
are termites and the Applicants did not treat the land where they
build the houses. They argue that some
of the houses they live in at
Zwartfontein are better than what has been built by the Applicants.
[47]
The Respondents argue that the relief sought by the Applicants in
prayer 1, for the Court to declare that the processes
initiated by
RPM in terms of section 54 of the MPRDA have been concluded,
except for that relating to the determination of
compensation by
arbitration in accordance with the
Arbitration Act
[10
]
or by a competent court. They argue further that the Constitutional
Court made it clear in
Maledu
that
the Applicants were required to take all reasonable steps to exhaust
the
section 54
process, which they had in fact initiated before
approaching a court for an eviction and an interdict.
[48] The
Respondents state that the Applicants have not pleaded any case of
compliance with IPILRA. Further that, the 1993
lease agreement had
the effect of depriving them (Ga-Puka / Zwartfontein community) of
their right to occupy the land without their
consent.
[retrospectivity]. They state that the Applicants at paragraph 40 of
the founding affidavit made it clear that it is Ga-Puka
community
that ‘resided’ on Zwartfontein, and that no where do they
claim that the Langa Mapela tribe resided on that
land at any time.
[49] The Applicants
reply that they have complied with IPILRA despite not mentioning it
in the founding affidavit and contend
that ESTA is the proper
legislation in terms of which the Applicants should seek, and have
sought, relief. Therefore, the Applicants
have made the necessary
averments to demonstrate compliance with ESTA.
Legal Principles
Applicable
Mineral and Petroleum
Resources and Development Act 28 of 2002
[50]
Section 54 of the MPRDA deals with compensation payable under certain
circumstances and provides that:
“
(1)
The holder of a reconnaissance permission, prospecting right, mining
right or mining permit must notify the relevant Regional
Manager if
that holder is prevented from commencing or conducting any
reconnaissance, prospecting or mining operations because
the owner or
the lawful occupier of the land in question—
a)
refuses to allow such holder to enter the
land;
b)
places unreasonable demands in return for
access to the land; or
c)
cannot be found in order to apply for
access.
(2)
The Regional Manager must, within 14 days
from the date of the notice referred to in subsection (1)—
a)
call upon the owner or lawful occupier of
the land to make representations regarding the issues raised by the
holder of the reconnaissance
permission, prospecting right, mining
right or mining permit;
b)
inform that owner or occupier of the rights
of the holder of a right, permit or permission in terms of this Act;
c)
set out the provisions of this Act which
such owner or occupier is contravening; and
inform that owner or
occupier of the steps which may be taken, should he or she persist in
contravening the provisions.
3) If the Regional
Manager, after having considered the issues raised by the holder
under subsection (1) and any written
representations by the owner or
the lawful occupier of the land, concludes that the owner or occupier
has suffered or is likely
to suffer loss or damage as a result of the
reconnaissance, prospecting or mining operations, he or she must
request the parties
concerned to endeavour to reach an agreement for
the payment of compensation for such loss or damage.
4) If the parties
fail to reach an agreement, compensation must be determined by
arbitration in accordance with the Arbitration
Act, 1965 (Act 42 of
1965), or by a competent court.
5) If the Regional
Manager, having considered the issues raised by the holder
under subsection (1) and
any representations by the owner or occupier of land and any written
recommendation by the Regional Mining
Development and Environmental
Committee concludes that any further negotiation may detrimentally
affect the objects of this Act
referred to in section 2(c), (d), (f)
or (g), the Regional Manager may recommend to the Minister that such
land be expropriated
in terms of section 55.
6)
If the Regional Manager determines that the failure of the parties to
reach an
agreement or to resolve the
dispute is due to the fault of the holder of the
reconnaissance permission, prospecting right,
mining right or mining permit, the Regional Manager may in writing
prohibit such holder
from commencing or continuing with prospecting
or mining operations on the land in question until
such
time as the dispute has been resolved by arbitration or by a
competent
court.
7) The
owner or lawful occupier of land on which reconnaissance, prospecting
or mining operations will be conducted must notify
the relevant
Regional Manager
if that owner or occupier
has suffered or is likely to suffer any loss or damage as
a
result of the prospecting or mining operation, in which case this
section applies
with the changes required
by the context.
The
Interim Protection
of Informal Land Rights Act 31 of 1996
.
[51] The South
African customary land tenure system is currently administered in
terms of the IPILRA, which was promulgated
to give effect to
section
25(6)
and section 25(9) of the Constitution of the Republic of South
Africa, 1996 (the Constitution). Section 25(6) of the
Constitution
guarantees that a person or community whose land tenure
is legally insecure due to past racially discriminatory laws or
practices
is entitled, through an Act of Parliament, to legally
secure tenure or comparable redress. Section 25(9
)
places
a direct mandate on Parliament to enact the national legislation
required to give effect to this right to tenure security.
[52]
IPILRA was introduced as a temporary measure in 1996 to provide
immediate protection for holders of informal land rights
in former
homeland areas until comprehensive, permanent legislation could be
passed. Informal rights in land are defined as the
use, occupation or
access to land in terms of any tribal, customary or indigenous law or
practice of a tribe.
[11]
[53]
The objective of IPILRA is to provide for the temporary protection of
certain rights to and interests in land which are
not otherwise
adequately protected by law; and to provide for matters connected
therewith, however, the objective has been overridden
by the Court
decisions that have concretised the protection.
[12]
[54] The specific
aim of IPILRA is to protect insecure rights held by many South
Africans, especially in the previous so-called
independent states,
self-governing territories and the South African Development Trust
Land. These so-called ‘informal rights’
enjoy protection
against deprivation similar to that afforded to traditional property
rights. ‘Informal right’ is broadly
defined in section
1(1)(iii) of IPILRA. It includes the use or occupation of or access
to land in terms of:
‘
(a)
any tribal, customary or indigenous law or practice of a tribe;
(b)
the custom, usage or administrative practice in a particular area or
community;
(c)
the rights or interest in land of a beneficiary under a trust
arrangement in terms of which the trustee is a body or functionary
established under an Act of Parliament;
(d)
beneficial occupation of land for a continuous period of not less
than five years
prior
to 31 December 1997.
(e)
the use or occupation of any erf as if the person is the holder of
Schedule 1 or 2 rights under the upgrading of Land Tenure
Rights Act
112 of 1991, although that person is not formally recorded as such in
a land rights register.’
[55]
Section 1 of IPILRA defines a “community” as “any
group or portion of a group of persons whose rights
in land are
derived from shared rules determining access to land held in common
by such group”.
Baleni
[13]
held the Umgungundlovu community (Applicants) to be such a community.
[56] Section
1(2)(b) of IPLIRA states that the holder of an informal right in land
shall be deemed to be an owner of land
for the purposes of section 42
of the Minerals Act 50 of 1991.
[57] Section 2 of
IPILRA regulates the ‘Deprivation of informal rights to land’,
and states that:
“
(1)
Subject to the provisions of subsection (4), and the provisions of
the Expropriation Act, 1975 (Act No. 63 of1975), or any other
law
which provides for the expropriation of land or rights in land,
states no person may be deprived of any informal right to land
without his or her consent.
(2) Where land is held on
a communal basis, a person may, subject to subsection (4), be
deprived of such land or right in land in
accordance with the custom
and usage of that community.
(3) Where the deprivation
of a right in land in terms of subsection (2) is caused by a disposal
of the land or a right in land by
the community, the community shall
pay appropriate compensation to any person who is deprived of an
informal right to land as a
result of such disposal.
(4) For the purposes of
this section the custom and usage of a community shall be deemed to
include the principle that a decision
to dispose of any such right
may only be taken by a majority of the holders of such rights present
or represented at a meeting
convened for the purpose of considering
such disposal and of which they have been given sufficient notice,
and in which they have
bad a reasonable opportunity to participate.”
[58]
Section 3 of IPILRA provides that: “Subject
to the
provisions of section 2, any sale or other disposition of any land
shall be subject to any existing informal rights to that
land”.
The
Extension of
Security of Tenure Act 62 of 1997
[59]
ESTA was promulgated to give effect to key constitutional rights
of
section 25
on property, including the right to security of tenure,
the right not to be arbitrarily evicted, and
section 26
which is the
right of access to adequate housing. It seeks to protect vulnerable
occupiers living on land falling within the ambit
of ESTA from
unjustified evictions and the risk of homelessness. In line with its
purpose, ESTA must be interpreted in a manner
that promotes these
constitutional values and ensures that those who fall within its
scope are afforded the fullest possible protection.
Any termination
of such occupiers’ right of occupation must therefore comply
strictly with the provisions of ESTA.
[14]
[60] The
aspirations of ESTA as articulated in its Preamble is to provide
measures with State assistance to ensure long-term
security of tenure
on land, for vulnerable individuals or families residing on rural or
peri-urban land with the owner's consent.
It was enacted to
inter
alia
, regulate conditions of residence on certain land as well as
the conditions on and circumstances under which the right of persons
to reside on land may be terminated.
[61] The Preamble
further states that ESTA also regulates the conditions and
circumstances under which persons, whose rights
of residence has been
terminated, may be evicted from land and to provide for matters
connected therewith.
[62]
Applications for eviction must comply with
sections 8
,
9
,
10
,
11
of
ESTA.
Section 8
[15]
of ESTA
provides for the termination of right of residence.
Section 9
[16]
of ESTA is entitled ‘limitation on eviction’.
Section
10
[17]
deals with the order
for eviction of person who was occupier on 4 February 1997.
Case law
[63]
The decision of
Exxaro
Coal (Pty) Ltd and Another v Sindane and Others
[18]
handed down by my sister, Cowen J, where the Applicants sought a
declaratory order to enforce the resettlement agreements signed
between the Applicants and the late Mr Frans Sindane, representing
his family, and between the Applicants and the First Respondent
representing his family. They sought an order for relocating
the Sindane family to the Phumulani Agri-Village within 30 days
of
the court order. In the alternative, the Applicants sought an
eviction order in terms of
section 9
of ESTA coupled with a
relocation order to the Phumulani Agri-Village within 30 days of the
court order.
[64]
The Court in paragraph 27 indicated that the Sindane family did not
place material features of the history or evidence
recounted in the
founding affidavits in dispute and the Court had to resolve the
factual disputes on the principles articulated
in
Plascon
Evans and Wightman.
[19]
[65] The Court
ordered the Sindane family to relocate from their ancestral land to a
new housing development to facilitate
ongoing mining operations. The
court based its decision on ESTA, finding it "just and
equitable" to terminate the family's
residence due to unsafe
mining activities, and dismissed challenges to resettlement
agreements. The Sindane family's subsequent
application for leave to
appeal the judgment was dismissed by the Land Claims Court in March
2024.
[66]
In casu
,
this Court cannot follow the precedent set in
Exxaro
for two
reasons:
a.
Firstly, the Respondents raised significant
challenges and argument against the Applicants’ claims and
prayers, therefore,
the principles laid in
Plascon
Evans and Wightman
cannot apply in this
matter.
b.
Secondly, there are few Constitutional
Court judgments between 2018 and 2021 upholding IPILRA rights,
introducing a major shift
in the mining terrain and the relationship
of IPILRA and ESTA. The Constitutional Court decisions are binding to
all Courts, including
itself, therefore, the decision of
Exxaro
or anything similar, cannot be
followed.
[67]
There are few judgments that have far reaching implications for the
interaction of IPILRA and the MPRDA, these are:
Maledu
and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and
Another
[20]
(“Maledu”);
Baleni
and Others v Minister of Mineral Resources and Others
[21]
(“Baleni”);
Council
for the Advancement of the South African Constitution and Others v
Ingonyama Trust and Others
[22]
(“Ingonyama”).
[68]
The Court in
Maledu
asked the following question in
paragraph 85:
“
Were the
respondents under a duty to exhaust the internal process under
section 54 of the MPRDA before approaching the High Court?”
Section 54(1) provides
that the holder of a mining right or permit—
“
must notify the
relevant Regional Manager if that holder is prevented from commencing
or conducting . . . mining operations because
the owner or the lawful
occupier of the land in question . . . refuses to allow such holder
to enter the land.”
[69]
The Court answered the above question in the following manner:
‘
Section 54 employs
mandatory language. During oral argument the respondents submitted
that section 54 was not triggered as it only
relates to disputes
concerning compensation. Having regard to the wording of the section,
this submission is patently wrong. In
fact, on 12 August 2014, the
second respondent addressed a section 54(1) written notice to the
Regional Manager.
[23]
However, there is no evidence as to what finally became of that
process.’
[24]
[70] In conclusion
the Court held in paragraphs 109 to 110 that:
“
Before this Court,
counsel for the respondents could not point to any provision in the
MPRDA which permits the holder of a mining
right to institute
eviction proceedings against the landowner or lawful occupier when
the latter refuses to allow the former access
to the land to which
his or her right relates. In response to a question from a member of
the Court, counsel said that the respondents
invoked their common law
remedy. That then raises the question whether it was open to the
respondents to do so. I think not. Their
rights are derived from the
MPRDA, which contains its own internal mechanisms for resolving
obstacles of the kind that they encountered
when they sought to
exercise their mining rights. It makes provision for avenues that can
be deployed to resolve disputes between
the mining right holder on
the one hand and the landowner or lawful occupier on the other, the
most drastic of which is expropriation
when all else fails. In
bypassing the express provisions of section 54, the respondents
undermined the supervisory role and powers
of the Regional Manager
who is charged with the responsibility of administering and
implementing the MPRDA as the Director General’s
delegate.
[25]
In addition, and more
fundamentally, the fact that section 54 provides for a remedy must
mean that resort cannot be had to an alternative
remedy available
under the common law. This must be so because section 4(2) of the
MPRDA expressly provides that “in so far
as the common law is
inconsistent with [the MPRDA], the [MPRDA] prevails”.
[71] The Gauteng
decision of
Baleni
can be summarised as follows:
71.1. The case involved
the Umgungundlovu community in Xolobeni and an Australian mining
company. The community held informal land
rights under customary law
and IPILRA. It concerned the level of consent required to obtain a
mining right over property held by
a community with informal or
customary land rights. The issue was whether the "consultation"
required by the
Mineral and Petroleum Resources Development
Act (MPRDA
) was sufficient or "consent" required under
IPILRA.
71.2
The court, duly following the judicial guidance provided in Maledu,
made an important pronouncement
on the rights of people who hold
informal land tenure. It found that the state may not grant mining
rights without the prior consent
of those whose IPILRA and customary
land rights would be affected by mining, and further that the process
of granting and obtaining
consent must be done in accordance with the
customary law of those whose land rights are affected. Such consent
must be ‘free,
prior and informed’.
71.3
The court specifically considered provisions of the Interim
Protection of Informal Land Rights Act 31
of 1996 (IPILRA) and
the Mineral and Petroleum Resources Development Act 28 of
2002 (MPRDA) and concluded that the provisions
of these Acts should
be read together when determining the level of consent required. The
court found that a community's consent,
as required by IPILRA, and
not merely consultation with a community, as required by the MPRDA,
is necessary before a mining right
can be obtained over a community's
property.
71.4
The Court held that the government cannot grant a mining right over
land occupied by a community under customary
law without their full,
prior, and informed consent (FPIC).
71.5
The court highlighted that IPILRA protects communities with informal
land tenure. It found that Section 2(1)
of IPILRA, which prevents the
deprivation of informal land rights without consent, applied because
granting a mining right constitutes
a deprivation.
71.6
The court differentiated "consultation" (exchanging views
without requiring agreement) from "consent"
(requiring
agreement) as provided for in terms of section 10 of the IPILRA. It
ruled that IPILRA's enhanced protection demands
consent. The
Court was satisfied that the matter be resolved on
the
premise of Section 54 of the MPRDA of 2002 and Section 2 of the
IPILRA of 1996.
[72] The Court’s
decision on
Ingonyama
can be summarised as follows:
72.1
The
Ingonyama
judgment
found the Ingonyama Trust's actions of converting customary land
rights to leases unlawful and unconstitutional. The court
ruled that
the beneficiaries of the Trust, members of communities living on
Trust land, are the true owners, therefore invalidating
all
residential lease agreements. The court ordered the Trust to refund
all money collected from these leases and to take steps
to reinstate
proper land rights for the communities.
72.2
The court declared that residential lease agreements for land held by
the Ingonyama Trust were unlawful and
unconstitutional, because they
were imposed on individuals who are the land's beneficial owners
under Zulu customary law. The judgment
affirmed that the people
living on Trust-held land are the true and beneficial owners, with
the Ingonyama Trust acting merely as
a custodian. The court ordered
the Trust to restore the statutory and customary law rights of
residents upon request and to permit
the proper granting of
Permission to Occupy (PTO) rights.
72.3
The judgment highlighted that residents were often unaware of what
they were signing, with contracts frequently
in English and a lack of
genuine informed consent. The court instructed the Minister of Rural
Development and Land Reform to implement
measures to protect the land
rights of affected people and to formalize their customary rights.
[73] The judgment
provides at paragraph 96 that:
‘
Under
customary law, each family head has the right to be allotted a family
home site, arable land and a right to graze his livestock
on pasture
lands. The land is allotted to an individual without requiring
anything in return in the nature of a purchase price
or rental. The
individual’s holding of a portion of the land allotted to him
or her is sacrosanct in that it is inviolable
and passes from
generation to generation (inheritable). It becomes the property of
the individual’s family. Nothing can be
done with it without
the involvement and consent of such individual or his or her family
members. The owner of residential or arable
land acquires an
exclusive right to its use.’
[74] It goes
further to state at paragraph 101 that:
‘
The
rights of persons to occupy or use Trust-held land are acquired
through Zulu customary law, customs and usages, and such rights
entitle the owner to occupy and use the land, to dispose of such land
to another person, to erect a building or let it, and transfer
it to
another person, including bequeathing it to his or her children.’
Discussion
[75] The Applicants
did not dispute that the Respondents held informal rights to the land
as defined in section 1 of IPILRA
and that they occupied such land
in
accordance with their laws and customs. Further, the Applicants
stated in the founding affidavit that some of the farms in question
are owned by the Government of South Africa and are held in trust on
behalf of the tribes and that the farm Zwartfontein is owned
by the
Langa-Mapetla Tribe on behalf of the Ga-Puka community. This confirms
the status of the community in Zwartfontein, that
they have informal
rights in the land alleged to be owned by the Langa-Mapetla Tribe,
and that they fall under the purview of IPILRA.
[76]
The Applicants pray for this Court to declare that the processes in
section 54 of MPRDA have been concluded except for
section 54(4) on
arbitration, arguing that the Respondents will have a right to pursue
the arbitration process after their eviction.
This Court cannot give
such an order because precedent established that consent is a
precondition in a mineral rights application
[26]
and that compensation must be determined and paid before mineral
rights can be exercised.
[27]
In the Applicants’ founding affidavit, it states that they
reported the matter to the Regional Manager, however, the Regional
Manager is non-responsive, while in paragraphs 35-37 of the founding
affidavit, the Applicants indicate that there were few meetings
with
the DG, DDG, Regional Manager and the Adviser to the Minister, where
the Applicants were informed that following the Constitutional
Court
decision in
Maledu
,
the launch of the application for eviction was pre-mature.
[77] The Applicants
in the replying affidavit, argue that they have complied with IPILRA
despite not mentioning it in the
founding affidavit.
Maledu
has
particularly reinforced the position that the MPRDA must be read in
conjunction with the IPILRA, it cannot be implied.
[78] The Applicants
argue that a mining right granted in terms of section 5 (2) of the
MPRDA is a limited real right in respect
of the mineral and land to
which such right relates; and that the holder of the mining right is
entitled to rights referred to
in section 5 and other such rights as
may be granted to or acquired by or conferred upon such holder under
the MPRDA or any other
law. The entitlements of a mining right holder
are set out under section 5 (3), which gives the Applicants limited
real right that
trumps the rights of the Respondents that hold
informal rights to land.
[79]
This is the mischief that the Constitutional Court in
Maledu
addressed,
it noted that the existence of a mineral right does not in itself
extinguish the rights of a landowner or occupier.
[28]
See also
Maccsand
(Pty) Ltd v City of Cape
Town
[29]
where the Constitutional Court decided that the application of the
MPRDA does not override other statutes. In this case, the issue
before the court was whether a holder of a mineral right could
exercise mineral rights in an area where the Land Use Planning
Ordinance (LUPO) was applicable, without getting a permit from the
City of Cape Town. Confirming the decisions of the courts
a
quo
,
[30]
the Constitutional Court held that it was wrong to assume that
the DMR possessed overriding powers against other government
authorities.
[31]
This decision infers that LUPO and the MPRDA can and should operate
alongside each other.
[32]
Reading LUPO and the MPRDA together creates
the
expectation that the MPRDA and the IPILRA can potentially be read in
conjunction with each other. This would mean that
the communities
would have to be consulted under the MPRDA, but they would first have
to consent to the mining in terms of the
IPILRA
.
[33]
Similarly, MPRDA and IPILRA should operate alongside each other.
Therefore, the Applicant, should have had regard to IPILRA.
[80]
The Applicants argue that the community signed the relocation
agreement, consenting to eviction. An informal "consent"
given by an occupier outside of the court process is not legally
binding for the purposes of a lawful authority. Section 25 of
ESTA
[34]
overrides such an
agreement to ensure the occupier's constitutional rights to housing
and dignity are protected, ESTA also prohibits
evictions that are not
court ordered.
[35]
[81]
IPILRA on ‘
Deprivation of informal rights to land’
provides:
“
Section 2 (1)
Subject to the provisions of subsection (4), and the provisions of
the Expropriation Act, 1975 (Act No. 63 of1975),
or any other law
which provides for the expropriation of land or rights in land, no
person may be deprived of any informal right
to land without his or
her consent.”
81.1
This sub-section provides that
no person may be deprived of
any informal right to land without his or her consent
,
but for expropriation, and the dispute resolution mechanism in
section 54 of the MPRDA, refers to expropriation and not eviction,
this implies that ESTA has no application in resolving disputes on
IPILRA and MPRDA.
[82]
The Applicants stated that MPL established Mogalakwena Mine in 1993.
In 1993, during the establishment of the Mogalakwena
mine, MPL,
identified the need to resettle the Community. At the time the
Community comprised of 956 households. On or about 6
October 1993, at
Lebowakgomo and Mokerong, MPL represented by Jimmy Johnston, duly
authorized, and the Self-Governing Territory
of Lebowakgomo,
represented by Morawangwato Matlebjane Marishane, duly authorised,
concluded a Lease Agreement.
[36]
[83] In 2004, MPL
initiated the process of compiling and implementing the RAP, at the
time there was no legislation, or legally
binding directive
regulating the manner in which relocations were to be effected. The
RAP set out the framework for the provision
of compensation and
livelihood-restoration measures. Such measures included compensating
members of the Community for any losses
suffered as a result of the
resettlement process, in order to restore the Community members’
livelihood and standards of
living of the affected households. The
physical relocation of households commenced on 29 May 2007.
[84] The mining
right commenced on 23 July 2010 and is in force for a period of 30
years ending 22 July 2040. IPILRA was already
in existence, as it was
promulgated in 1996. The Applicants, despite having signed the lease
in 1993, should have known that IPILRA
was promulgated to address the
mischief, where communities with informal rights to land were
deprived of their land without their
consent. The Applicants
continued and signed another lease without the consent of the
Respondents.
[85] The Applicants
stated that on 12 December 2012 at Sandton, MPL and the Langa-Mapela
Tribe concluded a Notorial Lease
Agreement in respect of Zwartfontein
(‘the 2012 Zwartfontein Notarial Lease’) with Kgoshi
David Kgabagare Langa, duly
authorized and acting in his capacity as
Kgoshi and trustee of the Tribe. The 2012 Zwartfontein Notarial Lease
pertains to Zwartfontein,
which was part of the leased area in the
1993 Lease Agreement. Again, MPL failed to have regard to IPILRA.
[86] The Applicants
stated that there is no obligation in terms of the MPRDA for a mining
right holder to consult with occupiers
of land regarding its mining
once it has obtained the mining right and once it has commenced
mining. However, RPM has gone above
and beyond their good faith
obligation it might owe to the First to Eleventh Respondents by
extensively consulting them. The Court
in
Baleni
found that a
community's consent, as required by IPILRA, and not merely
consultation with a community, as required by the MPRDA,
is necessary
before a mining right can be obtained over a community's property.
[87] The
Maledu
judgment essentially invalidated the prior understanding that a
mining right trumped IPILRA rights, confirming the primacy of the
consent requirement for existing informal right holders. This
effectively meant that past actions which did not obtain proper
consent were challengeable and will be invalidated by the court if
taken to court.
[88] With regard to
the order sought by the Applicants, ‘
for this Court to
declare that the process in terms of section 54 of the MPRDA
concluded, save for the right of the First to Eleventh
Respondents,
in terms of section 54 (4) of the MPRDA, to refer any dispute
regarding compensation to arbitration in accordance
with the
Arbitration Act 42 of 1965
or to a competent court
,’ this
Court cannot grant such an order because the Constitutional Court in
Maledu,
paragraph 91
,
held as follows, regarding
compliance with
section 54
of the MPRDA:
‘
In
the ordinary course, the Respondents were required to take all
reasonable steps to exhaust the
Section 54
process –
which they had in fact initiated – before approaching a court
for an eviction and an interdict.
’
[89]
The Gauteng High Court in the matter of
Baleni
,
following on the principles laid in the
Maledu
,
stated that, in terms of IPILRA, consent is a precondition in a
mineral rights application and that compensation must be determined
and paid before mineral rights can be exercised.
[37]
[90] The Applicants
in their founding affidavit state that they reported the matter to
the Regional Manager, however, the
Regional Manager is
non-responsive, however, in paragraphs 35 to 37 of the founding
affidavit, the Applicants indicate that there
were few meetings with
the DG, DDG, Regional Manager and the Adviser to the Minister, where
the Applicants were informed that following
the Constitutional Court
decision of
Maledu
, the launch of the application for eviction
was pre-mature.
[91]
Further, the Applicants did not dispute the allegation by the
Respondents that RPM demolished some of the houses when
owners were
not present. That is illegal, whether under ESTA
[38]
or IPILRA
[39]
. This shows that
there is no full, prior, and informed consent (FPIC) in the signing
of the relocation agreement.
[92] With regards
to an order evicting the First to Eleventh Respondents and all
persons claiming rights of residence through
them, from the farm
Zwartfontein in the Mogalakwena Local Municipality, Limpopo within 30
days of the granting of the order;
the Maledu judgment also
found that mining companies cannot resort to eviction proceedings
before, or without complying with the
dispute resolution provisions
in
section 54
of the MPRDA.
[93] The Applicants
in their replying affidavit, insist that they pray for eviction of
the First to Eleventh Respondents under
ESTA, despite the fact that
they argue that they complied with IPILRA requirements. The challenge
for the Applicants is that ESTA
and IPILRA are generally
mutually exclusive in their primary application, so
sections 8
to10
of ESTA would not apply where IPILRA applies.
[94] ESTA’s
scope of application is as follows: ESTA applies to people who
reside on land with the owner's consent
(or another right in law) and
whose tenure is legally insecure, but it specifically excludes
certain categories, including people
with rights protected under
IPILRA. ESTA regulates the conditions for the termination of the
right of residence
(Section 8)
and the circumstances and conditions
under which evictions may occur
(Sections 9
,
10
, and
11
).
[95]
IPILRA protects individuals and communities who hold "informal
rights to land" (often in the former Bantustans
or on communal
land) in terms of customary law, custom, or usage, or specific
historical certificates like Permission to Occupy
(PTO) certificates.
[96] The main
protection under IPILRA is that a person or community cannot be
deprived of their informal land rights without
their informed
consent, except through a formal expropriation process with
compensation. This "consent" requirement
is a distinct and
stronger protection than the "just and equitable" eviction
process under ESTA.
[97] The key
principle is that the two Acts deal with different types of land
rights and different factual scenarios. A person
is typically
protected by one or the other, depending on the nature of their land
holding.
[98] Based on the
above, if a person's rights are protected under IPILRA, they cannot
be evicted simply by following the ESTA
process outlined in
sections
8
to
10
. Instead, the stringent requirements of IPILRA, particularly
the need for informed consent, would have to be met. Therefore,
the Court cannot grant such an order; the Applicants must exhaust the
section 54
MPRDA process.
[99] The Court
cannot grant an order confirming that the Applicants are entitled to
demolish the dwellings occupied and /
or retained by the First to
Eleventh Respondents on Zwartfontein upon their vacating of
Zwartfontein, and the return of any salvaged
material to such
Respondents because the eviction order is not granted.
[100] In respect of
the Third to Eleventh Respondents, the court cannot grant a final
order directing them to select alternative
permanent housing in
accordance with the Relocation Agreement concluded in August 2012,
and the Addendum thereto concluded in February
2018 to be constructed
for them by the Applicants because the
Section 54
MPRDA processes
have not yet been exhausted.
Costs
[101]
Rule 61(1)
of the Rules of the Land Claims
Court, on orders for costs, provides that: ‘
The Court
may make orders in relation to costs which it considers just, and it
may, in exercising that discretion—
(a)
elect not to award costs against an unsuccessful party—
(i) who has put a case or
made submissions to the Court in good faith in order to protect or
advance his or her legitimate interest;
or
(ii)
for any other sufficient reason;
(b)
award costs on the scale of party and party or attorney and client;
(c) award costs against
any legal representative or office bearer of a party
de bonis
propriis
; and …’
[102]
As a result,
this Court does not usually grant costs orders because it deals with
social legislation, it only does so in special circumstances.
Also
Courts
[40]
have established,
the proposition that in constitutional litigation a court can depart
from the normal rule that costs follow the
event by insulating an
unsuccessful party from liability for costs depends on whether the
case raises a matter of constitutional
import. However, the question
to be answered in that case, is whether the dispute concerned an
issue of public interest transcending
the immediate interest of the
named parties, and which have not been previously resolved.
[103]
The question of whether the requirements of
section 54(4)
of the
MPRDA have been exhausted or not have been addressed by the courts.
The Court in
Maledu
asked the following question
in paragraph 85:
“
Were the
respondents under a duty to exhaust the internal process under
section 54
of the MPRDA before approaching the High Court?”
Section 54(1)
provides
that the holder of a mining right or permit—
“
must notify the
relevant Regional Manager if that holder is prevented from
commencing or conducting
. . . mining operations because the owner or the lawful occupier of
the land in question . . . refuses
to allow such holder to enter the
land.”
[105]
The Court in paragraph 86 answered the question above in the
following manner :
‘
Section
54
employs mandatory language. During oral argument the respondents
submitted that
section 54
was not triggered as it only relates to
disputes concerning compensation. Having regard to the wording of the
section, this submission
is patently wrong. In fact, on 12 August
2014, the second respondent addressed a
section 54(1)
written notice
to the Regional Manager.
[41]
However, there is no evidence as to what finally became of that
process’.
[106] In conclusion
the Court held in paragraphs 109 to 111:
“
Before this Court,
counsel for the respondents could not point to any provision in the
MPRDA which permits the holder of a mining
right to institute
eviction proceedings against the landowner or lawful occupier when
the latter refuses to allow the former access
to the land to which
his or her right relates. In response to a question from a member of
the Court, counsel said that the respondents
invoked their common law
remedy. That then raises the question whether it was open to the
respondents to do so. I think not. Their
rights are derived from the
MPRDA, which contains its own internal mechanisms for resolving
obstacles of the kind that they encountered
when they sought to
exercise their mining rights. It makes provision for avenues that can
be deployed to resolve disputes between
the mining right holder on
the one hand and the landowner or lawful occupier on the other, the
most drastic of which is expropriation
when all else fails. In
bypassing the express provisions of
section 54
, the respondents
undermined the supervisory role and powers of the Regional Manager
who is charged with the responsibility of administering
and
implementing the MPRDA as the Director General’s delegate.
In addition, and more
fundamentally, the fact that
section 54
provides for a remedy must
mean that resort cannot be had to an alternative remedy available
under the common law. This must be
so because
section 4(2)
of the
MPRDA expressly provides that “in so far as the common law is
inconsistent with [the MPRDA], the [MPRDA] prevails”.
For the abovementioned
reasons the judgment and order of the High Court fall to be
overturned.”
[107]
In casu
,
the Applicants’ case does not concern
an issue of public
interest transcending the immediate interest of the named parties,
and which have not been previously resolved,
as indicated above that
the Constitutional Court in Maledu addressed the issue of exhausting
section 54
of the MPRDA. However, the Applicants are adamant that
they have exhausted
section 54
and yet they are aware that they did
not exhaust it and they were informed by the Officials of the
Department that launching the
eviction process was immature.
[108]
The Respondents prayed for punitive cost, however, this court cannot
order punitive costs because there was no fraudulent,
dishonest,
vexatious conduct and conduct that amounts to an abuse of court
process
[42]
[109] The
Applicants abandoned the
section 54
MPRDA processes and did not
complete them, therefore the Applicants are placed on terms to resume
the
section 54
MPRDA processes, if they so wish or if they are so
advised.
[110]
Accordingly, for the abovementioned reasons the application is
dismissed with costs
Order
[111] In the
circumstances, the following order is granted:
The
application is dismissed.
The
Applicants are ordered to pay party and party costs on scale “C”
of this application, such costs to include costs
of two counsel,
where such employed.
J
MALULEKE
Acting Judge of the
Land Court
I concur
T NCUBE
Judge
of the Land Court
APPEARANCES:
For
the Applicants:
Adv
CDA Loxton SC
Adv
B Dhladhla
Instructed
by: Knowles Husain Lindsay Inc.
For
the First to Eleventh Respondents:
Adv
V Ngalwana SC
Adv
NJ Khooe
Adv
OI Monnahela
Adv
TM Makola
Instructed
by: Nyapotse Inc. Attorneys
[1]
2012
Relocation Agreement and the 2018 Relocation Addendum.
[2]
In
accordance with the International Finance Corporation’s
Performance Standard 5 on Land Acquisition and Involuntary
Resettlement (FIC), which recognizes that project-related land
acquisition and restrictions on land use can have adverse impacts
on
communities and persons that use this land.
[3]
All
households that relocated received compensation in the sum outlined
in the Relocation Agreements, in respect of the hardship
and
inconvenience associated with the relocation.
[4]
The 2012 Relocation Agreement was concluded in order to govern the
relocation of the Community from their location to another
location
of their choosing and provided various options, with agreement. Its
relevant express material terms are that: households
may elect to be
relocated to:
1.
De Berg, or another suitable agreed agricultural farm; or
2.
To the settlement at Armoede and Rooibokfentein; or
3.
A place of their own choosing within a 50 km radius of
Mogalakwena Mie.
[5]
Similar
to clauses 7.3.1.1, 7.3.1.2 and 7.3.1.3 of the 2012 Zwartfontein
Notarial Lease Agreement.
[6]
The
2012
Zwartfontein Notarial Lease commenced on November. 2011 and will
expire 25 years after the commencement date, with the option
to
renew.
[7]
The
relevant material express terms of the 2018 Relocation Addendum were
to afford the Motlhotlo Community the opportunity to
select from the
following relocation options: Mokopane Ext 14A; Armoede or
Rooibokfontein on terms and conditions as set out
in the 2012
Relocation Agreement; or a place of their choosing within 50KM
radius. That those who would have elected to relocate
to Extension
14A would remain members of the Phomolong Communal Property
Association (“CPA”) (Clause 5.1).
Clause 5.2
describes the sizes of the yard and houses for those who elected
Extension 14A, the question is, what were the sizes
of the yards of
the communities before the relocation or attempt thereof?
[8]
2019
(2) SA 1
(CC) (
Maledu
).
[9]
Section
4
of Interim Protection of Informal Land Rights Act 31 of 1996
(IPILRA).
[10]
Arbitration
Act 42 of 1965
.
[11]
Section 1(1)(i)
of the IPILRA;
Baleni
and Others v Minister of Mineral Resources and Others
2019 (2) SA
453
(GP)
paras 54-56;
Maledu
and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and
Another
2019 (2) SA 1
(CC)
paras 60-61.
[12]
Maledu
v Itireleng Bakgatla Mineral Resources (Pty) Ltd
2018 ZACC 41
;
Baleni
and Others v Minister of Mineral Resources and Others
2019 (2) SA 453
(GP);
Council
for the Advancement of the South African Constitution and Others v
Ingonyama Trust and Others
2022 (1) SA 251 (KZP).
[13]
Baleni
and Others v Minister of Mineral Resources and Others
2019 (2) SA
453
(GP) para 54.
[14]
Molusi
and Others v Voges NO and Others
2016
(3) SA 370
(CC)
para 7;
Department
of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007
(6) SA 199
(CC)
para 53
(Goedgelegen).
[15]
8.
Termination of right of residence
(1) Subject to the
provisions of this section, an occupier’s right of residence
may be terminated on any lawful ground,
provided that such
termination is just and equitable, having regard to all relevant
factors and in particular to-
(a) the fairness of any
agreement, provision in an agreement, or provision of law on which
the owner or person in charge relies;
(b) the conduct of the
parties giving rise to the termination;
(c) the interests of the
parties, including the comparative hardship to the owner or person
in charge, the occupier concerned,
and any other occupier if the
right of residence is or is not terminated;
(d) the existence of a
reasonable expectation of the renewal of the agreement from which
the right of residence arises after the
effluxion of its time; and
(e)
the fairness of the procedure followed by the owner or person in
charge, including whether or not the occupier had or should
have
been granted an adequate opportunity to make representations before
the decision was made to terminate the right of residence
.”
[16]
Section
9 limitation on eviction
(1) Notwithstanding the
provisions of any other law, an occupier may be evicted only in
terms of an order of court issued under
this Act.
(2) A court may make an
order for the eviction of an occupier if—
(a) the occupier’s
right of residence has been terminated in terms of section 8;
(b) the
occupier has not vacated the land within the period of notice given
by the owner or person in charge;
(c) the conditions
for an order for eviction in terms of sections 10 or 11 have been
complied with; and
(d) the owner or
person in charge has, after the termination of the right of
residence, given—
(i) the occupier;
(ii) the municipality in
whose area of jurisdiction the land in question is situated; and
(iii) the head of
the relevant provincial office of the Department of Rural
Development and Land Reform, for information
purposes, not
less than two calendar months’ written notice of the intention
to obtain an order for eviction, which notice
shall contain the
prescribed particulars and set out the grounds on which the eviction
is based: Provided that if a notice of
application to a court has,
after the termination of the right of residence, been given to the
occupier, the municipality and
the head of the relevant provincial
office of the Department of Rural Development and Land Reform not
less than two months before
the date of the commencement of the
hearing of the application, this paragraph shall be deemed to have
been complied with.”
(Emphasis added.)
[17]
Section
10 Order for eviction of person who was occupier on 4 February 1997
(1)
An order for the eviction of a person who was an occupier on 4
February 1997 may be granted if—
(a) the
occupier has breached section 6(3) and the court is satisfied that
the breach
(b) is
material and that the occupier has not remedied such breach;
(c) the owner
or person in charge has complied with the terms of any agreement
pertaining to the occupier’s right
to reside on the land and
has fulfilled his or her duties in terms of the law, while the
occupier has breached a material and
fair term of the agreement,
although reasonably able to comply with such term, and has not
remedied the breach despite being
given one calendar months’
notice in writing to do so;
(d) the
occupier has committed such a fundamental breach of the relationship
between him or her and the owner
or person in charge, that it is not
practically possible to remedy it, either at all or in a manner
which could reasonably restore
the relationship; or
(e) the
occupier—
(i) is or was an
employee whose right of residence arises solely from that
employment; and
(ii) has voluntarily
resigned in circumstances that do not amount to a constructive
dismissal in terms of the Labour Relations
Act.
(e) the owner or person
in charge or the occupier have attempted mediation to settle the
dispute in terms of section 21 or referred
the dispute for
arbitration in terms of section 22, and the court is satisfied that
the circumstances surrounding the order for
eviction is of such a
nature that it could not be settled by way of mediation or
arbitration.
(2) Subject to the
provisions of subsection (3), if none of the circumstances referred
to in subsection (1) applies, a court may
grant an order for
eviction if it is satisfied that suitable alternative accommodation
is available to the occupier concerned.
(3) If—
(a) suitable alternative
accommodation is not available to the occupier within a period of
nine months after the date of termination
of his or her right of
residence in terms of section 8;
(b) the owner or person
in charge provided the dwelling occupied by the occupier; and
(c) the efficient
carrying on of any operation of the owner or person in charge will
be seriously prejudiced unless the dwelling
is available for
occupation by another person employed or to be employed by the owner
or person in charge.
The court may grant an
order for eviction of the occupier and of any other occupier who
lives in the same dwelling as him or her
and whose permission to
reside there was wholly dependent on his or her right of residence
if it is just and equitable to do
so, having regard to—
(i) the efforts which
the owner or person in charge and the occupier have respectively
made in order to secure suitable alternative
accommodation for the
occupier; and
(ii) the interests of
the respective parties, including the comparative hardship to which
the owner or person in charge, the occupier
and the remaining
occupiers shall be exposed if an order for eviction is or is not
granted.”
[18]
Exxaro
Coal (Pty) Ltd and Another v Sindane and Others (LCC66/2022)
[2023]
ZALCC 41
(
Exxaro
).
[19]
Plascon
Evans Paints v Van Riebeeck Paints 1984(3) 623 (A)
at
634H-635C;
Wightman
t/a JW Construction v Headfour (Pty) Ltd and another 2008(3) SA 371
(SCA)
para 13;
Exxaro
Coal (Pty) Ltd and Another v Sindane and Others (LCC66/2022)
[2023]
ZALCC 41
para
27.
[20]
Maledu
and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and
Another
2019 (2) SA 1
(CC
).
[21]
Baleni
and Others v Minister of Mineral Resources and Others
2019 (2) SA
453
(GP)
.
[22]
Council
for the Advancement of the South African Constitution and Others v
Ingonyama Trust and Others
2022 (1) SA 251
(KZP)
.
[23]
In this notice the second respondent informed the Regional Manager
that it was being prevented from
conducting
mining operations on the farm and sought the Regional Manager’s
intervention.
[24]
Maledu
supra
n 6 para 86.
[25]
Ibid
para 109.
[26]
Baleni
supra n13 paras 24 and 25
[27]
In regard to the claim for compensation, the Applicants argued that
as part of the discretion vested in the Minister in terms
of s
23(2A) of the MPRDA (which section authorises the Minister to impose
conditions on the award of the right when it is necessary
to protect
the community's interests), there should be a precondition that
compensation should be determined before, as opposed
to after, the
granting of mineral rights. See
Baleni
para
46.
[28]
Maledu
supra
n 20
para
103.
[29]
Maccsand
(Pty) Ltd v City of Cape Town
2012 4 SA 181
(CC) (
Maccsand
).
[30]
In the High Court decision (
City
of Cape Town v Maccsand (Pty) Ltd
2010
6 SA 63
(WCC) (
Maccsand
)
Maccsand was interdicted from commencing or continuing with mining
operations on the property in question unless and until the
provisions of LUPO and NEMA had been complied with. Similarly, the
Supreme Court of Appeal (
Maccsand
(Pty)
Ltd v City of Cape Town
2011
6 SA 633
(SCA)) held that the MPRDA and LUPO must operate alongside
each other because they have different objects and each did not
purport
to serve the purpose of the other. As a result, there was no
merit in the assertion that LUPO would usurp the functions of the
MPRDA.
[31]
Maccsand
supra n 32
para
51.
[32]
Ibid
.
[33]
Maledu
supra
n 8
para
103.
Also
see
Baleni
supra
n13
para
28.
[34]
25.
Legal status of agreements
(1)
The waiver by an occupier of his or her rights in terms
of this Act shall be void, unless it is permitted
by this
Act or incorporated in an order of the Court.
(2)
The Court must have regard to, but not be bound by, any
agreement in so far as that agreement seeks to limit any
of the
rights of an occupier in terms of this Act.
[35]
In terms of section 23 (1) of ESTA, on Offences, no person
shall evict an occupier except on the authority
of an order of the Court.
[36]
The content of the Lease Agreement are discussed in paragraph 18
above.
[37]
In regard to the claim for compensation, the Applicants argued that
as part of the discretion vested in the Minister in terms
of s
23(2A) of the MPRDA (which section authorises the Minister to impose
conditions on the award of the right when it is necessary
to protect
the community's interests), there should be a precondition that
compensation should be determined before, as opposed
to after, the
granting of mineral rights. See
Baleni
supra n13,
para
46.
[38]
ESTA,
section 23 (1) on Offences, no person shall evict an occupier except
on the authority of an order of
the Court.
[39]
IPILRA,
Section
2
(1) Subject to the provisions of subsection (4), and the provisions
of the Expropriation Act, 1975 (Act No. 63 of1975), or any
other law
which provides for the expropriation of land or rights in land, no
person may be deprived of any informal right to
land without his or
her consent.
[40]
See,
for example,
Minister
of Finance v Van Heerden
2004 (11) BCLR 1125
(CC);
Motsepe
v CIR
[1997] ZACC 3
;
1997 (6) BCLR 692
(CC) para 30;
Chonco
v Minister for Justice and Constitutional Development
2010
(6) BCLR 511
(CC) para 47; D
epartment
of Land Affairs v Goedelegen Tropical Fruits (Pty)
[2007] ZACC 12
;
2007
(6) SA 199
(CC);
Kwalindile
Community v King Sabata Dalindyebo Municipality
2013 (6) SA 193 (CC).
[41]
In this notice the second respondent informed the Regional Manager
that it was being prevented from conducting mining operations
on the
farm and sought the Regional Manager’s intervention.
[42]
Public
Protector v South African Reserve Bank
2019 (6) SA 253
(CC) at para
8 where Mogoeng CJ noted that ‘[c]osts on an attorney and
client scale are to be awarded where there is fraudulent,
dishonest,
vexatious conduct and conduct that amounts to an abuse of court
process.’