SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
Before: Brenner, AJ
Heard on: 16 April 2026
Delivered on: 4 June 2026
CASE NUMBER: LANC 01/2025
In the matter between
NYIKO TONIA SHIPALANA AND THE 37 OTHERS FIRST APPLICANT
LISTED IN ANNEXURE A
MIKATEKO PORTIA MARINGA SECOND APPLICANT
AND 25 OTHERS LISTED IN ANNEXURE B
and
MINISTER OF THE DEPARTMENT OF RURAL FIRST RESPONDENT
DEVELOPMENT AND LAND REFORM
THE DEPARTMENT OF RURAL DEVELOPMENT SECOND RESPONDENT
AND LAND REFORM
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER
JUDGES: Yes☒ / No ☐
(3) REVISED: Yes ☒ / No ☐
Date: 4 June 2026
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COMMISSION ON RESTITUTION OF LAND RIGHTS THIRD RESPONDENT
CHIEF LAND CLAIMS COMMISSIONER FOURTH RESPONDENT
REGIONAL LAND CLAIMS COMMISSIONER FIFTH RESPONDENT
ORDER
The following order is granted:
1. It is declared that t he terms of the settlement agreement executed between
the parties on 15 April 2026 at Pretoria are made an order of Court (“the
settlement agreement”).
2. It is declared that the individual members of the 41 applicant households
whose names are listed on annexure C to the settlement agreement are
entitled to compensation in lieu of restitution of land under the Restitution of
Land Act, 22 of 1994 (“the members”).
3. It is declared that the following consideration due to the members is to be paid
by the Minister of Rural Development and Land Reform (“the Minister”),
namely:
a. the capital sum of R21 431 848,00 (twenty one million four hundred
and thirty one thousand eight hundred and forty eight rand; (“the capital
sum”) plus
b. mora interest on the amount in paragraph 3a above at the rate of
11,25% per annum from 7 January 2025 to date of payment (“the
interest”).
4. It is directed that the total amount payable (“the consideration”) in terms of this
order shall be paid by the Minister within 60 (sixty) court days from the date of
this order, directly into the trust account of Baloyi Ntsako Attorneys
Incorporated (“BNA”), the account details being set out below:
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Account holder: Baloyi Ntsako Attorneys Inc
Bank: First National Bank
Account number: 6[… ]
Branch: The Boulders code 2[…]
Ref: B[…] .
5. It is direct ed that the Minister is to pay the costs of this application, including
the costs of senior counsel, on the scale as between party and party.
6. Upon receipt of the consideration, BNA is to invest the full amount in an
interest-bearing account in terms of section 86(4) of the Legal Practice Act ,
subject to the applicants’ consent.
7. It is direct ed that BNA is to tax its legal costs against the Minister in one bill,
on the premise that the taxed amount shall be payable pro rata in respect of
every applicant/household, and to deduct same from the legal fees payable to
BNA by every applicant/household.
8. It is directed that BNA is to tax its attorney and own client costs in one bill, at a
fair and reasonable hourly rate, on the premise that the taxed amount shall be
payable pro rata in respect of every individual applicant /household, incurred
for every applicant/household which executed a contingency fee agreement.
9. BNA is granted the right to double, in other words, claim 100 percent over and
above its taxed attorney and own client bill, or to claim 15 percent of the
capital sum payable for the applicant/household, (with VAT included in the 15
percent), whichever amount is the lesser, less the taxed costs paid by the
Minister.
10. Hereafter, the amounts payable to BNA and to the applicant/households s hall
be calculated in a schedule by BNA, to which the following documents are
attached:
a. the contingency fee agreement in respect of every one of the 41
applicant/households;
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b. proof of payment by the Minister to BNA;
c. the taxed bill of costs against the Minister;
d. BNA’s attorney and own client taxed bill of costs.
11. This schedule and documents shall be delivered to the Registrar of this Court
for onward transmission to a P residing Officer of this Court for prior scrutiny
and approval.
12. Hereafter, upon receipt of written approval by this Court, the balance of the
consideration, plus accrued interest, shall be paid by BNA to the members of
the applicant/household within 20 (twenty) court days from the date of delivery
of such written approval to BNA from this Court.
JUDGMENT
BRENNER AJ
[1] This was a n application for review by members of the Xiha hele community
under section 3A of the Promotion of Administrative Justice Act 3 of 2000,
alternatively, a common law review, to set aside a decision by the first respondent,
the Minister of Rural Development and Land Reform (“the Minister”), rejecting the
applicants’ claims for compensation under s42C of the Restitution of Land Rights
Act, 22 of 1994 (“the Restitution Act”).
[2] The second to fifth respondents are the Department of Rural Development
and Land Reform , the Commission on Restitution of Land Rights, the Chief Land
Claims Commissioner and the Regional Land Claims Commissioner respectively.
They opposed the application.
[3] The context in which the application arose has a bearing on the issues of
mora interest and the scale of costs, dealt with below.
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[4] Circa 2008/2009, the applicants had lodged restitution claims under s2 of the
Restitution Act pertaining to land at Fram Beaufort 32 LT, Soutpansberg, Limpopo
Province, apparently acquired in 1944.
[5] In August 2023, they became concerned about the fate of their claims and
engaged Baloyi Ntsako Attorneys Incorporated (“BNA”), to investigate matters.
[6] A supporting affidavit from Eddy Xihahele, Chairperson of the Committee of
Elders for the Xihah ele land claim, confirmed that the Committee had consistently
advocated for the inclusion of the excluded claimants and he firmly believed that they
were entitled to compensation.
[7] It transpired that t he Commission on Restitution of Land Rights , Limpopo
Province, had determined on 4 November 2024 that all relevant claims had been
recognized. A letter dated 27 June 2024 from the Commission to Mr Shipalana, the
first applicant, noted a finding that an investigation had concluded that his household
did not qualify as claimants who were dispossessed within the Xihahele land claim.
[8] BNA wrote to the Commission on 19 September 2024 to identify excluded
claimants and asked for written reasons for their exclusion. The reply, dated 26
September 2024, stated it had conducted verification with the help of the Xihah ele
Community of Elders who had indicated that BNA’s clients were not dispossessed of
a right in land with the Xihahele people on the Farm Beaufort 32LT. The Commission
asked the excluded members for information pertinent to their dispossession of the
land and suggested a meeting.
[9] A letter dated 4 October 2024 from BNA provided a spreadsheet of the
required information and the offer of a meeting with the Commission was accepted.
[10] A letter dated 4 November 2024 from the Commission to BNA advised that
Phase 1 of the Xihahele land claim was settled for 180 households and phase 2 was
settled for 2 households. The Commission stated that it was still unable to verify and
settled for 2 households. The Commission stated that it was still unable to verify and
include the applicants in the verification list of the Xihahele land claim.
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[11] On 5 November 2024, BNA again asked for a meeting. Written reasons for
the decision to process 182 households to the exclusion of the applicants were
requested by BNA on 6 December 2024. There was no response to this letter, albeit
that in prior correspondence, in a letter dated 26 September 2024, the Commission
had said the Elders contested that the claimants were not dispossessed of the land.
[12] On 8 November 2024, the Commission proposed a date and venue to meet.
But this letter was written to Mr Shipalana and not to his legal representative, BNA.
[13] Arising from the unfortunate toing and froing, BNA felt it was left with no
option but to prepare a review application which was issued on 7 January 2025.
[14] Answering affidavits and a replying affidavit were served. Case management
meetings occurred on 24 July 2025, 19 September 2025, 25 February 2026, and 17
March 2026, and were then enrolled for argument on 16 April 2026.
[15] In parallel with the application, mediation occurred on 15 September 2025 and
a new verification process took place. Ultimately , the merits and quantum of the
claims, and costs , in principle, but not the scale, were settled for 41 out of 64
applicants and the terms of a written settlement agreement executed on 15 April
2026 were made an order of court on 16 April 2026.
[16] In argument, it was confirmed for the respondents that t he Minister has
identified and verified every member of 41 out of 62 claimant households, which
number 451 beneficiaries. This was accepted by the applicants’ attorneys, BNA. The
Minister is in a position to pay the compensation without delay.
[17] However, the residual issues still to be adjudicated are:
a. whether the capital sum awarded to the applicants attracts mora
interest;
b. whether the full consideration payable by the Minister should be paid
directly to the applicants , the respondents contending they are
directly to the applicants , the respondents contending they are
prohibited from paying any party other than the claimants, or instead,
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whether to the credit of the trust account of Baloyi Ntsako Attorneys
Incorporated (“BNA”), who had acted under contingency fee
agreements with them;
c. the scale of costs payable to the applicants by the Minister.
[18] The applicants contend that, because other households were verified and
recognized as legitimate claimants on 4 November 2024, mora interest should be
paid to claimants who were unfairly excluded from recognition. It is unclear when the
originally acknowledged 180 households executed their settlement agreement with
the Department, and whether the agreement provided for a deadline date within
which payment was to be made.
[19] From argument, it appeared that not all of the originally acknowledged 180
households have received compensation to date. In principle, mora interest ought to
be paid because of the patently unfair exclusion of the 41 households initially omitted
from recognition. Extracurial attempts were made by BNA to resolve the claims, to
no avail.
[20] Consequences and accountability should flow from this conduct. I have
resolved to impose mora interest from the date of issue of the application on 7
January 2025, when the interest rate under the Prescribed Rate of Interest Act, 55 of
1975 was 11,25 percent per annum.
[21] Concerning the payment modality, the judgment of Ms Justices Mabasa, A J
and Jacobs, AJ in Mafumo Valoyi and 19 others v the Minister of Rural Development
and Land Reform and five others case LCC 135/2024 is pertinent as there are
similar facts which are germane to the enquiry. The Court embarks on a useful and
comprehensive expose of the legal position.
[22] In Valoyi, the respondents argued that the compensation should be paid
directly to the claimants despite the existence of a contingency fee agreement
between them and the same attorneys in this case, namely, BNA, which required the
proceeds to be remitted to the trust account of the attorneys. The respondents in
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Valoyi averred that they were prohibited by Statutes and Regulations from paying the
attorneys.
[23] They relied on provisions of the Restitution Act, the Public Finance
Management Act, 1 of 1999 (“the PFM A”), and Treasury Regulations issued in April
2001 to support this argument.
[24] The same argument was raised in the instant case with which I am dealing. I
have had the benefit of examining the statutes, the PFM A and the Treasury
Regulations. In none of these documents is there a prohibition against the payment
of restitution compensation to the claimants’ attorneys.
[25] The PFM A and Treasury Regulations have as their main purpose internal
checks and balances within their departments, accounting methodologies to protect
and manage finances, and accountability mechanisms for any failure to do so.
[26] Reference is made in Valoyi to the seminal cases of Mwelase and Others v
Director-General for the Department of Rural Development and Land reform and
Another 2019(6) SA 597 (CC), and Speaker of the National Assembly and Another v
Land Access Movement of South Africa and Others 2019 (6) SA 568 (CC).
[27] At paras 21 and 22 of the Valoyi judgment, on the subject of the respondents’
concerns with payment to intermediaries, such as attorneys, the following is said:
“
21. The PFMA and Treasury Regulations are relevant because the dispute involves
public funds earmarked for compensation. The spending of public money requires
internal controls, authorization and accountability. They regulate expenditure approval
and processing, not just as an answer to the Applicants’ case, but as part of the legal
framework for any payment order.
22. It is against that constitutional and statutory background that the jurisprudence
developed in the landmark cases of Mwelase and LAMOSA is important. It provides
guidance on how this Court can exercise its remedial powers when bureaucratic
guidance on how this Court can exercise its remedial powers when bureaucratic
administration has stalled, delayed, or rendered land rights relief ineffective.”
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[28] And at para 27, on the subject of the respondents’ failure to take note of
controls over the duties of legal practitioners read with the Legal Practice Act, 28 of
2014, (“the LPA”), read with Rule 54 of the Rules of this Act:
“27. Their argument against payment into the legal representatives’ trust account also
fails to grapple with the fact that trust accounts are heavily regulated and audited. The
Respondents’ objection to this mechanism of payment as an inherently unlawful private
detour is somewhat simplistic. A trust account is not just a private purse; it is a legally
supervised fiduciary vehicle. No convincing submissions were advanced as to why it
cannot be used in the context of a judicially supervised restitution framework.”
[29] While the Court in Valoyi did not consider it necessary to resolve the issue of
the contingency fee agreement between BNA and their clients , as it considered its
application c apable of resolution without pronouncement on it, in this case, I
respectfully believe it to be germane to the overall disputes, albeit that it is collateral
to same, and albeit t hat the respondents are not parties to the contingency fee
agreement and are plainly not bound by it.
[30] In the case of Welverdiend Community v Minister of Rural Development and
Land Reform and three defendants LCC 75/2009, the Court, per Yacoob, J, found
the agreement relevant and examined it to ensure compliance with the Contingency
Fee Act 66 of 1997, (“the CFA”), so as to protect the claimants and ensure they were
not out of pocket more than was necessary. An appropriate order was made as to
the costs claimable by the contingency fee attorneys, with the express condition that
legal fees as a whole would not exceed 25% of the total award of compensation.
[31] I concur with the approach in Welverdiend. A fair and equitable balancing act
is required as between attorney and client where a contingency fee is involved. This
is required as between attorney and client where a contingency fee is involved. This
type of relationship appears to be becoming more and more common in land claims.
Claimants who have been poorly represented or abandoned by their former
attorneys or are ineligible for legal aid, for whatever reason, are constitutionally
entitled to access to justice. Representation by an attorney on this basis constitutes
the chance for securing the relief to which many are entitled.
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[32] Securing the services of a competent attorney acquainted with land court
matters who is willing to act on risk subject to a contingency fee agreement
constitutes access to justice. It accords certain financially compromised, vulnerable
and, in some instances , illiterate sectors of our society the opportunity to bring their
land claims to court when otherwise they may not have such an opportunity.
[33] In Fred de Bod v the Road Accident Fund 2026(2) SA 549 (GP), the full bench
clarified that VAT must be included within the 25 percent cap. It also explained the
rationale behind contingency fee agreements at para 23 ;
“23…It (the CFA) was not enacted to provide legal practitioners with a financially
preferential method of determining their fees over and above normal fees but rather to
facilitate access to court for those who would otherwise not have been able to do so.”
[34] An attorney who assumes the risk of no fees if unsuccessful but fees if
successful with the case should be entitled to a fair and just reward on a successful
outcome. His legal right to payment for services capably rendered and for achieving
a positive and satisfactory settlement or judgment for his client must be recognized
and supported. However, he cannot be permitted to overreach or to contravene the
strict provisions of the CFA or the LPA. Judicial oversight in this regard would protect
both the client and the attorney who achieved a successful outcome through
professional services.
[35] Judicial oversight in the interests of justice occurred in both Welverdiend and
Valoyi. In Welverdiend, the contingency fee agreement was addressed in terms, to
ensure that the attorneys did not charge fees in excess of the prescribed 25 percent
of capital payable. In Valoyi, the court went further in imposing a duty on the
claimants’ attorney to report back to court on the administration of the monies
entrusted to them, thereby ensuring the fair and proper enforcement of its order.
entrusted to them, thereby ensuring the fair and proper enforcement of its order.
[36] The Land Court is a court of law and equity in restitution matters, or in any
other legislation expressly providing therefor, as adumbrated in s 3(1) of the Land
Court Act, 6 of 2023 (“the LCA”). Part of the preamble to the LCA pertinently states:
“AND SINCE land reform initiatives to address the destructive impact of colonialism and
apartheid have not progressed at the desired pace, sometimes giving rise to expensive and
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protracted litigation, to the detriment of the poorest of the poor and most vulnerable in
society.
AND SINCE THEREFORE IT IS necessary that land reform in its entirety be accelerated in
a lawful and equitable manner, guided by progressive jurisprudence;
AND SINCE IT IS FURTHERMORE necessary and desirable that there should be
specialized, well-resourced, accessible and streamlined adjudication structures in place with
the institutional, transformative and social justice wherewithal in land matters, in order to
enhance and promote fairness and equity at all stages of the adjudication processes before
and during court proceedings.”
[37] An assurance was given at the hearing that all successful applicants,
represented by an authorized member of every household, had executed
contingency fee agreements.
[38] One of such agreements was handed in to court. On examination, most of the
necessary clauses required by the CFA are contained in the document. Significantly,
the cap is agreed at a lesser 15 percent, not 25 percent. Clause 6.3 draws the
attention of the client to the fact that any query, complaint or concern about the
attorney may be directed to the Legal Practice Council.
[39] Clause 5.1 expressly authorizes the payment of compensation directly to
BNA. Judicial notice is taken of the fact that this is a standard clause in contingency
fee agreements. The principle of pacta sunt servanda, whilst not cast in stone, both
at common law and against our constitutional background, remains extant as a
starting point in the approach to contractual relations between parties.
[40] There are deficiencies in the agreement, however, namely:
a. the normal, fair and reasonable fee of BNA is not disclosed; instead, in
clause 4, the client agrees to pay BNA a “fixed fee” of 15 percent of the
“total compensation amount” , this when total compensation may
include mora interest and the agreed 15 percent should only be
calculated on the capital sum;
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b. alerting the client to the fact that the client may withdraw from the
agreement within fourteen days after signature, cured, however, by
clause 10 of the BNA agreement, which permits the client to terminate
the agreement at any time; if terminated and compensation is paid after
this, BNA shall be entitled to claim its success fee, while termination
before successful resolution attracts no fee.
[41] Against the factual context, this case does not warrant a declaration that
BNA’s contingency fee agreement should be declared invalid and unenforceable.
[42] This is a case in which it is appropriate to tweak the agreement in the best
interests of the applicants and their attorneys. This will result in a just and efficient
outcome. It will accord protection to the attorneys who achieved the settlement after
acting on risk and it will redound to the benefit of their clients. This approach
encourages the execution of contingency fee agreements with competent attorneys
which comply with the CFA for land claimants, and which, in the result, afford access
to the courts . It will support one of the most disempowered sectors of society to
pursue their land claims as efficiently and expeditiously as possible.
[43] In Mwelase at para 65, the Constitutional Court stated that systemic delays in
land restitution matters require robust judicial intervention.
[44] In Beadica 231 CC and O thers v Trustees for the time being of the Oregon
Trust and Others 2020 (5) SA 247 (CC), at para 71:
“… The impact of the Constitution on the enforcement of contractual terms through the
determination of public policy is profound. A careful balancing act is required to
determine whether a contractual term, or its enforcement, would be contrary to public
policy.”
[45] Also at para 71, quoting from the Barkhuizen SCA decision, the Beadica
judgment proceeds to confirm that the Constitution requires the courts to
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“…employ the Constitution and its values to achieve a balance that strikes down the
unacceptable excesses of ‘freedom of contract’, while seeking to permit individuals the
dignity and autonomy of regulating their own lives.”
[46] Finally, at para 76:
“… The development of new doctrines must also be capable of finding certain,
generalized application beyond the particular factual matrix of the case in which a court
is called upon to develop the common law. While abstract values provide a normative
basis for the development of new doctrines, prudent and disciplined reasoning is
required to ensure certainty of the law.”
[47] In the instant case, the robust but prudent, reasonable and practical
intervention of this Court involves a fair amendment to the agreement , to require
taxation of BNA’s normal attorney and own client fees within the definition in clause 1
of the CFA, and the comparison of double those fees with the agreed cap of 15
percent. The Taxing Master has the expertise to determine a fair and reasonable
hourly rate for BNA.
[48] It also involves the investment of the monies pending the taxations, for the
benefit of the applicants, and finally, subsequent judicial oversight over the
implementation of fair and equitable compensation to the applicants, conjunctively
with the payment of monies earned by the attorneys whose efforts achieved
successful settlement. The judicial oversight is not intended to cast any aspersions
on the professional reputation of BNA, whose integrity was neither assailed nor
impeached.
[49] It is these attorneys who commendably assume the mandate in cases where
the risk i s a risk not readily assumed, namely, one of no fee for an unsuccessful
outcome, despite services rendered, and these are often extensive and time-
consuming.
[50] The final question is one of costs. The Land Court deals with social and
constitutionally entrenched legislation. Legal costs are only justifiable if conduct
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during litigation is deemed vexatious, unreasonable, frivolous or an abuse of the
process of Court.
[51] There is no evidence of any wilful or mala fide exclusion of the 41 households
in this case. There is no warrant for a special award of costs. The principle of costs
has been conceded by the respondents. An award of p arty and party costs including
the costs of senior counsel is fair.
[52] The following order is granted:
1. It is declared that the terms of the settlement agreement executed between
the parties on 15 April 2026 at Pretoria are made an order of Court (“the
settlement agreement”).
2. It is declared that the individual members of the 41 applicant households
whose names are listed on annexure C to the settlement agreement are
entitled to compensation in lieu of restitution of land under the Restitution of
Land Act, 22 of 1994 (“the members”).
3. It is declared that the following consideration due to the members is to be paid
by the Minister of Rural Development and Land Reform (“the Minister”),
namely:
a. the capital sum of R21 431 848,00 (twenty one million four hundred
and thirty one thousand eight hundred and forty eight rand; (“the capital
sum”) plus
b. mora interest on the amount in paragraph 3a above at the rate of
11,25% per annum from 7 January 2025 to date of payment (“the
interest”).
4. It is directed that the total amount payable (“the consideration”) in terms of this
order shall be paid by the Minister within 60 (sixty) court days from the date of
this order, directly into the trust account of Baloyi Ntsako Attorneys
Incorporated (“BNA”), the account details being set out below:
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Account holder: Baloyi Ntsako Attorneys Inc
Bank: First National Bank
Account number: 6[… ]
Branch: The Boulders code 2[…]
Ref: B[…] .
5. It is direct ed that the Minister is to pay the costs of this application, including
the costs of senior counsel, on the scale as between party and party.
6. Upon receipt of the consideration, BNA is to invest the full amount in an
interest-bearing account in terms of section 86(4) of the Legal Practice Act ,
subject to the applicants’ consent.
7. It is direct ed that BNA is to tax its legal costs against the Minister in one bill,
on the premise that the taxed amount shall be payable pro rata in respect of
every applicant/household, and to deduct same from the legal fees payable to
BNA by every applicant/household.
8. It is directed that BNA is to tax its attorney and own client costs in one bill, at a
fair and reasonable hourly rate, on the premise that the taxed amount shall be
payable pro rata in respect of every individual applicant /household, incurred
for every applicant/household which executed a contingency fee agreement.
9. BNA is granted the right to double, in other words, claim 100 percent over and
above its taxed attorney and own client bill, or to claim 15 percent of the
capital sum payable for the applicant /household, (with VAT included in the 15
percent), whichever amount is the lesser, less the taxed costs paid by the
Minister.
10. Hereafter, the amounts payable to BNA and to the applicant/households s hall
be calculated in a schedule by BNA, to which the following documents are
attached:
a. the contingency fee agreement in respect of every one of the 41
applicant/households;
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b. proof of payment by the Minister to BNA;
c. the taxed bill of costs against the Minister;
d. BNA’s attorney and own client taxed bill of costs.
11. This schedule and documents shall be delivered to the Registrar of this Court
for onward transmission to a Presiding Officer of this Court for prior scrutiny
and approval.
12. Hereafter, upon receipt of written approval by this Court, the balance of the
consideration, plus accrued interest, shall be paid by BNA to the members of
the applicant/household within 20 (twenty) court days from the date of delivery
of such written approval to BNA from this Court.
________________
TD BRENNER
Acting Judge, Land Court
APPEARANCES:
For the Applicant: Adv Reg Willis SC
Instructed by: Baloyi Ntsako Attorneys Inc
For the First to Fifth Respondents: Adv Vivian Rikhotso
Instructed by: The State Attorney, Polokwane