Exxaro Coal (Pty) Ltd and Another v Sindane and Others (LCC66/2022) [2023] ZALCC 41 (30 November 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Land Claims Court South Africa: Land Claims Court You are here: SAFLII >> Databases >> South Africa: Land Claims Court >> 2023 >> [2023] ZALCC 41 | Noteup | LawCite sino index ## Exxaro Coal (Pty) Ltd and Another v Sindane and Others (LCC66/2022) [2023] ZALCC 41 (30 November 2023) Exxaro Coal (Pty) Ltd and Another v Sindane and Others (LCC66/2022) [2023] ZALCC 41 (30 November 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALCC/Data/2023_41.html sino date 30 November 2023 IN THE LAND CLAIMS COURT OF SOUTH AFRICA HELD AT RANDBURG CASE NO: LCC66/2022 Before: The Honourable Judge Cowen Heard on: 4 August 2023 Delivered on: 30 November 2023 NOT REPORTABLE OF INTEREST TO OTHER JUDGES NOT REVISED In the matter between EXXARO COAL (PTY) LIMITED First Applicant EXXARO COAL MPUMALANGA (PTY) LIMITED Second Applicant and VUSIMUZI CHARLES SINDANE First Respondent ZANDILE GERTRUDE ZWANE Second Respondents CALVIN PHUMLANE SINDANE Third Respondents NOTHANDO SINDANE Fourth Respondents BADANILE ROSE SINDANE Fifth Respondents JOHANNA SINDANE Sixth Respondents JULIA SINDANE Seventh Respondents KLEINBOOI SINDANE Eighth Respondents ELISA NOMADLOZI SINDANE Ninth Respondents FELICIA TRYPHINA MASANGO Tenth Respondents THE SINDANE FAMILY Eleventh Respondents MTHOBISI WESLEY KHUMALO Twelfth Respondents THE DIRECTOR-GENERAL DEPARTMENT OF AGRICULTURE RURAL DEVELOPMENT AND LAND REFORM Thirteenth Respondents EMAKHAZENI LOCAL MUNICIPALITY Fourteenth Respondents JUDGMENT COWEN J Introduction [1] The applicants, Exxaro Coal (Pty) Ltd and Exxaro Coal Mpumalanga (Pty) Ltd, (collectively the Exxaro applicants) apply to relocate and evict the first to twelfth respondents (the Sindane family), from property formerly known as Portion 10 of the farm Leeuwbank 427 in Mpumalanga (the Leeuwbank property).  The Leeuwbank property now forms part of a property known as Farm Zoekop 1222, which is comprised of some 11 properties that were consolidated into one property, referred to as the consolidated Zoekop property.  The Leeuwbank property is part of an area on which the Exxaro applicants conduct open pit coal mining operations in terms of a mining right granted in 2013 in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). The eviction application falls to be determined in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA). [2] The application initially came before me on the unopposed roll in May 2023, in circumstances where it had already been heard on the unopposed roll by a different Judge, but postponed to enable the Sindane family to obtain legal representation and oppose the application.  However, I remained concerned about the respondents’ access to legal representation and again postponed the matter, in the result, twice.  The application was eventually ripe for hearing on an opposed basis in August 2023.  I conducted a site inspection on 3 August 2024 to inspect the Sindane family’s homestead on the Leeuwbank property, the mining operations near the Sindane homestead and a nearby site called the Phumulani Agri-Village.  The Exarro applicants are making available to the Sindane family two houses and access to grazing and cultivation land at the Phumulani Agri-Village as alternative accommodation in circumstances set out more fully below. [3] The first applicant is Exxaro Coal (Pty) Ltd, the registered owner of the consolidated Zoekop property.  The second applicant is Exxaro Coal Mpumalanga (Pty) Ltd, a wholly owned subsidiary of the first applicant, which in turn is a wholly owned subsidiary of Exxaro Resources Limited.  The applicants’ mining operations on the affected property are conducted for export markets and provide numerous jobs.  Mr Lazarus Ramashilabele is the general manager of Exxaro Resources Limited in the Mpumalanga area.  He is the deponent to the founding affidavit. [4] The first to twelfth respondents are, respectively, Vusimuzi Charles Sindane, Zandile Gertrude Zwane, Calvin Phumlane Sindane, Nothando Sindane, Badanile Rose Sindane, Johanna Sindane, Julia Sindane Kleinboor Sindane, Elisa Nomadlozi Sindane, Felicia Tryphina Masango, the Sindane Family and Mthobisi Wesley Khumalo.  The Sindane family currently reside on the Leeuwkop property and assert rights in respect of it. [5] The Sindane family are mostly the descendants of the late Mr Mboni Frans Sindane, who passed away in 2019.  The first respondent, Mr Vusimuzi Sindane was born in 1975 and is 48 years old.  He is the son of the late Mr Frans Sindane and the head of a household which comprises himself and the second to fourth respondents, being his wife, son and daughter.  A minor child born on 3 March 2012, also lives with them. The fifth respondent, Mrs Badanile Rose Sindane (Mahlangu) was born in 1953 and is 70 years old.  She was married to the late Mr Frans Sindane and she lives on the property with the fifth to eleventh respondents. The Sindane family live in a homestead comprised of two homes, one housing Mr Vusimuzi Sindane and his family and the other housing Mrs Sindane (Mahlangu) and the remainder of the family. [6] The thirteenth respondent is the Director-General of the Department of Agriculture, Rural Development and Land Reform (the Department) and the fourteenth respondent is the Emakhazeni Local Municiplaity (the Municipality). [7] The Exxaro applicants seek to evict the Sindane family in circumstances where they have provided them with what they contend is suitable alternative accommodation at the nearby Phumulani Agri-Village.  Exxaro has built the Phumulani Agri-Village specifically for purposes of relocating and resettling some 32 families affected by the applicants’ mining right, which was granted on 9 October 2013, ten years ago.  The mining right operates in respect of an area comprising several cadastral units including the Leeuwbank property [1] and referred to as the mining right area.  The Phumulani Agri-Village is comprised of a residential site (some 246.78 hectares in extent) [2] and an agricultural site (some 166 hectares in extent). [3] [8] The Sindane homestead on the property is situated within 100 metres of an active mining site and 500 metres from a mining pit.  It is common cause that the homestead is exposed to blasting and ancillary mining activities which pose a danger to their health and safety.  It is in these circumstances that Exarro seeks their relocation and eviction.  The life of the mine is approximately 12 years. The process leading to the eviction application [9] In the founding affidavit, Mr Ramashilabele sets out in some detail, the process that, Exxaro contends, led to the institution of the eviction application.  The process commenced before the mining right was granted.  In the process, 32 families, including the Sindane family were identified as families who would be affected by the grant of the mining right.  The 32 families comprise two communities, referred to respectively as the Zoekop community and the Leeuwbank community. [10] A relocation program commenced in 2009.  The programme was put into effect in January 2019, when 30 of the 32 affected families relocated in accordance with agreements that were concluded with each family including the Sindane family.  Only the Sindane family refused to relocate. [11] For purposes of developing a resettlement plan, the applicants made use of a professional consulting service, Digby Wells.  During the impletation phase, the applicants made use of the services of Digby Wells, and a second service provider, GCS Water and Environmental Consultants (Pty) Ltd.  Mr Ramashilabele explains that one of the guiding principles of the process was a requirement that there should be genuine consultation and participation and that resettlement should ensure that those who are displaced physically must not be worse off, and preferably should be better off, than they were before the project.  This is said to be a standard of international best practice specified by the International Finance Corporation regarding Land Acquisition and Involuntary Resettlement. [12] In summary, the process ensued as follows: 12.1 In January 2014 Exxaro announced and explained the relocation project to the Municipality. 12.2 On 9 March 2014, a meeting was held with the affected Leeuwbank and Zoekop communities including members of the Sindane family.  The project was announced and the possibility of relocation explained. 12.3 On 15 and 16 March 2014, a baseline/elegibility census was conducted with data collected from eligible families including the families headed by Mr Frans Sindane and Mr Vusimuzi Sindane.  This data informed the household needs (including as regards residential structures and livestock) and baseline standards. 12.4 On 14 April 2014, a Resettlement Working Group (RWG) was formed, which presented the results of the census.  The RWG was the primary forum for consulting with the affected communities and families, and meetings took place over several months during 2015.  It included representatives of each family, the legal representatives of the affected community (then the Legal Resources Centre), representatives of the Municipality, Exxaro, the Community Development Department and Digby Wells. The first and sixth respondents were members of the RWG. 12.5 Exxaro and Digby Wells then undertook a process to identify a suitable resettlement site, mindful of the indication from the affected communities that they wished to relocate to an agricultural or rural setting to maintain their way of life. Seven farms were identified and the Phumulani Agri- Village site was chosen by the affected families including the Sindane family. 12.6 Concept designs were then developed by Aurecon (engineers and town-planners) and an agricultural draughtsperson prepared designs for the replacement of houses.  The proposals were then upgraded to comply with the requirements of the South African National Building Regulations.  To ensure sustainability and community self-sufficiency, the applicants made provision for three boreholes, a sewer plant, pre-paid electricity, solar-powered geysers, jojo tanks connected to gutters to collect rainwater, a multi-purpose community centre and a sports field. 12.7 Steps were taken to assist the affected families to take over responsibility for the new site.  This includes skills programmes, identified by the families themselves including regarding construction, farming, electrical engineering, adult basic education, appliance repair, blasting, amongst others. [13] According to Exxaro, the Sindane family were legally represented through the above process by the Legal Resources Centre, which was involved in meeting with communities, attending meetings, reviewing agreements and housing allocations. This included engagements in respect of layout plans. [14] Exxaro alleges that three main agreements were concluded. 14.1 First, a Draft Entitlement Framework concluded in March 2015 during a meeting of the RWG, which defines who will be eligible for compensation and how compensation will be effected.  At this juncture no resettlement site had been identified. 14.2 Secondly, resettlement agreements were concluded between each household and the second applicant.  According to Exarro, both parts of the Sindane family are party to the resettlement agreement.  The resettlement agreement was signed by the late Mr Frans Sindane on 31 October 2015, by marking an X, which was witnessed. Mr Vusimuzi Sindane signed on 14 November 2015, also witnessed.  Mr Frans Sindane and Mr Vusimuzi Sindane are said to have concluded the agreements as authorised representatives of their households.   The agreements entail that they would relocate to the Phumulani Agri-Village, comprising the residential area and the agricultural area, which had been identified through the consultation process.  Each household would receive a fenced-off stand, in extent 2500m 2 (fitted with a steel gate with vehicle access) comprising a residential and outbuilding ground floor area of 500m 2 and a food production area of 2000m 2 with a vegetable garden (surface area 32m 2 ) and at least five peach trees.  The Exarro applicants would, at their cost, construct a replacement brick house in accordance with the housing certificate.  Communal grazing would be provided in the agricultural area.  All of the land would be donated to a Communal Property Association (CPA). Replacement house certificates were unique to each household and described the main features of the replacement house allocated to that household. However, the replacement houses would have corrugated roof sheeting, ceilings, gutters, indoor plumbing, electrical reigulation, a front door and back door and glass windows with steel frames.  The agreement entailed further consultation during the implementation phase. 14.3 Thirdly, the families concluded a next-of-kin agreement, which concerned the relocation of graves in the mining area. What was ultimately entailed was the relocation of about 150 graves. According to Exxaro, the late Mr Frans Sindane signed the next-of-kin agreement by marking an X in the present of two witnesses.  On 26 November 2018, the graves of Mr Frans Sindane’s family members were relocated to a new customary gravestite at Phumulandi Agri Village with cultural and ritual practices performed on the day. [15] In the founding affidavit, Mr Ramashilabele details further engagement with the affected families, and specifically the Sindane family after the resettlement agreement was concluded. 15.1 He refers to a meeting of the RWG meeting on 5 June 2016 regarding services, detailed house design and plot layout.  That meeting was attended by the second, eighth, ninth and tenth respondents and the late Mr Frans Sindane, and no comments were made. 15.2 One-on-one household meetings were held on 2 and 3 July 2016.  Both of the Sindane households chose face brick on the outside of the houses. 15.3 An RWG meeting was held on 21 August 2016 again in respect of plot overview and house design.  Further comment was invited but none received. A house design scale model was presented to the RWG on 1 October 2017 with no comments received. 15.4 Constructon commenced in March 2018 and a site visit ensued on 23 September 2018.  Meetings were then conducted in October and November 2018 regarding issues raised.  These included matters such as whether furniture would fit into the new houses and whether the kitchens were large enough.  The applicants then elected to include a twenty foot storage container for each family to store their goods safely and dryly to allow them time to construct additional structures should they wish to.  Moreover, new coal stoves were fitted to each house, the intention being that households could use their current stoves either in living areas or kitchens or additional structures that may be erected. Mr Ramashilabele explains that the Sindane family did not confirm that these solutions addressed their concerns. [16] Matters took a turn as regards the Sindane family in April 2018 when their then attorneys, Masilele Attorneys wrote to the applicants disputing the validity of the signature of Mr Sindane and raising complaints about burial rights and grazing of livestock.  There was further engagement.  At the site inspection of 23 September 2018, the ninth and tenth respondents, and a Sarah Sindane complained that the house allocated to Mr Frans Sindane was too small.  It was then explained that the house areas looked smaller as they were in the foundation phase.  There was further engagement.  During the week of 7 January 2019, the first respondent requested a meeting with the applicants indicating that the Sindane family was unhappy with the size of the replacement house.  Due to this concern, and others, the Sindane family then advised the applicants, on 13 January 2019, that they would not move to the new houses.  The other concerns, which were new issues, were that the toilets were too close to the kitchen, there was a need for toilet facilities for people visiting during traditional ceremonies, the position of the houses on the plot and the cattle being too far from the houses.  The Exarro applicants engaged on these issues but did not alter their stance maintaining that the houses that had been built had been built in accordance with what had been agreed.  They did point to various solutions to the issues raised. [17] At this stage, the Exxaro applicants contacted the Department, which informed them that the Sindane family had a right to refuse to move.  The Exxaro applicants continued to seek a resolution and held various meetings between 16 February 2019 and 7 May 2021 with the Sindane family and their legal representatives.  These meetings ultimately led to a proposal from the Exarro applicants to build a new house for the family of the late Frans Sindane which would be bigger, closer to the community hall, have a private gate and be built in accordance with the family’s specifications.  A contractor of the family’s choice would design the house so that everything could be located where they pleased.  This would be at an additional cost of R1 million.  The first respondent would then move to the house that was meant to be occupied by the late Mr Sindane’s household, intended for ten people.  Mr Ramashilabele alleges that the Sindane family appeared willing to relocate on this basis and agreed to sign an agreement to this end.  However, shortly before finalising the agreement, the Sindane family again withdrew their engagement.  It warrants mention that throughout this process the Sindane family had legal representation although different attorneys have represented the family at different times.  Also notable is that in July 2019, the then Chief Director:  Labour Tenants, Mr Thami Mdontswa proposed mediation to the parties and a mediation meeting was subsequently held.  The issues raised informed the subsequent engagements. [18] One issue raised that has been a source of contention and discontent for the Sindane family is a demand for and the absence of what is referred to as beneficiation under the Social and Labour Plan as well as the Mining Charter.  In this regard, the Exxaro applicants maintain that they have complied with their duties under the MPRDA and the Mining Charter. [19] The Exarro applicants point out that in addition to the offer they made to build a new house at a cost of R1 million to accommodate the concerns of the Sindane family, they undertook to incur further additional expenses in excess of R450 000 relating to house modification, the removal of a sports ground, drawing of plans and provision for transport and storage.  Furthermore, they incurred significant further expenses in an amount of R447 864 related to the Sindane family’s continued occupation of their current homestead including the provision of bales for their cattle (R71 300), replacement of cattle lost due to proximity to the mining area (R301 300), fixing a vehicle damaged on the mining roads (R15 000), providing potable water to the homestead (R49 316) and the cost of a drivers’ licence for a family member (R10 948).  Mr Ramashilabele explains that further demands were also met relating to employment of family members, provision of bursaries and provision of business opportunities.  The Sindane family persisted in refusing to sign the new agreement.  It appears the issue of benefication was a key difficulty that kept presenting itself. [20] Ultimately, the Exarro applicants withdrew their alternative proposal and concluded that the Sindane family was negotiating in bad faith.  In the final result, the applicants delivered notices to vacate to the family. [4] [21] As indicated above, the agreements contemplate that the land on which the Phumulani Agri-Village is situated would be transferred to a CPA.  This would ensue at the conclusion of the resettlement process.  This has not been possible because the Sindane family has not relocated.  The CPA has been registered under the Communal Property Associations Act 28 of 1996 . The Sindane family’s claim in terms of the Labour Tenants Act [22] It appears from the founding affidavit and the probation officer’s report that the late Mr Frans Sindane lodged a claim in terms of section 16 of the Land Reform (Labour Tenants) Act 3 of 1996 (Labour Tenants Act), purportedly before 31 March 2001, for an award of land.  The claim is in respect of the Farm Zoekop which includes the former Leeuwbank property.  The Department sent the second applicant, in its capacity as the owner of the affected property, a notice in terms of section 17(2) of the Labour Tenants Act. This was only in August 2021.  The second applicant disputes the claim and contends it has lapsed in circumstances where the claimant, the late Mr Frans Sindane, is deceased.  Whether that is so is not before me save to note that it is not self evident that that is so, both because Mr Frans Sindane may have appointed a successor and because he may have lodged the claim in a representative capacity. [5] Nevertheless, the Exxaro applicants accept that any eviction order granted by this Court should not be to the prejudice of any rights that may still exist pursuant to that application, which remains unfinalised. [23] Nevertheless, this feature of the case brings into focus the potential impact of delays in realising the Constitution’s promise of land justice, in this case, to persons who may enjoy the rights of labour tenants, whose land tenure was rendered insecure as a result of racially discriminatory laws and practices over decades.  It highlights, specifically, how these delays can practically impede access to an owners’ benefits when mining activities ensue on land subject to applications for awards of land under the Labour Tenants Act.  Mr Frans Sindane was of course not alone in facing unacceptable delays:  numerous applicants for such awards are still waiting for their applications to be processed as was highlighted in the Constitutional Court decision of Mwelase. [6] What must be remembered now is that the delays are generally not the fault of an applicant.  If one postulates what might have been for the Sindane family had Mr Frans Sindane’s application been timeously processed and the affected part of the claimed property awarded, their position may well look different today.  Most pertinently, when the mining right was processed and granted in 2013, any dealings under the MPRDA would have had to ensue with Mr Sindande as owner. Indeed, ownership may then have vested in the Sindane family and not only Mr Sindane. The relief sought by the applicants [24] The applicants approach this application on two alternative bases. 24.1 First, they seek 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 seek an order relocating the Sindane family to the Phumulani Agri-Village within 30 days of the court order. [7] 24.2 In the alternative, the applicants seek 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. [8] [25] In my view, this Court cannot order a relocation to a different property without an eviction order, whether pursuant to a resettlement agreement or otherwise. [9] The case must be decided under section 9 of ESTA, which regulates ESTA evictions.  That is so despite the application lodged by Mr Frans Sindane in terms of section 16 of the Labour Tenants Act.  This is because, in these proceedings, the Sindane family do not make out any case that they are labour tenants or that they are brought within the ambit of the application lodged by Mr Frans Sindane. [10] In these circumstances, the strong protections against eviction conferred by the Labour Tenants Act cannot find application. [11] This does not mean that the Sindane family is not in a position to assert rights in respect of that claim, but that need not be decided here. [26] The Sindane family raise a series of defences to the application, some preliminary in nature, which can be summarised as follows: 26.1 They raise a preliminary point of non-joinder in respect of the Minister of Agriculture, Land Reform and Rural Development (the Minister), the Minister of Mineral Resources and Energy (the Minister of MRE) and the Commission on Restitution of Land Rights (the Commission). 26.2 The Sindane family contend that the mining right was unlawfully granted in terms of section 23 of th MPRDA. 26.3 The transfer of the Leeuwbank property is said to be unlawful. 26.4 The Sindane family rely on rights under the Informal Protection of Informal Land Rights Act 31 of 1996 (IPILRA), referred to as ancestral or customary rights. 26.5 The Sindane family say that they have lodged a land claim over the property and accordingly cannot be removed from it. 26.6 The Sindane family disputes the agreements relied upon.  They dispute that the late Mr Frans Sindane signed the Resettlement Agreement or acquiesced to the relocation site known as the Phumulani Agri Village.  Issue is taken with the Exxaro applicants’ reliance on the signature by way of a mark X, the absence of Sindane family witnesses to the signing and the absence of a commissioner of oaths.  It is also contended that the agreements, ostensibly concluded by family representatives, cannot bind the family members. 26.7 The Sindane Family raise various points which are ultimately relevant to whether a case has been made out for eviction under section 9 of ESTA.  These include that they have been in occupation of their homestead and surrounding grazing areas for over 60 years, the integrity of the consultation process is challenged and the alleged dangers of the mining operations are said to be self-created and fictitious in that they are relied upon as a form of constructive eviction. [27] Notably, in advancing these contentions, the Sindane family does not place material features of the history or evidence recounted in the founding affidavits in dispute.  Certain factual issues are, however, sought to be disputed, for example, the conclusion of the agreements, and the consultative process and the process of engagement.  In this regard, this Court is enjoined to resolve factual disputes on the principles articulated in Plascon Evans and Wightman. [12] Non-joinder [28] The SCA restated the law on joinder in Judicial Service Commission v Cape Bar Council [13] as follows: ‘ [12] It has by now become settled law that the joinder of a party is only required as a matter of necessity – as opposed to a matter of convenience – if that party has a direct and substantial interest which may be affected prejudicially by the judgment of the court in the proceedings concerned (see eg Bowring NO v Vrededorp Properties CC 2007 (5) SA 391 (SCA) para 21). The mere fact that a party may have an interest in the outcome of the litigation does not warrant a non-joinder plea. The right of a party to validly raise the objection that other parties should have been joined to the proceedings, has thus been held to be a limited one (see eg Burger v Rand Water Board 2007 (1) SA 30 (SCA) para 7; Andries Charl Cilliers, Cheryl Loots and Hendrik Christoffel Nel Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa 5 ed vol 1 at 239 and the cases there cited.)’ [29] In my view, neither the two Ministers nor the Commission are necessary parties to these proceedings.  The Sindane family has not put up any evidence of any restitution claim lodged in terms of the Restitution of Land Rights Act 22 of 1994 (the Restitution Act) and on the evidence before me the only application that was lodged is the late Mr Frans Sindane’s application under section 16 of the Labour Tenants Act.  This is an application under ESTA, as explained above.  In these circumstances, the Minister and the Commission cannot be said to be necessary parties. [30] The need to join the Minister of MRE is sought to be justified on the basis that the lawfulness of the grant of the mining right has been raised as a defence.  However, that decision, taken in 2013, has not been challenged either in these proceedings or in any other proceedings instituted to date. Its illegality cannot be raised collaterally in these proceedings.  In these circumstances, the following dictum in Transvaal Agriculture Union v Minister of Agriculture and Land Affairs [14] reveals why the joinder points must fail. ‘ In Van Winsen, Cilliers and Loots, Herbstein & Van Winsen – The Civil Practice of South Africa 4 ed at 172 the learned authoris supply a useful summary of the approach of this Court in the Amalgamated Engineering case in detgermining, by way of two tests, wheter a third party has a direct and substantial interest in the outcome of litigation.  Concerning the two tests , the learned authos tate as follows: The first was to consider whether the third party would have locus standi to claim relief concerning the same subject matter.  The second was to examine whether a situation could arise in which, because a third party had not been joined, any order the court might make would not be res judicat against him, entitling him to approach the Courts again concerning the same subject matter and possibly obtain an order irreconcilable with the order made in the first instance. ’ [31] Neither of the tests are met in respect of any of the parties whose non-joinder is raised.  The points must fail. The attack on the grant of the mining right and the transfer of ownership of the affected land to the second applicant [32] In their answering affidavit, the Sindane family contend that both the mining right and the transfer of ownership of the affected land are invalid.  The points are made in general terms and without adequate justification.  But whatever their merit, which I need not and do not reach, these points cannot succeed.  Even if the grant of the mining right was unlawful, its grant has legal consequences unless and until set aside. [15] Its validity and lawfulness is not before me in these proceedings by way of any counter-claim and there are no other proceedings in which its grant is under review.  The contentions regarding the transfer of the property suffer the same fate. Reliance on IPILRA [33] IPILRA was enacted in 1996 to ‘provide for the temporary protection of certain rights to and interests in land which are not otherwise adequately protected by law.’  Section 2 of IPILRA is titled ‘Deprivation of informal rights to land’ and provides that ‘Subject to the provisions of subsection (4), [16] and the provisions of the Expropriation Act 63 of 1975, 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.’ [34] The Sindane family’s difficulty in advancing the case is that it has not made out a case that it enjoys any informal right to land as defined in IPILRA. [17] There are general references to customary or ancestrial rights in land but no factual basis is advanced for those claims in context of the affected property. Lodgment of a land claim [35] The Sindane family say that they have lodged a land claim with the Commission over the property (suggesting this is under the Restitution Act) and accordingly cannot be removed from it. [18] It was on this basis that the non-joinder point in respect of the Minister was raised.  However, there is no evidence before the Court that any land claim was lodged in terms of the Restitution Act, or gazetted, and the point thus cannot succeed. [36] Indeed, when referring to a land claim in the answering affidavit, the deponent cross-refers to portions of the founding affidavit in which the Exxaro applicants refer to the application under section 16 of the Labour Tenants Act of the late Mr Frans Sindane.  Yet, as indicated above, they make no case in these proceedings that they are brought either within the protections of the Labour Tenants Act or under the ambit of the application. [19] The disputed agreements [37] As indicated above, the Sindane family disputes the agreements relied upon.  They dispute that the late Mr Frans Sindane signed the resettlement agreement or acquiesced to the relocation site known as the Phumulani Agri-Village. Issue is taken with the absence of a commissioner of oaths or Sindane family representatives when the signing ensued. It is also contended that the agreements, ostensibly concluded by family representatives, cannot bind the family members and in argument this approach was said to discriminate on grounds of gender. [38] In my view, the challenge to the signature of the late Mr Frans Sindane cannot succeed on the evidence before me.  There is no impediment in our law to concluding an agreement by indicating one’s assent by way of marking an X. [20] The applicants have substantiated their case with confirmatory evidence from witnesses who were present when the late Mr Frans Sindane so indicated his assent.   They say that this is how he signed all documents and the signing was witnessed by a Mr Luyanda Ntlanjeni, who confirmed this evidence.  Mr Ntlanjeni is an independent consultant subcontracted by Digby Wells.  Mr John Thom, a construction manager employed by Exxaro Resources also witnessed the signing.  Moreover the proceedings were filmed and while the footage cannot be found, reference is made to three still photographs drawn from the footage and accessed in January 2019.  The photographs show that Mr Sindane signed the agreement in the presence of his wife, the fifth respondent. In circumstances where the averments in the answering affidavit are either incorrect or amount to unsubstantiated denials, there is no evidence seriously to dispute what the applicants say. [39] Moreover, I was supplied with no authority for or source of any legal requirement that a signature of this sort requires verification by a commissioner of oaths. [40] There is also no impediment to a member of a family concluding an agreement on behalf of the family members.  On evidence before me, the agreements concluded were purportedly so concluded and there is no evidence upon which I can conclude that either the late Mr Frans Sindane or Mr Vusimuzi Sindane were not duly authorised to do so.  Both the late Mr Frans Sindane and the late Mr Vusimuzi Sindane signed the resettlement greement in their capacities as the ‘Household Head’ which is defined in clause 1.5 to mean ‘the authorised representative of each Household’ and ‘Household’ means ‘the household in the Resettlement Community that is headed by the Household Head.’ The Resettlement Community is defined to mean the 32 households.  The evidence demonstrates that both the resettlement agreement and the next-of-kin agreement were concluded, and that the Sindane family concluded the agreements having accepted the relocation site as suitable. There is similarly no evidence sustaining a discrimination challenge. [41] In my view, the evidence also shows that the Exxaro applicants have sought to comply with their contractual obligations under the resettlement agreements specifically in respect of Clause 4 which details the entitlements as regards to the resettlement site and replacement housing, non-residential structures and services at the resettlement site.  However, I am mindful that the Sindane family raised a series of concerns in the period after construction commenced, as detailed in the founding affidavit.  A number of these concerns were the subject of pointings out during the site inspection.  There is, however, no evidence before me that substantiates the concerns so raised. [42] In my view, the resettlement agreements are valid and the Exxaro applicants have consistently conducted themselves on the basis that they are bound by the agreements and will honour their terms.  This notwithstanding the stance of the Sindane family.  In my view, subject to section 9 of ESTA, the Exxaro applicants are entitled to enforce the agreements. [43] This does not, however, mean that there remains no room for ongoing dispute and in turn dispute resolution regarding the Exxaro applicants’ compliance with the resettlement in its detailed terms or the points of ongoing contention. However, in circumstances where the Exxaro applicants sought to address all of the family’s concerns by way of the new proposal at a cost of some R1 million and building a wholly new house (ultimately rejected apparently due to the beneficiation demand) Exxaro is entitled, contractually, to enforce the relocation terms. [44] In turn, this would not preclude the Sindane family themselves from enforcing the agreement.  In this regard, it must be noted that, having inspected the site and having considered the concerns the Sindane family raised in the engagement process, there are features about the resettlement site and house design that generate palpable and justifiable discomfort.  The homes of the Sindane family are humble rural abodes.  But the homestead has been the family home for decades and the homes are spacious, dignified and carefully kept.  The family has managed over the years to acquire substantial furniture, including large beds with headboards.  I was supplied with no measurements but it was quite apparent that the Sindane family will, at best, struggle, to move their furniture into the new houses if they can manage at all.  Indeed it is unsurprising that the Sindane family raised these concerns early in the construction process.  One of the responses from Exxaro was that the family should initially store their furniture in the storage facility provided and that the family could themselves alter the houses to expand the structures as they wished.  For present purposes, I need not decide whether more may be required of Exxaro under the resettlement agreement or in circumstances where their generous new proposal was rejected.  Rather, I emphasise that even after relocation, the Sindane family is not precluded from enforcing their own contractual rights and the parties are encouraged to continue engaging. [45] I now turn to deal with whether the requirements for an eviction order in terms  of section 9 of ESTA are met. The requirements for an eviction order under ESTA [46] Under ESTA, an eviction can only be ordered in terms of section 9. [21] [47] The first question is whether the Sindane family’s rights of residence on the Leeuwbank property (which formed part of the consolidated Zoekop property have been terminated in terms of section 8. [22] In my view, the requirements of section 8 of ESTA are met and it was just and equitable to terminate the rights of residence.  The rights were terminated in accordance with the resettlement agreements following the process set out above.  It must be noted in this regard that in the answering affidavit, the Sindane family dispute the integrity of the consultation and engagement process at various points.  Specifically, allegations are made that the Exxaro applicants played the families off each other and adopted a divide and rule strategy.  The independence of the consultants, Digby Wells, is put in issue as is the adequacy of representation from the Legal Resources Centre.  But the allegations that are advanced are, again, unsubstantiated and I am unable to accept that they give rise to any genuine dispute of fact on material issues.  As set out in the termination notices, the process is justified squarely with reference to the mining activities underway and the history of engagement regarding the Phumulani Agri-Village.  On the facts of this case, I can see no basis for concluding that any of the factors listed in section 8 do not favour the Exxaro applicants. [48] The fifth respondent, Mrs Rose Sindane is apparently a long-term occupier protected by section 8(4) of ESTA.  However, as I conclude below, the Exxaro applicants have brought themselves within the ambit of section 10(2) of ESTA referred to below. [49] The second question is whether the Sindane family has vacated the land within the period of notice given by the owner or person in charge.  It is common cause that they have not. The third question is whether the notice requirements of section 9(4)(d) are met.  They are. [50] The fourth question is whether the conditions for an order for eviction in terms of section 10 or 11 have been complied with.  Section 10 applies to persons who were occupiers on 4 February 1997. [51] In this case, it appears that most of the Sindane family members who are respondents have probably lived on the property their whole lives and, based on their identity numbers, have done so for a very long time.  In these circumstances, and despite the likely application of section 11 to some of the family members, I will assume that section 10 of ESTA – which confers stronger protections - is applicable.  I have, however, also considered section 11 of ESTA and would arrive at the same decision to the extent it is applicable. [52] Section 10(1) of ESTA precludes the grant of an eviction of a person who was an occupier on 4 Febtuary 1997 save in limited circumstances, which do not arise in this case.  However section 10(2) provides:  ‘Subject to the provisiosn of section (3), if none of the circumstances 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’. Suitable alternative accommodation is defined in section 1 of ESTA to mean ‘ alternative accommodation which is safe and overall not less favourable than the occupiers’ previous situation, having regard to the residential accommodation and land for agricultural use available to them prior to eviction, and suitable having regard to – (a) The reasonable needs and requirements of all of the occupiers in the household in question for residential accommodation, land for agricultural use and services; (b) Their joint earning abilities; and (c) The need to reside in proximity to opportunities for employment or other economic activities if they intend to be economically active.’ [53] On the facts of this case, I am satisfied that suitable alternative accommodation is available to the Sindane family at the Phumulani Agri-Village.  The Sindane family will have secure tenure through the resettlement agreement and via the CPA.  There is no reason to believe the Agri-Village is not safe and there is no evidence upon which I can conclude that the two homesteads and other facilities and services that have been supplied are not overall as favourable.  In this regard, should the Sindane family legitimately contend that the housing provided is non-compliant with the resettlement agreement, they have contractual remedies and may still enforce them. There is agricultural land available and grazing land and services including access to water, electricity and a sewerage system.  Furthermore, the resettlement site is located close to the family’s current home and access to economic activities will not be materially altered. [54] Considerations of justice and equity ultimately militate in favour of the order sought.  I have reached this conclusion mindful that the Sindane family has resided in their homestead for decades and consider it their home.  I have mentioned above the impact of delays in finalising labour tenancy applications.  I am mindful that these delays are not the fault of the Sindane family, and they are rightly aggrieved. In this regard, I have made provision in my order that any rights of the Sindane family arising from the application of the late Mr Frans Sindane under section 16 of the Labour Tenants Act are not prejudiced by the order made in these proceedings.  However, none of this can alter the fact that the Sindane family is living amidst an active mining site where there is ongoing blasting and which poses a real safety risk.  It is not manufactured and the risk is posed from mining activities which are ensuing pursuant to a mining right.  The mining right was granted in 2013, substantial mining has already taken place and there has to date been no challenge to that right. There may well be criticisms to advance against the Exxaro applicants about the manner in which the process has unfolded, but – on what remains substantially uncontested evidence before me – I can only conclude that the Exxaro applicants have sought seriously to ensure that the relocation process will ensure the security of tenure of the affected families and guarantee suitable alternative accommodation. [55] Importantly, the probation officer, whose report is before Court, effectively accepts the suitability of the accommodation. Moreover, the report confirms that the rights of the Sindane children will not be adversely affected.  The  balance of factual .considerations as set out in the report ultimately favour the grant of the order sought. [56] As regards the date for relocation, the Exxaro applications seek removal of the Sindane family within 30 days.  In my view, given the history of the matter and what is involved for the Sindane family, this time is unreasonably short and I have made provision for a lengthier period. The relocation process will, moreover, entail co-operation between the Exxaro applicants – who have assumed duties in this regard under the resettlement agreements – and the Sindane family.  Consideration must also be given to the requirements of section 13(1)(c) of ESTA. Costs [57] This Court does not usually grant costs orders because it is dealing with social legislation.  It only does so in special circumstances, of which there are none. Order [58] I make the following order: 58.1 The first to twelfth respondents are directed to relocate from their current residence being Portion 10 of the Farm Leeubank 427 Registration Division JS to Portion 13 of the farm Zoekop 426JS, Portion 12 of the farm Leeuwbank 427JS, a Portion of the Remaining Extent of the farm Paardeplaats 425 JS and the Remaining Extent of the farm Zoekop 426 JS (the Phumulani Agri-Village) in the Emakhazeni Local Municipality, Mpumalanga in terms of the resettlement agreements signed between the parties on or before 31 January 2024. 58.2 Should the Sindane family refuse to relocate or fail to do so in accordance with the resettlement agreements on or before 31 January 2024, the Sheirff of this Court is authorised to carry out the relocation to the Phumulani Agri-Village and thereby evict the first to twelfth respondents and in doing so to secure the co-operation of the South African Police Services. 58.3 Nothing in this order prejudices the rights of any member of the Sindane family to pursue any rights they may enjoy as a result of their status as labour tenants or the application lodged by the late Mr Frans Sindane in terms of section 16 of the Labour Tenants Act. 58.4 There is no order as to costs. Cowen J Land Claims Court Appearances For the Applicants: Adv HR Fourie SC with her Adv M Majozi instructed by Twala TRR Attorneys For the First to Twelfth Respondents: Adv TML Mashitoa instructed by Chuene Attorneys [1] Specifically Zoekop 426 JS, Blyvooruitzicht 383 JT and Leeuwbank 427 JS, Mpumalanga. [2] Portion 13 of the Farm Zoekop 426, Registration Division JS, Portion 12 of the Farm Leeuwbank 427 JS and a portion of the Remaining Extent of the Farm Paardeplaats 425 JS. [3] Made of up the Remaining Extent of the Farm Zoekop 426JS. [4] These are dealt with partly in a supplementary founding affidavit. [5] Cf Moloto Community v Minister of Rural Development and Land Reform and others [2022] JOL 56077 (LCC) [6] Mwelase and Others v Director-General for the Department of Rural Development and Land Reform and Another [2019] ZACC 30; 2019 (11) BCLR 1358 (CC) ; 2019 (6) SA 597 (CC). [7] This relief appears from paragraph 2 and 3 of the notice of motion. [8] This relief appears from paragraph 5 and 6 of the notice of motion.  The applicants abandoned the relief sought in paragraphs 3 and 4 of the notice of motion which is relief in terms of section 8 of the Labour Tenants Act. ## [9]Chagi v Singisi Forest Products[2007] ZASCA 63; 2007 (5) SA 513 (SCA);Paul De Villers Family Trust and Others v Pietersen and Others[2023] ZALCC 6.Boplaas Landgoed (PTY) Ltd and Another v Jonkies and Others[2022] ZALCC 38. [9] Chagi v Singisi Forest Products [2007] ZASCA 63; 2007 (5) SA 513 (SCA); Paul De Villers Family Trust and Others v Pietersen and Others [2023] ZALCC 6. Boplaas Landgoed (PTY) Ltd and Another v Jonkies and Others [2022] ZALCC 38. [10] Gildenhuys AJ held in Kusa Kusa CC v Mbele [2002] ZALCC 58 : ‘ Thus a labour tenant who is also an “occupier” under ESTA will be subject to eviction under the Labour Tenants Act, whilst an “occupier” who is not a labour tenant stands to be evicted under ESTA.’ [11] See specifically, sections 5, 6, 7, 14 of the Labour Tenants Act. [12] Plascon-Evans Paints v Van Riebeeck Paints 1984(3) 623 (A) at 634H-635C; Wightman t/a JW Construction v Headfour (Pty) Ltd and ano 2008(3) SA 371 (SCA), para 13. ## [13]Judicial Service Commission and Another v Cape Bar Council and Another[2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013] 1 All SA 40 (SCA) at para 12. [13] Judicial Service Commission and Another v Cape Bar Council and Another [2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013] 1 All SA 40 (SCA) at para 12. [14] 2005(4) SA 212 (SCA) at para 66. ## [15]Oudekraal Estates (Pty) Ltd v City of Cape Town and Others[2004] ZASCA 48; 2004 (6) SA 222(SCA);MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd[2014] ZACC 6; 2014 (5) BCLR 547 (CC); 2014 (3) SA 481 (CC). [15] Oudekraal Estates (Pty) Ltd v City of Cape Town and Others [2004] ZASCA 48; 2004 (6) SA 222 (SCA); MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd [2014] ZACC 6; 2014 (5) BCLR 547 (CC); 2014 (3) SA 481 (CC). [16] Section 2(4) is not raised on the affidavits. It 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.’ [17] Section 1 of IPILRA defines an ‘informal right to land’ to mean: ‘ (a) the use of, occupation of, or access to land in terms of- (i)any tribal, customary or indigenous law or practice of a tribe; (ii)the custom, usage or administrative practice in a particular area or community, where the land in question at any time vested in- (aa) the South African Development Trust established by section 4 of the Development Trust and Land Act, 1936 (Act 18 of 1936); (bb) the government of any area for which a legislative assembly was established in terms of the Self-Governing Territories Constitution Act, 1971 (Act 21 of 1971); or (cc) the governments of the former Republics of Transkei, Bophuthatswana, Venda and Ciskei; (b) the right or interest in land of a beneficiary under a trust arrangement in terms of which the trustee is a body or functionary established or appointed by or under an Act of Parliament or the holder of a public office; (c) beneficial occupation of land for a continuous period of not less than five years prior to 31 December 1997; or (d) the use or occupation by any person of an erf as if he or she is, in respect of that erf, the holder of a right mentioned in Schedule 1 or 2 of the Upgrading of Land Tenure Rights Act, 1991 ( Act 112 of 1991 ), although he or she is not formally recorded in a register of land rights as the holder of the right in question, but does not include- (e) any right or interest of a tenant, labour tenant, sharecropper or employee if such right or interest is purely of a contractual nature; and (f) any right or interest based purely on temporary permission granted by the owner or lawful occupier of the land in question, on the basis that such permission may at any time be withdrawn by such owner or lawful occupier.’ [18] Section 11(7)(b) of the Restitution Act provides that once a notice has been published in the Gazette in terms of section 11(1) of the Act, ‘no claimant who occupied the land in question at the date of commencement of [the Restitution Act] may be evicted from the said land without the written authority of the Chief Land Claims Commissioner. [19] Cf Mokoena and others v Lambrechts Familie Testamentere Trust and others [2022] ZALCC 37. [20] Borcherds and Another v Duxbury and Others [2020] ZAECPEHC 37; 2021(1) SA 410 (ECP) at para 28; Harpur NO v Govindamall and Another [1993] ZASCA 110 ; 1993 (4) SA 751 (AD) at 756I to 757; Global & Local Investments Advisors (Pty) Ltd v Fouche 2021(1) SA 371 (SCA). [21] 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 section 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. (3) For the purposes of subsection (2) (c) , the Court must request a probation officer contemplated in section 1 of the Probation Services Act 1991 (Act 116 of 1991, or an officer of the department or any other officer in the employment of the State, as may be determined by the Minister, to submit a report within a reasonable period- (a) on the availability of suitable alternative accommodation to the occupier; (b) indicating how an eviction will affect the constitutional rights of any affected person, including the rights of the children, if any, to education; (c) pointing out any undue hardships which an eviction would cause the occupier; and (d) on any other matter as may be prescribed. [22] 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 effective opportunity to make representations before the decision was made to terminate the right of residence. (2) The right of residence of an occupier who is an employee and whose right of residence arises solely from an employment agreement, may be terminated if the occupier resigns from employment or is dismissed in accordance with the provisions of the Labour Relations Act. (3) Any dispute over whether an occupier's employment has terminated as contemplated in subsection (2), shall be dealt with in accordance with the provisions of the Labour Relations Act, and the termination shall take effect when any dispute over the termination has been determined in accordance with that Act. (4) The right of residence of an occupier who has resided on the land in question or any other land belonging to the owner for 10 years and- (a) has reached the age of 60 years; or (b) is an employee or former employee of the owner or person in charge, and as a result of ill health, injury or disability is unable to supply labour to the owner or person in charge, may not be terminated unless that occupier has committed a breach contemplated in section 10 (1) (a) , (b) or (c) : Provided that for the purposes of this subsection, the mere refusal or failure to provide labour shall not constitute such a breach. (5) On the death of an occupier contemplated in subsection (4), the right of residence of an occupier who was his or her spouse or dependant may be terminated only on 12 calendar months' written notice to leave the land, unless such a spouse or dependant has committed a breach contemplated in section 10 (1). (6) Any termination of the right of residence of an occupier to prevent the occupier from acquiring rights in terms of this section, shall be void. (7) If an occupier's right to residence has been terminated in terms of this section, or the occupier is a person who has a right of residence in terms of subsection (5)- (a) the occupier and the owner or person in charge may agree that the terms and conditions under which the occupier resided on the land prior to such termination shall apply to any period between the date of termination and the date of the eviction of the occupier; or (b) the owner or person in charge may institute proceedings in a court for a determination of reasonable terms and conditions of further residence, having regard to the income of all the occupiers in the household. sino noindex make_database footer start