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A Re Shomeng Holdings Proprietary Limited and Another v Sibeko and Others – Land Claims Court (19 February 2024)

19 February 2024

  • The judgment of the Land Claims Court can be found here.
  • Neutral citation: A Re Shomeng Holdings Proprietary Limited and Another v Sibeko and Others (LCC 02/2024) [2024] ZALCC 7 (19 February 2024)
  • Case number: LCC02/2024
  • Coram: Cowan AJP
  • Date delivered: 19 February 2024
  • Outcome:
    • The members of two families must relocate to temporary housing and the coal mine must ensure that the temporary housing includes adequate sleeping, kitchen, lounge or dining room and sanitation facilities for each family’s requirements. Water, electricity and grazing for cattle must be provided.
    • The mine must facilitate ongoing engagement with the family members to communicate relocation plans and to facilitate the relocation process and ensure that the temporary accommodation is suitable. The mine must provide transport and assist in moving furniture and belongings for the families being moved to ensure the process is safe, orderly and dignified. The mine must build the permanent houses according to plans which the families must agree to, and the families must move into these houses once constructed;
    • In respect of the members of the other impacted families, the mine must expedite the construction of permanent houses for the other five families to avoid them having to move to temporary accommodation. These houses must also be provided for in a plan which the families should sign off on;
    • The mine must, within 10 days, provide the court and the families with its plan and timeframes for construction of permanent houses and set out the process for how it intends to engage with the families; The mine must meaningfully engage with the families about this plan and their accommodation needs should it be necessary to relocate them to temporary accommodation at any stage;
    • The family members must comply with any direction given to them by the mine manager or other authorised official to move to a safe place during blasting operations;
    • The sheriff and police service are authorised to take necessary steps to enforce the order.

Summary

The applicants in this matter (A Re Shomeng Holdings and Projects) hold a mining right and operate a coal mine called Motshaotshile Colliery in Mpumalanga, South Africa. They applied to the land claims court on an urgent basis, to temporarily relocate members of seven families who have lived on the property where the mine operates since before the mine bought the property. The families opposed the application and are the respondents in this matter. The families are ‘occupiers’ as defined in the Extension of Security of Tenure Act 62 of 1997 (ESTA).

Background

In 2021, the mine conducted surveys of households on the property. It found safety concerns regarding the ability of the families’ homes to withstand the impacts from mining and blasting activities. In identifying the impacts of mine blasting on the homes of the surrounding community, the court found that:

“There is no dispute that the mining activities create a real and imminent danger of substantial injury and damage. ”

As mining operations on the property expanded, the mine negotiated with the families for them to leave their existing homes and relocate to permanent new homes, some 600m away on the same property. The families agreed to move.

However, before the new homes had been completed, the mine indicated that it wanted to move the families to temporary mobile homes and mine an area close to their original homes ‘in order to continue with mining operations, and indeed generate funds to keep operations and the construction process going.’

The families refused to move to temporary accommodation saying that was not what had been negotiated with the mine and would be highly disruptive to their lives and the temporary accommodation was not suitable for their needs. The families raised practical concerns regarding whether the temporary accommodation offered by the mine would have access to water and electricity, the size, suitability and timeframes for construction of the permanent houses, their ability to graze their cattle and the disruption of temporary moves. The court considered the Mine Community Resettlement Guidelines of 2022 which emphasise the need for ongoing consultation and establish dispute resolution mechanisms in resettlement processes. The mine argued that if the families do not move, the mine “will not be able to meet its commitments and will close resulting not only to hardship to the mine but in significant job losses and related economic hardship for those who are benefiting from the mining program.”

In early 2024, mining activities on the property had stopped following the issuing of a directive under section 54 of the MPRDA. The mine wished to blast within 500 metres of the families’ houses, but the DMRE had indicated that it would not permit further blasting operations until the families were relocated. The mine argued that should it not be able to blast, it would be unable to meet its commitments to deliver coal to Eskom to supply the Hendrina (and other) power stations as well as other export contractors, and that it would close resulting in a loss of numerous jobs, livelihoods and social benefit.

The court considered the Supreme Court of Appeal’s judgment in Rouxlandia which found that under ESTA, removal from one house to another on the same property is considered ‘relocation,’ and that removal off the property constituted an ‘eviction.’ This matter therefore was considered a relocation since the mine sought to move the families to different premises on the same property.

The court considered the history of engagements where the relocation and blasting plans had previously been discussed and various plans mooted and the subsequent breakdown in communication and trust between the community and the mine.

Only during the court proceedings did the mine clarify arrangements regarding water, sanitation and grazing requirements and provided details as to the dimensions of the temporary mobile homes it wished to move the families to.

The court ordered that:

  1. Two families must relocate to temporary housing on the same property. The mine must ensure that the temporary housing includes adequate sleeping, kitchen, lounge or dining room and sanitation facilities for each family’s requirements. Water and electricity must be supplied as follows:
    a. Generator power will be supplied at the mine’s costs until it has installed solar electricity or has provided an Eskom connection. Once the Eskom connection is supplied, the families will be responsible for their own electricity costs.
    b. Water will be supplied in a JOJO tank, and the mine must ensure the tank remains adequately filled to address the mobile homes’ occupiers’ reasonable needs.
    c. The livestock will continue to graze Portion 35 at all relevant times.
  2. The mine must facilitate ongoing engagement with the family members to communicate relocation plans and to facilitate the relocation process and ensure that the temporary accommodation is suitable. The mine must provide transport and assist in moving furniture and belongings for the families being moved to ensure the process is safe, orderly and dignified. The mine must build the permanent houses according to plans which the families must agree to, and the families must move into these houses once constructed;
  3. In respect of the other impacted families, the mine must expedite the construction of permanent houses for the other five families to avoid them having to move to temporary accommodation. These houses must also be provided for in a plan which the families should sign off on;
  4. The mine must, within 10 days, provide the court and the families with its plan and timeframes for construction of permanent houses and set out the process for how it intends to engage with the families; The mine must meaningfully engage with the families about this plan and their accommodation needs should it be necessary to relocate them to temporary accommodation at any stage;
  5.  The family members must comply with any direction given to them by the mine manager or other authorised official to move to a safe place during blasting operations;
  6.  The sheriff and police service are authorised to take necessary steps to enforce the order.

This order is considered ‘interim’ because Part B of the matter must be decided first before a final order can be granted. The mine was directed to deliver papers for Part B within a month.

The court would not grant a final relocation order unless and until the permanent new homes are constructed and the mine was authorised to update its affidavits accordingly. The court indicated that its order did not prejudice any rights of the families to claim compensation from mine arising from the relocation process.

In conclusion, the court held that in the event that the relief sought in Part B is not granted, the mine is ordered to remediate any damage caused to any of the families existing homes due to its blasting activities.