A Re Shomeng Holdings Proprietary Limited and Another v Letta Sibeko (Mthimunye) and Others

The applicants operate an open cast coal mine on Portion 35 of Farm Kromkrans 208 IS in Mpumalanga Province pursuant to a mining right granted under the MPRDA. The first to seventh respondents are family representatives of seven families who have resided on Portion 35 since 1997 as occupiers under ESTA. The families had agreed to relocate to new permanent homes on the same property approximately 600 metres from their existing homes. However, construction of the permanent homes was delayed beyond the expected November 2023 completion date. To continue mining operations safely within the required 500-metre blasting radius, the applicants needed the families to first relocate to temporary mobile home accommodation pending completion of the permanent structures. The families refused, having not agreed to temporary relocation. On 12 January 2024, the Chief Inspector of Mines issued a section 54 notice stopping all blasting activities until occupiers were relocated outside the blasting radius. The applicants contended that without continued mining, the mine would close, resulting in job losses and inability to meet contractual commitments to Eskom. On 26 January 2024, Cowen J granted emergency relief to enable blasting of an already-charged block.

• Whether the application constitutes an eviction or relocation under ESTA
• Whether urgent interim relief under section 15 of ESTA applies to relocations or only evictions
• What legal protections apply to relocations under ESTA
• Whether the requirements for urgent interim relief are satisfied
• Whether the applicants are entitled to compel temporary relocation to mobile homes pending construction of permanent housing
• What consultation and engagement obligations exist regarding temporary relocation
• Whether the balance of hardships favours granting the relocation order

The Court granted interim relocation relief. The first and fourth respondents and persons claiming through them were ordered to vacate their existing homes by 23 February 2024 and relocate to temporary housing on Portion 35 with specified standards for accommodation, utilities, and services. The applicants were ordered to construct permanent homes according to agreed plans and facilitate the relocation process with transport and labour assistance. For the second, third, fifth, sixth and seventh respondents, the applicants were ordered to deliver a report within 10 court days detailing the construction sequence, timeframes, and engagement process, conduct meaningful engagement, and could thereafter approach the Court on 10 days' notice for further interim relocation orders. The Sheriff was authorized to enforce the order. Service could be effected electronically on legal representatives. No final relocation order could be granted until permanent homes are constructed. If final relief is not granted, the applicants must remediate any damage to existing homes. Part B (final relief) was stood over with directions for amended papers. No order as to costs.

A relocation from one dwelling to another on the same land does not constitute an eviction under ESTA but is authorized under the Court's interdict powers in section 20(1)(b). However, relocations remain subject to the protections in sections 5, 6 and 8 of ESTA, requiring respect for occupiers' dignity, security of tenure, and procedural and substantive fairness in terminating residence rights. Urgent interim relocation relief may be granted where: (a) mining activities create real safety threats to occupiers; (b) there is no alternative remedy; (c) the balance of hardships favours relocation given mine closure and job loss consequences versus temporary disruption; and (d) adequate arrangements exist for reinstatement or provision of permanent housing. However, such relief must include: detailed requirements for temporary accommodation standards; provision of essential services; assistance with relocation; ongoing meaningful consultation and engagement; mechanisms for dispute resolution; and court supervision of the process, particularly where occupiers have not agreed to temporary arrangements and there are uncertainties about permanent housing and security of tenure.

The Court noted uncertainty about whether section 15 of ESTA (urgent eviction proceedings) applies to relocations or only to evictions, but found it unnecessary to decide this issue as the requirements for urgent interim relief were satisfied under either test. The Court observed that the original construction delays and need for funds to continue operations highlighted the potential vulnerability of the family respondents. The Court emphasized that it was granting interim rather than final relief because the permanent structures had not yet been built, there had been inadequate engagement regarding temporary accommodation (particularly with respondents other than the first and fourth), the families faced legitimate concerns about ongoing security of tenure given the mine's apparently tenuous financial position, and there were too many uncertainties. The Court noted the importance of the Mine Community Resettlement Guidelines 2022 emphasizing consultation and dispute resolution mechanisms. The grant of interim relief did not prejudice any rights to claim compensation arising from the relocation process.

This case provides important guidance on the legal framework for relocations under ESTA, distinguishing them from evictions while confirming that significant ESTA protections still apply. It clarifies that sections 5, 6 and 8 of ESTA apply to relocations, requiring respect for occupiers' dignity, security of tenure, and procedural and substantive fairness. The judgment demonstrates the Court's approach to balancing competing interests where mining operations create safety imperatives requiring relocation, while ensuring vulnerable occupiers' constitutional rights are protected through detailed procedural safeguards, consultation requirements, and phased implementation. It illustrates the practical application of the Mine Community Resettlement Guidelines and emphasizes the importance of meaningful engagement, particularly regarding temporary accommodation arrangements not originally agreed. The case shows how urgent interim relief can be granted in mining contexts while preserving occupiers' rights and requiring ongoing court supervision of the relocation process.