- Excluded Xihahele households secured compensation exceeding R21.4 million instead of land restitution.
- The Minister of Rural Development and Land Reform must pay interest from January 2025 until the settlement is made.
- The Land Court approved payment through the claimants’ attorneys and set oversight for legal fees and the distribution process.
Members of 41 Xihahele households have secured compensation of R21 431 848 after successfully challenging their exclusion from a land restitution process relating to Farm Beaufort 32 LT in the Soutpansberg area of Limpopo.
The Land Court made a settlement agreement between the claimants and the Minister of Rural Development and Land Reform an order of court, confirming that the affected households are entitled to compensation instead of the restoration of land rights.
The court further ordered that mora interest at 11.25% per annum be paid on the compensation amount from 7 January 2025 until the date of payment. The successful claimants represent 451 beneficiaries whose claims were ultimately recognised following a fresh verification process undertaken during litigation.
Community sought answers about missing claims
The dispute arose from restitution claims lodged around 2008 and 2009 under the Restitution of Land Rights Act.
In August 2023, concerns emerged regarding the status of a number of households that believed they formed part of the Xihahele land claim. The households instructed Baloyi Ntsako Attorneys Incorporated to investigate.
The investigation revealed that while other households had been recognised and included in the claim, the applicants had been excluded.
A letter from the Commission on Restitution of Land Rights informed one of the claimants that an investigation had concluded that his household did not qualify as a claimant dispossessed within the Xihahele land claim. The excluded households disputed that conclusion.
Eddy Xihahele, chairperson of the Committee of Elders for the Xihahele land claim, supported the application and confirmed that the committee had consistently advocated for the inclusion of the excluded households.
According to the judgment, Xihahele maintained that the affected families were entitled to compensation and should not have been left out of the process.
Attempts to resolve the matter fail
The applicants’ attorneys repeatedly sought explanations from the commission and requested meetings to discuss the exclusion. In September 2024, they requested written reasons for the decision and sought clarity regarding the identity of excluded claimants.
The commission responded that a verification process conducted with the assistance of community elders indicated that the applicants were not among those dispossessed of rights in land with the Xihahele community.
The applicants supplied additional information in support of their claims and agreed to participate in further engagements. Despite these efforts, the commission maintained that it could not verify the applicants for inclusion.
When requests for written reasons failed to resolve the matter, the applicants launched review proceedings on 7 January 2025. The judgment records that the litigation followed months of correspondence and unsuccessful attempts to secure recognition through administrative processes.
Mediation leads to breakthrough
After the review application was launched, the parties exchanged affidavits and participated in a number of case management meetings. At the same time, mediation efforts were undertaken, and a fresh verification process was initiated.
The new verification exercise produced a different outcome. The government ultimately recognised 41 households that had previously been excluded from the claim.
The parties subsequently settled the merits of the dispute and agreed on compensation for the successful claimants. A settlement agreement was signed on 15 April 2026.
Although agreement was reached on compensation and costs in principle, the parties remained divided on the issues of interest, payment of compensation and the treatment of legal fees.
Court awards interest
The applicants argued that they should receive interest because they had been excluded from a process in which other qualifying households had already been recognised.
Acting Judge TD Brenner agreed. “Consequences and accountability should flow from this conduct,” the judge said. “I have resolved to impose mora interest from the date of issue of the application on 7 January 2025.” The ruling means that interest will continue to accrue until the compensation is paid.
Payment through attorneys approved
The respondents argued that compensation should be paid directly to claimants rather than into the trust account of their attorneys. Judge Brenner found no prohibition in the Restitution of Land Rights Act, the Public Finance Management Act or Treasury Regulations preventing payment into an attorney trust account.
The judgment referred to previous authority dealing with similar circumstances and quoted a finding that: “A trust account is not just a private purse; it is a legally supervised fiduciary vehicle.”
The Minister was ordered to pay the compensation into the trust account of Baloyi Ntsako Attorneys Incorporated within 60 court days. The funds must then be invested in an interest-bearing account pending the completion of a court-supervised distribution process.
Court scrutinises legal fee arrangements
The judgment also examined contingency fee agreements concluded between the claimants and their attorneys. While identifying deficiencies in some provisions, the court declined to invalidate the agreements.
Instead, it ordered that legal fees be taxed and subjected to judicial scrutiny before any final payments are made. The court recognised the important role contingency fee agreements play in land restitution matters.
“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,” the judgment states.
Judge Brenner noted that many land claimants are financially vulnerable and may not be able to pursue complex litigation without such arrangements.
To protect both the claimants and their attorneys, the court ordered that detailed schedules reflecting compensation payments, legal fees and supporting documentation must be submitted for judicial approval before distribution takes place.
Minister ordered to pay costs
Although the court found no evidence that officials had acted maliciously or in bad faith when excluding the households, it held that the successful applicants were entitled to recover their legal costs. The Minister was ordered to pay party-and-party costs, including the costs of senior counsel.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
