Speaker of the National Assembly and Another v Land Access Movement of South Africa and Others (CCT40/15) [2019] ZACC 10; 2019 (5) BCLR 619 (CC); 2019 (6) SA 568 (CC) (19 March 2019)

CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 40/15

In the matter between:


SPEAKER OF THE NATIONAL ASSEMBLY First Applicant

CHAIRPERSON OF THE NATIONAL COUNCIL
OF PROVINCES Second Applicant

and

LAND ACCESS MOVEMENT OF SOUTH AFRICA First Respondent

ASSOCIATION FOR RURAL ADVANCEMENT Second Respondent

NKUZI DEVELOPMENT ASSOCIATION Third Respondent

MODDERVLEI COMMUNAL PROPERTY
ASSOCIATION Fourth Respondent

MAKULEKE COMMUNAL PROPERTY ASSOCIATION Fifth Respondent

POPELA COMMUNAL PROPERTY ASSOCIATION Sixth Respondent

MATABANE COMMUNITY Seventh Respondent

MAPHARI COMMUNITY Eighth Respondent

MLUNGISI AND EZIBELENI DISADVANTAGED
GROUP Ninth Respondent

LADY SELBORNE CONCERNED GROUP Tenth Respondent

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Eleventh Respondent

MINISTER OF RURAL DEVELOPMENT AND
LAND REFORM Twelfth Respondent

2

CHIEF LAND CLAIMS COMMISSIONER Thirteenth Respondent

SPEAKER OF THE EASTERN CAPE
PROVINCIAL LEGISLATURE Fourteenth Respondent

SPEAKER OF THE FREE STATE
PROVINCIAL LEGISLATURE Fifteenth Respondent

SPEAKER OF THE GAUTENG
PROVINCIAL LEGISLATURE Sixteenth Respondent

SPEAKER OF THE KWAZULU-NATAL
PROVINCIAL LEGISLATURE Seventeenth Respondent

SPEAKER OF THE LIMPOPO
PROVINCIAL LEGISLATURE Eighteenth Respondent

SPEAKER OF THE MPUMALANGA
PROVINCIAL LEGISLATURE Nineteenth Respondent

SPEAKER OF THE NORTH WEST
PROVINCIAL LEGISLATURE Twentieth Respondent

SPEAKER OF THE NORTHERN CAPE
PROVINCIAL LEGISLATURE Twenty-first Respondent

SPEAKER OF THE WESTERN CAPE
PROVINCIAL LEGISLATURE Twenty-second Respondent



Neutral citation: Speaker of t he National Assembly and Anothe r v Land Access
Movement of South Africa and Others [2019] ZACC 10

Coram: Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J,
Goliath AJ, Khampepe J, Mhlantla J, Petse AJ, Theron J


Judgment: Mhlantla J (unanimous)

Heard on: 6 November 2018

Decided on: 19 March 2019


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Summary: Application for extension of interdict — interdict in respect of
processing of land claims — appropriate remedy — just and
equitable order




ORDER



The following order is made:
1. The application by the applicants for an extension is dismissed.
2. The counter-application by the first to sixth respondents is upheld to the
following extent, subject to the Parliament of the Republic of South
Africa legislating otherwise:
(a) The Commission on Restitution of Land Rights (Commission) is
prohibited from processing in any way an y claims lodged in
terms of section 10 of the Restitution of Land Rights Act 22 of
1994 (Restitution Act) between 1 July 2014 and 28 July 2016
(interdicted claims) until the earlier of the dates when—
(i) it has settled or referred to the Land Claims Court all
claims lodged on or before 31 December 1998 (old claims)
by way of a referral of the claim in terms of section 14; or
(ii) the Land Claims Court, upon application by any interested
party, grants permission to the Commission to begin
processing interdicted c laims, whether in respect of the
whole or part of the Republic of South Africa and whether
in respect of part or all of the process for administering a n
interdicted claim.
(b) Until the date referred to in paragraph (a), no interdicted claims
may be adjudicated upon or considered in any manner
whatsoever by the Land Claims Court in any proceedings for the
restitution of rights in land in respect of old claims, provided that

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interdicted claimants may be admitted as interested parties before
the Land Claims Court solely to the extent that their participation
may contribute to the establishment or rejection of the old claims
or in respect of any other issue that the presiding judge may allow
to be addressed in the interests of justice.
(c) Notwithstanding the provisions of section 11(5) and 11(5A) of
the Restitution Act, no interdicted c laimant shall be entitled to
any relief having the effect of—
(i) altering or varying—
(a) the relief granted to any claimant in terms of
section 35 of the Restitution Act in respect of a
finalised old claim;
(b) the terms of an agreement concluded in terms of
section 42D of the Restitution Act; or
(c) an award in terms of section 42E(1)(a) or (b) of the
Restitution Act,
unless the Land Claims Court in exceptional
circumstances orders otherwise; and / or
(ii) awarding to such interdicted claimant land or a right in
land that is subject to a pending claim for restoration by an
old claimant.
(d) The Chief Land Claims Commissioner must file a report with the
Land Claims Court, to be dealt with as the Judge President of that
Court may deem fit, at six -monthly intervals from the date of this
order, setting out—
(i) the number of outstanding old claims in each of the
regions on the basis of which the Commission’s
administration is structured;
(ii) the anticipated date of completion in each region of the
processing of the old claims, including short-term targets
for the number of old claims to be processed;

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(iii) the nature of any constraints, whether budgetary or
otherwise, faced by the Commission in meeting its
anticipated completion date;
(iv) the solutions that have been implemented or are under
consideration for addressing the constraints; and
(v) such further matters as the Land Claims Court may direct;
until all old claims have been processed.
(e) The Land Claims Court may make such order or orders as it
deems fit to ensure the expeditious and prioritised processing of
old claims.
3. The applicants are jointly and severally ordered to pay the costs of the
first to sixth respondents, including the costs of two counsel.



JUDGMENT




MHLANTLA J (Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J,
Goliath AJ, Khampepe J, Petse AJ and Theron J concurring):


Introduction
[1] “There can be no freedom, without land. There can also be no peace until the
emotional issue of land is settled.” 1 Land restitution, albeit with its complications and
setbacks,2 still forms part of an important process. It aims to right historical wrongs,
resolve unjust dispossession and heal the “trauma of deep, dislocating loss of land”

1 “Open Letter to the Multiparty Negotiations at the World Trade Centre, 18 August 1993 ” AFRA News :
Newsletter of the Association for Rural Development (August/September 1993).
2 Chokozo and Managa “Can we unlock rural socio -economic transformation through land reform? Revisiting
the land redistribution public policy imperatives in South Africa” Human Sciences Research Council Policy
Brief (March 2018), available at http://www.hsrc.ac.za/en/research-data/view/9207.
MHLANTLA J
6
that has taken root in our country. 3 It entails the practical disruption of racialised
privilege in respect of land ownership. But it also incorporates a symbolic function of
recognising histories and legacies of injustice that influence the lives of individuals,
families and communities.4

[2] This Court in LAMOSA 1 has given credit to the importance of the restitution
process and linked it to the “restoration of dignity”. 5 This matter is a sequel to
LAMOSA 1. In LAMOSA 1, this Court prospectively struck down the Restitution of
Land Rights Amendment Act6 (repealed Amendment Act) from the date of the
judgment on 28 July 2016. In paragraph 4 of the Order, this Court interdicted the
Commission on Restitution of Land Rights (Commission) from processing any claims
lodged between 1 July 2014 and 28 July 2016 pursuant to the repealed Amendment
Act (the inte rdicted claims), pending the enactment of a new Act re-opening the
lodgement of land claims.7 Paragraph 7 of the Order provided that, should Parliament

3 Walker Landmarked: Land Claims and Land Restitution in South Africa (Jacana, Johannesburg 20 08) at 34.
See also Hall “Reconciling the Past, Present and Future” in Walker et al (ed s) Land, Memory, Reconstruction,
and Justice: Perspectives on Land Claims in South Africa (Ohio University Press, Athens 2010) at 17.
4 Id.
5 Land Access Movement of South Africa v Chairper son, National Council of Provinces [2016] ZACC 22;
2016 (5) SA 635 (CC); 2016 (10) BCLR 1277 (CC) (LAMOSA 1) at para 63.
6 Act 15 of 2014.
7 The order in LAMOSA 1 (Order) reads:
“1. It is declared that Parliament failed to satisfy its obligation to facilitate public
involvement in accordance with section 72(1)(a) of the Constitution.
2. The Restitution of Land Rights Amendment Act 15 of 2014 is declared invalid.
3. The declaration of invalidity in paragraph 2 takes effect from the date of this
judgment.
4. Pending the re -enactment by Parliament of an Act re -opening the period of
lodgement of land claims envisaged in section 25(7) of the Constitution, the
Commission of Restitution of Land Rights, represented in these proceedings by the
Chief Land Claims Commissioner (Commission), is interdicted from processing in
any manner whatsoever land claims lodged from 1 July 2014.
5. The interdict in paragraph 4 does not apply to the receipt and acknowledgement of
receipt of land claims in terms of section 6(1)(a) of the Restitution of Land Rights
Act 22 of 1994.
6. Should the processing, including referral to the Land Claims Court, of all land claims
lodged by 31 December 1998 be finalised before the re -enactment of the Act referred
to in paragraph 4 above, the Commission may process land claims lodged from
1 July 2014.
MHLANTLA J
7
not enact an Act within 24 months of the date of judgment in LAMOSA 1, the Chief
Land Claims Commissioner (Commissioner) must, and any other interested party to
LAMOSA 1 or person with a direct and substantial interest may, apply to this Court
within two months of the elapsed period for an appropriate order on the processing of
those interdicted claims.

[3] The effect of the Order was that , first, the repealed Amendment Act was
declared invalid immediately from 28 July 201 6. Simply put, the repealed
Amendment Act was struck down finally and irrevocably. Second, the Commission
was interdicted from pr ocessing any interdicted claims. Third, the interdict would
endure until (1) Parliament enacted a new Amendment Act (new Amendment Act) re-
opening the period of lodgement of land claims ; (2) the processing of all claims
lodged before 31 December 1998 (old claims) was finalised before the enactment of a
new Amendment Act; or (3) if Parliament were to fail to enact a new Amendment Act
within 24 months of the date of the Order , until the Commission , or a ny other
interested party, applied to this Court for an appropriate order on the processing of the
interdicted claims.

[4] The applicants, t he Speaker of the National Assembly and the Chairperson of
the National Council of Provinces (collectively, Parliament), now seek an extension of
the period of 24 months mentioned in paragraph 7 of the Order until 29 March 201 9,
in order to enable Parliament to finalise the process of enacting a new Amendment
Act. The extension will, if granted, extend the interdict in paragraph 4 of the Order
and, consequently, paragraph 7 will not be activated until 29 March 2019 . The
seventh to tenth respondents (collectively, the Communities) support Parliament’s
request for the extension.

7. In the event that Parliament does not re -enact the Act envisaged in paragraph 4
within 24 months from the date of this order, the Chief Land Claims Commissioner
must, and any other party to this application or person with a direct and substantial
interest in this order may , apply to this Court wit hin two months after that period has
elapsed for an appropriate order on the processing of land claims lodged from 1 July
2014.
8. The National Council of Provinces must pay the applicants’ costs, including costs of
two counsel.”
MHLANTLA J
8

[5] The first to sixth respondents (the LAMOSA respondents) oppose the
application. They have brought a counter -application asking this Court to lift the
interdict and grant an order , as set out in their counter -application, dealing with the
processing of the interdicted claims.

Background
[6] In 1994, Parliament passed the Restitution of Land Rights Act 8 (Restitution
Act), being the legislation envisaged by section 25(7) of the Constitution 9 to address
evictions, forced removals and past dispossession of land. The Restitution Act
established a system allowing people and communities who were, as a result of
racially discriminatory laws or practices, dispossessed of their land rights to claim
either restitution of the land or equitable redress. The Restitution Act provided that all
claims had to be lodged by 31 December 1998. During the period between th e
enactment of the Restitution Act and 31 December 1998, about 80 000 claims were
lodged. However, by 2014, over 20 000 of those claims had not yet been finalised.

[7] In 2014, Parliament enacted the repealed Amendment Act . One of the major
changes brought in by the repealed Amendment Act was the re -opening of the
restitution process, allowing new claims to be lodged until 30 June 2019. 10 However,
the procedures followed by the National Council of Provinces (NCOP) and the
provincial l egislatures in passing t he repealed Amendment Act were challenged in
LAMOSA 1.


8 Act 22 of 1994.
9 Section 25(7) of the Constitution provides:
“A person or community dispossessed of property after 19 June 1913 as a result of past
racially discriminatory laws or practices is entitled, to the extent provided by an Act of
Parliament, either to restitution of that property or to equitable redress.”
10 Other changes introduced include: two new offences; changes to the composition of, and appointment of
judges to the Land Claims Court; and an obligation on the Minister to consider all the factors in section 33 of the
Restitution Act when settling a claim in terms of section 42D of that Act.
MHLANTLA J
9
[8] In LAMOSA 1, the LAMOSA respondents filed an application for direct access
to this Court for a declaration of constitutional invalidity of the repealed Amendment
Act.11 The applicants challenged the constitutionality of the repealed Amendment Act
on two grounds : first , that the NCOP and the provincial l egislatures respectively
breached section 72(1)(a) of the Constitution by failing to “facilitate public
involvement” in the passing of the Bill that preceded the repealed Amendment Act,
and, second, that section 6(1)(g) of the Restitution Act , as inserted by the repealed
Amendment Act, was incurably vague.12

[9] The provincial legislatures took issue with the challenge by the applicants in
LAMOSA 1 against the participation process conducted by the m and the NCOP and, to
the contrary, argued that they had fulfilled their constitutional obligations under the
impugned sections. The Minister of Development and Land Reform (Minister) and
the President of the Republic of South Africa (President) invoked the legal maxim of
qui prior est tempore potior est jure 13 to argue that section 6(1)(g) conferred
substantive priority on current claims. The Commissioner, on the other hand,
contended that developing rules would assist in determining the proper meaning of
section 6(1)(g) on the prioritisation of claims.

[10] On 28 July 2016, this Court held that the re -opening of land claims, which the
repealed Amendment Act sought to do, is of paramount public importance. In
addition, it held that there must be reasonable public participation in the legislative
process.14 The Court concluded that the NCOP ’s public participation process was
unreasonable and therefore constitutionally invalid. It also declared the repealed
Amendment Act to be invalid, thereby accepting the LAMOSA respondents’ first
argument and rendering the need to consider the complaint against section 6(1)(g)
irrelevant. The Order interdicted the Commission from processing any of the

11 The Communities were joined at a later stage.
12 LAMOSA 1 above n 5 at para 4.
13 The person who is earlier in time is stronger in law.
14 LAMOSA 1 above n 5 at para 64.
MHLANTLA J
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interdicted claims, in order to ensure that the old claims were not superseded. Further,
Parliament was directed to facilitate the enactment of a new Amendment Act that
would deal with the re -opening of land claims , as envisaged in section 25(7) o f the
Constitution, within 24 months of the judgment. In the event that this did not take
place, the Court held that it would be empowered to issue an appropriate order
regarding the processing of the interdicted claims if an application was so filed.
Further, in the event that all old claims were finalised before Parliament completed the
enactment of a new Amendment Act, the Commission could proceed with the
interdicted claims.15

[11] Parliament has failed to enact a new Amendment Act within 24 months. On
30 July 2018, two days after the expiry of the 24-month period referred to in
paragraph 7 of the Order , it lodged this application asking this Court to extend the
expired period of 24 months by a period of eight months until 29 March 2019.

[12] On 12 September 2018, this Court granted an interim extension pending the
outcome of the application and set the matter down for hearing.

[13] The application is opposed by the LAMOSA respondents . They submit that
this Court does not have the power to extend the 24-month period as the Order made
on 28 July 2016 was final. They submit that by failing to provide a legislative
solution within 24 months of the Order, Parliament has forgone the opportunity to
address the prioritisation issue , and that this matter now stands to be determined
finally by this Court. Further, the LAMOSA respondents have filed a
counter-application, in which they propose, amongst other things, that old claims
should be prioritised over interdicted claims (substantively and procedurally).


15 Paragraph 6 of the Order.
MHLANTLA J
11
Issues
[14] The main question to be determined here is whether this Court may grant the
extension sought by Parliament and, if so, whether it is just and equitable to do so. As
noted above, if the extension is granted, the interdict in paragraph 4 of the Order will
also be extended and , consequently, paragraph 7 of the Order will not be activated.
The counter -application would then fall away. However, if the application is
dismissed, the counter -application will have to be dealt with. I thus proceed to
consider the issue of the extension.

Application
Submissions by Parliament and the Communities
[15] Parliament submits that it is already in the advanced stages of its processes of
enacting a new Amendment Act, and so it is best to allow it the space to do its job. In
this regard, Parliament has provided an account of what it has done. It contends that
the legislative process will be concluded within the extended period sought and
explains that the following steps have been taken since 28 July 201 6 to give effect to
the Order:
(a) Parliament was in recess when the judgment was handed down and
re-opened on 20 August 2016. On 30 August 2016, the Management
Committee of the Portfolio Committee on Rural Development and Land
Reform (Portfolio Committee) invited the Legal Resources Centre to
share its views on the implications of LAMOSA 1 on the re -opening of
claims.
(b) On 31 August 2016, the Portfolio Committee convened and was briefed
by Parliament’s internal legal adv isor. The legal advisor stressed the
importance of facilitating maximum public participation in the
legislation-making process going forward.
(c) On 7 September 2016, the Portfolio Committee again convened to
discuss the financial implications for the state of enacting a new
Amendment Act.
MHLANTLA J
12
(d) During October and November 2016, the Portfolio Committee was
unable to attend to any issues relating to legislation due to its
pre-scheduled oversight business. Parliament was then in recess from
December 2016 until February 2017.
(e) The draft Amendment Bill was tabled on 13 March 2017 as a
Private Member’s Bill. The National Assembly Tabling Office referred
the draft Amendment Bill to Parliament’s internal legal services for
consideration.
(f) On 23 March 201 7, Parliament’s internal legal services stated that the
draft Amendment Bill was non-compliant and needed to be amended.
(g) On 7 April 2017, an explanatory summary that invited public comments
was published in the Government Gazette , as well as in local
newspapers. The deadline for comments was extended to 31 May 2017.
(h) On 18 and 19 April 2017, a meeting was held between Parliamentary
legal advisors, the Commissioner and the Portfolio Committee’s legal
advisors.
(i) The draft Amendment Bill was finalis ed on 5 May 2017 and was
certified by the Parliamentary legal advisor on the same date.
(j) On 10 May 2017, the Portfolio Committee was briefed on the draft
Amendment Bill.
(k) Between the period s of 19 to 30 June 2017 and 3 to 31 July 2017,
Members of Par liament conducted oversight visits and constituency
work respectively.
(l) On 7 August 2017, various supporting documents were submitted to the
Bills Office to facilitate the introduction of the draft Amendment Bill, as
well as its editing.
(m) The editing of the draft Amendment Bill was finalised on 16 August
2017, and it was introduced in the National Assembly on the same day.
(n) On 25 August 2017, the draft Amendment Bill was referred to the Joint
Tagging Mechanism for tagging.
MHLANTLA J
13
(o) On 5 Octob er 2017, the Portfolio Committee convened its first briefing
meeting and resolved to conduct public hearings in all the provinces.
(p) During October and November 2017, the Portfolio Committee was
unable to attend to any issues relating to legislation due to its
pre-scheduled oversight business. Parliament was then in recess from
December 2017 until February 2018.
(q) On 28 February 2018, the Portfolio Committee concluded its work on
the Communal Property Associations Amendment Bill.
(r) Various public advertisements were placed during the period of 30 April
2018 to 4 May 2018 , and public hearings in all nine provinces took
place between 18 June 2018 and 3 July 2018.
(s) The Portfolio Committee has been in the process of considering the
submissions and has also called for further submissions.

[16] Parliament submits that the failure to enact a new Amendment Act was not due
to its remissness but, rather, the inadequacy of the time afforded to it. It contends that
the legislative process is at an advanced stage and the actual extension sought is short
and finite. Lastly, it contends that the extension will not change the status quo , in that
the interdict will remain intact and the Commission will continue with the assessment
of the old claims. Parliament undertakes to submit progress reports monthly in the
event that the extension is granted.

[17] Parliament submits that this Court has the power in terms of section 172(1)(b)
of the Constitution to make a just and equitable order , which in this instance would be
the granting of the extension. Parliament accepts that the factors set out in Teddy Bear
Clinic must be met for a just and equitable order to be issu ed in terms of
section 172(1) and contends that such factors have been met in this instance.16


16 Acting Speaker of the National Assembly v Teddy Bear Clinic for Abused Children [2015] ZACC 16;
2015 JDR 1198 (CC); 2015 (10) BCLR 1129 (CC) (Teddy Bear Clinic) at para 12.
MHLANTLA J
14
[18] The Communities support the relief sought by Parliament. They submit that it
is in the interest s of justice that the extension be granted , and that this Court has the
power to grant this relief.17 If the extension is granted, they argue that there will be no
prejudice to any of the parties who have already submitted interdicted claims or who
wish to submit claims in the future. If Parliamen t does not enact a new Amendment
Act by its proposed deadline of 29 March 2019, the Communities ask that this Court
lift the interdict and allow the Commissioner to process the interdicted claims
concurrently with the old claims.18

Submissions by the LAMOSA respondents
[19] The LAMOSA respondents oppose the application. They submit that , in line
with the principle of finality of judgments, the Order was final, and this Court is
functus officio and no longer has the power to grant the relief sought by Parliament .
Furthermore, the LAMOSA respondents submit that Parliament filed the application
three days after the expiry of the 24 -month period in which it was required to act.
They equate Parliament’s request for an extension to a request for an extension of the
suspension of a declaration of invalidity that has expired . They submit that b ecause
the application was filed three days after the expiry of the 24 -month perio d, it is
beyond this Court’s powers to extend a period that ha s expired. Accordingly, the y
contend that Parliament is absolutely barred from seeking a variation of the Order, and
that paragraph 7 of the Order is now in effect.

[20] The LAMOSA respondents contend that even if there is no absolute bar arising
from the 24-month period ha ving expired and the Court does have a discretionary
power to vary such an order, this power may only be exercised in exceptional
circumstances. They submit that Parliament has not shown that any exceptional
circumstances exist to warrant the exercise of that discretion. Further, they argue that
Parliament has failed to meet two of the criteria set out in Teddy Bear Clinic, as it has

17 The Communities rely on Minister for Transport v Mvu mvu [2012] ZACC 20; 2012 JDR 1757 (CC);
2012 (12) BCLR 1340 (CC) at para 6.
18 More on this alternative remedy later.
MHLANTLA J
15
not provided an adequate explanation for the delay and it is unlikely that it will correct
the defect in the proposed time.

[21] The LAMOSA respondents submit that since Parliament has failed to enact a
new Amendment Act within the period stipulated, the responsibility to determine the
fate of the interdicted claims now shifts from Parliament to this Court.

Characterisation of this application
[22] It is correct that t he Order did not suspend the declaration of invalidity of the
interdicted claims. Paragraph 3 of the Order explicitly stated that the declaration of
invalidity would take effect from the date of judgment. 19 However, paragr aph 4
suspended the processing of the interdicted claims until: (1) Parliament enacted a new
Amendment Act re -opening the period of lodgement of land claims envisaged in
section 25(7) of the Constitution ; (2) pursuant to paragraph 6 of the Order , the old
claims were finalised before the enactment of a new Amendment Act; or (3) in the
event that Parliament failed to enac t a new Amendment Act within 24 months of
LAMOSA 1 (as it has done), the Commissioner or an interested party approached this
Court for an appropriate order on the processing of the interdicted claims, as per
paragraph 7 of the Order.

[23] Since Parliament has failed to act within the 24-month period, what is at issue
is the Court’s invitation in LAMOSA 1 to interested parties to seek an appropri ate
order on the processing of interdicted claims. Now the only question is what
constitutes a just order in relation to those interdicted claims that had been kept in
abeyance? Before determining this question, it is apposite at this stage to deal with
the submissions on behalf of the LAMOSA respondents that this Court is functus
officio and no longer has the power to grant the relief sought by Parliament. I proceed
to consider this question.


19 See LAMOSA 1 above n 5 at para 86.
MHLANTLA J
16
Is this Court functus officio?
[24] The LAMOSA respondents submit that the Order is final, and that this Court is
functus officio and no longer has the power to grant the relief that Parliament seeks. I
do not agree. The Supreme Court of Appeal in Firestone articulated the principle of
functus officio as follows:

“The general principle, now well established in our law, is that, once a court has duly
pronounced a final judgment or order, it has itself no authority to correct, alter, or
supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction
in the case having been fully and finally exercised, its authority over the
subject-matter has ceased.”20

[25] The Supreme Court of Appeal went on to acknowledge that it is assumed that
courts do have the discretion to vary their orders, albeit that this discretion must be
exercised sparingly.21 This principle has been confirmed by this Court.22

[26] Further, the Order contemplated that a further order may be made by this Court
at a later stage , in that it envisaged an appropriate order on the processing o f the
interdicted claims. It is similar to the order in Zondi 1, which reserved the right for
interested persons or organisations to apply to this Court for a further suspension of
the declaration of invalidity of the legislation in question and / or any other
appropriate further relief during the specified period of time. 23 In the sequel to that
decision, Zondi 2, the Court stated:

“It is not uncommon for a court to make an order and reserve to itself the power to
vary the order made. In the past this C ourt has reserved its authority to reconsider

20 Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A); [1977] 4 All SA 600 (A) (Firestone) at
306F-G. This authority has been quoted with approval in cases such as Minister of Justice v Ntuli [1997]
ZACC 7; 1997 (3) SA 772 (CC); 1997 (6) BCLR 677 (CC) ( Ntuli) at para 22 ; and Ex Parte Minister of Social
Development [2006] ZACC 3; 2006 (4) SA 309 (CC); 2006 (5) BCLR 604 (CC) at para 30.
21 Firestone id at 309A.
22 See Ntuli above n 20 at para 23; and Ex Parte Minister of Social Development above n 20 at para 31.
23 Zondi v MEC for Traditional and Local Government Affairs [2004] ZACC 19; 2005 (3) SA 589 (CC);
2005 (4) BCLR 347 (CC) (Zondi 1).
MHLANTLA J
17
orders for costs or vary the period of suspension of a declaration of invalidity or made
further appropriate orders. Thus in Steyn, the Court allowed the Minister of Justice
and Constitutional Development to a pply to it for an order varying the terms
stipulated in the order or extending the period of suspension provided in the order.
Such orders expressly contemplate that the order made may be varied if the
circumstances warrant it. By their very nature such orders are therefore not final.
Neither the principle of finality nor the doctrine of functus officio arise in relation to
such orders. Those who are bound by these orders know in advance that the order is
not final.
Thus where a court, in its order, add s a paragraph similar to paragraph ( g) [of the
original order in that instance], the court is, in effect, making it plain that the order it
has made is not to be understood as final. And an order of this kind does not preclude
the court from reconsidering the matter in relation to which it has reserved the
authority to reconsider. In paragraph ( g) this Court expressly reserved to itself the
power to vary and extend further the period of suspension of the declaration of
invalidity. It follows therefore that paragraph (e)(2) of the original order of this Court
is not final and the period of suspension contemplated therein may be varied and
extended if circumstances so warrant.”24 (Footnotes omitted.)

[27] Accordingly, given that in this instance the Order has r eserved th is Court’s
power to make further appropriate orders, the principle in Zondi 2 applies. In this
regard, Parliament is also an interested party , as it seeks an extended opportunity to
enact the legislation that the Order envisaged.

Is this an application for an extension of the suspended order?
[28] The LAMOSA respondents contend that, although there was no suspension of
the declaration of invalidity, the act of interdicting the processing of the interdicted
claims until either the enactment of a new Amendment Act or the final processing of
old claims operated like a suspension of a declaration of invalidity, in that the
processing of the interdicted claims was suspended. Further, although paragraph 7 of
the Order did not envisage an extension of the 24-month period and set out what is to

24 Zondi v MEC, Traditional and Local Government Affairs [2005] ZACC 18; 2006 (3) SA 1 (CC); 2006 (3)
BCLR 423 (CC) (Zondi 2) at paras 49-50.
MHLANTLA J
18
happen if Parliament fails to enact the legislation within the 24 -month period ,
Parliament’s application is similar to a request for an extension of a suspension of a
declaration of invalidity, in that it is request ing to extend the operation of the interdict
against the processing of the interdicted claims until 29 March 2019.

[29] This Court has wide discretionary powers (as encapsulated in section 172(1)(b)
of the Constitution) to make a ny order that is just and equita ble. Indeed, it is under
this provision that we consider this application. Given that this application is
analogous to an application for an extension of a suspension of a declaration of
invalidity, it is pursuant to the powers granted to us under section 172(1)(b) that we
can consider the principles related to extension applications to assist us in determining
a just and equitable remedy. Therefore, it is necessary to assess whether a case for an
extension has been made. It is here that we look to this Court’s jurisprudence on the
extension of a suspension of a declaration of invalidity to assist us.

[30] Before doing this , however, it must be noted that , regardless of the remedy
provided by this Court, nothing will preclude Parliament from legislating a fresh in
relation to the processing of the interdicted claims.

Applicable legal principles
[31] The relevant principles relating to whether this Court should grant an extension
of the interdict against the processing of the interdicted claims pursuant to its powers
to grant a just and equitable remedy , and under what circumstances , are laid out in
numerous cases.25

[32] In Sibiya, an order was sought to extend the time period within which the
respondents were required by this Court to report on steps taken to ensure that death
sentences imposed before 1995 were set aside and replaced with appropriate

25 See Ntuli above n 20; Sibiya v Director of Public Prosecutions, Johannesburg High Court [2006] ZACC 22;
2006 (2) BCLR 293 (CC) ; Ex Parte Minister of Social Development above n 20 ; Zondi 2 id; and Teddy Bear
Clinic above n 16.
MHLANTLA J
19
sentences. This Court held that applications for extensions of time “must be granted if
that course is considered by this Court to be in the interests of justice”. 26 It further
held that the interests of justice were triggered predominantly by the need for the
information by the Court in supervising the larger project of commuting death
sentences after Makwanyane.27

[33] In Ex Parte Minister of Social Development, an application for the extension of
the suspension of a declaration of invalidity was lodged on the eve of the date of
expiry of the period of suspension without a satisfactory explanation for why it was
not brought earlier. This Court held:

“This judgment must not be understood as suggesting that even if the applicants had
approached the Court timeously, the extension would have been refused. In
[Zondi 2], the applicant approached the Court 15 days before the expiry of the period
of suspension, but the Court was nevertheless prepared to extend the period to allow
the matter to be argued later. In this case, the applicants approached the Court very
late and left the Court with no time to consider extending the period of suspension
before its expiry. In all the circumstances of this case, the lateness in approaching the
Court, viewed against the lack of any explanation for the delay, the application must
be dismissed.”28

[34] In Zondi 2, this Court reiterated the principle that it has wide d iscretionary
powers to extend an order varying a period of suspension of a declaration of
invalidity, but that this power should be exercised very sparingly. 29 The Court
provided a number of factors that may be relevant in exercising this power:

“[T]he sufficiency of the explanation for failure to comply with the original period of
suspension; the potentiality of prejudice being sustained if the period of suspension
were extended or not extended; the prospects of complying with the deadline; the
need to bring litigation to finality; and the need to promote the constitutional project

26 Sibiya id at para 7.
27 Sibiya id, referring to S v Makwanyane [1995] ZACC 3; 1995 (2) SACR 1 (CC); 1995 (6) BCLR 665 (CC).
28 Ex Parte Minister of Social Development above n 20 at para 60.
29 Zondi 2 above n 24 at paras 45 and 47.
MHLANTLA J
20
and prevent chaos. What is involved is the balancing of all relevant factors bearing in
mind that the ultimate goal is to make an order that is ‘just and equitable’.”30

[35] The Court reiterated the warning in Ntuli against the var iation of an order of
invalidity that may have the effect of “reviving” an Act that was previously
impugned.31 This Court criticised the explanation for the delay , as the “ dates [in
explaining the dela y] were . . . either not specified or only specified in vague terms
such as ‘during early August’ or ‘by the end of July’.”32 The Court held:

“Reasons that justify or at least explain failure to meet the time limits in the court
order, must be set out fully, candidly, timeously and in a manner that conforms with
the Rules of the Court. Those responsible for drafting remedial legislation should not
assume that as a matter of course and in the public interest an extension of the time
period will be granted. If a proper case for extension is not made out in an
appropriate way, then the drafters of the new legislation must be aware that they run
the risk of the request for an extension of the period of suspension being refused.”33

However, the Court in that instance noted that on the balancing of various factors, the
public would suffer prejudice if the order for suspension were not extended , and
accordingly granted the extension.34

[36] In Teddy Bear Clinic, the Acting Speaker of the National Assembly applied for
an extension of a previous order 35 in which sections 15 and 16 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 36 were declared inconsistent
with the Constitution and invalid. The declaration of invalidity was suspended. The

30 Id at para 47.
31 Id at paras 42-3.
32 Id at para 56.
33 Id at para 59.
34 Id at para 65.
35 See Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development [2013]
ZACC 35; 2014 (1) SACR 327 (CC); 2013 (12) BCLR 1429 (CC).
36 32 of 2007.
MHLANTLA J
21
application for extension occurred before the lapse of the period of suspension. 37
The respondents did not oppose the application and acknowle dged the efforts by
Parliament to finalise the process. The delay was , however, necessitated by another
requisite amendment to the relevant Act that was to be considered and rectified
simultaneously. Before granting the extension, this Court stated unequ ivocally that
when Parliament fail s to correct the defects during the period of suspension, an
application requesting an extension must be made before the suspension period
expires.38 The Court held that the following factors have to be considered before a n
application for an extension is granted in terms of section 172(1)(b) of the
Constitution—
(a) the sufficiency of the explanation for failing to correct the defect within
the period of suspension;
(b) the prejudice likely to be suffered if the suspension is not extended;
(c) the prospects of correcting the defect within the extended period; and
(d) the need to promote a functional and orderly state administration for the
benefit of the general public.39

In the present case, Parliament must show that the order it seeks would be just and
equitable in light of these factors.

Assessment
[37] Given that Parliament’s application here is analogous to an application for an
extension of a suspension of a declaration of invalidity, the factors and considerations
outlined in the c ases above must be considered in the assessment of this application .
Parliament approached this Court three days after the expiry of the 24-month period.
Parliament knew in March 2018 that it would not be able to meet the 24-month
deadline and finalise the process for the enactment of a new Amendment Act. Yet it

37 Teddy Bear Clinic above n 16 at para 1.
38 Id at para 11.
39 Id at para 12. See also Electoral Commission of South Africa v Speaker of the National Assembly [2018]
ZACC 46; 2019 (3) BCLR 289 (CC) at para 70.
MHLANTLA J
22
only brought an application after the 24-month period had expired. This application
was not made promptly. However, this is not the only fault in Parliament’s actions.

[38] Upon application of the Teddy Bear Clinic factors, it is evident that there are no
exceptional circumstances justifying the order sought by Parliament . First, there has
been an inordinate delay by Parliament in enacting a new Amendment Act, and the
periods of delay have largely been unaccounted for, both in explanation on the papers
and during oral argument. Where explanations have been offered, they have been
insufficient. Overall, Parliament took no action for almost 11 of the 24 months
provided by thi s Court. When Parliament did act , the process was very slow. The
tardiness of Parliament is unacceptable. Given that a lot of emphasis is placed on
facilitating public participation as the reason for more time being needed, it is useful
to note that such participation only truly commenced 18 months after LAMOSA 1 was
handed down. The explanation for the delay is wholly insufficient.

[39] The second factor that has to be taken into account is whether the process for
the enactment of a new Amendment Act will be finalised by 29 March 2019 . In this
regard, the LAMOSA respondents filed further documents reflecting the processing of
the draft Amendment Bill as at 2 3 October 2018 .40 These documents show that
nothing has been done in relation to the draft Amendment Bill since 5 September
2018, when the Portfolio Committee adopted an amended version of the Bill . By
23 October 2018, the draft Amendment Bill had still not been considered by
Parliament, and during oral argument, it was concede d by Parliament that as at the
date of the hearing,41 this was still the case. Further, no explanation has been provided
about Parliament’s proposed ability to meet the deadline considering that it close d for
recess in December and re -convened only in Febru ary 2019. This means that
Parliament would have had a month from February 2019 to finalise the process at the
National Assembly and for the NCOP to consider the draft Amendment Bill and enact
it. There is no indication that Parliament will treat the draft amendment Bill with any

40 See [15] for discussions on the draft Amendment Bill.
41 The matter was heard on 6 November 2018.
MHLANTLA J
23
urgency. It has failed to provide a clearly stipulated timetable. It is evident that the
prospects of enacting a new Amendment Act within the proposed timeframe , if the
extension is granted, are unlikely.42

[40] Further, in LAMOSA 1, the challenge related to the NCOP ’s processes, where
there was inadequate public participation. The new Amendment Bill is yet to be
referred to the NCOP to engage in public participation processes at that level . As
highlighted in LAMOSA 1 , it would be more prejudicial to the public to have th is
process rushed than it would be not to grant the extension. Rather, if the extension is
not granted, the public, especially those parties who have submitted interdicted claims,
will not be without remedy.43 In any event, and as stated above , nothing will prevent
Parliament from enacting the legislation if the extension is not granted.

[41] Finally, based on the principles in Sibiya and section 172(1)(b) of the
Constitution, it would not be in the interests of jus tice to grant an extension . That
order would not be just and equitable under the circumstances. The application for an
extension must accordingly fail. However, this Court is still tasked with providing a
just and equitable remedy in respect of the inte rdicted claims. It is thus necessary to
consider the counter-application and a remedy in respect of the interdicted claims.

Counter-application
[42] In LAMOSA 1 , this Court issued an order in which it reserved the power to
make an appropriate further order regarding the processing of new claims in the event
that Parliament failed to enact legislation by 28 July 2018. Any interested party was
also afforded the opportunity to approach this Court for such an order. The wide

42 The new Amendment Bill has lapsed pursuant to Rule 33 of the National Assembly Rules. See Claasens “The
Restitution of Land Rights Amendment Act has lapsed in Parliament – what this means for Makhasaneni and
other communities” Land and Accountability Res earch Centre (29 January 2019 ), available at
http://www.customcontested.co.za/the-restitution-of-land-rights-amendment-act-has-lapsed-in-parliament-what-
this-means-for-makhasaneni-and-other-communities/. Parliament has recently re -introduced the new
Amendment Bill.
43 See below.
MHLANTLA J
24
remedial powers of this Court, as elucidated by section 172(1)(b), allow it to grant any
order that is just and equitable. In LAMOSA 1, this Court said:

“It seems to me that a just and equitable remedy is to interdict the settlement, and
referral to the Land Claims Court, of all new claims, whether competing with the old
or not. Our wide remedial power under section 172(1)(b) of the Constitution permits
us to do so. Even though the new claims have been kept alive, the reality is that the
Restitution Act under which they were lodged has been found to be invalid.”44

[43] This Court has held that its orders must be interpreted in context and in terms
of the judgment as a whole. 45 Thus paragraph 7 of the Order must be interpreted
against the backdrop of LAMOSA 1 and the context in which the claims were
interdicted. The reasons for freezing the interdicted claims submitted under the
repealed Amendment Act were articulated in LAMOSA 1. It is apposite at this stage to
set out what this Court said:

“In the circumstances, it seems unjust to invalidate the claims that have been lodged
already. Section 172(1)(b)(i) of the Constitution gives this Court a discretion to make
a just and equitable order, including an order limiting the retrospective effect of the
declaration of invalidity. I consider it to be just and equitable that the order of
invalidity should take effect from the date of judgment. That will leave new
applications already lodged when judgment is handed down intact. If the Court were
to declare the Amendment Act invalid without limiting the retrospective effect of the
declaration, the lodged new applications would cease to exist. The new applicants’
right to restitution would be extinguished with the Amendment Act because the right
to restitution in s ection 25(7) only exists ‘to the extent provided by an Act of
Parliament’.
The applicants are asking for a suspension of the declaration of invalidity for
18 months, with accompanying prayers for: a mandamus that the Commissioner
continues to settle or ref er to the Land Claims Court all land restitution claims filed
by 31 December 1998, notwithstanding that a claim has been lodged under the

44 LAMOSA 1 above n 5 at para 89.
45 Cross-Border Road Transport Agency v Central African Road Services (Pty) L imited [2015] ZACC 12;
2015 (5) SA 370 (CC); 2015 (7) BCLR 761 (CC) at para 22.
MHLANTLA J
25
amended Restitution Act in respect of the same land; the grant of permission to the
Commissioner to continue accepting new applications under the amended Restitution
Act; and an interdict that claims lodged under the amended Restitution Act not be
investigated or processed in any manner.
I am loath to grant the suspension prayed for. That is so because it will have the
effect of heaping more new applications on the Commissioner when there are
difficulties regarding how to handle those that have been lodged already. The
prospective declaration of invalidity I propose means no new applications will
continue being filed aft er judgment, which would have been the case if we were to
suspend the declaration of invalidity. In a manner of speaking, all affected parties get
something. First, no further new applications can be lodged, thus diminishing the
number of claims filed un der the impugned Act. This ameliorates the situation that
troubles the applicants. Second, new applications that have already been lodged are
not invalidated.”46 (Footnotes omitted.)

[44] The remedial powers exercised in LAMOSA 1 kept the interdicted claims alive,
despite the repealed Amendment Act that they were founded on being declared
invalid, on the basis that it was just and equitable to do so . Given this, the question of
whether it is within this Court’s powers to make any order now regarding th e
interdicted claims poses no realistic hurdle. The only consideration that needs to be
taken into account is what is just and equitable. It is also important that any answer
must be given against the backdrop as to why the interdicted claims were kept ali ve
and why the suspension in respect of processing the interdicted claims was ordered in
the first place.

[45] It is clear that Parliament has not completed its task of enacting a new
Amendment Act within the period of time provided in LAMOSA 1 . Accordingly,
paragraph 7 of the Order is activated. It must be noted that paragraph 7 contemplates
an “appropriate order on the processing of [interdicted] claims”. The Commission and
other interested parties , including the LAMOSA respondents and the Communities,
acquired the right to apply for an order in terms of para graph 7. However, t he

46 LAMOSA 1 above n 5 at paras 86-8.
MHLANTLA J
26
Commissioner, who was, in terms of paragraph 7, obligated to approach this Court,
chose to abide the decision of this Court , rather than apply for an order on the
processing of the interdicted claims.

[46] Instead, the Commission filed an affidavit providing an update of its progress
in processing old claims since LAMOSA 1. From this report, the need for this Court to
craft an appropriate order for the processing of the interdicted claims is clear .
The Commissioner’s affidavit provided the following information:47
(a) As at 31 March 2018, there were 5 757 outstanding old claims that had
not yet been processed.
(b) 4 601 of these outstanding old claims are at the fourth phase of
processing, that is, negotiating a settlement . In the event that these
claims cannot be administratively settled in terms of section s 42D and
42E of the Restitution Act, they will have to be referred to the
Land Claims Court in terms of section 14 of the Restitution Act.
(c) Between 1 April 201 6 and 31 March 2018, the Commission settled
1 654 rural and urban claims, at a total cost of over R5 billion.
(d) 163 383 interdicted claims have been received, but these claims have not
been processed beyond mere acknowledgement.

[47] Unfortunately, the Commission did not provide insight into the peculiarities
and challenges that it encounters in its work . Nor did it indicate how those should
inform this Court’s decision on the processing of the interdicted claims . However,

47 The LAMOSA respondents have criticised the information provided by the Commissioner on the following
grounds: (1) the information provided by the Commission is only as at 31 March 2018 and the Commission
provides no explanation for why it has not provided this Court with more recent statistics; (2) when LAMOSA 1
was heard, there were 8 257 claims and as at 31 March 2018, there were still 5 757 outstanding old claims, of
which 1 131 were still at the “screening and categorisation” stage; (3) the Commission did no t address the
17 000 - 20 000 claims that have been settled but are not finalised because court orders have not been
implemented; and (4) the Commission did not provide an estimate for how long it would take to finalise the
outstanding old claims. Assumin g it continues to settle claims at the same rate it had between 1 April 2016 and
31 March 2018, it will take another seven years to settle the outstanding old claims. However, the report by the
High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (High
Level Panel) estimates that based on recent performance and the most publicly available work plans of the
Commission, it will take between 35 and 43 years to finalise all outstanding old claims.
MHLANTLA J
27
given the information provided by the Commission, it is imperative for this Court to
provide an appropriate remedy in relation to the processing of the interdicted claims.

[48] On the other hand, t he counter-application by the LAMOSA respondents has
been launched precisely for that purpose. The relief sought can be categorised in three
parts, namely: (1) the main relief ; (2) the constitutional challenge to section 6(1)(g);
and (3) alternative relief. The first issue to consider is, in light of the relief proposed
by the LAMOSA respondents, what would an appropriate order look like?

Main relief and alternative relief
[49] Regarding the main relief sought, t he LAMOSA respondents seek an order to
the following effect—
(a) that the interdict against processing the interdicted claims continues
until either: (1) all old claims are settled or referred to the Land Claims
Court; or (2) an interested party approaches the Land Claims Court,
Supreme Court of Appeal or th is Court to grant permission to begin
processing interdicted claim(s);
(b) that interdicted claimants (those who hold interdicted claims) may only
be admitted as interested parties before the Land Claims Court in respect
of proceedings involving old claims to the extent that their participation
contributes to the rejection or establishment of the old claim , or to any
other issue th at th e presiding judge allow s to be addressed in the
interests of justice;
(c) that notwithstanding the provisions of section 11 (5)48 and 11(5A) 49 of
the Restitution Act, no interdicted claimant will be entitled to relief:

48 Section 11(5) provides:
“(a) If after an order has been made by the Court as contemplated in section 35 or an
agreement has been entered into as contemplated in section s 14(3) o r 42D, it is
shown that another claim was lodged in terms of this Act in respect of the land to
which the order or agreement relates, any interested party may apply to the Court for
the rescission or variation of such order or the setting aside or variation of such
agreement.
(b) The Court may grant such an application, subject to such terms and c onditions as it may
determine, or make any other order it deems fit.”
MHLANTLA J
28
(i) altering or varying:
(a) the relief in section 3550 of the Restitution Act in respect
of a finalised old claim;

49 Section 11(5A) provides:
“Where an appeal is pending in respect of an order of the Court contemplated in section 35, an
application for the rescission or variation of such order under subsection (5) shall be made to
the Constitutional Court or the Supreme Court of Appeal, as the case may be.”
50 Section 35 reads:
“(1) The Court may order—
(a) the restoration of land, a portion of land or any right in land in respect of
which the claim or any other claim is made to the claimant or award any
land, a portion of or a right in land to the claimant in full or in partial
settlement of the claim and, where necessary, the prior acquisition or
expropriation of the land, portion of land or right in land: Provided that the
claimant shall not be awarded land, a portion of land or a right in land
dispossessed from another claimant or the latter’s ascendant, unless—
(i) such other claimant is or has been granted restitution of a right in
land or has waived his or her right to restoration of the right in land
concerned; or
(ii) the Court is satisfied that satisfactory arrangements have been or
will be made to grant such other claimant restitution of a right in
land;
(b) the state to grant the claimant an a ppropriate right in alternative state -owned
land and, where necessary, order the state to designate it;
(c) the state to pay the claimant compensation;
(d) the state to include the claimant as a beneficiary of a state support
programme for housing or the allocation and development of rural land;
(e) the grant to the claimant of any alternative relief.
(2) The Court may in addition to the orders contemplated in subsection (1)—
(a) determine conditions which must be fulfilled before a right in land can be
restored or granted to a claimant;
(b) if a claimant is required to make any payment before the right in question is
restored or granted, determine the amount to be paid and the manner of
payment, including the time for payment;
(c) if the claimant is a community, determine the manner in which the rights are
to be held or the compensation is to be paid or held;
(d) . . . . . .
(e) give any other directive as to how its orders are to be carried out, including
the setting of time limits for the implementation of its orders;
(f) make an order in respect of compensatory land granted at the time of the
dispossession of the land in question;
(fA) make appropriate orders to give effect to any agreement between the parties
regarding the finalisation of the claim;
(g) make such orders for costs as it deems just, including an order for costs
against the state or the Commission;
MHLANTLA J
29
(b) the terms of an agreement concluded in terms of
section 42D51 of the Restitution Act; or

(3) An order contemplated in subsection (2)(c) shall be subject to such conditions as the
Court considers necessary to ensure that all the membe rs of the dispossessed
community shall have access to the land or the compensation in question, on a basis
which is fair and non -discriminatory towards any person, including a tenant, and
which ensures the accountability of the person who holds the land or compensation
on behalf of the community to the members of such community.
(4) The Court’s power to order the restitution of a right in land or to grant a right in
alternative state-owned land shall include the power to adjust the nature of the right
previously held by the claimant, and to determine the form of title under which the
right may be held in future.
(5) . . . . . .
(5A) . . . . . .
(6) In making any award of land, the Court may direct that the rights of individuals to
that land shall be determ ined in accordance with the procedures set out in the
Distribution and Transfer of Certain State Land Act, 1993 (Act No. 119 of 1993).
(7) An order of the Court shall have the same force as an order of the Supreme Court for
the purposes of the Deeds Registries Act, 1937 (Act No. 47 of 1937).
(8) . . . . . .
(9) Any state -owned land which is held under a lease or similar arrangement shall be
deemed to be in the possession of the State for the purposes of subsection (1)(a):
Provided that, if the Court orders the restoration of a right in such land, the lawful
occupier thereof shall be entitled to just and equitable compensation determined
either by agreement or by the Court.
(10) An interested party which is of the opinion that an order of the Court has not b een
fully or timeously complied with may make application to the Court for further
directives or orders in that regard.
(11) The Court may, upon application by any person affected thereby and subject to the
rules made under section 32, rescind or vary any order or judgment granted by it—
(a) in the absence of the person against whom that order or judgment was
granted;
(b) which was void from its inception or was obtained by fraud or mistake
common to the parties;
(c) in respect of which no appeal lies; or
(d) in the circumstances contemplated in section 11(5):
Provided that where an appeal is pending in respect of such order, or where such
order was made on appeal, the application shall be made to the Constitutional Court
or the Appellate Division of the Supreme Court, as the case may be.
(12) The Court may, upon application by any person affected thereby, or of its own
accord—
(a) if a person is, in the circumstances contemplated in subsection (1),
registered as a preferential claimant, rescind or vary the order contemplated
in that subsection;
(b) correct patent errors in any order or judgment.”
51 Section 42D reads:
MHLANTLA J
30
(c) an award in terms of section 42E(1)(a) or (b) 52 of the
Restitution Act,

“(1) If the Minister is satisfied that a claimant is entitled to restitution of a right in land in
terms of section 2, and that the claim for s uch restitution was lodged not later than
31 December 1998, he or she may enter into an agreement with the parties who are
interested in the claim providing for one or more of the following:
(a) The award to the claimant of land, a portion of land or any o ther right in
land: Provided that the claimant shall not be awarded land, a portion of land
or a right in land dispossessed from another claimant or the latter’s
ascendant, unless—
(i) such other claimant is or has been granted restitution of a right in
land or has waived his or her right to restoration of the right in land
in question; or
(ii) the Minister is satisfied that satisfactory arrangements have been or
will be made to grant such other claimant restitution of a right in
land;
(b) the payment of compensation to such claimant;
(c) both an award and payment of compensation to such claimant;
(d) . . . . . .
(e) the manner in which the rights awarded are to be held or the compensation
is to be paid or held; or
(f) such other terms and conditions as the Minister considers appropriate.
(2) If the claimant contemplated in subsection (1) is a community, the agreement must
provide for all the members of the dispossessed community to have access to the land
or the compensation in question, on a basis which is fair and non-discriminatory
towards any person, including a tenant, and which ensures the accountability of the
person who holds the land or compensation on behalf of such community to the
members of the community.
(3) The Minister may delegate any power conferred upon him or her by subsection (1) or
section 42C to the Director -General of Rural Development and Land Reform or any
other officer of the State or to a regional land claims commissioner.
(4) The Director-General of Rural Development and Land Reform may wit h the consent
of the Minister delegate to any officer of the state or a regional land claims
commissioner any power delegated to the Director-General under subsection (3).
(5) Any delegation under subsection (3) or (4) may be made either in general or in a
particular case or in cases of a particular nature and on such conditions as may be
determined by the Minister or the Director -General of Rural Development and Land
Reform, as the case may be, and the Minister or the Director -General is not thereby
divested of any power so delegated.
(6) Expenditure in connection with the exercise of the powers conferred by
subsection (1) shall be defrayed from moneys appropriated by Parliament for that
purpose.
(7) The provisions of subsections (1) to (6) and section 42C shall apply mutatis mutandis
in respect of an agreement entered into before the commencement of the Land
Restitution and Reform Laws Amendment Act, 1999, in terms of which a claimant
has waived any or all of his or her rights to relief under this Act.”
52 Section 42E(1)(a) and (b) provide:
MHLANTLA J
31
unless the Land Claims Court, Supreme Court of Appeal or
Constitutional Court in exceptional circumstances orders
otherwise; or
(ii) awarding them land or a right in land that is subject to a pending
claim for restoration by an old claimant;
(d) that the Commissioner must report bi-annually to the Land Claims Court
on the progress of proces sing and finalising old claims and a number of
aspects related thereto, including the nature of constraints faced by the
Commission in meeting its anticipated completion date; and
(e) that t he Land Claims Court may make any order that will expedite
processing old claims.

[50] In the alternative, t he LAMOSA respondents submit that , in the event that this
Court is not inclined to rule finally on the matter of substantive prioritisation between
old claims and interdicted claims, it would be appropriate to add a caveat to the relief
outlined under (c) above , whereby that relief could be deviated from in the event that
Parliament enacts legislation determining otherwise.

[51] The LAMOSA respondents contend that the main relief also gives rise to, and
confirms, the interpretation of the Land Claims Court in Amaqamu that old claims
must be prioritised and interdicted claims can only be considered to the extent that

“(1) The Minister may purchase, acquire in any other manner or, consistent with the
provisions of section 3 of the Promotion of Administrative Justice Act, 2000 (Act
No. 3 of 2000), expropriate land, a portion of land or a right in land—
(a) in respect of which a claim in terms of this Act has been lodged, for the
purpose of—
(i) restoring or awarding such land, portion of land or right in land to a
claimant who is entitled to restitution of a right in land in terms of
section 2; or
(ii) providing alternative relief as contemplated in section 6(2)(b); and
(b) in respect of which no such claim has been lodged but the acquisition of
which is directly related to or affected by such claim, and which will
promote the achievement of the purpose contemplated in paragraph (a).”
MHLANTLA J
32
they assist in the finalisation of old claims. 53 The Land Claims Court in Amaqamu
noted:

“This leaves the question whether new claimants should be ignored in their entirety in
the adjudication of old claims. The parties were ad idem that new claimants who
intend to advance claims that, if they could be dealt with by this court, would
compete with or overlap land claimed under old claims presently being ad judicated
by this court, do have an interest in the outcome of such litigation. The interests may
be tenuous and the potential assertion thereof unclear, but as long as the lodging of
the new claims is not invalidated, its existence cannot be denied. Courts must take
cognisance of those whose interests may be affected by its judgments. In the light of
the fact that this court is unable to consider the validity or otherwise of the new
claims, the potential participation of new claimants in existing proceedings relating to
old claims must of necessity be restricted to the question whether the old claim can be
validly contested by a new claimant. In practice this court will therefore only be able
to admit new claimants to participate in the proceedings befo re it who contest the old
claimants’ right to rest itution of the land that is the subject matter of the old claim.
New claimants will only be allowed to challenge the right of the old claimants to
restitution of all or part of the land concerned. Essentially such claimant will
therefore fulfil the role of an amicus curiae to assist the court in determining the
question whether the old claimant has established a case or not.
Should the new claimant recognise the right to restitution of the old claimant whi le
intending to advance a claim over the same land by the enforcement of the new claim,
such claimant’s interest may be too tenuous to admit his or her participation in the
proceedings.”54

This approach, in the circumstances, seems correct.

[52] Parliament does not contend much in response to the counter -application, save
to reiterate that the question of prioritising old claims or interdicted claims should be
left to Parliament. The Communities oppose the counter -application. First, t hey

53 In Re Amaqamu Community Claim (Land Access Movement South Africa and Others as Amici Curiae)
2017 (3) SA 409 (LCC) (Amaqamu) at para 54.
54 Id at paras 56-7.
MHLANTLA J
33
contend that the relief encroaches on the separation of powe rs, in that the Court will
be legislating on the prioritisation of old claims or interdicted claims. Second, the
Communities contend that the relief proposed by the LAMOSA respondents will
severely prejudice the m, given that the old claims will not be finalised for
approximately 43 years. 55 The Communities will only have an opportunity to submit
new claims when a new Amendment Act is enacted.

[53] The Communities also propose alternative relief in the event that the C ourt
dismisses the application and the counter-application and Parliament does not enact a
new Amendment Act by 29 March 2019. In brief, the Communities ask that this
Court lift the interdict and allow the Commissioner to process the interdicted claims
concurrently with the old claims. In the event of a conflict between old claims and
interdicted claims, the relevant Regional Claims Commissioner must refer the claim
subject to the conflict to the Land Claims Court for it to make a just and equitable
decision, as required by sections 33 and 35 of the Restitution Act , on a case -by-case
basis.

Assessment
[54] With this in mind, the question to be asked is would it be just and equitable for
this Court to grant the order sought that has the effect of excluding Parliament on the
processing of new claims ? Would it not be more appropriate to defer to Parliament’s
powers to enact legislation determining otherwise?

[55] In my view, the main relief sought by the LAMOSA respondents is overly
broad and cannot be granted for two reasons. First, it goes against the purpose and
ambit of paragraph 7 of the Order. The purpose of paragraph 7 was to protect the
interdicted claims, in light of the declaration of invalidity o f the Act in terms of which
they were made , while Parliament enacted a new Amendment Act . This would
provide a procedure for the processing of the interdicted claims and the prioritisation

55 See above n 47 for the pronouncement by the High Level Panel.
MHLANTLA J
34
of claims. The interdict against the Commission allowed Parliamen t time to enact a
new Amendment Act and granted the Commission an opportunity to make strides in
processing the old claims. It is presently unclear when Parliament will enact a new
Amendment Act and , for this reason, it would be unfair to perpetuate the interdict
against processing the interdicted claims until all old claims have been referred to and
finalised by the Land Claims Court. Although Parliament always retains the right to
legislate otherwise, I am of the view that this right must be explicit in any remedy that
this Court provides.

[56] The second is that the main relief sought by the LAMOSA respondents would
require this Court to dabble in the work of legislating , to an extent that would be
beyond the ambit of paragraph 7 of the Order and this Court’s powers , to determine
the final procedure of processing old and interdicted claims. Paragraph 7 limits that
exercise to the procedure regarding the interdicted claims. The LAMOSA
respondents want this Court to make a final order to the effect that the interdicted
claims must wait until the old claims are processed. That process may take a long
time, which could span into a number of years. Furthermore, the interdicted claimants
cannot be awarded land which is subject to an old claim. The LAMOSA respondents
seek that this position be made final and not subject to further legislative amendment.

[57] This Court has held that its powers under section 172(1)(b) are restrained to th e
extent that they do not allow this Court to traverse into the terrain of the other arms of
government.56 Thus the broad extent of the powers under section 172(1)(b) must be
balanced with the separation of powers principle. A just and equitable order und er
paragraph 7 of the Order must not enter into the realm of legislating. The order, if
granted, will remain intact and will not be changed once Parliament enacts a new
Amendment Act. In ITAC, this Court said:


56 AllPay Consolidated Investme nt Holdings (Pty) Ltd v Chief Executive Officer of the South African S ocial
Security Agency [2014] ZACC 12; 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC) at para 45.
MHLANTLA J
35
“Where the Constitution or valid legislation has entrusted specific powers and
functions to a particular branch of government, courts may not usurp that power or
function by making a decision of their preference. That would frustrate the balance
of power implied in the principle of separation of powers. The primary responsibility
of a court is not to make decisions reserved for or within the domain of other
branches of government, but rather to ensure that the concerned branches of
government exercise the ir authority within the bounds of the Constitution. This
would especially be so where the decision in issue is policy -laden as well as
polycentric.”57

[58] In the result, the main relief sought, which does not make provision for any
legislative amendment, cann ot be granted. However, the alternative relief proposed
by the LAMOSA respondents does have merit. 58 It solves the problems outlined
above. I t also creates a default position for regulating the old claims and interdicted
claims and allows the Commission to consider the interdicted claims, albeit to a
limited capacity. This would limit the prejudice outlined by the Communities , as the
processing of claims would, in theory, be faster. If the remedy provides for the
prioritisation of claims, this provides a way forward for the processing of claims to go
faster than against leaving the interdicted claims frozen. It also allows for the
interdicted claims to be considered to the extent that it assists in the processing of old
claims. Furthermore, the alternative relief proposed traverses a middle ground, in that
the Court provides relief pursuant to paragraph 7 of the Order and determines the
process regarding the prioritisation of claims, but does not do so with out deferring to
Parliament’s legislative powers to determine otherwise in the future. It has the effect
of being flexible and equitable, in that it allows Parliament to depart from this position
by passing new legislation regarding the prioritisation.

[59] The alternative relief , while lifting the supervisory role of this Court, still
makes provision for appropriate judicial oversight by the Land Claims Court , which is
tasked with dealing with land claims. The Commissioner will be required to file

57 International Trade Administration Commis sion v SCAW South Africa (Pty) Limited [2010] ZACC 6;
2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC) (ITAC) at para 95.
58 See [50].
MHLANTLA J
36
reports on a range of aspects, including both constraints and the solutions thereto , and
the Land Claims Court will have the necessary expertise to assist where need be. This
will ensure accountability by the Commissioner and the opportunity for the
Commission to reflect on its progress in this arduous process.

[60] Accordingly, there is merit in granting the alternative relief . I would, however,
add the caveat that Parliament may at any time enact legislation determining
otherwise. Therefore, it is not necessary to consider the relief pr oposed by the
Communities.

[61] There is one last aspect that must be considered.

Constitutionality of section 6(1)(g) of the repealed Amendment Act
[62] In LAMOSA 1, this Court held:

“In the face of the prospective order of invalidity, a question arises as to when and
how the preserved new claims that compete with old claims will be considered. The
effect of the prospective nature of the declaration of invalidity is to keep alive the
contentious section 6(1)(g) of the Restitution Act insofar as the disposal of the old
and preserved new claims is concerned. In terms of this section the Commission
must ‘ensure that priority is given’ to old claims. This raises all the problems that the
applicants are complaining about and brings about uncertainty that may be prejudicial
to claimants whose claims were lodged by 31 December 1998. Because the
Amendment Act has been declared invalid in its entirety, I do not find it necessary to
grapple with what exactly section 6(1)(g) means merely for purposes of how it should
apply to old and preserved new claims. It seems to me that a just and equitable
remedy is to interdict the settlement, and referral to the Land Claims Court, of all new
claims, whet her competing with the old or not. Our wide remedial power under
section 172(1)(b) of the Constitution permits us to do so. Even though the new
claims have been kept alive, the reality is that the Restitution Act under which they
were lodged has been found to be invalid. The interdict is consonant with this reality.
In the face of the declaration of invalidity, there cannot be much cause for complaint
for keeping the new applications in abeyance. Also, the question how new claims
MHLANTLA J
37
should be dealt with w hilst there are outstanding old claims is fraught with
imponderables. It is best left to the legislature to resolve.”59 (Footnotes omitted.)

[63] The constitutionality of section 6(1)(g) was deliberately not decided in
LAMOSA 1. The effect of this section was kept alive in order to keep the interdicted
claims alive. However, section 6(1)(g) itself suffered the same fate as the rest of the
repealed Amendment Act – it is constitutionally invalid. The same considerations that
applied in LAMOSA 1, including in relation to section 6(1)(g), are still relevant in this
application. Further, given that this Court has now determined the way forward in
respect of the interdicted claims, it is not necessary to pronounce any further on this
section. Parliament must deal with this aspect.

Costs
[64] The LAMOSA respondents were compelled to approach th is Court as a result
of the failure of Parliament to enact the required legislation within the prescribed time
period and the Commission’s failure to comply with its duty to lodge an application in
accordance with paragraph 7 of the Order. They have achieve d limited success and
are thus entitled to their costs. It follows that Parliament must pay the first to sixth
respondents’ costs, including the costs of two counsel.

Conclusion
[65] The link between land and dignity and the realisation of other constitutional
rights, as highlighted in LAMOSA 1, is indicative of the magnitude of the restitution
process and what could be achieved. Any further delays in this process will hinder the
realisation of constitutional rights. We cannot afford to jeopardise the practical and
symbolic outcomes of land restitution. The land reform process, if administered
appropriately and expeditiously – and with the guiding lights of our Constitution – can
still have the potential to be a catalyst for structural change in our society.60

59 LAMOSA 1 above n 5 at para 89.
60 Hall “Land reform for what use? Land use, production and livelihoods” in Hall (ed) Another Countryside
(Institute for Poverty, Land and Agrarian Studies, Cape Town 2009) at 23.
MHLANTLA J
38

[66] The continued delay in the proper processing of land claims is having a
debilitating effect on the land reform project. An expeditious land restitution process
will not only incre ase the number of claims settled , but could also contribute to a
wider, more striking consciousness that centres on the constitutional values of equality
and dignity, and give rise to ideals of social justice, identity, the stimulation of
economic activity , the promotion of gender equality and a contribution towards the
development of rural livelihoods. 61 This judgment aims to give guidance to wards the
realisation of those values and ideals.

Order
[67] The following order is made:
1. The application by the applicants for an extension is dismissed.
2. The counter-application by the first to sixth respondents is upheld to the
following extent , subject to the Parliament of the Republic of South
Africa legislating otherwise:
(a) The Commission on Restitution of Land Rights (Commission) is
prohibited from processing in any way any claims lodged in
terms of section 10 of the Restitution of Land Rights Act 22 of
1994 (Restitution Act) between 1 July 2014 and 28 July 2016
(interdicted claims) until the earlier of the dates when—
(i) it has settled or referred to the Land Claims Court all
claims lodged on or before 31 December 1998 (old claims)
by way of a referral of the claim in terms of section 14; or
(ii) the Land Claims Court, upo n application by any interested
party, grants permission to the Commission to begin
processing interdicted claims, whether in respect of the
whole or part of the Republic of South Africa and whether

61 Id at 28. See also Walker above n 3 at 3 4. See also Pienaar “ Restitutionary Road: Reflecting on good
governance and the role of the Land Claims Court” (2011) 3 PELJ 30 at 34.
MHLANTLA J
39
in respect of part or all of the process for administerin g an
interdicted claim.
(b) Until the date referred to in paragraph (a), no interdicted claim
may be adjudicated upon or considered in any manner
whatsoever by the Land Claims Court in any proceedings for the
restitution of rights in land in respect of old claims, provided that
interdicted claimants may be admitted as interested parties before
the Land Claims Court solely to the extent that their participation
may contribute to the establishment or rejection of the old claims
or in respect of any other issue that the presiding judge may allow
to be addressed in the interests of justice.
(c) Notwithstanding the provisions of section 11(5) and 11(5A) of
the Restitution Act, no interdicted claimant shall be entitled to
any relief having the effect of—
(i) altering or varying—
(a) the relief granted to any claimant in terms of
section 35 of the Restitution Act in respect of a
finalised old claim;
(b) the terms of an agreement concluded in terms of
section 42D of the Restitution Act; or
(c) an award in terms of se ction 42E(1)(a) or (b) of the
Restitution Act,
unless the Land Claims Court in exceptional
circumstances orders otherwise; and / or
(ii) awarding to such interdicted claimant land or a right in
land that is subject to a pending claim for restoration by an
old claimant.
(d) The Chief Land Claims Commissioner must file a report with the
Land Claims Court, to be dealt with as the Judge President of that
Court may deem fit, at six -monthly intervals from the date of this
order, setting out—
MHLANTLA J
40
(i) the number of outstanding old claims in each of the
regions on the basis of which the Commission’s
administration is structured;
(ii) the anticipated date of completion in each region of the
processing of the old claims, including short-term targets
for the number of old claims to be processed;
(iii) the nature of any constraints, whether budgetary or
otherwise, faced by the Commission in meeting its
anticipated completion date;
(iv) the solutions that have been implemented or are under
consideration for addressing the constraints; and
(v) such further matters as the Land Claims Court may direct;
until all old claims have been processed.
(e) The Land Claims Court may make such order or orders as it
deems fit to ensure the expeditious and prioritised processing of
old claims.
3. The applicants are jointly and severally ordered to pay the costs of the
first to sixth respondents, including the costs of two counsel.



For the Applicants:


For the First to Sixth Respondents:




For the Seventh to Tenth Respondents:


T Motau SC and G Ng cangisa
instructed by the State Attorney

A Dodson SC, M Bishop and M Tsele
instructed by Henk Smith and
Associates, Legal Resources Centre
and Webber Wentzel

M Dewrance SC and M Musandiwa
instructed by Lawyers for Human
Rights