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[2018] ZASCA 105
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Director-General for the Department of Rural Development and Land Reform and Another v Mwelase and Others; Mwelase and Others v Director-General for the Department of Rural Development and Land Reform and Another (306/17; 314/17) [2018] ZASCA 105; 2019 (2) SA 81 (SCA) (17 August 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No:
306/17
In the
matter between:
THE
DIRECTOR-GENERAL FOR THE
DEPARTMENT
OF RURAL DEVELOPMENT
AND
LAND
REFORM
FIRST
APPELLANT
MINISTER
OF RURAL DEVELOPMENT
AND
LAND
REFORM
SECOND
APPELLANT
and
BHEKINDLELA
MWELASE
FIRST
RESPONDENT
JABU
AGNESS MWELASE
N.O.
SECOND
RESPONDENT
MNDENI
SIKHAKHANE
THIRD
RESPONDENT
BAZIBILE
GRETTA MNGOMA
N.O.
FOURTH
RESPONDENT
ASSOCIATION
FOR RURAL
ADVANCEMENT
(AFRA)
FIFTH
RESPONDENT
Case No:
314/17
And in
the matter
between:
BHEKINDLELA
MWELASE
FIRST
APPELLANT
JABU
AGNESS MWELASE
N.O.
SECOND
APPELLANT
MNDENI
SIKHAKHANE
THIRD
APPELLANT
BAZIBILE
GRETTA MNGOMA
N.O.
FOURTH
APPELLANT
and
THE
DIRECTOR-GENERAL FOR THE
DEPARTMENT OF
RURAL DEVELOPMENT
AND
LAND
REFORM
FIRST
RESPONDENT
MINISTER
OF RURAL DEVELOPMENT
AND
LAND
REFORM
SECOND
RESPONDENT
Neutral
citation:
DG: Department of Rural Development and Land Reform
& another v Mwelase & others
and
Mwelase & others
v DG: Department of Rural Development & Land Reform & another
(306/17 & 314/17)
[2018] ZASCA 105
(17 August 2018)
Coram:
Leach, Seriti, Willis, Mocumie and Schippers JJA
Heard:
13 March 2018
Delivered:
17 August 2018
Summary:
Land Reform (Labour Tenants) Act 3 of 1996 – appointment of
special master by Land Claims Court – performing duties of
Director-General to prepare implementation plan for labour tenant
claims, including the determination of skills, infrastructure
and
budget required – violation of separation of powers rule –
contempt of court – alleged disobedience of order
by Minister –
non-compliance neither wilful nor mala fide.
ORDER
On appeal from:
Land Claims Court, Randburg (Ncube AJ sitting as court of first
instance):
1
Paragraphs 2-10 of the order of the Land Claims Court (LCC) dated 8
December 2016 are set aside and replaced with the following
order:
‘2 Within 21 calendar days of the date of this order, the first
respondent is ordered to deliver an implementation plan in
relation
to pending labour tenant claims under ss 16, 17 and 18 of the Land
Reform (Labour Tenants) Act 3 of 1996 (the LTA). The
implementation
plan must set out the following:
2.1
The name/s and details of the senior manager/s responsible for
managing the national implementation of the LTA, appointed by
the
first respondent;
2.2
The total number of labour tenant applications lodged to date and the
number which have not yet been processed and finalised,
in each of
the 9 provinces;
2.3
The number of notices issued under s 17 of the LTA and the number
still outstanding.
2.4
The number of applications of which the details have been published
in the Government Gazette in terms of s 17 of the LTA.
2.5
The number of applications that have been referred to mediation,
arbitration or to the LCC.
2.6
An assessment of the skill pool and other infrastructure required to
process labour tenant claims, and to what extent such skill
pool and
infrastructure is available within the Department of Rural
Development and Land Reform (the Department);
2.7
Targets, on a year-to-year basis, for the resolution of pending
labour tenant claims by: (a) agreement, and (b) referral of
claims to
the LCC;
2.8
A determination of the budget necessary during each financial year
for carrying out the implementation plan, including both
the
Department’s operating costs for processing claims and the
amount required to fund awards made pursuant to applications
in terms
of s 16 of the LTA;
2.9
Plans for coordination with the LCC to ensure the rapid adjudication
or arbitration of unresolved claims referred to the court
in terms of
s 18(7) read with ss 19 to 25 of the LTA;
2.10
Any other matter which the first respondent considers relevant
regarding the implementation of labour tenant claims under the
LTA.
3 The applicants shall be entitled to comment on the implementation
plan within 10 calendar days of the date on which it has been
delivered.
4 The LCC shall convene on a date and time to be determined by it, at
which hearing the court shall:
4.1 consider the implementation plan delivered by the first
respondent;
4.2 approve the implementation plan, with or without amendments, or
otherwise deal with the plan as it may deem fit;
4.3 make such further orders as may be advisable, including orders
relating to the fulfilment of the implementation plan and the
processing of pending labour tenant claims.’
2 Save as
aforesaid, the appeal under case number 306/2017 is dismissed with
costs, including the costs of two counsel.
3 The
appeal in case number 314/2017 is dismissed with costs, including the
costs of two counsel.
JUDGMENT
Schippers
JA (Leach, Seriti and Willis JJA concurring):
[1] There are two
matters before us arising from proceedings which the respondents in
case number 306/2017 instituted in the Land
Claims Court (LCC) to
compel the Director-General (DG) of the Department of Rural
Development and Land Reform (the Department)
to process claims or
refer applications to the LCC under the Land Reform (Labour Tenants)
Act 3 of 1996 (the LTA). The first is
an appeal by the DG and the
Minister of Rural Development and Land Reform (the Minister) against
an order by the LCC on 8 December
2016, in terms of which it
appointed a ‘Special Master of Labour Tenants’ to
prepare, in collaboration with the DG,
an implementation plan ‘for
the performance of the duties of the [DG] and the Department with
supervision of the Special
Master, in relation to pending labour
tenant claims under ss 16, 17 and 18 of the Act.’ The second
matter (case number 314/2017)
is an appeal by the appellants against
the dismissal of their application that the Minister be held in
contempt of an order issued
by the LCC on 17 May 2016, directing him
to negotiate in good faith to conclude a memorandum of understanding.
The appeals in both
matters are with the leave of the LCC.
Background and
litigation history
[2] In 2001 the
first to fourth respondents applied to the DG to acquire land on a
farm known as Hilton College in Kwa-Zulu Natal,
in terms of s 16 of
the LTA. The farm is owned by the Hiltonian Society. When
negotiations conducted from 1998 to 2008 between
the respondents, the
DG and the owner did not result in settlement, the DG failed to refer
the first to fourth respondents’
claims to the LCC.
[3] In July 2013 the
respondents applied to the LCC for an order directing the DG to refer
the first to fourth respondents’
claims to that court for
determination, in terms of s 17(6) of the LTA (Part A of the notice
of motion). In Part B the respondents
sought systemic relief in the
form of a declaratory order and a structural interdict. They sought
an order declaring that the DG’s
failure to process or refer
applications to the LCC was inconsistent with ss 9, 10, 25(6),
27(1)(b), 30, 31, 33, 34, 195 and 237
of the Constitution. They
sought a structural interdict directing the DG to process or refer
all outstanding applications to the
LCC within one year; and an order
directing the DG to file a report and plan concerning the status of
the outstanding applications,
within one month of the declaratory
order. The report had to identify all applications filed in terms of
s 16 of the LTA which
had not been settled or referred to the LCC and
indicate in each application, whether it was sent to the owner of the
land in terms
of s 17(2)(a), gazetted under s 17(2)(b) and whether it
was subject to settlement negotiations under s 18. In the plan, the
steps
to be taken to process or refer all outstanding applications
within one year had to be explained; and measurable, periodic
deadlines
for progress had to be set. Finally, the respondents asked
the LCC, after considering the report and plan, to make an order
detailing
the conditions for compliance with processing and referral
of outstanding applications; and directing the DG to file monthly
reports
in relation to compliance with the LCC’s order.
[4] The grounds for
the relief sought, in summary, were these. The first to fourth
respondents had repeatedly requested the DG to
refer their claims to
the LCC, after negotiations with the Hiltonian Society broke down in
2008. The founding affidavit stated
that referral under s 17(6) of
the LTA was ‘a simple clerical act’ and the primary basis
for the relief sought. Alternatively,
the respondents alleged that
the DG’s failure to refer the claims to the LCC constituted
‘administrative action’
as defined in the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), more particularly, a
failure to take a decision as
contemplated in section 6(2)(g). As
such, the DG’s failure to refer the first to fourth
respondents’ claims to the
LCC was reviewable, both in terms of
s 6(2)(g) of PAJA on the ground of unreasonable delay in failing to
refer the claims; and
because it contravened the law and was not
authorised by the empowering provision under s 6(2)(f)(i).
[1]
[5] As regards the
systemic relief, the respondents asserted that the DG breached his
obligation to respect, protect, promote and
fulfil rights in the Bill
of Rights, namely the right to legally secure tenure (s 25(6)),
equality (s 9), dignity (s 10), culture
(ss 30 and 31), access to
food (s 27(1)(b)) and access to court (s 34). Then it was alleged
that the DG’s failure to refer
s 16 applications to the LCC was
inconsistent with the principles of efficient, economic and effective
use of resources, and the
requirement that the needs of people must
be responded to, contained in s 195 of the Constitution. Finally, the
respondents alleged
that the DG failed to comply with the injunction
in s 237 of the Constitution that constitutional obligations must be
performed
diligently and without delay. The grounds for the
contention that the DG failed to fulfil his statutory duty to process
s 16 applications
under the LTA were essentially based on the
experience of the first to fourth respondents, judgments of the LCC,
the Minister’s
answer to a question in the National Assembly
(in which he admitted that little progress had been achieved in the
settlement of
labour tenant claims) and the experience of the fifth
respondent, the Association for Rural Advancement (AFRA).
[6] The DG and the
Minister opposed the application, basically on the following grounds.
They denied that there was ‘an ongoing
and persistent failure’
to process labour tenant claims, or refer them to the LCC. Labour
tenants had generally chosen not
to refer matters to the LCC and
normally preferred accommodation in other land reform projects which
granted them larger and more
viable portions of land. Statistics in
relation to labour tenants had been reported as part of broader land
reform processes and
there were no separate statistics for labour
tenant claims. However, since 2013 the Department began collating
land reform information
on a more differentiated basis and it was
stated that by mid-2014 it would provide an accurate assessment of
the status of all
labour tenant claims. The supervisory order which
the respondents sought was a violation of the doctrine of separation
of powers,
and would require a massive increase in the Department’s
budget and drastic reallocations between budget items.
[7] The DG stated
that the following problems were experienced in the implementation of
the LTA. The number of claims exceeded the
Department’s
capacity to deal with them expeditiously, and involved far more
logistics than had been foreseen. Labour tenant
claims typically
involved the rights of extended families who lived on land for many
generations. Membership of those families
had to be verified and to
that end the Department’s officials conducted thousands of farm
visits until 2006. The DG denied
that the government had done nothing
regarding labour tenant claims for more than 10 years. Many
restitution claims overlapped
and even conflicted with labour tenant
claims, which had not been foreseen in the early stages of land
reform legislation. In addition,
in every case labour tenants were
required to present expert evidence by professional valuers and be
legally represented; and often
needed the services of land surveyors.
It appeared from the cases referred to the LCC that labour tenants
were encamped in small,
unsustainable areas of land. Land reform is a
complex and very costly process. It was not a case of simply
processing labour tenant
claims mechanically and then referring them
to the LCC.
[8] The Hiltonian
Society opposed only the relief sought in Part A of the notice of
motion. It denied that the first to fourth respondents
were labour
tenants as alleged. The parties agreed that the relief sought in Part
A should be granted and when the application
came before the LCC in
November 2013, the DG referred the first to fourth respondents’
claims to the court in terms of s
17(6) of the LTA. Those claims
however have still not been finalised, apparently because the first
to fourth respondents’
attorneys took no further steps to
advance the claims.
[9] On 19 September
2014 the LCC made the following order by agreement between the
parties. The application was postponed to 12
May 2015. The DG
undertook to deliver a report by 31 March 2015 containing statistics
indicating the current status of all labour
tenant applications
lodged in terms of Chapter III of the LTA; a schedule showing the
status of each individual claim; and his
plans for further processing
all outstanding claims (the collation order).
[10] On 24 April
2015 the DG delivered a reporting affidavit in terms of the collation
order. He explained that since the Department
had focused on policy-
based land reform programmes, Chapter III of the LTA had not been
proactively managed. As a result of the
litigation, the process of
administering Chapter III was restarted, which required funding and
human resources. The DG provided
information concerning labour tenant
claims in Mpumalanga and KwaZulu-Natal, and said that the process of
collecting outstanding
information could take between 12 to 24
months. The processing of applications in KwaZulu-Natal had not been
successful and had
to be redesigned. The DG said that he hoped to
resolve the lack of human resources by additional budget allocations.
[11] In its response
to the DG’s report of 24 April 2015, AFRA argued that this was
an appropriate case for the LCC to declare
the Department’s
past conduct unlawful; that it should be directed to process and
refer all outstanding labour tenant applications;
that the LCC should
maintain supervision of that process; and that it should appoint a
special master inter alia, to engage with
the parties, implement the
order and report to the LCC on progress. AFRA suggested three years
as an appropriate timeline to collect
and process information, and
refer labour tenant applications to the LCC.
[12] On 9 June 2015
the LCC made the following order by agreement (the supervision
order):
‘1. The First Respondent records the stated intention and
undertaking of the Department of Rural Development and Land Reform
to
fully implement the Land Reform (Labour Tenants) Act 3 of 1996 (the
Act) subject to any future amendments of the Act.
2. The parties agree that the aforesaid implementation will be
subject to this court’s supervision as set out herein and
as
may be amended from time to time.
3. The First and Second Respondents will file further reports, each
containing an implementation plan, with this court on the progress
being made with implementation of the Act on the following dates:
3.1
31 July 2015;
3.2
30 October 2015; and
3.3
12 February 2016.
4. The reports to be filed must deal with at least the following
issues
4.1 The progress made with the collection of information in all the
relevant districts relating to applications lodged in terms
of
chapter 3 of the Act.
4.2 the progress made with the processing of claims, more
specifically:
4.2.1 the issuing of section 17 notices,
4.2.2 publication of applications in the Gazette,
4.2.3 settlement, abandonment or referral of applications to court.
5. The applicant shall be entitled to respond to the progress report
within one month of the date on which they are served.
6. Any party may set down the matter at any time for hearing on one
month’s notice in the event that problems are experienced
in
the implementation of the order or if the Applicants are of the view
that additional relief is justified on any basis, including
whether
the progress being made is not substantially in accordance with the
projections in the implementation plans.
7. If not otherwise set down, the matter is postponed for hearing to
18 March 2016 to determine what further relief should be granted
in
this matter and how the court’s supervisory jurisdiction should
be exercised.
8. Costs for the proceedings to date will stand over for later
adjudication.’
[13] On 4 August
2015 the DG delivered a reporting affidavit (made on 30 July 2015)
and an action plan in compliance with the supervision
order. He
stated that the appointment of 21 senior project officers had been
approved and that three project officers would be
allocated to
implement labour tenant applications in each of the seven districts
previously reported on. The estimated budget for
this was some R14
million for salaries and the operational budget was likely to be an
amount in the same order. New staff would
be trained in August 2015,
after which the further collection of information and processing of
applications would commence. The
DG undertook to report on processing
of applications by the end of October 2015 and stated that progress
regarding the issuing
of s 17 notices and publication in the Gazette
would probably only show significant progress by early 2016. The
Department anticipated
that the collation of information would be
completed by the end of August 2016; and that verification of the
information would
be finalised by the end of December 2016, and field
visits and referrals by the end of June 2017.
[14] AFRA responded
on 6 August 2015. It stated that the Department was required to
provide the LCC with information regarding applications
lodged by
labour tenants in districts and provinces throughout the country, but
it seemed to focus only on KwaZulu-Natal and Mpumalanga;
and that the
Department’s statistics regarding the number of applications
were inaccurate. AFRA said that the Department
did not seem to have a
plan for dealing with applications that had been misplaced by
officials and that it had to stick to deadlines
agreed to, as its
failure to do so jeopardised trust. AFRA reiterated that the
appointment of a special master would assist the
LCC and the
Department.
[15] The next report
by the DG was due on 30 October 2015. By letter dated 28 October
2015, the State Attorney informed the respondents’
attorneys,
the Legal Resources Centre (LRC) that the DG’s report would not
be filed, due to the volume of data and schedules
sent from the
Department’s regional offices which had to be analysed. The LRC
asked for an indication as to when the report
and plan would be
delivered and when there was no response, it set the matter down for
hearing. The reporting affidavit was filed
only on 19 January 2016
and the DG applied for condonation of its late filing. The DG stated
that dedicated staff had been appointed
to capture the relevant data
in Mpumalanga and KwaZulu-Natal; that considerable progress had been
made; and that the processes
of notice and the referral under ss 17
and 18 of the LTA would follow. The expected progress in the
processing of claims and the
steps taken to establish the status of
claims in Limpopo and the Free State were also set out in the
affidavit.
[16] The case came
before the LCC on 29 January 2016 and by agreement between the
parties it was postponed. The DG delivered a reporting
affidavit
dated 12 February 2016. He said that Mr Jomo Ntuli had been
transferred to KwaZulu-Natal to oversee the labour tenant
project and
that Ms Zanele Sihlangu, the Department’s Chief Director in
Mpumalanga, was responsible for the project in that
province. He said
that it had been established that none of the other provinces had any
active files on labour tenant applications.
The DG and the Minister
were satisfied that sufficient progress had been made since the
appointment of dedicated staff to the process
and said that the
respondents’ renewed attempts for the appointment of a special
master were, in the circumstances, unjustified.
[17] In its response
dated 2 March 2016 to the DG’s affidavits of 19 January and 12
February 2016, AFRA stated that the Department
should have updated
applications, sent notices to landowners and published applications
in the Gazette, verified information by
field visits and drafted
referral reports. It also stated that the Department had not complied
with the timeframes in its action
plans and that ‘while
non-compliance may be excusable’, it had not been explained;
that the DG and the Minister ‘largely
failed’ to address
the respondents’ concerns; that there was no plan to deal with
lost applications; and that the appointment
of a special master was
warranted. AFRA accepted that it was difficult to estimate how long
the process would take and that considerable
resources had been
devoted to the project which was ‘a welcome step’, but
denied that appointing a special master would
be wasteful or lead to
further delays.
[18] The Minister
delivered a further reporting affidavit made on 14 April 2016, in
which he described the steps taken by the Department
regarding labour
tenant claims. He said that the claims by the first to fourth
respondents initially formed part of a labour tenant
claim by 125
families. Pursuant to negotiations 121 families agreed to be
relocated to other land. The claims of the remaining
families were
referred to the LCC for adjudication. Regarding the structural
interdict, the Minister stated that in giving effect
to rural
development and land reform, the Department did not discriminate
between labour tenants and other claimants. Thus, persons
who
qualified as labour tenants had their claims dealt with under other
land reform programmes. AFRA had been awarded a contract
to assist
the Department in that regard. Some labour tenants qualified for
restitution under the Restitution of Land Rights Act
22 of 1994 (the
Restitution Act), others applied to lease farms and where none were
available, the Department purchased farms and
provided grants to
lessees (mainly labour tenants, farm dwellers, persons with
disabilities, youth, women, agricultural graduates
and military
veterans) to work the land.
[19] The Minister
provided schedules showing progress made in respect of the
restitution beneficiaries, which included labour tenants
in virtually
all provinces and beneficiaries in prioritised categories of land
reform. The Minister said that in addition to the
resources made
available to the labour tenant process, he had also deployed 145
graduates to do a physical verification of all
files of land reform
projects delivered; that he would directly supervise compliance with
the orders of the LCC; and that a special
master was therefore
unnecessary.
[20] AFRA responded
on 22 April 2016 that the Minister’s affidavit was ‘entirely
irrelevant’ and added nothing
to the debate as to the
appointment of a special master; that the DG in effect had argued
that the Department was entitled to take
a policy decision not to
process labour tenant claims under the LTA; and that the supervision
order was ‘almost exactly the
relief the Applicants initially
sought’. AFRA renewed its call for a special master.
[21] The case was
set down for hearing on 12 May 2016 but was postponed to 17 May 2016,
to allow for further negotiation between
the parties. On 17 May 2016
they agreed to the following order (the negotiation order):
‘1. The parties shall negotiate in good faith to conclude a
Memorandum of Understanding (MOU) with the following basic features:
1.1
The Department of Rural Development and Land Reform (Department) will
appoint within its organisational establishment, a senior
Manager
responsible for managing the national implementation of the Land
Reform (Labour Tenants) Act (LTA), and in particular the
requirements
of ss 16-18; and, section 4 of the Extension of Security of Tenure
Act (ESTA). The project will do so within the broader
program aimed
at land acquisition for farm dwellers (labour tenants and occupiers
in terms of ESTA).
1.2
The manner in which the forum referred to in 1.4 below will interact,
if at all, with the two district land reform structures
established
by the Department which involve organs of civil society, namely
District Land Reform Committees (DLRCs) and District
Agri-Parks
Management Councils (DAMCs)
1.3
Farm dwellers (labour tenants and occupiers) will nominate two
representatives to serve in each of the two structures referred
to in
1.2 above.
1.4
A National Forum of Non-Governmental Organisations (NGOs) that a deal
with farm dwellers (labour tenants and occupiers) in the
country will
be established by the end of July 2016.
1.5
The Forum, working together with the Department, will be responsible,
inter alia
, for policy formulation, development of a national
programme for implementation and monitoring and evaluation of
progress.
1.6
The Department will facilitate the establishment of such a Forum and
shall ensure appropriate provincial representation.
1.7
The senior Manager, referred to in 1.1, will provide secretariat
support to the Forum.
1.8
The senior Manager referred to in 1.1 above, will monitor the
implementation of the provisions of the LTA and the ESTA, as required
by the MOU.
2. The senior Manager will file quarterly report of the legal
representatives of the parties for a period of 24 months, whereafter
the parties will assess the need for further reporting. The content
of these reports will be the same as previously agreed between
the
parties, or as negotiated in the MOU. The first report will be filed
on 31 July 2016.
3. If the parties are able to conclude the MOU the parties will file
a copy of the MOU with the court, for record purposes.
4. If the parties are unable to conclude the MOU by 30 June 2016, any
party may set down the matter for hearing.
5. There is no order as to costs for the hearings of 12 and 17 May
2016.’ (vol 5 p 947)
[22] On 16 August
2016 the DG filed another reporting affidavit. In summary, he said
the following. The project had progressed to
the point where a
significant number of applications would be published in the Gazette.
Save for publication, most of the important
timeframes in the initial
action plan had been met. The processing of outstanding labour tenant
claims had started in other provinces,
except for the Western Cape
which had no such claims. A communications drive with a budget of
some R2.8 million had been completed.
It was inherent in the project
that processes might be delayed, adapted or completely reassessed,
but overall the DG was satisfied
with progress. The Department’s
plan had been extended by six months until the end of 2017. The DG
also provided information
concerning the settlement of labour tenant
claims through policy based land reform in the various provinces and
suggested that
further quarterly reports be filed at the end of
February, May, August and November 2017.
[23] The negotiation
order was a broad framework for the establishment of a national forum
to deal with labour tenants and occupiers.
Unfortunately, the
agreement forming the basis of that order came to an abrupt end when
the appellants in case number 314/2017
launched an application for an
order that the Minister be held in contempt of the negotiation order.
AFRA alleged that the Minister
failed to negotiate in good faith;
that he acted unilaterally, wilfully and in bad faith; and that AFRA
was deliberately excluded
from a meeting of NGOs on 29 July 2016 to
establish the forum. AFRA further alleged that the Department’s
claim that the
forum was established pursuant to the negotiation
order was ‘a deliberate deceit’; and that the Minister
was ‘attempting
to abuse the Order to pursue his own agenda’.
[24] The allegation
that AFRA had been excluded from the initial meeting of the forum had
no basis. In his answering affidavit the
DG stated that a
representative of AFRA had addressed the forum; that the forum was a
broad platform; that its terms of reference
had not been finalised;
and that a special chamber thereof could be created to deal with
labour tenants. The DG went on to say
that he was not present at the
meeting; that the NGOs invited to the forum were those dealing with
farm dwellers (labour tenants
and occupiers); and that it was open to
AFRA to suggest to the forum that the litigation and the
implementation of the LTA should
take precedence over all other
matters. The Minister denied that he had breached the order or
pursued a personal agenda. He was
of the view that the MOU could not
be concluded unless a national forum of NGOs had been established. He
stated that he was merely
facilitating the establishment of the forum
to ensure appropriate provincial representation, that AFRA had been
informed of his
intention to do so and had learnt about the forum
before other NGOs.
[25] In the
meantime, on 28 September 2016 the DG filed another reporting
affidavit in the LCC. He denied that he and the Minister
did not
comply with numerous court orders or that they failed to process
labour tenant applications. He said that considerable
progress had
been made in processing applications and a series of reports had been
filed with the court.
[26] After oral
argument at the hearing of the appeal, the parties requested the
Court to hold the judgment in abeyance for one
month, pending
settlement negotiations to resolve the matters amicably. The request
was granted. In the light of the urgency, and
the nature and extent
of the task of implementing the LTA, the DG was requested to continue
with implementation and to deliver
reporting affidavits, pending
determination of the appeal. Subsequently, the Registrar of this
Court was informed that the negotiations
were unsuccessful.
[27] In the interim
the Acting DG, Ms Leona C Archary, filed an affidavit made on 27
March 2018 in which she reported on progress
regarding the
implementation of the LTA since 15 August 2017, more particularly in
relation to human and financial resources, stakeholder
management,
data and statistics of applications, targets for the resolution of
applications and coordination with the LCC regarding
the adjudication
of unresolved applications.
[28] In her
response, Ms Oettel of AFRA disputed the correctness of the facts
stated in the affidavit of Ms Archary which, it was
alleged, was
‘employed by the appellants as an opportunity to advance
further facts and argument for the motivation of the
relief sought on
appeal.’ Given the factual disputes between the parties arising
from the latest affidavits, which obviously
were not before the LCC,
those affidavits have not been taken into account in this judgment.
The declaratory
order
[29] The appellants
have appealed against the whole of the judgment and order of the LCC,
and asked that the appeal be upheld with
costs. The LCC made an order
declaring that the DG’s failure to process or refer to the
court applications brought under
s 16 of the LTA, was inconsistent
with ss 10, 25(6), 33, 195 and 237 of the Constitution.
[30] The DG’s
failure to process or refer applications to the LCC was plainly
unlawful and constituted a failure to take a
decision as contemplated
in s 6(2)(g) of PAJA. As was said in
My Vote Counts
,
[2]
the Constitution is primary, but its influence is mostly indirect and
perceived through its effect on legislation and the common
law, to
which one must look first. Cameron J went on to say:
‘These considerations yield the norm that a litigant cannot
directly invoke the Constitution to extract the right he or she
seeks
to enforce without first relying on or attacking the
constitutionality of, legislation enacted to give effect to that
right.
This is the form of constitutional subsidiarity Parliament
invokes here. Once legislation to fulfil a constitutional right
exists,
the Constitution’s embodiment of that right is no
longer the prime mechanism for its enforcement. The legislation is
primary.
The right in the constitution plays only a subsidiary or
supporting role.’
[3]
[31] The fundamental
rights in ss 25(6) and 33 of the Constitution have been given effect
to in the LTA and PAJA, respectively.
The DG, by his own admission,
did not carry out his constitutional and statutory obligations in
terms of the LTA. He stated that
Chapter III of the LTA had not been
proactively managed for a number of years, and that as a result of
this litigation he decided
to restart the process of administering
Chapter III of the Act. This failure denied the respondents and other
labour tenants legally
secure tenure, perpetuated their tenuous
position of being exposed to eviction from land on which their
families lived for generations,
and violated their right to dignity.
[32] Moreover, the
DG’s failure to administer the LTA was a violation of the
principle of legality. As was held in
Khumalo
,
[4]
‘Section 237 of the Constitution acknowledges the significance
of timeous compliance with constitutional prescripts. It elevates
expeditious and diligent compliance with constitutional duties to an
obligation in itself. The principle is thus a requirement
of
legality.’
[33] For these
reasons the declaratory order is unassailable.
The appointment
of a special master
[34] The LCC
recorded that AFRA had furnished it with a comprehensive draft order
which in the view of the LCC contained more detail
than necessary and
‘may intrude onto the functions of the state respondents, in
breach of the separation of powers principle’.
The court stated
that its order was ‘less detailed and concentrates on steps to
prepare an implementation plan.’
[35] On 8 December
2016 the LCC made the following order:
‘1. The first respondent’s failure to process or refer to
the Court applications brought under Section 16 of the Land
Reform
Labour Tenants Act, No 3 of 1996 (“the Act”), is declared
to be inconsistent with Sections 10, 25(6), 33, 195
and 237 of the
Constitution of the Republic of South Africa, 1996.
2. A Special Master of Labour Tenants (“the Special Master”)
shall be appointed as set forth hereunder.
3. By not later than 30 January 2017, any party may deliver a
nomination of a person to be appointed as the Special Master. The
nomination must be in writing, accompanied by:
3.1 A short
curriculum vitae
of the nominated person;
3.2 Suggested terms of appointment and a remuneration structure
acceptable to the nominee; and
3.3 The nominated person’s acceptance of the terms of
appointment and the remuneration structure.
4. By not later than 28 February 2017, the First and Second
Respondents/the Department may comment on all nominations submitted
by the parties.
5. The Court will reconvene on Friday, 3 March 2017 at 10h00 at the
Land Claims Court, Randburg, at which hearing the Court shall:
5.1 Consider the candidates nominated for the position of Special
Master;
5.2 Appoint a Special Master, if there is a suitable candidate;
5.3 Establish his or her terms of appointment and remuneration; and
5.4 Give such further directions as it may deem appropriate.
6. The Special Master, once appointed, is hereby ordered to prepare,
in collaboration with the First Respondent and/or his delegees,
and
to deliver by not later than 31 March 2017, a plan, (“the
Implementation Plan”), for the performance of the duties
of the
First Respondent and the Department with supervision by the Special
Master, in relation to pending labour tenant claims
under sections
16, 17 and 18 of the Act. The Implementation Plan must set forth:
6.1 The total number of claims lodged to date, and the number which
have not yet been processed and finalised;
6.2 An assessment of the skill pool and other infrastructure required
for processing labour tenant claims, and to what extent such
skill
pool and infrastructure is available within the Department of Rural
Development and Land Reform (“the Department”)
6.3 Targets, on a year to year basis, for the resolution of pending
labour tenant claims, either by agreement or by referring the
claim
to the Court;
6.4 A determination of the budget necessary during each financial
year for the carrying out the Implementation Plan, including
both the
Department’s operating costs for processing claims and the
amounts required to fund awards made pursuant to applications
in
terms of section 16 of the Act;
6.5 Plans for coordination with the court to ensure the rapid
adjudication or arbitration of unresolved claims referred to the
court in terms of Section 18(7) read with Sections 19 to 25 of the
Act; and
6.6 Any other matters which the Special Master may consider relevant.
7. The First and Second respondent shall co-operate, and cause the
Department to co- operate with the Special Master in the preparation
and execution of the Implementation Plan and shall ensure:
7.1
that the Special Master is provided with all documents (including
archival documents) and records requested by him or her;
7.2
that all officials of the Department reasonably available to meet
with the Special Master and provide him or her with such information
as he may reasonably require; and
7.3
that all reasonable requests by the Special Master are timeously
responded to.
8. By 15 April 2017 the First and Second Respondents/the Department
shall file a report indicating which portions of the plan (if
any)
are objected to together with the grounds for objection and proposals
for alternative provisions.
9. The Court shall reconvene on Wednesday, 19 April 2017 at 10h00 at
the Land Claims Court, Randburg, at which hearing the Court
shall:
9.1
Consider the Implementation Plan delivered by the Special Master
together with the report filed by the First and Second
Respondents/the
Department;
9.2
Approve the Implementation Plan, with or without amendments, or
otherwise deal with the Plan as it may deem fit; and
9.3
Make such further orders as may be advisable, including orders
relating to the fulfilment of the Implementation Plan and the
processing of pending labour tenant claims.
10. Any party may, on notice to the other parties and to the Special
Master (when appointed), apply to the Court for a clarification
or
amendment of this order.
11. The First and Second Respondents, jointly and severally, the one
paying the others to be absolved, must pay the Applicants’
costs in these proceedings incurred up to the date of this Order,
taxed as between party and party, and including the costs consequent
upon the employment of two counsel.
12. There is no order as to costs in respect of the Third
Respondent.’
[36] The LCC’s
reasons for the order appointing a special master, in summary, were
these. Section 32(3)(b
)
of the Restitution Act allowed the
court to conduct proceedings on an informal or inquisitorial basis.
This was in line with the
appointment of a special master to assist
the court. Some 10 914 labour tenant applications had to be settled.
If each took one
day to settle, it would take about 24 years,
including work on weekends; and 40 years without weekend work. A
special master could
assist the Department to develop a comprehensive
strategy for the efficient processing and referral of claims, to deal
with lost
applications, to prevent potential overburdening of the LCC
and to significantly ameliorate the disadvantage of insufficient
judges
at the court.
[37] The DG and the
Minister failed to comply with deadlines. External expert input ‘to
improve seemingly failing line functions’
should be welcomed
and would not lead to further delays and additional costs. The
‘process with inadequate reporting’
had not been
successful and the current approach of supervision would take many
more years. Potential labour tenants would continue
to approach the
LCC which would be a drain on the court’s time and resources.
New remedies to effectively protect threatened
constitutional rights
such as those of labour tenants had been acknowledged in
Fose
[5]
and
Meadow Glen
.
[6]
The size and complexity of the task alone justified the appointment
of a special master. The reporting and frequent returns to
the court
demonstrated that the court, the Department and the parties needed
help in implementing the LTA. A special master would
assist the
process.
[38] These reasons
however do not withstand scrutiny. First and foremost, the
appointment of a special master – a private
attorney, law
professor or retired judge, appointed with or without the parties’
consent to assist in the adjudicative process
[7]
– is a court adjunct in the United States. Wayne D Brazil
outlined the needs that motivate the use special masters as
follows:
[8]
‘
Courts
appoint special masters as a means of addressing three overlapping
categories of problems: judicial limitations, shortcomings
of the
traditional adjudicatory system, and shortcomings of parties and
counsel. Judicial limitations include time constraints;
lack of
expertise in esoteric or technologically sophisticated areas; lack of
skill in certain roles, such as the facilitation
of settlement
negotiations; and limitations that stem from the properties of
judicial conduct, at least for the judge who will
try the case.’
[39] The appointment
of special masters in the US is regulated by rule 53 of the Federal
Rules of Civil Procedure. Scheindlin J
summed up the regulation of
special masters in terms of rule 53, as follows:
[9]
‘
Rule
53 has been revised to codify the use of special masters on an
as-needed basis with the parties’ consent or, when exceptional
conditions require, by court order. In addition, it encourages, if
not requires, increased participation by the litigants. The
Rule now
(1) limits the use of special masters in most trials, particularly
jury trials; (2) authorizes the use of masters when
the parties
consent; (3) authorizes the use of masters to assist with pre- and
post- trial matters; (4) adopts specific procedures
and standards for
the appointment of masters; and (5) imposes standards for reviewing
the masters’ actions.’
[40] The institution
of the special master has not been free from criticism, as noted by
Scheindlin J:
‘
Critics
have always worried that the role of the courts is diluted when
adjudicative functions are delegated to court adjuncts who
are not
publicly accountable. Another criticism is that the appointment of
masters creates a two-tiered justice system where only
rich parties
can afford the services of paid private court adjuncts while run of
the mill cases must muddle along with the help
of free public
servants.’
[10]
[41] Farrell
[11]
describes the commendation and criticism of special masters as
follows:
‘
Those
who favour the use of special masters believe such legal authority
permits judges to develop and test innovative responses
to the
demands made on the civil justice system by the increasing number of
large and complex cases filed in federal courts. Critics,
however,
claim that the use of masters produces inequities among litigants by
fostering designer procedures that are tailored to
the unique factors
of individual cases, rather than the development of formal rules
applicable to all disputes. Other commentators
are concerned that
utilizing such agents results in an abdication of judicial
responsibilities. They find the use of masters offensive
to the
principles of Article III and favor adjudication by life-tenured,
federal judges selected by Congress or United States magistrate
judges supervised by article III judges.
[12]
[42] It needs merely
to be stated that the institution of the special master under US law
is governed by federal rules, with its
own distinctive features.
There are no such rules, neither an equivalent of a special master in
our law. In
Bernstein
,
[13]
Kriegler J cautioned against the ‘blithe adoption of alien
concepts or inapposite precedents’. Recently this Court
repeated ‘the warning against any too ready assumption that the
approach in a foreign court can readily be transplanted to
South
African soil’.
[14]
In my view, this warning applies equally to foreign institutions such
as the special master.
[43] Second, on the
facts, some six months earlier the parties had agreed to negotiate
and conclude a MOU, a basic feature of which
was the appointment of a
senior manager of the Department to administer the national
implementation of the LTA. They were faced
with the same situation
and more – occupiers whose claims under ESTA had to be dealt
with. The size and complexity of the
task had increased. Despite
this, the parties were of the view that a senior manager of the
Department was capable of managing
not only the implementation of the
LTA, but also ESTA. In terms of the negotiation order, the forum and
the Department were responsible
for policy formulation, development
of a national programme for implementation and monitoring, and
evaluation of progress of both
labour tenant and ESTA claims. The
order further provided that the senior manager had to file quarterly
reports for a period of
24 months, after which the parties would
assess the need for further reporting. Not surprisingly, the parties
did not even consider
the appointment of a special master. In these
circumstances, the appointment of a special master to prepare an
‘implementation
plan’ for labour tenant claims, was
inexplicable and unjustified; and the LCC’s estimate of the
time it would take
to settle claims under the LTA rings hollow.
[44] Third, while it
is correct that s 32(3)(b) of the Restitution Act (rendered
applicable to the LTA by s 30(1) of the latter
Act) authorises the
LCC to conduct any part of any proceedings on an informal or
inquisitorial basis, it is no authority for the
appointment of a
special master to effectively usurp the functions of the DG and
officials of the Department, by preparing all
aspects of a national
implementation plan to settle the claims of labour tenants. I revert
to this aspect below. Further, at no
stage did the LCC inquire into
or raise any question regarding a single report or plan submitted by
the DG from the inception of
the proceedings. So it is not clear upon
what basis the court came to the conclusion that ‘the process
thus far with inadequate
reporting has not been successful’.
[45] Neither did the
LCC conduct any part of the proceedings on an informal or
inquisitorial basis. As was said in
Mlifi
:
[15]
‘
The
inquisitorial system rejects the notion of a passive Judge. On the
contrary, the Judge is expected actively to undertake a comprehensive
investigation into the facts surrounding the dispute.’
One
would have expected the LCC to inquire into the dispute as to why a
senior manager of the Department could not administer the
national
implementation of the LTA, when the parties had agreed that that was
feasible and resources had been set aside for that
purpose. The court
also did not enquire as to how the settlement of claims could be
accelerated or improved. The court concluded
that the Department’s
failure to accurately estimate future progress or to provide
implementation plans seriously undermined
the supervision process.
Yet it launched no inquiry into these failures. For example, a simple
and informal inquiry into the progress
of claims in Mpumalanga and
KwaZulu-Natal after the DG’s reporting affidavit of 12 February
2016, would have revealed the
status of those claims, precisely what
needed to be done, and if it was necessary for the court to issue
directions to expedite
those claims. This, when the Minister stated
that he would directly supervise compliance with the orders of the
court. Indeed,
counsel for the respondents could not point us to any
meaningful inquiry or act of supervision by the LCC, apart from
making the
orders by consent, orders of the court.
[46] Fourth, how a
special master would ‘significantly ameliorate’ the
disadvantage of a new judge of the LCC assigned
to an on-going case
having ‘to familiarise himself or herself with the history and
detailed issues of the dispute between
the parties’, has not
been explained. I do not think that insufficient judges at a court,
could ever justify the appointment
of a special master to devise an
implementation plan ‘for the performance of the duties of the
First Respondent and the Department’.
[47] Fifth, the
LCC’s reliance on
Fose
[16]
and
Meadow Glen
[17]
was misplaced. In
Fose
, the Constitutional Court held that
appropriate relief under s 38 of the Constitution, in essence would
be relief required to protect
and enforce the Constitution; and if
necessary, courts may have to fashion new remedies to secure
protection and enforcement of
constitutional rights.
[18]
But that does not authorise a court to appoint a special master
effectively to implement legislation – a function entrusted
by
the Constitution to the DG and the Department. The statement in
Meadow Glen
that courts may need to consider institutions such
as the special master to supervise the implementation of court
orders, was a
hypothetical example and as such, obiter. It was made
in the following context: contempt of court is a blunt instrument and
courts
should look to orders that the secure ongoing oversight of the
implementation of the order. In this case there was no suggestion
that the DG or the Minister were in contempt of any of the orders
made by agreement between the parties. The allegation was that
the
Minister was in contempt of the negotiation order.
[48] But of far
greater concern is the effect of the LCC’s order. It directed a
complete outsider – the special master
– effectively to
take over the functions and responsibilities of the DG and officials
of the Department in relation to labour
tenant claims. That much is
clear from paragraphs 6 and 7 of the order. It does not mandate the
DG or any official to prepare the
implementation plan. Instead, the
special master
is required to prepare the implementation plan
(in collaboration with the DG) regarding labour tenant claims, ‘
for
the performance of the duties of the [DG] and the Department
’.
The role of the DG is secondary. In other words, the
special
master
is squarely responsible for, and determines the content
of, the implementation plan, which must be carried out by the DG and
the
Department. The implementation plan – of which the
special
master
is the author – must set out, inter alia: the skill
pool and infrastructure required for processing labour tenant claims;
annual targets for the resolution of claims; the budget necessary in
each financial year for carrying out the implementation plan;
plans
to ensure the adjudication or arbitration of unresolved claims; and
any other matter which he or she may consider relevant.
[19]
And in the exercise of these ‘powers’ by the special
master, the Minister and the DG must ensure that he or she is
provided with all documents requested; that all officials are
available to meet with the special master; and that all requests
by
the special master are timeously responded to.
[49] The LCC’s
order directing the special master to prepare an implementation plan
for the performance of the duties of the
DG and the Department, cuts
directly across the powers of the DG, conferred by a number of
provisions of the LTA. Section 17(1)
of the LTA provides that an
application for the acquisition of land referred to in s 16 must be
lodged with the DG. On receipt
of an application in terms of s 17(1),
the DG is required to give notice to the owner of the land in
question (s 17(2)(a)). The
DG must ensure that a notice of the
application is published in the Gazette (s 17(2)(c)), and in writing
call upon the owner of
the land in question to furnish the names and
addresses of the holders of all unregistered rights in the land, and
to furnish documents
or information in respect of such land (s
17(2)(d)). Section 18 of the LTA sets out the steps which the DG is
required to take
when owner of affected land admits that the
applicant is a labour tenant. In terms of s 19, the DG is required to
refer applications
to the LCC.
[50] The Minister
and the DG raised a legitimate concern that the appointment of a
special master in the circumstances, would entangle
him or her in the
budget and operational issues of the Department. For example, what
happens if the DG decides on the allocation
of budgetary items to
pressing needs that the Department is obliged to address, other than
labour tenancy? AFRA contended that
the special master would be a
senior advocate or retired judge with experience in land related
matters, and that the Department
should be responsible for his or her
fees. Given the nature and extent of the task of finalising labour
tenancy claims across the
country, one shudders at the costs that
this might entail. Moreover, the appointment and remuneration of a
special master would
directly embroil the LCC in the budgetary
allocations of the Department. And as regards operational issues,
what if the DG or a
senior project manager with extensive experience
in land reform, differs from the special master on an issue that
affects the implementation
plan? On these aspects, it is undisputed
that the DG is the accounting officer of the Department and the
Minister is the executive
accountable to Parliament.
[51] In my view, the
appointment of a special master ‘is a textbook case of judicial
overreach’.
[20]
Unsurprisingly, none of the ‘analogous statutory posts’
nor the cases upon which AFRA relied for the appointment of
a special
master supports such a gross intrusion by a court into the domain of
the executive.
[52] AFRA contended
that the ‘most analogous statutory post’ is the referee
referred to in
s 38
of the
Superior Courts Act 10 of 2013
,
[21]
and in s 28C of the Restitution Act.
[22]
The referee is appointed with the consent of the parties to assist
the court to determine any matter that the court refers to him
or
her, and has ‘such powers and must conduct the enquiry in such
manner as may be prescribed by a special order of the court’.
[23]
‘Properly understood’, so it was contended, ‘the
Special Master is a variant of the referee. He or she has similar
powers and performs a similar task.’ However, the contention is
unsound. It ignores the plain wording of the
Superior Courts Act and
the Restitution Act. Both these statutes expressly authorise the
court to appoint a referee whose powers are strictly circumscribed,
and then only with the consent of the parties.
[53] AFRA submitted
that there are number of cases in which courts have appointed
independent monitors to assist in supervising
the implementation of
complex constitutional remedies. However, in none of those cases did
the courts authorise the independent
monitors to usurp the functions
of the relevant government department. Thus, in
Black Sash
,
[24]
the Constitutional Court made an order in terms of which the
Auditor-General, legal practitioners and technical experts were
authorised
to evaluate the implementation of payment of social
grants
and the
steps envisaged or taken by the South African
Social Security Agency
(SASSA) – not to carry out SASSA’s
statutory functions – in relation to bidding processes and
SASSA itself administering
and paying social grants in the
future.
[25]
[54] For these
reasons, the order appointing a ‘Special Master of Labour
Tenants’ cannot stand.
The contempt
application
[55] Aside from an
order that the Minister be held in contempt of the negotiation order,
AFRA sought an interdict restraining the
Minister from claiming that
he had complied with negotiation order. In this regard AFRA sought an
order directing the Minister
to inform individuals and organisations
that participated in the meeting of 29 July 2016 that he breached his
obligation to negotiate
in good faith; that the establishment of the
forum was his own initiative, that the appellants returned to the LCC
for the appointment
of a special master; and that the Minister should
pay costs in his personal capacity.
[56] The LCC
dismissed the contempt application, holding that AFRA failed to prove
‘an act of non-compliance wilfully, mala
fide or otherwise’
on the part of the Minister.
[57] Respect for the
role and authority of the courts is founded on the rule of law. The
Constitutional Court, in
Pheko
,
[26]
explained it thus:
‘
The
rule of law, a foundational value of the Constitution, requires that
the dignity and authority of the courts be upheld. This
is crucial,
as the capacity of the courts to carry out their functions depends
upon it. As the Constitution commands, orders and
decisions issued by
a court binds all persons to whom and organs of state to which they
apply, and no person or organ of state
may interfere, in any manner,
with the functioning of the court. It follows from this that
disobedience towards court orders or
decisions risks rendering our
courts impotent and judicial authority a mere mockery. The
effectiveness of court orders or decisions
is substantially
determined by the assurance that they will be enforced.’
[58] The
requirements for finding a party in contempt of court are well
settled: the order must exist; it must be duly served on
or brought
to the notice of the contemnor; there must be non-compliance with the
order; and the non- compliance must be wilful
or mala fide.
[27]
[59] A court may
grant a declaratory order that a party is in contempt and ancillary
relief on the basis of a balance of probabilities.
[28]
This approach was endorsed in
Pheko
,
[29]
in which it was held that in the absence of malice, on balance, civil
contempt remedies other than committal may still be granted.
The
Constitutional Court affirmed the approach most recently in
Matjhabeng
.
[30]
In this case the appellants sought a declaratory order together with
ancillary relief. Neither committal nor a fine was sought.
In these
circumstances, the onus of proof operated as follows. AFRA was
required to prove, on a balance of probabilities the existence
of the
order, notice of it and non-compliance with the order. If these
requirements were proved, the onus then shifted to the Minister
to
prove that non-compliance with the order was not wilful or mala fide.
[60] The existence
and notice of the order are common cause. As to non- compliance, AFRA
contended that the Minister did not negotiate
in good faith to
establish the forum; and that he admitted that he did so
unilaterally. But that is not so. The founding affidavit
in the
contempt application stated that the DG ‘appeared willing to
negotiate in good faith’ but that the Minister
had no intention
of doing so and ‘insisted on imposing his own position without
any attempt to find common ground’.
The Minister denied this
and said that he was always willing to negotiate but that AFRA was
not willing to do so.
[61] As regards
wilfulness and mala fides, the dictum in
Pheko
[31]
bears repetition:
‘While
courts do not countenance disobedience of judicial authority, it
needs to be stressed that contempt of court does not
consist of mere
disobedience of a court order, but of the contumacious disrespect for
judicial authority. On whether this court
should make a civil
contempt order against the Municipality, it is necessary to consider
whether, on a balance of probabilities,
the Municipality’s
non-compliance was born of wilfulness and mala fides.’
[62] The Minister
denied that he acted wilfully or mala fide, and stated the following.
The order required the Department to facilitate
the establishment of
the forum and to ensure appropriate provincial representation. He was
merely facilitating that process and
acted openly. By inviting NGOs
dealing with farm dwellers (labour tenants and occupiers) to the
meeting establishing the forum,
the Department acted within the terms
of the order. AFRA was at liberty to suggest to the forum that the
main litigation should
be prioritised or that the implementation of
the LTA should take precedence over all other matters, but AFRA could
not limit the
forum to its own interests. The Minister did not attend
the consultative meeting and thus was unaware of what was conveyed to
the
meeting, and the Department was not authorised to decide which
NGOs could form part of the forum. The meeting would decide,
independently
of the Minister, the terms of reference of the forum to
be established. AFRA was invited to the meeting establishing the
forum,
knew about it before any of the other NGOs and its
representative addressed the meeting.
[63] AFRA’s
allegations in relation to the alleged contempt of court were simply
unsustainable on the evidence. These were
that the forum was
established to ‘provide cover for [the Minister] to pursue his
own agenda’; that the invitation
to the meeting of the forum
sent to the LRC (as opposed to the attorney dealing with the matter)
was an ‘attempt to exclude
those who are in fact involved in
the litigation from participating in the forum’; and that the
Minister was ‘attempting
to undermine the legitimacy of AFRA,
or to isolate AFRA within the NGO community’. In any event, the
Minister denied these
allegations.
[64] It is well
established that in a case such as this, the decision must be based
on the facts alleged by an applicant which are
admitted by the
respondent, together with the facts alleged by the respondent, unless
the respondent’s allegations or denials
are so far-fetched or
clearly untenable that they may be rejected out of hand.
[32]
[65] The Minister’s
version essentially was that he was willing to negotiate; that he was
merely facilitating the process
to establish the forum in compliance
with the negotiation order; that AFRA was invited to the relevant
meeting and addressed those
present; and that the forum itself would
determine its terms of reference; In my view, this version cannot be
said to be fictitious,
so far-fetched or clearly unworthy of credence
that it can confidently be rejected on the papers alone.
[33]
[66] It follows that
the LCC rightly concluded that AFRA failed to establish that the
Minister was in contempt of the negotiation
order; and its appeal
against that order must fail.
[67] What remains is
the appropriate order. It is clear from the evidence that the
Department has failed to properly process labour
tenant claims as
required by the LTA. In terms of the negotiation order, the parties
agreed that the Department would appoint within
its organisational
establishment, a senior manager to administer the national
implementation of both the LTA and ESTA. Thus, the
DG should have no
difficulty in appointing a senior manager of the Department to carry
out that task.
[68] The DG in his
affidavit deposed to on 12 February 2016, assured the LCC that the
processing of claims in Mpumalanga was well
on its way and that there
was no need for external supervision of the project. Regarding claims
in KwaZulu-Natal, the DG stated
that the issuance of s 17 notices
would commence by the end of March 2016, after which that project
would ‘probably follow
the trajectory of the Mpumalanga
project’. According to the DG, save for some applications in
the Free State and Limpopo,
which the Department was looking into,
none of the other provinces had any active files on applications by
labour tenants for the
acquisition of land. The DG went on to say
that both he and the Minister were satisfied that sufficient progress
had been made
since the appointment of dedicated staff for the
processing of labour tenant claims, and that considerable resources
had been made
available for the project. So the DG should have no
issue in complying with the order set out below.
[69] The following
order is made:
1
Paragraphs 2-10 of the order of the Land Claims Court (LCC) dated 8
December 2016 are set aside and replaced with the following
order:
‘2. Within 21 calendar days of the date of this order, the
first respondent is ordered to deliver an implementation plan
in
relation to pending labour tenant claims under ss 16, 17 and 18 of
the Land Reform (Labour Tenants) Act 3 of 1996 (the LTA).
The
implementation plan must set out the following:
2.1 The name/s and details of the senior manager/s responsible for
managing the national implementation of the LTA, appointed by
the
first respondent;
2.2 The total number of labour tenant applications lodged to date and
the number which have not yet been processed and finalised,
in each
of the 9 provinces;
2.3 The number of notices issued under s 17 of the LTA and the number
still outstanding.
2.4 The number of applications of which the details have been
published in the Government Gazette in terms of s 17 of the LTA.
2.5 The number of applications that have been referred to mediation,
arbitration or to the LCC.
2.6 An assessment of the skill pool and other infrastructure required
to process labour tenant claims, and to what extent such
skill pool
and infrastructure is available within the Department of Rural
Development and Land Reform (the Department);
2.7 Targets, on a year-to-year basis, for the resolution of pending
labour tenant claims by: (a) agreement, and (b) referral of
claims to
the LCC;
2.8 A determination of the budget necessary during each financial
year for carrying out the implementation plan, including both
the
Department’s operating costs for processing claims and the
amount required to fund awards made pursuant to applications
in terms
of s 16 of the LTA;
2.9 Plans for coordination with the LCC to ensure the rapid
adjudication or arbitration of unresolved claims referred to the
court
in terms of s 18(7) read with ss 19 to 25 of the LTA;
2.10 Any other matter which the first respondent considers relevant
regarding the implementation of labour tenant claims under
the LTA.
3. The applicants shall be entitled to comment on the implementation
plan within 10 calendar days of the date on which it has been
delivered.
4. The LCC shall convene on a date and time to be determined by it,
at which hearing the Court shall:
4.1 consider the implementation plan delivered by the first
respondent;
4.2 approve the implementation plan, with or without amendments, or
otherwise deal with the plan as it may deem fit;
4.3 make such further orders as may be advisable, including orders
relating to the fulfilment of the implementation plan and the
processing of pending labour tenant claims.’
2 Save as aforesaid,
the appeal under case number 306/2017 is dismissed with costs,
including the costs of two counsel.
2 The appeal in case
number 314/2017 is dismissed with costs, including the costs of two
counsel.
___________________
A
Schippers
Judge of
Appeal
Mocumie JA
dissenting:
[70] I have had the
benefit of reading the judgment of Schippers JA (the first judgment).
I agree with him that there are two appeals
before us. The first, by
the Minister of Rural Development and the Director General (the
appointment of a special master) and the
second, by the respondents
in respect of the contempt of court proceedings. I further agree with
his conclusion that the appeal
on the contempt of proceedings should
be dismissed. However, I do not agree with his conclusion that the
appeal on the appointment
of a special master should fail, hence this
judgment.
[71] I also agree
with my colleague for the reasons given by him that the declaratory
order of the Land Claims Court (the LCC) that
the failure of the
Director General (the DG) to process or refer to the court
applications under s 16 of the Land Reform (Labour
Tenants) Act, No 3
of 1996 (the LTA), was inconsistent with ss 10, 25(6), 33, 195 and
237 of the Constitution of the Republic of
South Africa, 1996 (the
Constitution) is unassailable. I need not add anything on this score.
[72] The difference
between his judgment and this one, therefore, lies solely in one
significant area, namely, that concerning the
appointment of a
special master by the LCC and whether such a directive is the best
way for remedying the clear constitutional
infringement established
in the first judgment. In this regard my colleague concludes that it
is not justified for the LCC to have
appointed a special master. The
effect of his order, invalidating the appointment of a special
master, is that the same Department
of Rural Development and Land
Reform (the department) that has failed labour tenants for over
twenty two years should still continue
with the role of developing an
implementation plan on the applications of labour tenants.
[73] My colleague
raises two main points for his order. First, that in an attempt to
remedy this constitutional infringement, the
parties had for over six
months appointed a senior manager of the department to file reports
with the LCC under the Supervision
Order. And they were content with
the senior manager as the officer responsible for compiling and
submitting the reports to the
LCC. Secondly, and equally important,
is his view on the effect of the order of the LCC in which ‘it
directed that a complete
outsider – the special master –
effectively take over the functions and responsibilities of the DG
and officials of
the department in relation to labour tenants
claims.’ In his view, this latter order would have the effect
of putting the
DG in a subordinate position to the special master and
would effectively confer on the special master the authority to
prepare
an implementation plan instead of overseeing it. He thus
concludes that such an order would amount to a takeover of the
functions
and responsibilities of the DG.
[74] I am of the
view that these considerations do not tilt favourably on the scales
to justice and equity. This matter concerns
applications under the
LTA which was enacted in an urgent response to the constitutional
imperative in s 25(6) of the Constitution.
In respect of such an
imperative, Parliament enacted legislation for persons whose tenure
of land was insecure as a result of past
discriminatory laws and
practices. In the environment of such discriminatory laws and in the
wake of legislative instruments enacted
to address the effects of
such discriminatory laws, gross and continuous failure by bodies
charged with the implementation of such
corrective legislative
measures effectively retains the status quo of the applicants in
unjust historical positions. As the facts
demonstrate, an explicit
and continued violation of constitutional obligations continues.
[34]
This goes against the purpose of the enactment. The Preamble to the
LTA states that its purpose is ‘to provide for security
of
tenure of labour tenants . . . to provide for acquisition of land and
rights in land by labour tenants.’ It also records
that ‘it
is desirable to institute measures to assist labour tenants to obtain
security of tenure and ownership of land’.
[75] Delays and
failures to honour constitutional obligations in processing
applications under the LTA, continue to plague the department.
This
cannot be countenanced in this day and era of democracy in South
Africa. In a judgment of the full bench of the LCC, the court
lamented:
‘
Delivery
in terms of finalising these claims [restitution claims] has been and
continues to be painfully slow. The inefficiency
of the commission
and its inability to meet the challenges of finalising what are
highly emotive and emotional land claims have
repeatedly been
bewailed in this court, the Land Claims Court (this court). Twenty
two years ago victims of apartheid legislation
and forced removals
were invited to lodge restitution claims, thereby exercising a
constitutionally enshrined right to redress.
Thousands of communities
and individuals documented their claims to reclaim the soil their
fathers and grandmothers had tilled
and upon which their cattle had
grazed. Just over two decades have passed, and still the commission
has some 7419 claims, including
several large community claims, the
processing of which has yet to be finalised, if not to commence.
Thousands of claimants have
gone to their graves without having seen
the fulfilment of the hope of the Constitution created by the
establishment of the right
of restitution.
The
countless failures on the part of the commission to honour its
constitutional obligations as a result of a combination of
insufficient
funding, delay, procrastination and inefficiency are a
blot on the country’s democratic dispensation and a stark
example
of justice delayed causing justice to be denied…
’
[35]
(Own emphasis.)
[76] As the
Constitutional Court has remarked when dealing with matters under the
LTA, it is important to remember the history of
the LTA and its
promise to end the cruelty and suffering of African people.
[36]
Importantly, in my view, it is necessary to address with pressing
urgency the dispossession of thousands of labour tenants of their
land rights and the precariousness of their never ending situation.
The LTA promised labour tenants rights over the land they have
worked
on for generations and in most cases where they were exploited and
subjected to subjudication by the land owners. The LTA
sought to aid
labour tenants by placing obligations on the DG to manage the
application processes, and resolve disputes between
labour tenants
and landowners. Absent agreements, the DG was to refer the
applications to the LCC for speedy adjudication. The
failure by the
DG is a step back in our democracy. These injustices continue due to
the repeated failure by the DG to address them
decisively.
[77] In this court
the department (the Minister in particular) submitted that he has
appointed additional staff to address the backlog
and fast track the
process. Counsel for the appellants was however constrained to
concede that the department has not filed any
report since 2015 to
update the LCC on any progress made, if any. This, counsel for the
respondents submitted, is a concern which
inconceivably indicates the
inability to deal with the labour tenants’ plight with the
speed it demands. It indicates that
the department is in general
oblivious to the seriousness of this breach of its constitutional
obligation. It further indicates
that the department cannot cope at
all taking into account the complexity of the issues around security
of tenure of land of labour
tenants vis- a-vis rights of owners of
land which requires expertise in the area of land restitution and
reform.
[78] If, as my
colleague correctly concludes, ‘the DG’s failure to
process or refer to the court applications brought
under s 16 of the
LTA was inconsistent with ss 10, 25 (6), 33, 195 and 237 of the
Constitution – and plainly unlawful –
and that the DG by
his own admission, did not carry out his constitutional obligation
and statutory obligations in terms of the
LTA’ given these
serious breaches of constitutional obligations and legislative
mandates, I am of the view that it would
be highly ineffective to
appoint another functionary (including a senior manager) in the same
department. Taking into account that
it is the same department that
has persistently failed to compile a substantive plan for the
implementation of the application
in terms of the LTA.
[37]
This latter point is apparent from the admission by the DG that ‘the
present process of collecting outstanding information
for the
referral of Chapter III applications, may take anything between 12 to
24 months,
depending on the budget allocations that can be
procured for the project
…’ Kwazulu-Natal and
Mpumalanga applications were labeled as successful were evidently
based on inaccurate information
and had to be commenced afresh.
[79] In my
colleague’s judgment, he relies on a great deal of foreign
jurisprudence to show the inappropriateness of the appointment
of a
special master. Without belabouring the point, such exercise is not
necessary because the social circumstances, historical
reality of
labour tenants, scope of powers of the LCC, specificity of our
judicial methods to interpret transforming legislations
and our
courts’ ever available oversight powers would shape the
institution of a special master in a way that makes it compatible,
specific and appropriate this context [I do not understand what is
meant by this sentence. Please revise.].
[38]
Thus this court need not even engage in the debate on the appointment
of the special master in South Africa in general. Nor is
a comparison
with other jurisdictions necessary. That exercise was for that matter
embarked upon in earlier judgments including
Meadow Glen Home
Owners Association and Others v Tshwane City Metropolitan
Municipality and Another
[39]
where this court (?) indicated an unequivocal acceptance of such
institution and similar institutions in appropriate circumstances.
It
follows therefore that, the appointment of a special master – a
neutral and independent expert in the area of land restitution
and
reform agreed upon by all parties cannot be regarded as a foreign
institution that needs to be frowned upon and rejected in
these
circumstances.
[80] The question
therefore that this court actually has to answer is whether the
appellants have made out a case that justifies
interfering with the
LCC’s true discretion to grant appropriate remedies and to
regulate its own process.
[81] In
Florence
v Government of the Republic of South Africa
[40]
the Constitutional Court explained:
‘
Where
a court is granted wide decision-making powers with a number of
options or variables, an appellate court may not interfere
unless it
is clear that the choice the court has preferred is at odds with the
law. If the impugned decision lies within a range
of permissible
decisions, an appeal court may not interfere.’
[82] This Court, in
Minister of Rural Development and Land Reform and another v
Phillips,
[41]
endorsed and applied the findings as follows:
‘
...the
power of an appellate court to interfere with the exercise of
discretion by a land claims court is not without restraint
but is
limited by whether the discretion invested in that court had not been
judicially exercised or had been influenced by wrong
principles or a
misdirection of the facts or was one that could not reasonably have
been made.’
[83] In
King
Sabata Dalindyebo Municipality and Others v Kwalindile Community and
Others
[42]
,
in the course of an appeal from the LCC, this court said:
‘
On
appeal, the appellate tribunal is obliged to accord deference to the
findings of the lower court, more especially where the latter
court
is a specialist court called upon to make value judgments.’
[84] Having said
that, when one reads the judgment of the LCC, as a court that is
primarily responsible for adjudicating and implementing
the LTA and
which possesses far better expertise and experience in such matters,
it is clear that it understood its powers and
responsibility very
well when it considered this matter. It granted several postponements
to accommodate the department when it
had not filed reports at all or
on time. It even granted the Minister a postponement when it ought
not to have done so –
to give him the opportunity to reflect on
his position and that of his department on how to expedite the
process. In the order
to appoint a special master, it took into
account the history of the LTA and its objective. It was conscious
that after a year
and a half during which time the parties and the
LCC had tried ordinary court supervision which had failed, there was
a need for
‘effective relief … for the many thousands of
vulnerable labour tenants… [as] the department has thus far
experienced
grave difficulties in providing this…The size and
complexity of the task alone supports the appointment of a special
master
to inter alia assist this court to meaningfully monitor
implementation…’.
[85] It is further
clear that it was very sensitive to the radical implication of its
order and was also cognisant of its judicial
scope and power to make
an order which suited the prevailing circumstances and history of the
matter. Applications under the LTA
are no trivial matters to be dealt
with by those with no expertise in the area of restitution and reform
of land. It is impermissible
to replace the decision of a specialised
court without any compelling or extraordinary motivation to do so. It
is not for this
court to interfere in the functions of a specialised
court simply because it is of the view that it could have come to a
different
conclusion and therefore replace the decision of the
specialised court with its own – an exercise which amounts to a
preference
of strategy rather than whether the specialised court is
right or wrong as a matter of principle in the exercise of its true
discretion.
[86] I differ with
the view that my colleague holds when he says that the LCC did not
even hold an inquiry into the correctness
of the reports before it
prior to appointing a special master. There is sufficient and
unrefuted evidence on record that show that
the LCC came to the
correct conclusion on the appointment of a special master. The
department had not even processed applications
in all the provinces
including affected provinces such as the Northern Cape and the Free
State. KwaZulu-Natal and Mpumalanga, which
were flagships of the
department, were assessed on inaccurate information and thus had to
be started afresh. More profoundly, this
was never the case of the
department on the papers or in this court. An enquiry into whether
the appointment of a new staff component
was within the budget
provided, as the Minister contended, would not have made any
difference. If the Minister wanted to make that
case or argument,
surely he would have done so. Logic dictates that any inquiry (after
repeated futile postponements) would for
certain have caused further
delays and would result in unfairness and prejudice to the
respondents than on the department.
[87] Twenty two
years is more than enough time for labour tenants to wait for another
twelve to twenty four months which the DG
states it will take just to
collate information – without any certainty or guarantees –
but tentative estimates –
with no reference to any strategic
plan which will guide him and his department. A year and a half has
gone by under the supervision
of the LCC without results. The LCC in
its prerogative deemed it fit not to go another day further without
putting in more stringent
measures in place to ensure that the
department does comply with its constitutional obligation. This is an
injustice and begs a
court’s most radical relief to ensure
constitutional compliance based on a strategic plan with the highest
likelihood of
ensuring that the process does get under way and is
finalised without any foreseeable delays. The rights at stake are of
a class
of litigants who have waited for more than twenty two years
for the department to process their applications. The matter is of
high importance and urgent.
[43]
If the LCC opined that it was the right moment to ‘tighten the
screws’ so to speak, to ensure that labour tenants are
attended
to decisively; that finding should not be second-guessed by any other
court.
[88] The LCC
explained in precise language why it deemed such appointment
necessary. It highlighted the problems it encountered
through the
department’s slow progress, and its failure to report to it
within the time frames agreed upon. It explained
the role the special
master will play to ameliorate its own oversight responsibility. This
court owes particular respect to the
LCC’s determination of
what is best for its own processes. That is why, in
South African
Broadcasting Corporation Limited v National Director of Public
Prosecutions and others
[44]
,
the Constitutional Court refused to interfere with a decision of this
court not to permit the filming of an argument before it.
The
Constitutional Court held:
‘
Even
if this court might well have come to a different decision, no basis
has been established for intervening in the exercise by
the Supreme
Court of Appeal of its discretion to regulate its own process and to
ensure that the arrangements within its own court
room do not
interfere with the administration of justice.’
[89] From a proper
reading of the judgment of the LCC, it is clear that it exercised its
true discretion
[45]
bestowed upon it as a specialist court to employ extraordinary
measures where and if necessary to carry out its responsibility.
The
fact that the respondents had gone along with the appointment of a
senior manager during the interim arrangements in terms
of the
supervision order cannot be used to justify interference with its
powers by this court. This can also never be equated to
judicial
overreach. The doctrine of separation of powers is an important one
in our democracy, but it cannot be used to avoid the
obligation of a
court to provide appropriate relief that is just and equitable.
[46]
If there has been any hesitation on the appointment of a special
master for various reasons in the past, the flouting of
constitutional
obligations in this matter demands the appointment of
a special master. Authorities abound in South Africa on how this will
work
out in reality.
[90] The LCC has set
out a clear process which all parties will participate in equally.
The Minister’s objection to the appointment
of a special master
is incongruent with its constitutional obligation towards the labour
tenants. I strongly hold the view that
the appointment of a special
master will not relegate the Minister or the DG’s powers to a
level below anyone’s at
all. In actual fact, the Minister will
now have the opportunity that he or she wanted as an alternative to
the appointment of a
special master ‘to personally take
responsibility in overseeing that the process is a success’
which his department
has failed to deliver in the past twenty two
years. This will also strengthen his or her case when he or she
approaches Parliament
on a clearly articulated implementation plan
and an estimated budget developed by an expert in restitution and
reform matters to
deal with all applications, old and new; within
reasonable time frames.
[91] What the LCC
has done by appointing a special master in these circumstances cannot
qualify as a ‘demonstrable blunder’
which justifies
interference by this court. It had the power in terms of s 38 of the
Constitution to grant ‘any order that
is just and equitable.
‘In addition it had the power in terms of s 22 (4) (
g
)
of the LTA to make any order regarding any matter ‘which in the
opinion of …the court, needs to be regulated by an
order …of
the court’. Section 22 (5) requires the LCC to consider:
‘
(a) the desirability of assisting labour tenants
to establish themselves on farms on a viable and sustainable basis;
(b) the achievement of the goals of this Act;
(c) the requirements of equity and justice.’
[92] I am
undoubtedly led to conclude that the LCC acted within its powers to
appoint a special master to assist it. I hold the
view that without
intervention such as taken by the LCC– the labour tenants would
be back before it and this court in the
next ten years still seeking
the same relief they sought in the first instance: access to land and
security of land tenure decades!
[93] In sum, it is
important to appreciate what the LCC has ordered in clear and
distinct phases:
1. The preparatory
phase
The
appointment of a special master who will be solely responsible for
the preparation of the implementation plan in collaboration
with the
DG and the department. He or she will submit the implementation plan
to the LCC only after the Minister and the DG would
have had sight of
it, made comments, submissions; raised objections and proposed
alternatives where necessary. It is the LCC which
will ultimately
approve the plan based on submissions by all the parties.
2. The execution
phase
The
order does not at this stage delineate the specific roles or powers
of the special master in the execution phase. The LCC will
grant
further orders relating to the fulfilment of the implementation plan
and processing of labour tenants claims. It may even
discontinue the
use of a special master if all systems go well with full and diligent
co-operation of all parties; particularly
the department.
In
this fashion, the LCC will be able to carry out its responsibility:
supervise the s 17 process in a structured and effective
environment
and bring confidence into the whole process - restore the legitimacy
of the department which has been seriously eroded
over the twenty two
years of its failure to comply with its constitutional obligations.
[94] On the issue of
costs, as both parties were successful and for the conclusion that I
reached, I would have ordinarily ordered
that each party pay its own
costs. However, as indicated earlier in this judgment, the
respondents are men and women of straw,
fighting for their
constitutional rights to be respected, promoted and upheld by a
government department that has failed them for
decades. It is a
constitutional matter that had to be brought before the courts to
pronounce upon it decisively. The respondents
did not drag the
department to court unnecessarily. When the Minister pursued a
process outside that established by the LCC, between
the respondents
and the department, they believed that he had done so to deliberately
frustrate what was seemingly a genuine process
set up by a
constitutionally ordained institution, the LCC. Even if the
respondents could not prove any malice on the part of the
Minister in
respect of the contempt of court proceedings, as this court holds;
nonetheless, the process that was set to resolve
the dispute
effectively, was derailed and forced the respondents to go to court.
For that reason, I would order that the department
pay the costs of
this appeal.
[94] In the result,
I would agree with my colleague that the appeal in respect of the
contempt of court proceedings be dismissed.
But I would agree with
the LCC in respect of the appointment of the special master.
Therefore, I would order that the appeal (of
the department) in
respect of the appointment of the special master, is dismissed. The
department to pay the costs of this appeal.
________________
C
Mocumie
Judge of
Appeal
Willis JA:
[95] I have had the
benefit of reading the judgments, the first of which had been
prepared by my brother Schippers JA and, thereafter,
the response
thereto by my sister Mocumie JA. I share the deep concerns of Mocumie
JA and the LCC about the apparent ineptitude
of the Department of
Rural Development and Land Reform in fulfilling its mandate in this
matter.
[96] This
notwithstanding, I agree with the reasoning and order of Schippers
JA. The fundamental reason for my doing so is that
I consider the
appointment of a special master in these circumstances to be a case
of judicial overreach. I am mindful of the fact
that pedantry on the
part of the courts when it comes to the delicate issue of defining
the appropriate parameters of power for
the pillars of State must be
avoided: the judiciary has a duty to ensure that all three of these
pillars defer to the Constitution.
[97] No matter how
much the courts may wish to advance the cause of social progress,
especially, when it comes to the fulfilment
of constitutional
objectives, they must nevertheless be careful not to impose massive,
potentially crippling, financial burdens
on the agencies of the
State, in circumstances where these financial burdens have not been
duly approved, consequent upon a request
by the representatives of
the electorate. The special master will need to be paid. He or she
will need sturdy motor vehicles, replaced
from time to time, to
perform the task, computers, offices, staff and so on. All this will
cost a lot of money. How much is appropriate
for each item and in
aggregate? All of this needs executive decision-making mandated by
the electorate. What if the special master
commits the State to huge
unforeseen expenditure for which there has been no vote in
Parliament? The constitutional implications
of these questions,
including most especially the ‘outsourcing’ of the
functions of the executive and removing them
from the vote of the
legislature are staggering. All these points have been made in fine
judgment of Schippers JA. I repeat them
to underline their massive
importance.
[98] Above all, in a
constitutional democracy the courts are there to provide a shield
much more than a sword. In a constitutional
democracy, the generally
appropriate remedy for those dissatisfied with the performance of the
government is to vote it out of
office. Of course, there may be
exceptions when it is appropriate for a court to intervene with
directives touching upon the powers
of the executive and even the
legislature. The record of the Constitutional Court is impressively
replete with examples. Especial
restraint is, however, imperative
when, as here, the courts are called upon to do battle with a
potentially hugely expensive sword
rather than a shield.
_____________
N P
Willis
Judge of
Appeal
APPEARANCES
For Appellants in
case no. 306/17 & Respondents in case no. 314/17:
V S Notshe SC
L Rakgwale
M Kgariya
Instructed by:
State Attorney,
Pretoria and Bloemfontein
For the Respondents
in case no. 306/17 & Appellants in case no. 314/17:
A Dodson SC
M Bishop
S Kazee
Instructed by:
Legal Resources
Centre, Durban
c/o Matsepes Inc,
Bloemfontein
[1]
Section 6(2) of PAJA reads:
‘A court or tribunal has the power to judicially review and
administrative action if-
. . .
(f) the action itself-
(i) contravenes a law or is not authorised by the empowering
provision;
. . .
(g) the action concerned consists of a failure to take a decision .
. .’
[2]
My Vote Counts NPC v Speaker of the National Assembly & others
[2015] ZACC 31
;
2016 (1) SA 132
(CC) para 52.
[3]
My Vote Counts fn 2 para 53.
[4]
Khumalo & another v Member of the Executive Council for
Education, KwaZulu - Natal
2014 (5) SA 579
(CC);
[2013] ZACC 49
para
46.
[5]
Fose v Minister of Safety and Security 1997 (3) SA 786; [1997] ZACC
6.
[6]
Meadow Glen Home Owners Association & others v City of Tshwane
Metropolitan Municipality & another 2015 (2) SA 413 (SCA);
[2014] ZASCA 209.
[7]
W D Brazil ‘Special Masters in Complex Cases: Extending the
Judiciary or Reshaping Adjudication’ (1986) 53 U. Chi.
L. Rev.
at 394, footnotes omitted.
[8]
Brazil fn 7.
[9]
S Schneidlin ‘We need Help: The Increasing Use of Special
Masters in Federal Court’ (2009) 58 DePaul L. Rev. at 479.
[10]
Schneidlin fn 9 at 481.
[11]
Margaret G Farrell ‘The Function and Legitimacy of Special
Masters’ (1997) 2 Widener L. Symp. J. 235 at 247-248.
[12]
Footnotes omitted.
[13]
Bernstein & others v Bester NO & others
1996 (2) SA 751
(CC);
[1996] ZACC 2
para 133.
[14]
Minister of Justice and Correctional Services & others v Estate
Stransham-Ford
2017 (3) SA 152
(SCA); [2016] ZASCA 197 para 58.
[15]
Mlifi v Klingenberg
1999 (2) SA 674
(LCC) para 107.
[16]
Fose fn 5.
[17]
Meadow-Glen fn 6.
[18]
Fose fn 5 paras 19 and 69.
[19]
Emphasis added.
[20]
Economic Freedom Fighters & others v Speaker of the National
Assembly & another
2018 (2) SA 571
(CC);
[2017] ZACC 47
para
223, per Mogoeng CJ.
[21]
Section 38(1)
of the
Superior Courts Act provides
:
‘1) The Constitutional Court and, in any civil proceedings,
any Division may, with the consent of the parties, refer—
(a) any matter which requires extensive examination of documents or
a scientific, technical or local investigation which in the
opinion
of the court cannot be conveniently conducted by it; or
(b) any matter which relates wholly or in part to accounts; or
(c) any other matter arising in such proceedings,
for enquiry and report to a referee appointed by the parties, and
the court may adopt the report of any such referee, either
wholly or
in part, and either with or without modifications, or may remit such
report for further enquiry or report or consideration
by such
referee, or make such other order in regard thereto as may be
necessary or desirable’
[22]
Section 28C of the Restitution Act reads:
‘Reference of particular matters for investigation by referee
(1) In any proceedings the Court may, with the consent of the
parties refer–
(a) any matter which requires extensive examination of documents or
scientific, technical or local investigation which cannot
be
conveniently conducted by the Court;
(b) any matter which relate solely or in part to accounts; or
(c) any matter arising in such proceedings,
for enquiry and report to a referee, and the court may, after
hearing such evidence or argument as may be adduced or presented
by
the parties–
(i)
adopt the report of any such referee, either wholly or in part, and
either with or without modifications;
(ii)
remit such report for further enquiry or report or consideration by
such a referee; or
(iii)
make any order in regard thereto.’
[23]
Section 38(1)(c)
of the
Superior Courts Act; s
28C(1)(c) of the
Restitution Act.
[24]
Black Sash Trust v Minister of Social Development & Others
2017
(3) SA 335
(CC);
[2017] ZACC 8.
[25]
Black Sash fn 24 para 76, emphasis added.
[26]
Pheko & others v Ekurhuleni City
2015 (5) SA 600
(CC);
[2015]
ZACC 10
para 1.
[27]
Fakie NO v CCII Systems (Pty) Ltd
2006 (4) SA 326
(SCA);
[2006]
ZASCA 52
para 12; Pheko fn 26 para 32.
[28]
Fakie fn 27 paras 19, 41 and 42(e).
[29]
Pheko fn 26 para 37.
[30]
Matjhabeng Local Municipality v Eskom Holdings Ltd & others
2018
(1) SA 1
(CC) para 67.
[31]
Pheko fn 26 para 42.
[32]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634H-635C; Fakie fn 27 para 55.
[33]
Fakie fn 27 para 56.
[34]
In her dissent in Minister of Home Affairs and Another v Fourie and
Another
[2003] ZACC 11
;
2003 (5) SA 301
(CC);
2003 (10) BCLR 1092
(CC), former Justice of the Constitutional Court O’Regan J
made the point that in instances of explicit violation of
constitutional obligations, the court ought to courageously exercise
their broad discretion to impose an order that provides applicants
who are historical victims of unjust laws with effective relief that
both remedied the injustice of their situation while not
interfering
with the functions of the body charged with rectifying and
regulating the interests in question. In her response
to the
Majority judgment that ordered that Parliament be indulged with a
period of a further 12 months to rectify a constitutional
infringement, she opined that relief granted by the court,
rectifying the established constitutional violation would not affect
Parliament's regulatory powers nor the choices on how to do so in
order to treat all marriages equally.
[35]
In re Amaqamu Community Claim (Land Access Movement South Africa and
Others as Amicus Curiae) 2017(3) SA 409 (LCC). See also
Land Access
Movement of South Africa and others v Chairperson of the National
Council of Provinces and others [2016] ZACC 22;
2016 (5) SA 635
(CC).
[36]
Government of the Republic of South Africa and Others v Grootboom
and Others
[2000] ZACC 19
;
2001 (1) SA 46
;
2000 (11) BCLR 1169
at
para 25.
[37]
This is evident from the parlous and poor state of the reports that
the department filed before the LCC. Not only did such indefensible
records reflect inaccurate data, they also did not refer to other
provinces which are well known to have filed applications as
well;
provinces such as the Northern Cape and the Free State to quote just
a few.
[38]
Black Sash Trust v Minister of Social Development and Others
(Freedom Under Law NPC Intervening)
[2017] ZACC 8
;
2017 (5) BCLR 543
(CC);
2017 (3) SA 335
(CC) and Meadow Glen Homeowners Association
and Others v City of Tshwane Metropolitan Municipality and Another
(767/2013) [2014]
ZASCA 209; [2015] 1 All SA 299 (SCA); 2015 (2) SA
413 (SCA).
[39]
Meadow Glen Home Owners Association and Others v Tshwane City
Metropolitan Municipality and Another
2015 (2) SA 413
(SCA);
[2014]
ZASCA 2019
;
2015 (1) ALL SA 299
(SCA) at para 35.
[40]
Florence v Government of the Republic of South Africa (CCT 127/13)
[2014] ZACC 22; 2014 (6) SA 456 (CC); 2014 (10) BCLR 1137
(CC).
[41]
Minister of Rural Development and Land Reform and another v Phillips
[2017] ZASCA 1
;
[2017] 2 All SA 33
SCA para 33.
[42]
King Sabata Dalindyebo Municipality and Others v Kwalindile
Community and Others
[2012] ZASCA 96
; [2012]3 All SA 479 (SCA) para
67.
[43]
The LTA came into effect on 22 March 1996 and all applications had
to be lodged by 31 March 2001 in terms of s 16(1).
[44]
South African Broadcasting Corporation Limited v National Director
of Public Prosecutions and Others
[2006] ZACC 15
;
2007 (1) SA 523
(CC) para 67.See
further Van Breda v Media 24 Ltd [2017] ZSCA 97;
[2017] 3 All SA 622
SCA para 34.
[45]
In Trencon Construction (Pty) Ltd v Industrial Development
Corporation of South Africa Ltd
[2015] ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC) (Trencon) at para 85: “A
discretion in the true sense is found where the lower court has a
wide range of equally permissible
options available to it. This type
of discretion has been found by this Court in many instances,
including matters of costs,
damages and in the award of a remedy in
terms of section 35 of the Restitution of Land Rights Act. It is
“true” in
that the lower court has an election of which
option it will apply and any option can never be said to be wrong as
each is entirely
permissible”.
[46]
Minister of Home Affairs and Another v Fourie and another (CCT
60/04)
[2005] ZACC 19
; 2006 (3) BCLR 355 (CC)
[2005] ZACC 19
; ;
2006 (1) SA 524
(CC).