Mwelase v DG: Department of Rural Development and Land Reform

Land reform considered and the Land Claims Court directed itself properly and scrupulously to the facts before it which showed failing institutional functionality of an extensive and sustained degree that cried out for remedy and the appointment of a special master.  “In understanding the Land Claims Court’s exercise of its discretionary powers, it is important that it identified the fundamental issues as institutional, not personal”.

“A remedy of the kind the Land Claims Court granted was designed to fix persistent institutional failings that repeatedly resulted in non-compliance with court orders. It was directed to systemic functioning – rather than to any individuals’ attitudes or defaults. This diminishes any personal sting the remedy may seem to imply. Instead, it recognises our joint responsibility, as a country, for sustaining and growing and strengthening our institutions. And it acknowledges our judicial complicity in institutional and systemic dysfunction that impedes our attainment of shared constitutional goals and aspirations.” [para 70]

 

Essence

Land reform considered and Land Claims Court properly exercised a discretion when appointing a special master to resolve systemic malfunctions in resolving claims.

Decision

(CCT 232/18) [2019] ZACC 30 (20 August 2019)

On appeal from the order of the Supreme Court Appeal (hearing an appeal from the Land Claims Court):

1. Leave to appeal is granted.
2. The appeal in the main application succeeds and the order the Supreme Court of Appeal granted is set aside.
3. In its place there is substituted:
“The appeal is dismissed with costs”.
4. The respondents are to pay the costs in this Court, including costs of two counsel.
5. The order granted by the Supreme Court of Appeal on the contempt application is set aside.
6. In its place there is substituted:
“The appeal is dismissed with no order as to costs”.
7. The appeal in this Court against the dismissal of the contempt application is dismissed with no order as to costs

Judges

Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J

Judgments: Cameron J (majority): [1] to [80] : Jafta J (partial dissent): [81] to [113]

Heard on: 23 May 2019: Decided on: 20 August 2019

Related books

Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at  637

Reasons

“In my view, the Land Claims Court directed itself properly and scrupulously to the facts before it. These showed failing institutional functionality of an extensive and sustained degree. That cried out for remedy. In understanding the Land Claims Court’s exercise of its discretionary powers, it is important that it identified the fundamental issues as institutional, not personal. The fate of the applicants’ contempt application made the same point, in a different way – this was not about personal obduracy, but about impairment in departmental function. The Land Claims Court’s order was directed at remedying institutional dysfunction and other blockages that imperil rights at a systemic level.” [para 69]

Court summary

Land Reform (Labour Tenants) Act 3 of 1996 — appointment of a special master by Land Claims Court — separation of powers — not overreach of judicial power — contempt of court by Minister — not proven on facts

Quotations from judgment

Note: Footnotes omitted and emphasis added

CAMERON J (Froneman J, Khampepe J, Madlanga J, Mhlantla J, Nicholls AJ and Theron J concurring):

Introduction

[1] Earlier this year, in a case about Parliament’s constitutional duties, this Court stressed that land and dignity were fundamental to realising other constitutional rights. Land reform could be “a catalyst for structural change in our society”, the judgment noted. But delays in processing land claims have debilitated land reform. Expeditious land restitution could, the Court said,

“contribute to a wider, more striking consciousness that centres on the constitutional values of equality and dignity, and gives rise to ideals of social justice, identity, the stimulation of economic activity, the promotion of gender equality and a contribution towards the development of rural livelihoods”.

[2] Each of these urgent words are apposite to this case – not, this time, for lawmakers, but for our country’s administrators – the bureaucrats and officials who are responsible for putting into effect the land reform programme. At issue are not only the lives and wellbeing of those claiming the betterment of their lives as labour tenants. At issue is the entire project of land reform and restitution that our country promised to fulfil when first the interim Constitution came into effect, in 1994, and after it the Constitution, in 1997.

[3] The main question for decision is whether an order the Land Claims Court granted constitutes “a textbook case of judicial overreach”.

It arises because the Land Claims Court appointed a special master of labour tenants (special master) to help the Department of Rural Development and Land Reform, first respondent, (Department) process labour tenants’ land claims. The Department and the Minister of Rural Development and Land Reform, second respondent, (Minister) objected.

The Supreme Court of Appeal upheld their objections. By a majority, it overturned the Land Claims Court’s order. It considered the Land Claims Court had overreached its judicial role under the Constitution.

The applicants, who are, or represent, labour tenants, ask this Court to reinstate the Land Claims Court order. At issue is the extent of the Land Claims Court’s power to fashion and implement remedies to secure practical justice for claimants who, 25 years into our democracy, still have no secure tenure – even though a statute promised them this more than 20 years ago.

[4] A connected but secondary issue is whether the Minister committed contempt of court in relation to an order the Land Claims Court granted during the litigation.

Background – the promise and the snag

[5] Labour tenancy has deep roots in our land’s pernicious racial past. A labour tenant provides labour on a farm in exchange for the right to live there and work a portion of the farm for his or her own benefit. It is a precarious state, subject to the will of the land-owner. Historically it has been the more tenuous in South Africa because patterns of racial subordination and exclusion meant that labour tenants were overwhelmingly black, and the landowners on whose favour they depended were overwhelmingly white.

[6] The statute at issue here, the Land Reform (Labour Tenants) Act (Labour Tenants Act) was intended to change this. It came into effect on 22 March 1996. It was momentous legislation for a country newly freed from formal apartheid. Adopted while the interim Constitution was in force, it was part of an interlocking set of four statutes. All were designed to fulfil the overall constitutional promise of restitution to those deprived of rights in land by racial subordination.

  • The flagship was the Restitution of Land Rights Act of 1994 (Restitution Act).
  • Later came the Extension of Security of Tenure Act of 1997 (ESTA) and
  • the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998.

[7] The Labour Tenants Act was the second of the four enactments. It promised security of tenure to labour tenants as defined. This was in fulfilment of the specific constitutional undertaking, later spelled out expressly in the Bill of Rights, that those with legally insecure land tenure resulting from past racism were entitled to statutorily conferred security of tenure or to comparable redress.

[8] The statute’s main objective was to fortify the status of labour tenants, which was precarious. This it did by conferring as a right what had previously been a tenuous permission. And it did so by stating in vividly simple terms that “a person who was a labour tenant on 2 June 1995 shall have the right with his or her family members to occupy and use that part of the farm”.

In tandem, the statute curbed landowners’ longstanding power to evict labour tenants without reason or notice, while affording labour tenants both substantive and procedural anti-eviction protections.

[9] There was yet more gold lying at the heart of the Labour Tenants Act. This was Chapter 3. While Chapter 2 promised greater security of tenure, it was Chapter 3 that gave an even more dramatic right. This was the right to acquire ownership of the very land that labour tenants had used and occupied.

[10] But there was a snag. It is the snag with which this case is concerned. The right to acquire land could be realised only through the detailed mechanisms set out in the Chapter – and these depended, critically, on efficient departmental action and processes.

The statute enabled a labour tenant to apply for specified property rights. An application process then ensued, in which both labour tenants and the Department had to take practical steps to realise the promise of ownership.

[11] The critical first step was that labour tenants had to lodge an application before 31 March 2001 with what was then the Department of Land Affairs (later renamed as the Department of Rural Development and Land Reform) for an order conferring on them ownership of the portion of land that they were occupying and using for cropping and grazing.

The statute requires the Department to expedite the process after a labour tenant has lodged a claim. The Department must notify the landowner that the application has been lodged. Then it must publish notice of the application in the Government Gazette. If the claim is opposed and the parties cannot settle, even after mediation has been tried, the Department must refer the claim to the Land Claims Court.

If the Department fails to do this, there is an irreversible hold-up: the claim becomes inextricably snagged. As the Land Claims Court observed, unless the Department acts to refer the claim, “the noble goals” of the Constitution and of the statute “will not come to pass”. (The statute also imposes pivotal responsibilities on the Minister; which are not in issue here).

[12] All this entailed a colossal statutory promise, of life-changing importance to especially vulnerable people. In expectant response, thousands upon thousands of labour tenants timeously lodged claims with the Department.

But then . . . nothing seemed to happen. Or almost nothing: what the fifth applicant, the Association For Rural Advancement (AFRA), called “administrative lethargy” ensued. And prevailed. The applicants presented indisputable evidence that the majority of labour tenant applications have simply not been processed.

[13] The applicants form part of this group. They, or those they represent, all occupy land on the Hilton College Estate in KwaZulu-Natal. They [sic] represented by the Hiltonian Society, the third respondent in the Land Claims Court.

Their claims are representative of many thousands more. The first applicant, Mr Bhekindlela Mwelase, a labour tenant residing on Hilton, was born in 1931. He was 82 when these proceedings were launched in 2013. The applicants’ written argument informed us that he died, six months before the hearing, on 7 November 2018.

The second applicant is Ms Jabu Agness Mwelase N.O., cited as representative of the estate of the late Mr Xhegwana Mwelase (the first deceased), who died on 21 September 2005.

The third applicant is Mr Mndeni Sikhakhane, while the fourth applicant is Ms Bazibile Gretta Mngoma N.O., cited as representative of the estate of the late Mr Ndoda Mngoma (the second deceased), who died on 27 August 2007.

[14] AFRA is a non-governmental organisation founded in 1979. For the past four decades it has promoted land rights and agrarian reform with the object of redressing past injustices and improving quality of life and livelihoods of rural impoverished people. The work AFRA has done, primarily in KwaZulu-Natal, but also elsewhere, has been signal in sustaining the hopes and claims of many thousands of labour tenants and other land claimants.

[15] In June 2000, before the cut-off date, the individual applicants lodged claims under the statute to acquire the land they occupy. The Hiltonian Society opposes their claim, but, 19 years later, that is still not the point.

The point is that the claims were not referred to the Land Claims Court. Despite repeated written requests, the Department failed to refer the applications. Until the applicants instituted these proceedings, the Department even failed to explain why it had failed in this. The death of two of the applicants, after timeously lodging their claims, expecting and hoping for what the statute promised them, paints a poignant picture of the story before us.

Land Claims Court proceedings

[16] In July 2013, the applicants turned to the Land Claims Court for help. The four individual claimants presented the impenetrable frustrations of their own claims as emblematic of the way the Department’s inefficiency and ineptitude had thwarted the dreams of many thousands. They explained how they repeatedly asked the Department to refer their claims to the Land Claims Court. They recounted how it repeatedly failed. The Department was eventually constrained to do so after this litigation was initiated. The further processing of their claims, and the Hiltonian Society’s defence to them, is now knitted into the larger relief the applicants seek.

[17] More generally, all five applicants sought a detailed order granting structural relief. This was designed to ensure that the Department, at last, implemented the statute. The order required the Department to supply details of all applications filed that had not been settled or referred to the Land Claims Court.

[18] In response, the Department admitted that labour tenant applications had not been proactively managed for a number of years. The Department’s report of August 2016 later indicated the scale of the problem – nearly 11 000 labour tenant applications remained unsettled. In terms of sheer bureaucratic overload, this was a staggering figure.

[19] The Department had nevertheless initially contended that it was not required to process all labour tenant claims (the then-Director-General initially asserted that “it would be wasteful to pursue labour tenant claims proactively at this stage”). This was because labour tenants would ostensibly be better off if their claims did not proceed through the Labour Tenants Act.

For instance, the Department said the labour tenants would be better off lodging restitution claims or being helped under other land reform programmes. Yet even on the Department’s own version, this left over 10 000 labour tenants in limbo.

[20] The Department in effect conceded its statutory duties under the statute – but suggested that it knew better than the Legislature. Its depositions before the Land Claims Court indicate it considered it was better placed to know what labour tenants needed, and to decide what they would get. And this was not to fulfil the statute’s promises – but something else, which the Department would determine.

[21] When the matter came before the Land Claims Court on 19 September 2014, statistics on outstanding labour tenant claims had not been provided. The parties then agreed to an order that required the Department to update the Land Claims Court on progress in collating data, settling claims and referring unsettled claims by 31 March 2015.

Despite this order, the Department repeatedly failed to provide these details. In April 2015, the Department estimated that it would need two more years just to capture the details of thousands of applications still outstanding. This suggested that the Department was itself unable to determine how big a problem confronted it. Even after the Department’s records were revealed as non-existent or shambolic, it continued to proffer repeated undertakings to comply with the Land Claims Court orders – but continued repeatedly to breach them.

[22] The Department’s persisting failure to provide hard information, with its admission that processing labour tenant claims had been neglected, and, in effect, that they remained in a chaotic state, prompted the applicants to change tack. They asked the Land Claims Court to intervene more radically.

They sought an order appointing a special master to intervene directly in the Department’s bureaucratic processes, so as to help it to do the job the statute entrusted to it. The applicants contended that court supervision alone had failed. Instead, a special master would assist everyone – the Land Claims Court, the Department, and the applicants – to work together to ensure the implementation of the statute.

[23] Despite the applicants’ harder-line approach, they concluded yet another agreement with the Department. In the shadow of the order they now sought, for a special master, they did a deal that fell short of it. On 9 June 2015, the Department acceded to a series of detailed orders that required it to file regular reports with the Land Claims Court. These were supposed to update the Court on the Department’s progress in collating data, settling claims and referring unsettled claims to the Land Claims Court. Regular reports, including an implementation plan the Department would itself formulate and lay before the Court, would enable the Land Claims Court to evaluate the Department’s targets, assess progress, and tweak the plan as necessary.

[24] The Land Claims Court arduously supervised the process. But things did not go well. Direct court supervision, too, failed. The Department failed to file reports on time. It failed to comply with its own Implementation Plan. And, when the applicants made worried inquiries about the deficient reports the Department filed, it did not respond. In addition, aspects of the plan were not complied with. Interim reports also failed to adequately comply with the Land Claims Court’s order.

[25] The applicants now renewed their prayer for a special master – but, yet again, they agreed to a deal with the Department. The resultant agreement, which the Land Claims Court endorsed in May 2016, aimed to nurture good faith negotiation between the parties toward a Memorandum of Understanding. The parties would establish a national forum of non-governmental organisations to work with the Department to implement the statute.

[26] Unfortunately, far from fostering co-operation, this agreement fell apart – the very breakdown that culminated in the Land Claims Court and Supreme Court of Appeal judgments at issue now. This includes the applicants’ contempt proceedings against the Minister. For, in a judgment delivered on 8 December 2016, the Land Claims Court endorsed the applicants’ plea. It granted an order appointing a special master.

[27] The Land Claims Court reasoned that the special master squared with the provisions of the Restitution Act that empower the Land Claims Court to conduct proceedings on an informal or inquisitorial basis. Nearly 11 000 applications remained to be settled. If each took only one day to process, the load would take about 24 years for the Department to surmount, including work on weekends – and, without weekend work, 40 years.

A special master, the Land Claims Court concluded, 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 Land Claims Court and to significantly ameliorate the disadvantage of having too few judges at the Court.

[28] The Land Claims Court in essence concluded that the Department had failed to understand its own role in processing labour tenant applications. Many thousands of vulnerable labour tenant applicants were entitled to effective relief – which the Department had failed to provide and would face grave difficulties in providing. If a special master working with the Department could achieve what the Department on its own had not, the appointment was “more than justified”.

[29] However, in the separate contempt proceeding the Land Claims Court concluded that the Minister was not in contempt of court in not obeying the orders it had issued because he interpreted the order in a particular way and acted in accordance with that interpretation. It dismissed their application, without ordering the applicants to pay costs.

Supreme Court of Appeal

[30] The Department and the Minister appealed against the order appointing a special master, while the applicants appealed the failure of their contempt application against the Minister. The majority of the Court overturned the appointment of the special master. It endorsed the Land Claims Court order that the Department’s failure to process or refer labour tenant applications to the Land Claims Court was “inconsistent with sections 10, 25(6), 33, 195 and 237 of the Constitution”.

It also embraced the ruling that the Department be required to deliver to the Land Claims Court an implementation plan envisioning a senior manager or managers responsible for the national implementation of the Labour Tenants Act. To these the Supreme Court of Appeal appended very much the remaining provisions of the Land Claims Court’s larger order, which included skill pool and resource assessments, targets and budget determinations, with opportunity for comments and later consideration and approval by the Land Claims Court.

[31] But the order the Supreme Court of Appeal granted excised the heart of the Land Claims Court’s relief. This was the special master. The Court considered the concept an inapposite and untimely foreign import. It endorsed the warning Kriegler J voiced in this Court against “blithe adoption of alien concepts or inapposite precedents”.

This, it said, “applies equally to foreign institutions such as the special master”.

[32] The Court noted that, the parties had earlier agreed to the appointment of a senior manager to administer national implementation of the statute (as well as ESTA claims). This would be an official from the Department. The order embodying this left the Department responsible for policy formulation, the development of a national programme for implementation, and the monitoring and evaluation of the progress of the claims. In other words, the Court inferred, the applicants accepted the Department as competent to manage the task. This made the appointment of a special master “inexplicable and unjustified”.

[33] While the Court acknowledged the Land Claims Court’s special statutory power to conduct proceedings on an informal or inquisitorial basis, this ostensibly offered no warrant for appointing an outsider who would effectively “usurp” the functions of the Department. Instead, the Land Claims Court should have used its inquisitorial powers to find out why a senior manager of the Department could not successfully manage the Labour Tenants Act process, when the parties themselves had agreed that this was feasible, and resources had been set aside for this.

[34] The Land Claims Court also did not find out how the settlement of claims could be accelerated or improved. The majority doubted that a special master could “significantly ameliorate” the burdens that monitoring departmental performance imposed on the Land Claims Court. And judicial staff shortages in the Land Claims Court could never justify the appointment.

[35] While it was true that the Constitutional Court and the Supreme Court of Appeal itself had encouraged courts to forge new remedies to provide effective relief, “appropriate relief” under the Bill of Rights could not license appointing one in effect to implement legislation. This was a function entrusted to the Department.

Of decisive concern was that the order in effect enabled the special master to take over the functions and responsibilities of the Department in labour tenant claims. This rendered the departmental executive secondary. Worse, a special master would become entangled in budget and operational issues. The Court censured the Land Claims Court’s order as a “gross intrusion by a court into the domain of the Executive” and thus “a textbook case of judicial overreach”.

[36] The dissent held that the Land Claims Court had exercised the true discretion the statute bestowed upon it, as a specialist court, to employ extraordinary measures where necessary to carry out its responsibility.

The effect of the majority’s order was that the same Department that had failed labour tenants for over 20 years would continue. That the applicants accepted the appointment of a senior manager during the interim arrangements did not mean the Court should interfere with the Land Claims Court’s discretionary order. The special master appointment did not amount to judicial overreach. While the separation of powers is important to democracy, it provides no basis to avoid the obligation to provide appropriate relief that is just and equitable.

Was the reversal of the Land Claims Court order justified?

[37] The Department’s objection to the Land Claims Court order derived fundamentally from separation of powers concerns: the special master would be an “outsider” whose work involved “a take-over” of the functions of the Department. This is the objection the Supreme Court of Appeal upheld, and it formed the kernel of its reasoning in overturning the Land Claims Court order.

[38] While the applicants sought to downplay the significance of appointing a special master, it must be accepted that no court order has done anything quite like this before.

In Black Sash I, which the applicants invoked, this Court set up a high level specialist committee to oversee departmental performance in association with National Treasury. The panel did not itself have plan-drawing or budget-projection powers. Those are exactly the powers the special master is given here.

[39] But then the Black Sash I facts did not cry out for a special master. The crisis there arose because the responsible Minister failed or refused to take adequate steps to ensure continuation of nationally critical social grants payments, through either a properly run procurement process, or insourcing them via the South African Social Security Agency (SASSA).

The Minister was later personally mulcted in litigation costs because of her misconduct in failing to disclose to the Court her missteps triggering the crisis that necessitated the order. Though outrageous and disturbing, the distinctive facts in Black Sash I did not quite match the sustained, large-scale systemic dysfunctionality and obduracy that is evidenced here.

The Black Sash I circumstances were unique, and the order this Court granted was appropriate to them. That must be so here, too.

[40] This is because here, over nearly two decades, and indisputably since 2006, the Department has manifested and sustained what has seemed to be obstinate misapprehension of its statutory duties. It has shown unresponsiveness plus a refusal to account to those dependent on its cooperation for the realisation of their land claims and associated constitutional rights. And, despite repeated promises, plans and undertakings, it has displayed a patent incapacity or inability to get the job done.

[41] In this, the Department has jeopardised not only the rights of land claimants, but the constitutional security and future of all. South Africans have been waiting for more than 25 years for equitable land reform. More accurately, they have been waiting for centuries before.

The Department’s failure to practically manage and expedite land reform measures in accordance with constitutional and statutory promises has profoundly exacerbated the intensity and bitterness of our national debate about land reform. It is not the Constitution, nor the courts, nor the laws of the country that are at fault in this. It is the institutional incapacity of the Department to do what the statute and the Constitution require of it that lies at the heart of this colossal crisis.

[42] The performance of the Department in response to the increasingly focused pressures the applicants applied, has been an object, and abject, case in point. Each time, the Department has temporised. It has done this, each time, with promises of better performance. This time it would get things right. But it never did.

It has been a classic case of more-same, more-same. The very course of this litigation, right up to the proceedings in this Court, has shown the Department’s inability, in colloquial but apposite terms, to get its act together. While the good faith and good intentions of its promises and undertakings may be accepted, they have repeatedly failed to translate into effective, rights-affirming practical action.

[43] In this Court, barely three weeks before the hearing, and nearly eight months after the applicants lodged their application, the Department belatedly applied to adduce further evidence. The evidence was this:

it had appointed a special senior official, Mr Thamsanqa Mdontswa, to manage the labour tenant project, created 32 three-year contract department positions in KwaZulu-Natal and Mpumalanga, reprioritised R911 million for the labour tenure programme, revised the project plan for processing applications and was undertaking regular visits to district offices. In addition, it suggested arbitrators to assist the Land Claims Court’s adjudication task.

[44] The applicants justly objected to this evidence. They pointed out that the Department’s affidavit was unsettlingly similar to an affidavit it tendered just over a year before in the Supreme Court of Appeal – including heralding the appointment of Mr Mdontswa, and repeated much of its content.

In any event, the additional evidence simply did not meet what the rule requires: the new evidence must be common cause, incontrovertible or of an official, statistical or scientific nature. Besides, the applicants said, the evidence, in reiterating previous unfulfilled assurances and promises, tended if anything to support the Land Claims Court order.

[45] All these objections proved to be dismally warranted. On the back foot, the Department conceded at the hearing that its supposedly new evidence did not match up to the rule’s requirements. Instead it now sought the admission only of evidence the applicants accepted as common cause.

That evidence, so far as it goes, far from showing the Department has “turned the corner and is doing what it should be doing”, as counsel bravely contended, tends to show the opposite.

It evokes an image of the Department as engaged in a hopeless Sisyphean struggle, condemned eternally to roll a gigantic boulder arduously up a hill, only, as the top nears, for it to roll down to the bottom, time and again, the labour doomed to be repeated forever.

[46] All this shows is that the mythical spell must be broken. And the impasse must be resolved. And it can be done, with cooperation, goodwill, humility and respect – and without necessarily adversarial combat. The courts and government are not at odds about fulfilling the aspirations of the Constitution. Nor does the separation of powers imply a rigid or static conception of strictly demarcated functional roles. The different branches of constitutional power share a commitment to the Constitution’s vision of justice, dignity and equality. That is our common goal. The three branches of government are engaged in a shared enterprise of fulfilling practical constitutional promises to the country’s most vulnerable.

[47] These joint efforts will not always be frictionless. On the contrary, it has been astutely noted that an understanding of the separation of powers as “a relationship of mutual accountability, responsiveness and openness between the three branches”, may give rise to unavoidable – even productive – tension:

“Dialogic engagement in this context will frequently be characterised by disharmony and mutual resistance to an over-assertion of power by one branch. What is important, however, is that the branches of government remain engaged with each other in a manner which is open and respectful of the institutional strengths and weaknesses of each other. Through this process the limits of each branch’s institutional power will be continually defined and redefined as they respond to the multifarious challenges of South Africa’s evolving constitutional democracy.”

[48] In cases that cry out for effective relief, tagging a function as administrative or executive, in contradistinction to judicial, though always important, need not always be decisive.

For it is crises in governmental delivery, and not any judicial wish to exercise power, that has required the courts to explore the limits of separation of powers jurisprudence. When egregious infringements have occurred, the courts have had little choice in their duty to provide effective relief. That was so in Black Sash I, and it is the case here. In both, the most vulnerable and most marginalised have suffered from the insufficiency of governmental delivery.

[49] The vulnerability of those who suffer most from these failures underscores how important it is for courts to craft effective, just and equitable remedies, as the Constitution requires them to do. In cases of extreme rights infringement, the ultimate boundary lies at court control of the remedial process. If this requires the temporary, supervised oversight of administration where the bureaucracy has been shown to be unable to perform, then there is little choice: it must be done. Here, the fact that the Department’s tardiness and inefficiency in making land reform and restitution real has triggered a constitutional near-emergency, as explained earlier. This fact underscores the need for practically effective judicial intervention.

[50] Through all times and issues, this Court has emphasised the importance of respect for the separated distribution of powers between Legislature, Executive and Judiciary. And it has not only enjoined restraint in the exercise of judicial power, it has displayed it – so much so that its critics have on occasion reproved it for over cautious timidity.

[51] And the courts have never sought to supplant government in its task of implementing legislative and other programmes. They simply could not and cannot. They step in only when persuaded by argument and evidence that they have to correct erroneous interpretations of the law, or intervene to protect rights infringed by insufficient and unreasonable conduct in social and economic programmes. In this, the courts undertake no self-appointed role, but seek only to carry out their constitutionally mandated function with appropriate restraint.

In Treatment Action Campaign, this Court noted that, where the state has failed to give effect to its constitutional duties, the Constitution obliges the Court to say so:

“In so far as that constitutes an intrusion into the domain of the [E]xecutive, that is an intrusion mandated by the Constitution itself.”

And in Mohamed, this Court noted that to “stigmatise” a court order “as a breach of the separation of state power as between the Executive and the Judiciary is to negate a foundational value of the Republic of South Africa, namely supremacy of the Constitution and the rule of law”.

In the same vein, the Court warned in Doctors for Life, that the bogeyman of separation of powers concerns should not cause courts to shirk from this constitutional responsibility:

“[W]hile the doctrine of separation of power is an important one in our constitutional democracy, it cannot be used to avoid the obligation of a court to prevent the violation of the Constitution. The right and the duty of this Court to protect the Constitution are derived from the Constitution, and this Court cannot shirk from that duty.”

[52] The concept of overreach first manifested in this Court’s jurisprudence when a litigant confronted it with a plea that it should intervene early in Parliament’s legislative process so as to preclude governing party overreach. Next, the Court noted that an overly narrow interpretation of a statute would have an adverse impact on the Legislature’s design.

The most celebrated instance is no doubt the suggestion in a dissenting judgment by Mogoeng CJ that the majority judgment embodied “a textbook case of judicial overreach”, where the question in issue was not a governmental programme or departmental functionality, but the interpretation of the Constitution’s provision for Presidential impeachment.

More narrowly, this Court characterised over-extensive striking down of an entire statute, when only one word had been shown to be constitutionally invalid, as judicial overreach.

[53] These instances show the wide diversity of circumstances in which the exercise of judicial power may be scrutinised for excess. They also show that this Court, and other courts, are acutely aware of the perils of trying to do too much. They intervene only when the evidence and arguments compel them to conclude that the Executive or the Legislature has done wrong, or has not done enough. And when the courts intervene, they do so with necessary trepidation.

[54] And so here. In argument, the Department did not contend that a court appointed special master could never be justified. It conceded it might be warranted: that would depend on the extent of the rights violations and of the bureaucratic dysfunction in not remedying them. The Department contended only that the level of violation and dysfunction here were not extreme enough.

[55] The concession was sound, since it locates the debate about the special master not in “overreach”, but in a careful consideration of where judicial power stops, and, with it, the practical question as to when a court intervention on this scale is justified. And in assessing this, it is a mistake to class a special master as an exotic or outlandish importation. The Land Claims Court referred only briefly to foreign practice. Its main warrant for the appointment was its own home-baked statutory powers. It was the Supreme Court of Appeal that summarily equated the special master with the institution of a special master in United States federal law, and then went on to reprove its importation as alien.

[56] Yet we can gain much from considering how what works elsewhere might also work here. In the United States, the use of special masters has developed flexibly. It occurs in all areas of law. It is more familiar in courts with heavier caseloads and complex law suits that test judicial capacity and expertise. Special masters may help the court with complex electronic discovery, or undertake fact finding investigations, or facilitate settlement attempts, or formulate remedies and monitor compliance.

But the critical point is that under Rule 53 of the Federal Rules of Civil Procedure the court keeps its power freely to endorse or reject or change, in part or wholly, the special master’s recommendations, or remit with directives. It is the court that retains responsibility and control over the eventual order.

[57] Comparative analyses and best practices are certainly helpful in understanding the role of the special master. And they mitigate the notion that it is alien. But as the dissent in the Supreme Court of Appeal noted, how foreign jurisdictions have affirmed the powers of special masters does not bind us in crafting good remedies here. This is especially so in the nationally imperative question of land reform and restitution.

[58] Special masters, often with expertise in specialist areas of government, may assist with either devising a remedial plan or implementing it. In implementing a remedy, the main task of a special master is to oversee and monitor – rather than usurping performance of executive functions, which is closer to the functions of other court-appointed officers (administrators or receivers, whose respective tasks may be to supplement or replace management of a government institution).

[59] The Supreme Court of Appeal’s concern that the special master might, on this palette, be designed to “effectively usurp the functions of the Director-General and officials of the Department” would have been better directed had the Land Claims Court appointed a receiver – a much more intrusive official. But it did not. Far from the Land Claims Court abdicating its own powers, or usurping those of the Department, it set the scope of the special master’s mandate itself and retained control over its role in formulating the remedy.

[60] Specifically, the Land Claims Court retained control over every stage of formulating the specific features of the remedy. These included setting the scope of the special master’s mandate, directing the process it should follow, and ultimately deciding the final form of the plan to fulfil the promises of the Labour Tenants Act.

[61] The Land Claims Court made clear that the special master remains an agent of the Court, and acts in extension of the Court’s own supervisory jurisdiction. And the Court alas made plain that the work to be done would alleviate its own capacity constraints in overseeing the output of the Department. The apprehension that the special master would be a complete outsider, reigning at will over the Department with unfettered executive power loses sight of a key fact. This is that the independence of the special master is not merely the detached neutrality of a third party expert unaffiliated with the parties. It is rather an extension of judicial independence, because it derives from appointment as an agent of the court, continuingly subject to court control and authority.

[62] While the powers afforded a special master certainly seem intrusive, this is only because it is the Court itself that is exercising the constitutionally entrusted powers to afford effective relief. It is not the Court authorising an outside, unchecked body to intrude into the executive domain. It is the Court stepping in to ensure that nationally critical land reform and restitution processes make headway, 20 years after they should. In this way, the special master’s independence is a product of the independence of the Court, to which he or she remains subordinate.

[63] Once it is clear that the special master remains an agent of the Court within our constitutional structure, functioning under court supervision, the questions become more practical.

They are:

  • (a) did the Land Claims Court, specifically, have statutory power to order the special master’s appointment and
  • (b) how extreme were the rights violations and departmental dysfunction that the evidence revealed?

[64] The Land Claims Court located its power to appoint a special master in the wide statutory competences entrusted to the Court, which permit it to “conduct any part of any proceedings on an informal or inquisitorial basis”. The Department is correct to point out that this specific power governs the Land Claims Court’s conduct of its own proceedings. But that is a pinched perspective.

The Act expressly constitutes the Land Claims Court as a court of law, with all the powers the High Court has “in relation to matters falling within its jurisdiction as are possessed by a provincial division of the [High Court]” in regard to affected land. Recently, the Land Claims Court held that its powers are reinforced by section 38 of the Constitution, which grants it the power to issue “appropriate” relief, including a declaratory order, where a right in the Bill of Rights is infringed. Section 172(1)(a) of the Constitution provides that a court “must” declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency.

[65] This Court has held that the Labour Court, although not expressly so invested, enjoys jurisdiction to strike down a statute on the ground of constitutional invalidity. By parallel reasoning, it follows that the Constitution affords the Land Claims Court extensive powers, when deciding a constitutional matter within its power, to “make any order that is just and equitable”.

Any order that is just and equitable! That is no invitation to judicial hubris. It is an injunction to do practical justice, as best and humbly, as the circumstances demand. And it is wrong to understate the breadth of these remedial powers, as Madlanga J eloquently reminds us in Mhlope:

“The outer limits of a remedy are bounded only by considerations of justice and equity. That indeed is very wide. It may come in different shapes and forms dictated by the many and varied manifestations in respect of which the remedy may be called for. The odd instance may require a singularly creative remedy. In that case, the court should be wary not to self-censor. Instead, it should do justice and afford an equitable remedy to those before it as it is empowered to do.”

[66] Likewise, the Constitution affords the Land Claims Court inherent power to protect and regulate its own process, and to develop the common law. These provisions empower it to remedy wrongs, including through materially innovative remedial measures. That is the power the Land Claims Court exercised here.

The Land Claims Court’s exercise of its discretionary powers

[67] In voiding the appointment of the special master, the majority of the Supreme Court of Appeal gave no express consideration to the fact that the Land Claims Court was exercising not a weak power, but a powerful discretion. This is what this Court has recognised as “a discretion in the true sense”. What is more, the discretion here was being exercised by a specialist court in relation to its assessment of its own capacity and expertise to ensure an effective remedy within a field the statute specially entrusts to it.

[68] A “true discretion” or “discretion in the strong sense” is a power entrusted to a court to consider a wide range of available options, each of which is equally permissible. The court then has a choice as to which option it selects. And its pick can be said to be wrong only if it has failed to exercise that power judicially or has been influenced by wrong principles or a misdirection on the facts, or reached a decision that could not reasonably have been made by a court properly directing itself to all the relevant facts and principles.

[69] In my view, the Land Claims Court directed itself properly and scrupulously to the facts before it. These showed failing institutional functionality of an extensive and sustained degree. That cried out for remedy. In understanding the Land Claims Court’s exercise of its discretionary powers, it is important that it identified the fundamental issues as institutional, not personal. The fate of the applicants’ contempt application made the same point, in a different way – this was not about personal obduracy, but about impairment in departmental function. The Land Claims Court’s order was directed at remedying institutional dysfunction and other blockages that imperil rights at a systemic level.

[70] A remedy of the kind the Land Claims Court granted was designed to fix persistent institutional failings that repeatedly resulted in non-compliance with court orders. It was directed to systemic functioning – rather than to any individuals’ attitudes or defaults. This diminishes any personal sting the remedy may seem to imply. Instead, it recognises our joint responsibility, as a country, for sustaining and growing and strengthening our institutions. And it acknowledges our judicial complicity in institutional and systemic dysfunction that impedes our attainment of shared constitutional goals and aspirations.

[71] For all these reasons the order the Land Claims Court granted must be restored.

Contempt

[72] After the Land Claims Court granted the Negotiation Order in May 2016, which required the parties to negotiate in good faith in setting up a national forum of organisations in the field to assist the Department, the parties’ relationship plunged to a nadir. The applicants contended that the Minister refused or failed to parley with them in good faith. They consequently charged that the Minister marginalised or excluded AFRA in the national meeting he convened in July 2016, which he conceived as a powerless talk shop. They thus sought a declaration that the Minister was in contempt of the Land Claims Court’s order.

[73] In response, the Minister smoothly denied that he had refused or failed to comply with the order. If he did, he insisted that his conduct was not wilful or in mala fide (bad faith).

[74] In a judgment delivered on 14 November 2016, the Land Claims Court dismissed the contempt application but made no order as to costs. The Supreme Court of Appeal unanimously dismissed the applicants’ appeal against this order, but the order the majority granted added an adverse costs award against the applicants.

This contrasted with the Land Claims Court’s dismissal order, which imposed no costs.

[75] In this Court, the applicants persisted in complaining that the Minister interpreted the Negotiation Order in a disjointed and artificial way. The circumstances showed that the parties consented to negotiate the order because that would allow more time for settlement negotiations and would form an alternative to appointing a special master. Drawing a red line through this, the Minister instead precipitately (and deviously, the applicants claimed) set up the national forum without, the applicants alleged, consulting or including them (which the Minister denied). The applicants further charged the order was not intended to license the Minister to act unilaterally in establishing the national forum.

[76] It is not difficult to appreciate why the applicants were incensed by their treatment at the hands of the Minister. Yet it is not possible on the affidavits before us to infer that he acted in mala fide. This was why both the Land Claims Court and the Supreme Court of Appeal concluded that the Minister’s sworn denials of bad faith sufficiently walled him off from a successful charge of contempt.

[77] That conclusion cannot be impeached. Making an inference of bad faith in the face of an affidavit denial will unfortunately often prove difficult. It certainly was here. The alternative, to ask the Court to order evidence under oath, with cross examination, will certainly pierce the paper defence the affidavit provides, but the applicants did not ask for that here. It follows that their attempt to overturn the findings of the Land Claims Court and Supreme Court of Appeal on the contempt issue must fail.

Costs

[78] The adverse costs order the Supreme Court of Appeal granted against the applicants in the contempt proceedings cannot be supported.

The Supreme Court of Appeal gave no reasons for imposing the costs burden. The applicants’ charge that the Minister was in contempt was certainly not “frivolous or vexatious, or in any other was manifestly inappropriate” under Biowatch. They were attempting to enforce constitutional rights against a state institution in their contempt proceedings and did so in an unimpeachable way. They fully earned immunity from costs.

[79] In the main proceedings, the applicants had to come to this Court to reinstate the Land Claims Court order and have succeeded in doing so. Their costs (limited to two, not three, counsel as sought) must follow.