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On 20 August 2019 at 10h00 the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the Supreme Court of Appeal (SCA). This case concerned the failure by the Department of Rural Development and Land Reform (Department) to process land tenant applications submitted in terms of the Land Reform (Labour Tenants) Act 3 of 1996 (LTA). Because of that failure, the Land Claims Court (LCC) ordered the appointment of a Special Master for labour tenants to assist the Department in its implementation of the LTA. The majority of the SCA, while affirming much of the order of the LCC, upheld the Department’s appeal against the Special Master’s appointment.
A secondary issue was a contempt application the applicants brought against the Minister of Rural Development and Land Reform (Minister). The LCC found that the applicants had not established that the Minister was in contempt of its order. The SCA unanimously dismissed the applicants’ appeal against the LCC’s exoneration of the Minister.
Thousands of labour tenants, including the applicants, lodged applications under the LTA with the Department before the cut-off date of 31 March 2001. However, the Department failed to process these applications. Both the LCC and the SCA found that this failure breached sections 10, 25(6), 33, 195 and 237 of the Constitution.
The main question for decision was whether the order the LCC granted constitutes judicial overreach, particularly the extent of the LCC’s power to fashion and implement remedies.
The applicants are, or represent, labour tenants. They or those they represent all occupy land on the Hilton College Estate in KwaZulu-Natal. Their claims are representative of many thousands more. The Association for Rural Advancement (AFRA) is the fifth applicant. It is a non-governmental organisation which promotes land rights and agrarian reform with the object of redressing past injustices and improving the quality of life and livelihoods of rural people.
The applicants all approached the LCC in July 2013 challenging the Department’s failure to process labour tenant applications. In 2016 the LCC ordered the appointment of a “Special Master of Labour Tenants” to assist the LCC in monitoring the Director-General (DG) and the Department’s implementation of the LTA.
In the SCA, the DG and the Minister appealed against the appointment of a Special Master. The majority judgment affirmed much of the LCC’s approach and order – but it excised the heart of the relief the LCC had granted. This was the appointment of a Special Master. The SCA considered the concept of “Special Master” an inapposite and untimely foreign import. Further, the SCA found that the LCC had overreached its judicial role. A dissenting judgment held that the resort to a Special Master fell within the LCC’s remedial powers.
The applicants approached the Constitutional Court for leave to appeal against both the Special Master and the contempt findings of the SCA. In particular, they sought to restore the LCC order appointing a Special Master.
The majority judgment penned by Cameron J (Froneman J, Khampepe J, Madlanga J, Mhlantla J, Nicholls AJ and Theron J concurring) held that for over two decades, the Department has manifested what has seemed to be obstinate misapprehension of its statutory duties. It had further shown unresponsiveness plus a refusal to account to those dependent on its cooperation for the realisation of their land claims. The Court found that while the good faith and good intentions of the Department’s promises and undertakings may be accepted, they have repeatedly not been translated into effective, rights-affirming practical action.
The Court found that the doctrine of separation of powers does not imply a rigid or static conception of strictly demarcated functional roles. The three branches share a commitment to the Constitution’s vision of justice, dignity and equality. They are not at odds about fulfilling the aspirations of the Constitution. Rather, all three branches are engaged in a shared enterprise of fulfilling practical constitutional promises to the country’s most vulnerable. The Court held it is a crisis in governmental delivery, and not any judicial wish to explore the limits of separation of powers, that demands effective judicial remedies. When egregious infringements have occurred, the courts have had little choice in their duty to provide effective relief. These cases demonstrated the need for judicial intervention where the most vulnerable and marginalised have suffered from the insufficiency of governmental delivery. This is especially so in land restitution and land reform.
The Court found that the SCA erred in finding that the Special Master might “effectively usurp the functions of the DG and officials of the Department”. The LCC set the scope of the Special Master’s mandate itself. It retained control. The Special Master at all times remained an agent of the Court and acted as an extension of the court’s supervisory jurisdiction. Hence the Special Master’s independence is a product of the independence of the Court itself.
The Court held that the LCC does have the statutory power to order the Special Master’s appointment since the LCC as a court of law has all the powers of the High Court in relation to matters falling within its jurisdiction, the Constitution gives it power, when deciding a constitutional matter within its power, to make any order that is just and equitable. In addition, the LCC was exercising a true discretion as a specialist Court in assessing its own capacity and expertise to ensure an effective remedy within a field the statute specially entrusts to it. The LCC directed itself properly and scrupulously to the facts before it. Therefore, the LCC’s order had to be restored.
On the question of the Minister’s contempt, the Court came to the same conclusion as the LCC and SCA. It found that it was not possible on the affidavits before it to infer that the Minister acted in bad faith.
A second judgment penned by Jafta J (with Ledwaba AJ concurring), concurred with the first judgment regarding the LCC’s power to appoint the Special Master. It however disagreed with the first judgment with regard to the source of that power. The first judgment found that when appointing the Special Master, the LCC was exercising its inherent power to regulate its own process and to develop the common law in terms of section 173 of the Constitution. The second judgment found that the LCC was exercising the remedial powers conferred to it by section 172 of the Constitution, which obliges a court to make a declaratory order pertaining to law or conduct inconsistent with the Constitution. The second judgment found that the power to make a declaratory order includes the power to issue a supervisory order.
With regard to the order, the second judgment found that the LCC expressly directed the Special Master to prepare and deliver a plan for the performance of the DG’s duties under specified sections of the LTA which included the determination of the budget necessary for the implementation of the plan. The second judgment further found that the question that arose for consideration in this regard was whether the supervisory jurisdiction which forms part of the power to grant mandatory relief extended to cover the performance of departmental functions, including the preparation of budgets. The second judgement found that interference by the judiciary on matters that have budgetary implications has always been limited to deciding whether the plan adopted by the executive itself constituted reasonable measures as envisaged in the Constitution. Therefore, to the extent that the LCC’s order authorised its agent, the Special Master, to draw up the implementation plan that incorporates a determination of the budget, it went beyond the usual bounds for judicial intervention. The second judgment would have amended the order of the LCC in a manner that returns the exercise of powers to determine the budget to the DG and his staff.
