Press Release: Labour tenants case goes to the Constitutional Court in May

For Immediate Release

08 March 2019

On 23 May 2019, the LRC will present arguments in the Constitutional Court for the reinstatement of the Land Claims Court (LCC) order to appoint a special master.  In 2016 the Land Claims Court found the Department of Rural Development and Land Reform (DRDLR) to be in contempt of numerous court orders and in contravention of the provisions of the Labour Tenants (Land Reform) Act of 1996. The court found in favour of labour tenant’s application to have a special master appointed to oversee the processing of labour tenant claims, some 11 000 of which remain incomplete since the closing date in 2001.

The Department opposed the appointment of a special master and in 2018 the Supreme Court of Appeal (SCA) set aside the Land Claims Court (LCC) judgment, but had a piercing dissenting judgment by Judge Mocumie. In her judgment she noted:

“…the LCC had tried ordinary court supervision which had failed, there was a need for effective relief for the many thousands 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 assist this court to meaningfully monitor implementation”

The case was brought to court by AFRA and the Legal Resources Centre (LRC) in 2013 as a class action on behalf of labour tenants whose claims have not been processed. It sought structural relief to ensure that the Department implemented the Labour Tenant Act (LTA). The Department’s continuing failure to meet court deadlines over many years proved that ordinary court supervision was ineffective and so a special master would assist the LCC, the Department and the applicants to ensure the implementation of LTA.

We believe that the Land Claims Court (LCC) acted within it powers to appoint a special master to assist it. Judge Mocumie holds the same view as the applicants that without interventions such as the one taken by the LCC, labour tenants would be back before it and the SCA in the next 10 years still seeking the same relief they sort in the first instance: access to land and security of land tenure.

Judge Mocumie’s dissenting judgment confirms the view of AFRA & Labour Tenants that specialised and extraordinary court supervision is required to ensure the efficient processing of labour tenant claims.  This view needs to be confirmed by the Constitutional Court and so an application for leave to appeal the SCA judgment was made by AFRA and the Legal Resources Centre (LRC).

We believe that a special master is vital for speedy and effective realisation of labour tenant rights. We strongly believe that the SCA failed to afford the LCC the deference owed to a specialist court exercising a true remedial discretion on an issue directly concerning its own processes. And that the SCA failed to adequately grasp the scale and complexity of the problem, and the multiple ways in which attempted court supervision had failed.

We hope that the constitutional court will correctly acknowledge the constitutional imperatives and urgency underlying the LTA and its promise to labour tenants to end the cruelty and suffering of African people. That it will acknowledge the scale of the constitutional breaches in systemically failing to address the constitutional and statutory claims of labour tenants and acknowledge the appropriateness of the remedy of appointing a special master by agreement of all parties who will act as a neutral and independent expert in the area of land restitution and reform in order to ensure implementation of the relevant legislation.

ENDS.

The CC court papers and lower court judgments can be found here:

https://collections.concourt.org.za/handle/20.500.12144/36597

For more information, contact

• Siyabonga Sithole (AFRA Land Rights Coordinator) siya@afra.co.za 064 957 7767
• Thabiso Mbhense (LRC Attorney: Durban) thabiso@lrc.org.za 071 109 9340
• Nokuthula Mthimunye (Communications Officer) nokuthula@afra.co.za 076 754 7110