Last week the Constitutional Court handed down a crucial judgment in Mwelase vs Director-General for the Department of Rural Development and Land Reform relating to the critical debate on “the land question”.
The decision shows an increasing acknowledgment by the court that justice delayed is justice denied to dispossessed, disenfranchised and landless black South Africans. It also signals the court’s willingness to intervene to correct this state of affairs by exercising its own constitutional powers to the hilt.
Bhekindlela Mwelase, Jabu Agness Mwelase and Bazibile Gretta Mngoma were the applicants. Mwelase and Mngoma’s applications were launched on behalf of Xhegwana Mwelase and Ndoda Mngoma respectively.
Such is the slow place of the litigation process that both died prior to the launch of the court application in 2013.
Bkhekindlela Mwelase himself died on November 7 last year, six months before the Constitutional Court would dignify his claim to the land he had worked on for years with a hearing.
The applicants’ claims were supported by the nongovernmental organisation the Association for Rural Advancement.
The Land Reform Act, which came into effect on March 22 1996, is designed to contribute to the restitution of land to those deprived of land by racial subordination in the form of apartheid and colonialism.
The specific role of the Land Reform Act at issue in the Mwelase case was the protection of security of tenure of labour tenants. Labour tenants are people who work on farms they do not own in exchange for the right to live on and work a portion of the farm for their own benefit. The definition provided by the Act includes the children and grandchildren of such labour tenants.
The Act gives important rights to any person who was a labour tenant on June 2 1995, including the right to “with his or her family members to occupy and use that part of the farm” and provides for protection against unlawful eviction.
But the “gold” in the Act, according to the Constitutional Court, is that it gives labour tenants the right to acquire ownership of such of land through a detailed, complex process spearheaded by the department of rural development and land reform. This legislative enactment the court describes as a “colossal statutory promise” with potentially “life-changing importance”.
For labour tenants, the initial requirement was to enter an application by March 31 2001. By this date 19 416 such applications were lodged. The department, in turn, was required to notify the landowner of the application and publish a public in notice in this regard.
If the claim is contested, which is likely, and mediation attempts fail, the department is then empowered to refer the dispute to the land claims court for adjudication.
Here, according to the court, is the rub in Mwelase. “If the department fails to do this, there is an irreversible hold-up: the claim becomes inextricably snagged.”
Fail the department has over the nearly two decades that elapsed since the claims were lodged in 2001. The claims of Mwelase and his co-applicants have still not even been referred to the land claims court for adjudication.
Still more outrageously, the court noted that the evidence before it suggested that Mwelase is in the same position as about 11 000 other such land claims that remain unsettled. This is more than half of the number of claims submitted in 2001.
The department’s glib response to the applicants’ claim in the Mwelase case was initially to admit that, because its record keeping was “non-existent” and “shambolic”, it would take two years merely to capture the details of these outstanding applications.
The Constitutional Court noted that it could take the department between 24 to 40 years to settle the remaining claims given its own descriptions of its processes.
The applicants had asked the court to exercise a power it had never exercised before, namely to appoint a special master to supervise and direct this process and expedite the department’s finalisation, assessment and referral of claims.
The Constitutional Court has broad powers to grant just and equitable “relief” or “remedy” to those who prove their constitutional rights have been violated.
The department told the court that the appointment of a special master, under the auspices of the judiciary, would amount to a usurpation of the powers of the executive in violation of the separation of powers.
In response, the court noted that none of the cases it had decided “quite match the sustained, large-scale systemic dysfunctionality and obduracy that is evidenced here”. The court goes on to describe the department as a whole as displaying an “obstinate misapprehension of its statutory duties”, “unresponsiveness” and “a refusal to account to those dependent on its co-operation”.
The court accepts that the department has a “patent incapacity or inability to get the job done”.
It is hoped that this judgment may provide a crucial turning point in the debate about land reform and redistribution for several reasons.
First, the court engages directly with the “intensity and bitterness of our national debate about land reform”. With more far-reaching implications than for the case at hand, the court places the blame for the turgid progress on land reform squarely on the shoulders of the executive.
“It is not the Constitution, nor the courts, nor the laws of the country that are at fault … 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”, proclaims the court.
This leaves the Cabinet with nowhere to hide, and no “sell out” constitutional property clause to hide behind. It also signals to Julius Malema’s Economic Freedom Fighters, which has increasingly attacked the courts for their transformation-inhibiting conservatism, that whatever amendment of the Constitution or legislation is achieved, in the court’s view, the primary obstruction to land redistribution and reform is to be found elsewhere.
Second, the court warns that, despite its sensitivity towards the need for the department to have a free hand at performing its constitutional mandate without undue interference, systemic failure to perform may justify, and require, muscular intervention by a court. This is of relevance far beyond the facts of this case and the land issue more generally.
Systemic failures in the other key “service delivery” oriented departments such as education, healthcare, housing and social security are well known.
The court warned that, because the separation of powers does not “imply a rigid or static conception of strictly demarcated functional roles” and “the mythical spell must be broken” to ensure the protection of Mwelase and his co-applicants’ constitutional rights, “court control of the remedial process” may be warranted.
In this case it required the appointment of a special master, reporting to the judiciary with “temporary, supervised oversight of administration”.
In such circumstances, the court considers the appointment of a special master to be not a violation of the separation of powers but an “extension of judicial independence” necessary for the execution of its mandate as the ultimate guardian of constitutional rights.
The government should expect that more and more litigants ask for such “supervisory” remedial action in the face of systemic failures.
Third, the court’s tone, acknowledgments and emphases signal to advocates for land redistribution that the court is sympathetic to the urgency and importance of the resolution of the land question.
Moreover, describing the situation as a “constitutional near-emergency” and a “colossal crisis”, the court is warning the government that it must endeavour to ensure that, as the Constitution requires, its obligations are performed diligently and without delay.
Failing which, and irrespective of the success of the mooted constitutional amendments of the property clause, courts may begin to act to the embarrassment of a government whose legitimacy is questioned within and outside of its own political ranks.
Bhekindlela Mwelase, Jabu Agness Mwelase, Bazibile Gretta Mngoma, Xhegwana Mwelase and Ndoda Mngoma deserve better. The Constitution and legislation enacted by Parliament promise them as much.
The court has drawn a line in the sand and insisted that the executive perform its constitutional obligations, failing which it might have take action to guide and direct it in doing so. What happens next will, one way or another, affect and change the lives of millions of poor, black, landless South Africans whose pleas for justice cry out for resolution.
Tim Fish-Hodgson works for the Africa team of the International Commission of Jurists