Mwelase and Others v Director-General, Department of Rural Development and Land Reform and Another

• Jurisdiction: South Africa
• Citation: 2019 (6) SA 597 (CC)

Mwelase and Others v Director-General, Department of Rural Development and Land Reform and Another
2019 (6) SA 597 (CC)

2019 (6) SA p597

Citation	2019 (6) SA 597 (CC)
Case No	232/18; [2019] ZACC 30
Court	Constitutional Court
Judge	Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J
Heard	August 20, 2019
Judgment	August 20, 2019
Counsel	A Dodson SC (with M Bishop, S Kazee and E Webber) for the applicants.; NH Maenetje SC (with SO Ogunronbi and L Rakgwale) for the respondents.

Flynote : Sleutelwoorde

Courts — Land Claims Court — Powers of — Appointment of special master to C supervise processing of labour tenant claims — Constitution, s 172 and s 173; Land Reform (Labour Tenants) Act 3 of 1996, ch 3.

Land — Land reform — Labour tenant — Claim — Appointment of special master to supervise processing of labour tenant claims — Not in breach of separation of powers — Labour Court's order appointing special master, previously D set aside by Supreme Court of Appeal, restored by Constitutional Court — Constitution, s 172 and s 173; Land Reform (Labour Tenants) Act 3 of 1996, ch 3.

Headnote : Kopnota

Chapter 3 of the Land Reform (Labour Tenants) Act 3 of 1996 (the Act) conferred on labour tenants the right to apply (before 31 March 2001) to E acquire ownership of the land that they used or occupied. This right, once applied for, can however only be realised through the detailed mechanisms set out in the chapter. This is because it depends on the efficient action and processes of the Department of Rural Development and Land Reform (Department), which includes referral by the Department of opposed claims to the Land Claims Court. (See [10] – [11].) F

The first four applicants [*] were individual labour-tenant applicants under ch 3. Each lodged a claim before the cut-off date; each claim was opposed (by the same landowner) but none were referred to the Land Claims Court by the Department. This was also the fate of thousands of the approximately 20 000 claims submitted in terms of s 16 G of ch 3 of the Act before the cut-off date — more than half remained unsettled by 2013 (see nn41 and 44).

In 2013 the individual labour tenants (together with AFRA, an NGO promoting land-rights and agrarian reform, here the fourth applicant) approached the Land Claims Court for structural relief designed to ensure that the Department implemented the statute. Before the LCC, the Department H admitted that labour tenant applications had not been proactively managed for a number of years and was in a chaotic state, and consented to a number of detailed orders allowing for court supervision of the process.

The Department however failed to comply, and further proceedings culminated in the LCC — acceding to the applicants' request for such relief — ordering that a Special Master of Labour Tenants (special master) be appointed to I assist the LCC, the Department and the applicants, in working together to ensure implementation of the Act. The Land Claims Court reasoned that

2019 (6) SA p598

the A special master squared with the provisions of the Restitution Act 22 of 1994 which empowered it to conduct proceedings on an informal or inquisitorial basis (see [16] – [29]).

In an appeal against the LCC's order, the Supreme Court of Appeal, while affirming much of it, reversed the LCC's appointment of a special master. The SCA considered the concept an inapposite and untimely foreign import, B and censured it as a 'gross intrusion by a court into the domain of the Executive' and thus 'a textbook case of judicial overreach', because it 'effectively usurp[ed] the functions of the Director-General and officials of the Department'. (See [30] – [36].)

At issue in the present case, their appeal against the SCA's order to the Constitutional Court, was the extent of the Land Claims Court's power — C given separation of power concerns — to fashion and implement remedies to secure practical justice. The CC, reversing the SCA order, held that (a) the special master acted as an agent of the court within our constitutional structure, functioning under court supervision; (b) the Land Claims Court had statutory power to order the special master's appointment; (c) the rights violations and departmental dysfunction that the evidence revealed D were sufficiently extreme. (The Department did not contend that the appointment of a special master could never be justified, but submitted that the level of violation and dysfunction here was not extreme enough to warrant the appointment of a special master.)

As to (a)

For nearly two decades the Department manifestly displayed a patent incapacity E or inability to get the job done, jeopardising not only the rights of land claimants, but the constitutional security and future of all. At the heart of this crisis was the institutional incapacity of the Department to do what the Act and Constitution required of it. This impasse must be resolved. The different branches of constitutional power share a commitment to the Constitution's vision of justice, dignity and equality. Separation of powers F did not imply a rigid or static conception of strictly demarcated functional roles — the three branches were engaged in shared enterprise.

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 was crises in governmental delivery, and not any judicial wish to exercise power, that required the courts to explore the G limits of separation of powers jurisprudence. When egregious infringements occurred, courts have had little choice in their duty to provide effective relief.

Here, the Department's tardiness and inefficiency in making land reform and restitution real had triggered a constitutional near emergency, underscoring the need for practically effective judicial intervention. (See [41], [46], H [48] – [49].)

The debate about the appointment of a special master was not located 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 was justified. And in assessing this, it was a mistake to class a special master as an exotic or outlandish importation — the LCC's main warrant for I the appointment was its own 'home-baked' statutory powers. Far from the LCC 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. The LLC made it clear that the special master remained an agent of the court, and acted in extension of the court's own supervisory jurisdiction, continually subject to court control. (See [55], J [59] – [61].)

2019 (6) SA p599

As to (b) and (c) A

The LCC, as a court of law, had all the powers of the High Court in relation to matters falling within its jurisdiction. 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 s 173 of the Constitution. [*] The Constitution also gave it power (under s 172), when deciding a constitutional matter within its power, to make any order that was just and equitable. B (See [65] – [66].)

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 entrusted to it. The LCC directed itself properly and scrupulously to the facts before it.

Therefore, the LCC's order would be restored. (See [68] – [71].) C

Cases cited

Southern Africa

Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency, and Others 2014 (1) SA 604 (CC) (2014 (1) BCLR 1; [2013] ZACC 42): referred to D

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449; [1996] ZACC 2): considered

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): referred to

Black Sash Trust (Freedom under Law Intervening) v Minister of Social Development 2018 (12) BCLR 1472 (CC) ([2018] ZACC 36): referred to E

Black Sash Trust v Minister of Social Development 2017 (9) BCLR 1089 (CC) ([2017] ZACC 20): compared

Black Sash Trust v Minister of Social Development and Others (Freedom Under Law Intervening) 2017 (3) SA 335 (CC) (2017 (5) BCLR 543; [2017] ZACC 8): distinguished

Centre for Child Law and Others v Media 24 Ltd and Others 2018 (2) SACR 696 (SCA) ([2018] ZASCA 140): dictum in para [102] considered F

Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) (2000 (10) BCLR 1051; [2000] ZACC 11): referred to

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837; [2000] ZACC 8): dictum in para [64] applied G

De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) (1998 (7) BCLR 779; [1998] ZACC 6): dictum in para [60] applied

Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12): referred to

Director-General, Department of Rural Development and Land Reform, and Another v Mwelase and Others H 2019 (2) SA 81 (SCA) ([2018] ZASCA 105): reversed on appeal

2019 (6) SA p600

District Six Committee and Others v Minister of Rural Development and Land Reform and Others A [2019] ZALCC 13: dictum in paras [4] – [6] applied

Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) (2006 (12)...