Land Court Bill: Department response to public submissions

Meeting report

Consideration & Adoption of Minutes
The Chairperson introduced the ten sets of minutes and noted that Members would have read them prior to the meeting. The minutes considered and adopted were 1 April, 3 May, 4 May, 6 May, 10 May, 11 May, 13 May, 16 May, 17 May and 18 May 2022.

Deliberations on the Land Court Bill
Mr Henk du Preez, Senior State Law Advisor, Department of Justice and Constitutional Development, presented the summary of submissions and response by the Department to the Committee.

Clause 1: Definitions
The Department indicated that it was not necessary to define all terms, in other legislation such terms were not specifically defined, such as ‘interested and affected parties.’

The Council for the Advancement of the South African Constitution (CASAC) indicated concern about the ousting of the High Court’s ordinary jurisdiction over property or land disputes. The Department’s response to this was that the jurisdiction of the High Court would not be ousted, unless the Act in question gave the Land Court exclusive jurisdiction.   

The Chairperson asked if a bill would have to be brought to Parliament for amendments as capacity was developed or if the clause would be written in such a way that it accommodated an incremental capacity increase by the State.

Mr du Preez stated that the idea was to have a staggered approach. In time additional legislation would fall under the jurisdiction of the Land Court, however, it was not necessary to amend the land court legislation. The land court legislation was based on the formula that the Superior Courts Act merely established the court. All the other pieces of legislation and amendments that were on the statute book that afforded jurisdiction to the courts, when the jurisdiction of the land court expanded, would be affected in terms of the different pieces of principle legislation.

Clause 2: Purpose and Objects of the Act
Mr du Preez said AgriSA put forward that clause 2(1) of the Bill was misleading and should be deleted or amended, as a court could enhance and promote access to land. This proposal was not supported by the Department, as access to land was intended to be enhanced and promoted through the Land Court. By being a dedicated permanent Court, the Court would adjudicate and resolve disputes and thereby contribute toward the ideal or goal of access to land.

The Socio-Economic Rights Institute argued that the Bill placed more emphasis on contested land claims and did not refer to eviction proceedings under the Prevention of Illegal Eviction (PIE) Act and ESTA. To address this, the Bill could specifically outlaw evictions that lead to homelessness. The Department’s response was that the Bill, which was aimed at establishing the Land Court, was not the ideal mechanism to outlaw evictions which was a matter that was dealt with in another separate piece of legislation.

Clause 3: Establishment
Mr du Preez said AfriForum was of the opinion that the Land Court should not be a court of equity; for legal certainty, it should only be a court of law. The Department suggested that the land issue was a matter that required equity considerations in some instances, as was the case with section 33(c) of the Restitution Act which required equity to be a factor to be taken into account by a court when making a decision.

The Legal Resources Centre queried the reference to ‘law and equity’ which created the impression that ‘law’ was something opposed to ‘equity.’ Section 39 of the Constitution provided that legislation needed to be interpreted in line with the value of the Constitution. The Department’s response was that the interpretation of Section 39 of the Constitution was correct but that it did not preclude the Legislature to emphasise the intended character of the Court.

Clause 4: Composition of Court
Mr du Preez said the Legal Academics suggested that clause 4(1)(c) of the Bill presumably referred to the Judge President. The Department’s response was that the term ‘President’ was defined in clause 1 of the Bill as the ‘President of the Republic.’ Throughout the Bill, where the term ‘President’ was used, it referred to the President of the Republic. When it came to the Judge President of the Court, it was written in that way.

The Natural Justice Lawyers argued that the phrase ‘as many other judges as may be’ was not supported because it was too broad. In the case of the Land Claims Court, the lack of a specified minimum number of judges meant that the court had many acting judges. The Department’s response was that it should be kept in mind that the Court’s jurisdiction would be extended in future with a concomitant increase in the workload of the Court. To provide a minimum threshold of the number of judges would serve no useful purpose.

Clause 6: Seat of Court
Mr du Preez said the Land Claims Court argued that it was not clear why that clause was necessary nor what it meant. The Department’s response to this was that the clause was self-explanatory and necessary. The Judge President was empowered to determine if a matter should be heard elsewhere than at the seat of the court.

The National House of Traditional Leaders recommended that the word ‘may’ be replaced by ‘must,’ to compel the court to hold its sitting for the hearing of any matter at a place elsewhere than at the seat of the court. The Department did not support the submission made, as that would compel the Court to hold its sitting elsewhere even if it would be expedient to hold the sitting at the seat of the Court.

Clause 7: Jurisdiction of the Court
Mr du Preez said AgriSA stated that it was not clear what was meant by ‘each court’ in clause 7(3) of the Bill. The Department’s response was that the intention was to establish a Land Court which could hold its sitting elsewhere other than at the main seat and the Court established elsewhere should be the area of jurisdiction it served. No satellite courts were intended.

The Legal Academics argued that clause 7(3)(c) of the Bill appeared to be very similar to clause 6(1) of the Bill. The Department’s response was that clause 6(1) of the Bill empowered the Judge President to decide where the Court may hold sittings. However, such a place needed to be formally proclaimed by the Minister in terms of clause 7(3)(c) of the Bill.

Clause 8: Appointment of Judges of Court
Mr du Preez said AfriForum put forward that race and gender should never be overemphasised when it came to the selection and appointment of any judicial officers, the most important criteria should be the competence of the candidate, irrespective of race and gender. The Department’s response was that the intention was to require that race and gender be considered, but not to be a determining factor.

The Chairperson suggested that perhaps the Constitution be used to respond to that clause.

Mr du Preez stated that the day before a similar issue had been raised, both would be addressed.

CASAC submitted that in the interest of preserving the separation of powers, the Minister should only be able to do so ‘in consultation’ with the Judge President or Deputy Judge President and not only ‘after consultation.’ The Department’s response was that the proposition would be in conflict with Section 175(2) of the Constitution, which obliged the Minister to appoint acting judges to other courts ‘after’ consulting the senior judge of the court on which the acting judge would serve.

The Land Claims Court stated that the expression that ‘half of whom must be judges at the time of the appointment,’ in clause 8(4)(a) of the Bill limited access to the bench of those judges who were experienced and also advocates who had been acting in the Land Claims Court. The Department’s response was that the intention of the Bill was to ensure that half of those appointed in the bench were experienced judges, so that not all of the appointees were taken only from a pool of magistrates, advocates or attorneys.

Clause 9: Tenure, remuneration and terms and conditions of appointment of judges
AgriSA argued that it was important that all Land Court Judges, being also Judges of a Division of the High Court, should sit in the High Court. The Department did not support this. The intention was to capacitate the Land Court with permanent judges so as to get rid of the backlogs and create the necessary jurisprudence.

Clause 11: Appointment of officers and staff
CASAC put forward that the Minister was given the power of appointment which appeared to be a function currently performed by the Office of the Chief Justice (OCJ), headed by the Secretary-General. The Land Court would fall under the auspices of the OCJ and the Bill would in effect transfer these functions from the OCJ to the Minister. It was submitted that the OCJ be responsible for staffing the Land Court, as with all other superior courts, in line with current public service legislation and Superior Courts Act. The Department’s response was that section 11(1) of the Superior Courts Act empowered the Minister to appoint a court manager, one or more assistant court managers, a registrar, assistant registrars and other officers and staff whenever required for the administration of justice or the execution of the powers and authorities of the court.

The Chairperson highlighted the concerns raised by the former Chief Justice about the court managers.

Mr W Horn (DA) stated that it was important that the court administration model be prioritised for completion. This was the topic of some discussion during the OCJ debate. He was not sure if this could be fixed through the Bill.

The Chairperson suggested a comprehensive approach be taken. He suggested it be left for a time, as it would mean amending the Superior Courts Act – it was something that the Committee needed to come back to once all the interactions with the Judiciary had been completed, including the issue that was before Cabinet.

Adv G Breytenbach (DA) agreed with that approach. A way needed to be found to prioritise the court administration model as quickly as possible.

Dr W Newhoudt-Druchen (ANC) asked for clarity about the court administration model – was it the Committee or OCJ that was supposed to be working on that model?

The Chairperson stated that Cabinet was currently dealing with that process. Once Cabinet was done with that, it would engage with the Judiciary. At some point, Parliament would be involved.

Clause 13: Institution of proceedings
Mr du Preez noted that BASA highlighted that reference was made to ‘person’ throughout the section, however it was not clear if this would include juristic persons, such as trusts, companies etc. The Department’s response was that ‘person’ was not defined in many pieces of legislation as it was defined in the Interpretation Act 33 of 1957 to include any body of persons corporate or unincorporated.

AgriSA argued that clause 13(3) of the Bill referred to the ‘prescribed manner and prescribed period’ and was not clear in terms of what rules would transpire. The Department’s response was that the regulations would prescribe the manner and the period for the referral of the matter to the Judge President.

Clause 15: Powers and functions of Court under other legislation
Mr du Preez said Legal Academics put forward that the clause suggested that the power and the functions of the Court might stem from other legislation. It was suggested that it might be prudent to do an audit of ‘other legislation’ to confer power on the Court and to consolidate it in the Bill. The Department’s response was that it had been indicated that the intention was to gradually extend the Court’s jurisdiction in terms of other existing legislation. It would serve no useful purpose to list ‘other legislation.’

Clause 30: Costs
Mr du Preez said the South African Institute of Race Relations proposed that, since the law had long required fairness in the awarding of costs, the introduction of a separate ‘fairness’ requirement simply promoted uncertainty and created an ambiguous basis on which established rules could be undermined or bypassed. The Department’s response was that it was not clear that the requirement of ‘fairness’ could promote uncertainty and ambiguity. However, the court needed to make a costs order in light of the facts of the case, considering the requirements of law and fairness.

Clause 34: Establishment and status of Land Court of Appeal
Mr du Preez said AfriForum put forward that the Land Court of Appeal should not be a court of equity, and for legal certainty, it should only be a court of law. The Department’s response was that the land issue was a matter that required equity consideration in some instances, as was the case with section 33(c) of the Restitution of Land Rights Act 1994, which required equity to be a factor to be taken into account by a court when making a decision.

Clause 36: Appointment of other judges of Land Court of Appeal
Mr du Preez said CASAC put forward that clause 36(c) of the Bill dealt with the appointment of judges to the Land Court of Appeal and created a requirement for the President to consult with the Minister, Chief Justice and the President of the Land Court of Appeal before making such appointments. The wording of the clause created an impression that the President enjoyed discretion as to the appointment of judges of the Land Court of Appeal, although it also provided that the President acted on the advice of the Judicial Service Commission. The Department’s response was that the power of the President to appoint judges was constitutionally mandated.

The Land Claims Court submitted that it was unnecessary to specify that the President and the Deputy President of the Land Court of Appeal referred to in the clause may be Supreme Court of Appeal judges.

The Chairperson asked who the head of the ordinary land courts in provinces would be. When one spoke about the high courts, the Judge President would be for the division. For the Supreme Court of Appeal, it was the President.

Mr Makhubele Mokulubete, State Law Advisor, Department of Justice and Constitutional Development, explained that the head of the Land Court of Appeal would be the President of the Land Court of Appeal. The head of the Land Court would be the Judge President. This was following the same setup as the Labour Appeal Court.

Clause 51: Transitional Arrangements
Corruption Watch put forward that merely replacing the Land Claims Court with a new court would not be sufficient to foster a transparent and corrupt-free land restitution programme. It was submitted that clause 51 should include provisions that allowed for anonymous reporting channels to facilitate public reporting on the progress of the new court and its impact, including instances of corruption. The Department’s response was that the main challenge faced by the Land Claims Court related mainly to the lack of capacity and the judiciary of that court, resulting in backlogs of cases. The Land Court replaced that court so as to do away with the challenge. Issues relating to corruption and reporting of progress were matters not proper for inclusion in the Bill.

Mr Horn asked that when Mr du Preez came back to the Committee regarding arbitration, he respond to the issue of judges of the Land Court being tasked to act as the arbiters in respect of matters that were referred for arbitration. When the Bill was announced by the Minister of Justice along with the Minister of Land Affairs, some of the comments made at that press briefing created the perception that the Bill would enable such a situation.

Mr du Preez stated that the Department had briefly discussed this a few weeks before, but had not come to a final conclusion nor recommendations to be submitted through the parties concerned. The Department could certainly come back with answers on that.

Mr Horn stated that the Committee would obviously have to do its own research into the matter. The response to submissions perhaps did not consider the Constitution, he referred to the submissions about the court being a court of ‘law and equity.’ His brief interrogation of the subject revealed that South Africa had the Labour Court as a court of law and equity. There were other forums that could deal with labour relations and specifically service conditions which were negotiated outside formal law. The Constitution stated that the courts were subject to law and the Constitution. Unless one could make out the proper argument that equity was one of the considerations or key principles contained in the Constitution, from a constitutional perspective it might be problematic to argue that the court was a court of law and equity. The other consideration was that the concept of ‘equity’ had in different contexts very different meanings. He asked that the Department consider all of this and explain and unpack their view on the matter further. If the concept of equity was to be retained – did it not need to be properly defined?

Mr du Preez stated that the Department would come back to the Committee and provide that response and input.

The Chairperson suggested that on the following Tuesday, the Committee starts with the Cannabis Bill; the Committee had permission to hold that meeting during the sitting. Afterwards, the Committee would deal with the Land Court Bill. He asked Mr du Preez if the Committee would be starting with the clause by clause deliberations on Tuesday.

Mr du Preez stated that the Committee would, he thought this would be appropriate.

The Chairperson stated that he did not think the Land Court Bill would be too much of a problem. There were some matters that would require discussion, but there did not seem to be much disagreement amongst the Committee on issues. He noted that there was the issue of arbitration, the issue of appeal and the issue of equity.

With the Land Appeal Court and Supreme Court of Appeal, should the Committee take the view that the Bill could not amend the Constitution? Where there were issues from the Land Court, it would have to go to the Supreme Court of Appeal, if there was no appeal court. There was a view expressed by Adv Swart the day before about the special chamber in the Supreme Court of Appeal.

Term Programme Discussion
The Chairperson stated that there was a revised programme but it had not yet been adopted. He suggested it would be important to have a brief discussion to adopt the revised programme.

Adv Breytenbach stated that she was mindful of the fact that there were two dates that she needed to arrange for the Committee. The programme had been so busy over the past two weeks that she had not had time to meet with them. She was meeting the Professor the following week to set a date for the meeting. She would also set up a zoom meeting with the Inspecting Judge Edwin Cameron in order to finalise a date. She would come back to the Committee the following week with the dates for the meetings.

The Chairperson stated that those dates would likely take place when the Committee came back in the next quarter. He highlighted the issue of Magistrate van Schalkwyk, she had indicated that she would take the Magistrate Commission’s decision on review; he thought this was likely just a delay tactic. Up to that point, there had been no movement from her side. The Magistrate disciplinary issue was scheduled for 7 June 2022. He suggested the Committee needed to discuss the matter and come to a conclusion about removing her from office or not.

The Committee Secretary stated that since the Committee had received permission to meet the following Tuesday, the Committee could discuss the matter at that meeting. He suggested it be the first issue to be discussed by the Committee the following Tuesday. The following week, the Committee could adopt that report so that it could go to the House.

The Chairperson asked Members if that would be in order.

Members vocally indicated their support for this.

The Chairperson stated that the Magistrate Commission would need to brief the Committee. 

The Committee Secretary stated that he would consult with the Magistrate Commission and get back to the Committee.

The Chairperson stated that the Committee had received letters from Magistrate van Schalkwyk the year before. He requested guidance from the Committee. He asked if he should write to Magistrate van Schalkwyk to state that the Committee was proceeding with the matter.

Mr Horn stated that it would be proper of the Committee to inform Magistrate van Schalkwyk that in the absence of no further developments, the Committee would proceed with the matter.

The Chairperson stated that on the last day of the previous term, the Committee had an internal meeting where it reviewed its progress for the term and planned for the next term. He asked if this should take place for the coming term as well.

Adv Breytenbach said that the meeting at the end of the previous term was helpful and the Committee could benefit from another one.

The Chairperson suggested this take place on 15 June 2022.

Adv Breytenbach suggested that this would be an appropriate time.

The Chairperson asked if the oversight report be discussed and adopted before the Committee adjourned or to wait for the oversight of the two outstanding provinces to be included in the report before its adoption.

Mr Horn suggested that the oversight report be adopted before that meeting as the oversight reports would inform the programme for the following term in terms of follow-up meetings. He requested that before the meeting was held on 15 June 2022, it should be determined if all the reports and information documents requested during the budget interrogation process, of different stakeholders and role-players, including those that were due in response to the Budget Review and Recommendations Report (BRRR) process had been received. This would inform the meeting on 15 June 2022. 

The Chairperson stated that his question was around the oversight report. The Committee was left with two provinces, namely North West and the Northern Cape. The question is whether to go to the two remaining provinces and produce a consolidated report of all provinces visited by the Committee or to simply discuss and finalise a report on what the Committee had already done. The oversight of the other two provinces would take place in the following term.

Mr Nqola suggested that the Committee wait to have a full report of the oversight and submit that.

The Committee Secretary stated that normally when an application was made to the House Chair, to find out if there were outstanding reports from previous oversights, there was reluctance on the House Chair’s part when the Committee had not adopted previous oversight reports. There were due dates for the different oversight reports. He suggested the finalised reports be adopted in the meantime.

The Chairperson stated that the problem was that the Committee Secretary received the due dates but did not communicate the dates to the Committee.

The Committee Secretary stated that he would try to improve on that. He apologised.

The Chairperson asked what the next due date was.

The Committee Secretary stated that most of the due dates were around the end of June 2022.

The Chairperson stated that he would engage with the House Chair about the proposed approach, of a consolidated report, and come back and discuss it with the Committee. He noted the issue of the Public Protector and litigation costs. She was given seven working days. She wrote back to the Committee on the last day asking for an extension until 10 June 2022.

Adv Breytenbach was not happy that an extension was requested. There was no reason why that information could not be provided. She suggested the reason for the delay was known. She asked that the information be provided as soon as possible.

The Chairperson stated that he thought it would be important to set a date by which that was communicated.

Adv Breytenbach suggested the Committee set a date of the end of May 2022.

Dr Newhoudt-Druchen agreed.

The Chairperson stated that the Committee would write back to the Public Protector stating that the information needed to be provided by the close of business on 31 May 2022.

The meeting was adjourned.