Concourt judgment on labour tenants a lesson for government: Lamola

20 August 2019 - 17:06 By Nomahlubi Jordaan
Justice Edwin Cameron, who is retiring from the Constitutional Court after a respected legal career, penned his last judgment on labour tenants who appealed the SCA ruling on the appointment of a special master.
Justice Edwin Cameron, who is retiring from the Constitutional Court after a respected legal career, penned his last judgment on labour tenants who appealed the SCA ruling on the appointment of a special master.
Image: Constitution Hill SA via Twitter

Justice minister Ronald Lamola said the constitutional court judgment allowing the appointment of a special master to oversee land claims by KwaZulu-Natal families sent a clear message to government.

That lesson, he said, was to deal with the pressing issue of labour tenants, who he said were the most vulnerable in society.

The constitutional court on Tuesday ordered the reinstatement of a land claims court (LCC) order to appoint a special master to oversee claims by families who laboured on farms in lieu of payments and permission to live on a portion of the farm, currently owned by Hilton College.

At the heart of the arguments at the constitutional court in Johannesburg was a portion of Hilton College’s 1,762ha property, which includes farmland, timber plantations and a game reserve.

This portion of land has been the subject of a land claim by labour tenants for more than 22 years. But the private school, whose fees are about R300,000 a year, is disputing the claim, which excludes the school buildings and sports fields.

"The judgment speaks to the pressing reality of the land question in our country that we need to fast track. I’m happy that in government there already is an inter-ministerial team that is addressing these issues of labour tenants and farm workers,” Lamola said.

He added that he was also happy that government was dealing with the "land question as a whole", particularly ensuring that there was "rapid land release". It was also important, he said, that the government was able to "transform agriculture ... to make sure we make a contribution into the economy".

“I think it’s a lesson for us. Let’s correct what the court says needs to be corrected and attend to the challenges of the labour tenants,” he said.

Justice Edwin Cameron on Tuesday read his last judgment in the matter of the department of land reform and labour tenants who wanted a special master appointed to process their claims, including some who had unsuccessfully tried for more than 22 years to lay claim to a portion of one of SA’s most expensive and prestigious schools, Hilton College.

The majority of the constitutional court judges found that the land claims court directed itself “properly” by ordering the appointment of a special master.

The court found that the supreme court of appeal erred in finding that the special master might “effectively usurp the functions of the DG and officials of the department”.

The judgment, penned by Cameron, found that there was a need to appoint a special master to oversee the claims.

“The majority judgment holds that for over two decades, the department has manifested what is seen to be obstinate misapprehension of its statutory duties,” said Cameron.

He said the department had showed unresponsiveness and refusal to account to those who depended from its co-operation for the realisation of their land claims.

“The court finds that while the good faith and the good intentions of the department’s promises and undertakings may be accepted, repeatedly, they have not been translated into effective rights of having practical action.”

“All this, the majority finds, shows that the mythical spell must be broken and the impasse must be resolved and this can be done with co-operation, goodwill and respect without necessary adverse combat between the courts and the department,” the judgment reads.

The courts and government were not at odds about fulfilling the aspirations of the Constitution and there was no rigid or static conception of strictly demarcated separation of power roles, the court ruled.

“The most vulnerable and the most marginalised have suffered from insufficiency of governmental efficiency and delivery.

“In this case, the fact that the department’s tardiness and inefficiency in making land reform and restitution real, has triggered a constitutional emergency. This underscores the need for practical judicial intervention.”

The majority judgment contended that courts only stepped in when they were called to protect the rights infringed, insufficient and unreasonable conduct.

The Land Claims Court, the apex court found, exercised its discretionary powers by identifying the fundamental issues as institutional and not personal.

The remedy granted by the land claims court was designed to fix persistent institutional failures, “that repeatedly resulted in noncompliance with court orders”.

“It was directed at systematic functioning rather than to individual attitudes ... ”

The court held that the LCC had 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 relation to matters falling within its jurisdiction.

“The majority concludes that the order of the land claims court must be restored,” the court found.