“South Africans want the land question resolved. South Africans want to see land justice,” said judge Susannah Cowen, recommended for deputy judge president of the Land Court by the Judicial Service Commission on Tuesday.
Cowen, who has been acting as deputy judge president since May, was one of three candidates interviewed for the deputy leader of the specialist court that deals with land restitution claims, awards of land ownership to labour tenants and rural evictions. The jurisdiction of the court has also been extended and will soon include disputes involving communal property, the Ingonyama Trust and the Interim Protection of Informal Land Rights Act.
Cowen said in the past, the court had, in practice, mostly dealt with rural eviction cases under the Extension of the Security Tenure Act. But this is “not delivering on the promise of the constitution”.
“We need to make the court a place where people know they can come to get restitution, to mediate redistribution, to finalise compensation disputes,” she said. And this needed to be done “effectively, efficiently and quickly”, she said.
She was answering a question put to her by justice minister Thembi Simelane, and she told the minister this meant the court needed to be properly resourced with judges and staff — “it cannot be done on goodwill alone,” she said.
Cowen also told the JSC about the court’s “historical cases project” — an effort to understand why there were so many cases that came to the Land Court but were never finalised — the numbers were not final, but it was about 1,500 cases, she said.
“We can’t close those files with a clear conscience in circumstances where we know very well that the reasons why those cases are not being finalised are probably no fault of the claimants,” said Cowen.
Instead the judges of the Land Court were seeking to find ways to reactivate the cases, she said. This involved two strategies. In some cases, where it was possible, judge president Zeenat Carelse would direct them to be “case managed” or put directly under the control of a judge.
The second strategy was an “ambitious” project of partnering with stakeholders, including Legal Aid South Africa, the Legal Practice Council for pro-bono legal representation, and advice centres that could be a “bridge” between claimant communities and the court — to work out why the cases became inactive.
We need to do what it takes to get people active in this space ... It’s about bringing in stakeholders, getting people excited to do the work and opening up the channels to getting claims finalised
— Judge Susannah Cowen
Cowen said working with Legal Aid and the pro-bono legal sector was “critical”, adding that judges could play an instrumental role in mainstreaming land law and generating interest in land law.
“We need to do what it takes to get people active in this space ... It’s about bringing in stakeholders, getting people excited to do the work and opening up the channels to getting claims finalised.”
The JSC also recommended judge Edwin Molahlehi for judge president of the labour and labour appeal court. Molahlehi was the only candidate for the post and was widely expected to get the nod.
Molahlehi told the JSC that one of the challenges of the labour court was that it was faced with a “huge backlog of cases”. He said this was influenced largely because of the success of the CCMA — there was a “huge number” of cases that came from the CCMA on review, and related to that was “the conceptual approach in the marketplace where almost every other arbitration [award of the CCMA] gets reviewed in the labour court”.
He said part of the problem was what “we the judges have said” about when review was available — “I think we've opened the gates too wide.” He said in the Office of the Chief Justice's annual report that in 2022/23 the labour court enrolled 3,500 cases.
He said advocates who made themselves available to act as judges pro bono had helped to significantly reduce the backlogs.
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