South Africa, today deserves a functional Land Claims Court!
If Colonialism and its twin sister Apartheid was about anything it was always about land, thus the issue of land restitution remains cardinal as the undoing of the evil of this toxic combo. South Africa as a democratic state showed foresight and presence of mind in ensuring we have a legal entity namely the Land Claims Court. The importance of this Court as a critical cog to give effect to the subject of redress for both a colonial and apartheid collective past cannot be overstated
The Land Claims Court was established in 1996. It acts as specialist court, which performs, and independent adjudicatory function. It hears disputes arising from those laws, which underpin South Africa’s land reform initiative. These are the Restitution of Land Rights Act 22 of 1994, the Land Reform (labour Tenants) act 3 of 1996 and the extension Security of Tenure Act 62 of 1997.
The Land Claims Court enjoys the same status as the High Court of South Africa. Appeals have access to the Supreme Court of Appeal, and in appropriate cases, to the Constitutional Court. Aspects of the courts jurisdiction and proceedings are peculiar to the functions it performs; for example, it may conduct any part of its proceedings on an informal or inquisitional basis and may convene hearings in any part of the country to make it more accessible.
The Land Claims Court has promulgated its own set of rules, which sets out its procedure in detail. The Court is essentially served by 4/5 judges with one based in De Hague. The Land Claims Court celebrates 19 years of its existence in 2015.
I have chosen to cite the mandate of the Land Claims Court as a means of introduction to engage in this season on some challenging questions on its standing as specialist court-status, functionality, public-presence, perhaps deafening silence in taking SA into its confidence, accessibility and perhaps relevance as required.
The Court despite a certain era having done sterling work appears reclusive, insecure, perhaps dysfunctional in leadership and in the quagmire of truculence exemplified in muffled confusion at least as seen from the judiciary setting.
Categorised as a specialist court no different to the Labour Court, which proves effective and is now entrenched in our society, I shall postulate the Land Claims Court is perhaps not allowed to live up to its right of specialty, robed with the necessary respect.
The Land Claims Court deserves the same dignity, honour and space to fulfill the redress of land the critical aspect that defines our chequered history. I have in this season resolved to ask questions to a variety of audiences that is directly linked to this Court.
- Constitutional Mandate
Firstly, what is the political mandate for the structure of a Land Claims Court?
Secondly, what is the constitutional mandate for its existence? How does our constitution affords space, integrity and context for it’s meaning in relevance as a functional existing court independent yet a part of the particular arm of state in democracy defined as the judiciary?
- The Judiciary’s Role
What is the judiciary’s overarching visionary footprint and practical current and future plans for the Land Claims Court? What status does the judiciary afford this Court and if so why?
Why is this Court not treated as a due High Court no different to the Labour Court? What support structures, systems and operational mechanisms are afforded through the Judiciary to engender due enablement? How are these plans actualised in relevance of mandate and its concomitant budgetary expressions? Has the judiciary taken this court serious enough or has it acted unwittingly in the undoing of this Court? What has been the role of individuals regardless of rank in the judiciary to either advance or retard the work of the Land Claims Court?
- The Justice Ministry’s Role
How is the mandate of the Ministry of Justice synchronized to ensure the efficacy of this Court as a functional and active instrument for redress? I am reliably informed that very few judges across the country even know where this court in the CBD of Randburg is situated. If I am correct very few Ministers of Justice in the 19 years of the LCC’s existence ever paid this court a visit to appreciate the work, to apprise themselves with the context of this entity.
I think the current Minister of Justice Masutha is perhaps the first minister in a very long time to have spent time in paying a visit and engaging the LLC staff and its processes. Yes, the court has no escalator and lift but that cannot be a legitimate reason why ministers may not be willing to come as one minister and an era of bygone remonstrated.
- LCC Current Leadership / Management
Another set of questions are leveled at the current leadership of the LCC. It appears that the LCC is on autopilot. Following the death of its first leader Judge President Fikile Bam, almost 4 years ago, the LCC has been led by an acting Judge President as its leader who essentially operates from Cape Town and only visits the office if she has a case to attend to. Typically acting judges to the LCC are recommended by the Judge President of the High Court and in the acting Judge President recommends to the Minister who oversees the appointment of judges.
It cannot be that this important institution is without a due, conscious and a present leader, particularly in a season when executive order had sought to reopen and widen the land claims period.
Can we today in 2015 categorically state that this court is a functional, effective, present and alive Court that delivers on its mandate as led by sound competent and principled leadership that manages this entity informed by benchmarked management principles and practices? If the answer is not a resounding yes, why is this untenable situation tolerated?
I fear no reprisal to contend that the importance of this Court is perhaps in this season way-laid by a lack of strategic judiciary direction manifesting in ambivalence, hamstrung by fear of other arms of State to ask the judiciary salient questions, for fear of being labeled as interfering. This Court in my assessment is served in unsure leadership and challenged by an absent management team yet has an enormous mandate of redress.
How dare we assume we can attain the undoing of the colonial and apartheid history of land, when the designated entity and court to actualize such is in my assessment in this season in disarray?
Finally, what has been the role of all political parties in ensuring the public is informed and kept abreast of the importance of this Court whilst insisting that the Court is duly decorated and resourced?
I ask these questions in the hope of finding answers from the relevant structures and those who preside over mandate, yet also to keep those accountable to the South African public.
Bishop Clyde N.S. Ramalaine