New Land Court Bill Threatens Independence of Judiciary
4 July 2023
On 23 May 2023, Parliament passed the Land Court Bill, which it believes will resolve “backlogs in land claims and dispute resolution mechanisms”, and ensure that “land reform in its entirety be accelerated in a lawful and equitable manner, guided by progressive jurisprudence”.
Whilst “the nation’s commitment to land reform” is a sine qua non in terms of Section 25 of the Constitution, there is also an unambiguous requirement for “just and equitable” compensation for expropriated land. Such compensation must be agreed to by those affected or “approved by a court”. The objectivity and impartiality of the courts that decide on compensation for expropriated property is accordingly of central importance to ensure that compensation will, indeed, be just and equitable.
The FW de Klerk Foundation remains deeply concerned that the Land Courts and the Land Appeal Court, which will be established by the Bill, will find the “equitable balance between the public interest and the interests of those affected” required by Section 25. The Courts’ predetermined “progressive jurisprudence” orientation provides an ominous indication of the direction in which the equitable balance is likely to be tilted.
The Bill will oust the jurisdiction of other courts, including High Courts and the Supreme Court of Appeal, to adjudicate on matters that will be assigned to the Land Courts. Excising the authority of the SCA would, however, require the amendment of Section 168(3) of the Constitution. Only the Constitutional Court would be superior to the Land Appeal Court - and then, possibly, only on constitutional questions.