Land Claims Court sends clear signal to Land Claims Commission

Agri SA welcomes a recent decision by the Land Claims Court regarding the payment of costs in a case where the Land Claims Commission pursued a dubious claim.

In the judgement handed down by Judge Gildenhuys on 30 April 2010, in the case of Midlands North Research Group and Others versus Kusile Land Claims Committee and The Regional Land Claims Commissioner of Kwazulu Natal and others, a group of landowners succeeded in an application for costs against the Commission on the basis that a number of properties were wrongly gazetted and the claim proceeded with despite valid objections by the landowners.

"Landowners have long been disadvantaged by the great cost involved in fighting dubious claims in Court," said Dr Theo de Jager, chairperson of Agri SA's Transformation Policy Committee. "It is hoped that this decision will encourage the Commission to deal speedily with a great number of applications for degazetting in terms of section 11A, which are before the Commission," he said. Dr De Jager also called for legal aid for landowners defending their constitutional rights against dubious claims.

In the relevant case, the claimants were labour tenants. The landowners contended that the claimants lived on portions of some of the farms and had no claim to the entire farms, but only to the portions they actually occupied and also that they had no shared rules and did therefore not qualify as a community. The Court found that the investigations into the claim by the Land Claims Commission had been inadequate.

Even though it has for many years been the approach of the Land Claims Court not to grant cost orders, because the Restitution of Land Rights Act is considered to be social- or public interest litigation, a cost order was granted in this case in favour of the landowners.

Landowners had formally applied in terms of section 11A of the Act for certain properties to be degazetted and they had shown convincingly that this was not a community claim, as the Commission maintained, and also that the claimants had never exercised any rights on some of the properties claimed. The landowners had to bring an application to compel the Commission to refer the matter to Court for adjudication and had incurred substantial costs in the process.

Judge Gildenhuys referred to a recent Constitutional Court Judgement on the matter of costs in constitutional litigation, namely Biowatch Trust versus Registrar, Genetic Resources and others, where it was held that all litigants must be treated equally before the courts and that litigants should not be treated disadvantageously in making costs awards simply because they are pursuing commercial interests or have deep pockets, nor should they be looked upon with favour because they are fighting for the poor or lack funds themselves. It was also held in the Biowatch case, that in constitutional litigation involving the state, the state should ordinarily pay the costs if it loses the case. In restitution cases both the claimants and landowners have constitutional rights and both may approach the court for the enforcement or protection of such rights. In this case the Commission should have realised that the claimants are not entitled to the restoration of the entire properties and did not qualify to claim as a community. For these reasons the Court awarded party and party costs against the Commission.

Statement issued by Dr Theo de Jager, Deputy President Agri SA, May 13 2010

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