Land Court Bill: deliberations

Meeting report

Land Court Bill
Mr Henk Du Preez, State Law Advisor, Department of Justice and Constitutional Development, took the Committee through the Bill (working document) containing the proposed amendments.

Clause 8

Concerning the appointment of judges, there is a proposed amendment. This relates to Subclause 4 of Clause 8. The proposal is to indicate that the “Judge President, Deputy Judge President and the Judges of the Court must be appointed as Judges of the High Court, at least half of whom at any given time must, as far as is practicable, have been Judges at the time of their appointment.” This is a substantive proposed amendment.

Mr W Horn (DA) said he has had two conversations with Mr Du Preez about this specific clause. He has formulated a different proposal. Even if 4(a) is included in the Bill, and does clarify the issues somewhat, there may still be a situation created by the wording. Judges appointed to the Land Court may claim to have concurrent appointments, through their appointment to the Land Court, to the High Court. The reason why at least half of the Judges appointed to the High Court must, as far as practicable, have been Judges of the High Court already, is specifically to bring in and enable appointment through the Judicial Service Commission (JSC) process of land matter specialists to these courts. This would mean that once the JSC President has identified these, they would be made Judges of the Land Court, even though the Land Court has a status of a High Court. He is unsure of the intention behind having a parallel appointment to a division of the High Court simultaneously. He proposes they move Subsection (a) to the end of Clause 8, Subclause 3. They should delete the part which says “be appointed as Judges of the High Court” and add “at least half of whom, at any given time, must as far as practicable, have been Judges at the time they were appointed to the Court” at the end of Clause 8, Subclause 3. It will not have any effect besides clarifying that Judges appointed solely to the Land Court won’t necessarily be entitled to a seat in other divisions of the High Court. The Bill grants the Land Court the status of a High Court. It is not diminishing the status of the Judges in any way or form.

Adv G Breytenbach (DA) agreed with Mr Horn’s proposal. She cannot imagine that the intention is to allow the Judges who are appointed solely to the Land Court to have concurrent jurisdiction in other courts. From their experience of the JSC, there are individual judges who, after only being there for a very short while, start applying for transferral to other High Courts. The possibility of this occurring does exist and they need to keep it in mind. She also has an issue with the word “practicable.” It allows a “wide open barn door” for abuse. If something is not considered practicable, then it is discounted as inconvenient and it doesn’t need to be abided by. She would like to hear an alternative to this word.

Mr Du Preez said he is also concerned about the word “must” and “as far as practicable.” It doesn’t make sense. He referred to the amending of the Bill as a game of pick-up sticks. If they “pull out one stick, we must make sure that the whole bundle doesn’t stir.” He does not see any obvious objection to including the words “who may have been judges at the time they were appointed to the Court” under Clause 8, subclause 3, as Mr Horn suggested. However, the Chairperson and the Members that serve on the JSC will have much more experience in this matter than he. He doesn’t see any issue with this change. It still clarifies that existing Judges may be appointed as Judges to the Court.

The Members agreed to the amendment.

Clause 22

This amendment to Subclause 1 removes the word “Provincial” and replaces it with “Division of the High Court”, in line with the Superior Courts Act.

Clause 26

These amendments pertain to Clause 26, Subclause 6. These amendments are based on comments that they received and they haven’t had the chance to share these with the Committee. Initially, they agreed to include the word “state land” in the Subclause, as they haven’t been able to access the principal Act, which is the Restitution of Land Rights Act. However, now that they have accessed the Act, they propose that the reference to “state land” should be included in this provision, but they have double checked it. The provision is actually not about state land, it is about the process provided for in the Distribution and Transfer of Certain State Land Act 119 of 1993. This is a provision that was extracted from this Act. They propose that the word “state” from “state land” be omitted from the provision. This will ensure that it is in line with the Restitution of Land Rights Act. Reference to state should not be included.

Dr W Newhoudt-Druchen (ANC) asked why the word “state” in “state land” was inserted into the Bill in the first place.

The Chairperson said that one of the parties made that suggestion during the public hearings. Upon further enquiry, they discovered that it is covered under the Restitution of Land Rights Act. That is why the word “state” is not necessary anymore. 

Mr Du Preez said that the issue of land rights relates to the procedures set out in that Act, and this does not only include state land. They needed to copy the procedure from the Restitution of Land Rights Act.

Ms Y Yako (EFF) said that it is sad that they don’t have land under the state's custody, and that people have to go to the Land Court to apply to get their land. The Bill bothers her. She needed to share that.

The Chairperson said he is unsure whether Mr Du Preez can respond to that, as it is a question for political debate.

Mr Du Preez said that the Bill is not intended to affect or amend the substantive law regarding land distribution and reform. Those issues are regulated by existing legislation. This Bill aims to create the structure that will eventually adjudicate disputes arising from abdicating the separate pieces of legislation. That is why there is an Act like this one. There are statistics on the amount of land owned by the state. It is a starting point for future debate, but it is incorrect to say that the state doesn’t own any land.

Mr Makubela Mokulubete, State Law Advisor, Department of Justice and Constitutional Development, said that this Bill is simply creating a court structure. They are not trying to deal with substantive law. That is dealt with by various pieces of land legislation. The function of this Bill is to create a court structure where disputes that emanate from those pieces of legislation are going to be adjudicated.

The Members agreed to the amendment.

Clause 29

The proposed amendments might appear intimidating, but the majority of them have been copied from the Regulations provision. They propose to include a provision that states that the Rules Board must make rules about, for example, the appointment of a mediator, the procedure for referral of matters to mediators, the process by which mediation is initiated, and the form, content and use of that process. The provision that states that the Rules Board must create rules governing the qualification for the appointment of mediators are particularly important.

Mr Horn was the sponsor of this clause. It addresses his concerns sufficiently and he is happy with the amendments.

Clause 36

The provisions that were going to be deleted from this clause are now going to be included in the provision dealing with mediation, with one exception. This exception is the issue of legal assistance concerning Legal Aid South Africa. They omitted that provision and included it here to ensure that the Minister makes regulations, amongst other things, concerning legal assistance. It is not appropriate for the Rules Board to make regulations concerning legal assistance. That is the prerogative of the Minister, as per the existing law.

Schedule

Mr Mokulubete said that the Schedule lists matters arising from various pieces of legislation that should be adjudicated in the Land Court. They are giving the Land Court exclusive jurisdiction over certain legislation related to land.

Mr Horn apologised as they were nearly finished processing the Bill and he did not want to be seen as someone who was “putting another boulder in the road.” However, he has noted on social media that attention has been given to the Schedule amendments which give the Land Court exclusive jurisdiction over matters where the Magistrate’s Court previously had jurisdiction. People have questioned whether Parliament intends to take away these jurisdictional powers. They should at least discuss this, because this issue ultimately impacts access to justice. After reading the social media comments, he realised it was a valid argument. The Land Court will have a seat in Johannesburg, although it is within the authority of the Judge President to authorise cities anywhere in the country. His understanding is that the court will not have the capacity to prevent a situation where access to justice, which is currently available through the Magistrate’s Office, will not be impacted through these provisions.  People should be able to access a Magistrate’s Court in a geographic location that is suitable and does not place undue stress on them. Magistrate’s Courts are also typically much less expensive than a High Court. A Rules Court might say that the costs of certain cases are limited to Magistrate’s Court tariffs, so this particular concern could be resolved. However, a large fear still remains about whether it is their intention, through giving the Land Court exclusive jurisdiction, to place additional barriers to access to justice in eviction issues. He does not know whether this is something they missed or whether it was really the intention of the Department. He assumes that they would have consulted internally with other Departments, like the Land Affairs Department, on this issue.

Mr Mokulubete said this is a very important issue and hoped it would be addressed at some point. During the processing of this Bill, they had thorough consultations with various Departments, mainly the Inter-ministerial Committee. The main matters dealt with in the Magistrate’s Court and the High Courts were reviewed. It was suggested that the jurisdiction of the court should be taken away completely so that the litigants do not have to incur costs in the Magistrate’s Court in the first place, and then further costs in the High Court, by way of an appeal. This matter was deliberated upon. The Department’s official stance was not in support of this decision, because of the reason that Mr Horn raised. This decision would disadvantage litigants because instead of being able to adjudicate matters in the Magistrate’s Court, they will be forced to go directly to the High Court. However, the ultimate decision was that the power of the Magistrate’s Court would be taken away. This will mean many matters will have to go directly to the High Court. They have identified three pieces of legislation that are land related. However, to avoid inundating the Land Court, they could not place these matters under the exclusive jurisdiction of the Land Court. They agreed that they would stick to a very important piece of legislation that should immediately be placed under the exclusive jurisdiction of the Land Court. It is the intention of the Department, through its engagement with the various Departments, that the exclusive jurisdiction of the Magistrate’s Court be taken away so that matters can be dealt with in the High Court, even though there will be prejudice against the litigants. They would have had to endure High Court costs anyway, as most matters end up at the High Court through appeals.

The Chairperson asked whether the Department of Agriculture, Land Reform and Rural Development (DALRRD) provided any statistics regarding how many matters land up in the High Court. The number of cases that end up at the High Court is not important, it is the percentage of the cases that is important. For the Committee to endorse that provision and make it more difficult for litigants to access justice, it should be based on very concrete evidence. They are balancing the issue of access to courts and justice, affordability and efficiency of justice. If the Department argues broadly that most cases end up in the High Court anyway, do they have any concrete statistics to back this up?

Mr Mokulubete did not recall receiving statistics on how often matters land up at the High Court. However, he was given a statistic on how many matters are dealt with in the Magistrate’s Court and what the impacts are when they are transferred to the High Court. They looked at the impact of these various pieces of legislation to see how many matters were dealt with in the Magistrate’s Court, and how many ended up in the High Court. He was not given a statistic on how many matters end up at the High Court through appeals.

Mr Horn said that even if a relatively small percentage of matters do not go beyond the Magistrate’s Court, the impact of keeping this provision should be considered important and relevant. Members should also take note of the fact that typically, court rolls for High Courts are very congested. In itself, even if one discounts all of the other arguments around access to justice, this will have an impact on the ability of the Courts to give speedy resolutions to matters. Unless they set up a robust bench of judicial officers, with more officers, that would be appointed to the Land Court. However, they know from recent history that government has struggled to set up efficient provincial divisions of the High Court because of budgetary limitations. They cannot assume that this will go seamlessly. They will probably struggle to set up a robust court. He is very worried about these issues surrounding exclusive jurisdiction.

The Chairperson asked Mr Du Preez and Mr Mokulubete how much work would have to be done, and how much time they would need, to amend the jurisdiction issue of the Magistrate’s Court and the High Court.

Mr Mokulubete said that it would be a lot of work. They had to remove the jurisdiction of the Magistrate’s Court and place the Land Court at the centre of this legislation as the forum for adjudication. If they were to delete the Schedule, they would have to go back to the drawing board and see what this would mean for the rest of the Bill. The Bill was structured around the Court having exclusive jurisdiction.

Mr Du Preez said that there are two options available. They purposefully included Subclause 2 in the short title and commencement provision to provide for different dates of commencement of proposed amendments to be scheduled. If the Committee needs them to do additional work, especially regarding the A list, they will do so as soon as possible. He returns to the Committee the next day for the Hate Crimes Bill. He proposes that the Committee runs with the proposed amendments to the Schedule and then, when it comes to commencement, those issues can be addressed. Alternatively, they can remove the proposed amendments that impact access to justice.

Mr Horn said that a staggered implementation would mean that they would leave the Executive to do the right thing. He isn’t speaking as a member of the opposition party, but if the legislature can properly regulate something, it should be left to the Executive. The other danger is that a staggered implementation would mean that the power of the Land Court would be diluted. His ideal is that the Magistrate’s Court and the Land Court would enjoy concurrent jurisdiction. Those who wish to approach the Land Court can do so, which would address some of the practical issues identified by the Department. He doesn’t want to make work for the Department and he feels ashamed that the Committee did not pick up on this issue earlier. He is not in favour of trying to manage this issue through the Subsection of the last clause of the Bill.

Adv Breytenbach agreed with Mr Horn. If they leave this up to the Executive, they would be accused of abdicating their duty. It is a “risky and reckless” approach.

The Chairperson asked Mr Du Preez and Mr Mokulubete how much time they needed to make the desired changes.

Mr Du Preez said that it seems like the Committee would like to replace reference to the High Court with the Land Court, and retain the principle of concurrent jurisdiction. Is that correct?

The Chairperson said that is correct.

Mr Horn agrees. The best way would be to have concurrent jurisdiction, so that access to justice is not limited.

Mr Du Preez apologised to the Committee. They would be able to work over the weekend and try their best to make these amendments quickly. They are only looking at the Prevention of Illegal Eviction and Unlawful Occupation of Land Act. There might be other legislation in the Schedule that they will have to look at. They will be able to give feedback to the Committee Secretary on Monday about when they will be ready to submit a re-drafted working document and A list. This is an important aspect of the Bill and they will follow the Committee’s instructions.

The Chairperson proposed that they should consider the practicality of having to move forward with two Bills at once. It could be an unbearable load of work. Tomorrow they will receive a briefing on the responses to the Hate Crimes Bill. After tomorrow, the team should be given time to focus on only the Land Court Bill. Once they finish the Land Court Bill, they could update the Committee on how far they are. Once the Land Court Bill is finalised, they can proceed with the Hate Crimes Bill.

The Chairperson said he did not want to push the team too far. They are human beings and there is only so much work they can do. Drafting legislation is not child’s play. He appealed to Members to accept this. His first preference would have been to allow the team to focus on this Bill and the Committee then rework its programme. Next week they could discuss the Bill’s progress. Pushing two Bills at once could overstretch the team unnecessarily. They thought they would be finalising the Land Court Bill today, but the issue raised by Mr Horn is seriously important. It needs a lot of attention. Only once this Bill is done should they focus on the Hate Crimes Bill.

Mr Du Preez said that they have been working towards presenting the summary of comments on the Hate Crimes and Hate Speech Bill. They have also prepared a working document to present. They do not want to derail the Committee’s programme. They will be able to present the responses the next day. It is a short Bill but they have received a lot of comments.

Mr Mokulubete said he is prepared to start working on the amendments while Mr Du Preez presents the responses the following day. Once he is finished with the Committee, Mr Du Preez can help him. They will be prepared to present the changes in the next week.

The Chairperson said they would proceed as planned with the Hate Crimes and Hate Speech Bill. They will try to finalise the Land Court Bill next week.

The meeting was adjourned.