The newly established Land Court, which has legally come into operation, hopes to alleviate the huge backlog of cases sitting at the Land Claims Court, which it will replace.
The Land Claims Court, which started in the 1990s and had exclusive jurisdiction over land claim disputes, now sits with a backlog that will take 30 years and more than R170bn to settle, according to the Commission on Restitution of Land Rights.
On Friday, President Cyril Ramaphosa proclaimed that the Land Court Act would commence operation. The new court is still finding its judges and requires its own regulations to be created by the justice department.
The act, which Ramaphosa signed into law late in 2023, allows for the creation of a new court that takes over the Land Claims Court’s jurisdiction to hear land claims. The court has the same ranking as the high court and will have its own internal appeal bench.
The new Land Court is designed to expedite cases and disputes, foster the adoption of alternative dispute resolution mechanisms (such as arbitration or mediation) instead of full court hearings, try to prevent cases and reduce the workload of the Supreme Court of Appeal (SCA).
This is because with the older Land Claims Court, all appeals against the court’s rulings could be decided only by the SCA. However, SCA cases take very long to finalise and the court has its own large backlog of cases as well. This contributed to the backlog of nearly 5,000 cases now awaiting finalisation.
Under the new act, because the Land Court is ranked the same as any other high court, it can have its own appeals heard by a full bench. This does not stop appeals going to the SCA, but now there is a faster avenue for litigants and the court to resolve disputes as an appeal bench can hear the case at the Land Court.
Furthermore, unlike the Land Claims Court, which had only temporary judges, the new Land Court, according to the act, will have a permanent judge president, deputy judge president and its own sitting judges.
Because the older Land Claims Court was temporary, it never had a permanent building. It meant established magistrate’s courts and high courts would be used to hear disputes, which further caused delays since it required sharing courts and arranging schedules.
As parliamentary drafters noted, previous laws were created under the presumption that land claims and land disputes would be resolved within a few years.
‘Protracted’
“It turned out that in reality, the restitution process became protracted and is still not completed,” the drafters noted in an explanatory note on the bill. “A lack of permanency of judges presiding over matters ... and the absence of permanent seat ... resulted in slow processing of, and backlogs in, land restitution claims to the dissatisfaction of land claimants.”
The new Land Court is still in its early days, and, as Ramaphosa’s proclamation notes, certain parts are not yet in operation. This includes section 37 of the act, which deals with regulations the justice minister has yet to promulgate and schedules pertaining to older legislation, that still requires transitionary periods. These deal with what must happen to existing cases and how they will be transferred.
All this has to be worked out by the justice department and the incoming judge president of the court.
Interviews
On Tuesday, the Judicial Service Commission (JSC) will be interviewing four candidates for the judge president position of the court. All are now sitting judges.
Supreme Court of Appeal (SCA) judge Zeenat Carelse acted in the Land Claims Court for more than 12 years, with some of her land judgments being upheld by the Constitutional Court
Johannesburg high court judge Susannah Jane Cowen also has extensive experience in land matters, as an academic and having acted at the Land Claims Court since becoming a permanent judge in 2022. She was also involved in drafting the Land Court Bill that eventually became the act as well as various policies.
Fellow Johannesburg high court judge Shanaaz Mia has acted for almost 15 years in the Land Claims Court.
Finally, Durban high court judge Thomas Ncube has been involved in the Land Claims Court since 2006. He penned a landmark judgment, dealing with the appointment of a special master to administer labour tenant claims that was upheld by the Constitutional Court.
As judicial watchdog Judges Matter notes, Ncube was the only male judge in the Land Claims Court by the time the new act came into effect.
The details of the court and the appointment of its president will have to be ironed out in the coming months.
In 2023, the Commission on Restitution of Land Rights told parliament it would take SA about 30 years and more than R170bn to settle land claims backlogs. The new court is meant to help alleviate this.
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