New Land Court Bill Threatens Independence of Judiciary

Issued by the FW de Klerk Foundation, on 04/07/2023


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.

Land Court judges may be assisted by assessors with the power to overrule them on any question of fact – such as the amount of compensation (if any) that would be payable for expropriated land. Judges would remain the final arbiters only on questions of law. This arrangement raises questions about the potential influence of non-judicial assessors on critical determinations and the overall balance of power within the court system.

With a view to resolving land expropriations with “ease and speed”, Land Courts will be able to refer disputes to arbitrators of their choice. Parties that reject arbitration might face punitive cost orders.

Critics fear that under the Bill, the Government will have the final say in the appointment of assessors and judges of Land Courts and the Land Appeal Court – and that this will, in the words of Minister of Justice Ronald Lamola in April 2021, be “a game changer” in facilitating expropriation without compensation. The provisions and intentions of the Bill might, however, be irreconcilable with the rule of law – which is a foundational value in Section 1 of the Constitution.

The Constitutional Court, as the guardian of the Constitution, has historically played a crucial role in land reform matters. The establishment of a separate Land Court and Land Court of Appeal raises concerns regarding potential inconsistencies and duplication in the adjudication of land matters and could potentially undermine both the efficiency and credibility of the judicial system.

In emphasising the importance of a comprehensive and balanced approach to land reform, the Foundation underscores the need to respect constitutional principles, promote economic growth and foster social cohesion. Striking a delicate balance between addressing historical injustices and safeguarding property rights is paramount, as these elements are crucial for sustained economic development and investment.

The Foundation believes that Section 25 of the Constitution provides such a balance. Consequently, any land reform initiatives and associated court processes must be conducted within the parameters of the Constitution, ensuring the utmost respect for the rights of individuals and preventing undue compromise on property ownership and tenure. The Bill currently awaits the final signature of President Cyril Ramaphosa.