By Simone Gray
The litigation in this matter started as far back as 2013 when an application was brought in the Land Claims Court to deal with the persistent failure by the Department to process labour tenant applications. The application to the LCC was for a structural interdict that would require the Department to provide statistics of the current status of all labour tenant claims and to report to the Court regularly on its progress, until all outstanding claims had been settled or referred to the LCC itself. The first part of the structural relief sought was granted but the Department continually failed to report to court timeously with a complete set of statistics. The parties reached an agreement that court supervision of the Department’s progress in processing labour tenant claims would take place. After ordinary court supervision for two years, the LCC determined that it could best perform its agreed supervisory role if it had the assistance of an independent person: a Special Master for Labour Tenants. The applicants did not approach the LCC initially seeking appointment of a special master; it was only later that this remedy was sought because ordinary court supervision had been tried and had failed.
After the LCC order was made, the Department appealed the appointment of a Special Master to the SCA, where the majority found that the LCC was wrong to appoint a special master as the special master would “usurp” the functions of the Department, and cause “unforeseen expenditure”.
The SCA decision was then appealed to the Constitutional Court. At the Constitutional Court, it was argued on behalf of the applicants that the LCC had the power to appoint a special master and that the SCA could only interfere with that discretion if the LCC committed a “demonstrable blunder”, which was not the case in this matter; there was thus no basis for the SCA to interfere with the order of the LCC. It was argued that the LCC exercised its discretion and appointed a special master with limited powers who would not interfere with the Department’s functions and would not create further delay or significant additional costs.
Simone Gray holds a LLB and LLM (Medical Law) degree from the University of KwaZulu-Natal and a LLM (Human Rights Law) degree from the University of Cape Town. She has a particular interest in the right to equality and how law can be used as an instrument not only to realise rights but also to bring about social change.