Emakhasaneni Community v Minister of Rural Development and Land Reform and Others

A land restitution claim in respect of commercial farmland near Melmoth, KwaZulu-Natal was lodged in 1995 and gazetted in 2006 in the name of the Emakhasaneni Community. After failure of settlement, the claim was referred to the Land Claims Court for adjudication in 2009. Shortly before the scheduled trial in June 2014, the Isizwe Sakwa Dludla (Dludla Tribe) applied to intervene and sought a postponement in order to launch a review of the gazetting of the claim, contending that the town of Melmoth should have been included and that it was improperly excluded as a claimant. At the same time, the claimant community sought to withdraw certain admissions made by its legal representative and to amend its claim to accommodate individual claims by members. These late applications resulted in the postponement of the trial. The landowner defendants applied for an order of wasted costs arising from the postponement against the intervening party, the claimant community, and the Regional Land Claims Commissioner.

The plaintiff claimant community, Dumisani Dludla, and those members of the intervening party later found to have mandated him were ordered, jointly and severally, to pay the wasted costs of the specified landowner defendants on a party-and-party scale, including the costs of two counsel for five days. The question of extending the costs order to the Regional Land Claims Commissioner was deferred to the trial.

The case illustrates the Land Claims Court’s willingness to depart from its usual reluctance to award costs in restitution matters where parties act unreasonably and cause last-minute postponements. It underscores that constitutional and public-interest litigation does not immunise parties from adverse costs orders when their conduct amounts to special circumstances.