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

A land restitution claim was lodged on 8 December 1995 in respect of property near Melmoth, KwaZulu-Natal. The claim was investigated and published in Government Gazette Notice 520 of 2006 as a claim by the Emakhasaneni Community. The claim was referred to the Land Claims Court on 2 January 2009. From 2009 onwards, Dumisani Dludla (representing the Isizwe Sakwa Dludla/Dludla Tribe) expressed dissatisfaction with the claim process and representation, participating in various conferences. On 2 June 2014, ten days before the scheduled trial, the intervening party (Dludla Tribe) applied to intervene and for postponement to launch a review application challenging how the claim was gazetted (specifically to include the town of Melmoth). The plaintiff claimant community also sought to withdraw admissions made at a telephonic conference and convert the community claim to accommodate individual claims. These developments necessitated postponement of the 5-day trial scheduled for 9 June 2014. The land owner defendants sought wasted costs against the plaintiff, intervening party, and first and second defendants.

• Whether special circumstances existed to justify departure from the general rule in the Land Claims Court not to award costs in land restitution matters
• Whether the intervening party's delay in applying to intervene warranted a costs order
• Whether the plaintiff claimant community's withdrawal of admissions and amendment of its claim warranted a costs order
• Whether the Regional Land Claims Commissioner failed to comply with section 10(4) of the Restitution of Land Rights Act in resolving disputes about legitimate representation
• Whether wasted costs should be awarded against parties in constitutional/public interest litigation

The plaintiff claimant community, Dumisani Dludla, and those members of the intervening party later found to have mandated Dumisani Dludla were ordered to pay the wasted costs of the third to sixth and eighth to twenty-third defendants (land owner defendants), jointly and severally, the one paying the other to be absolved. Such costs were to be on a party and party scale and include costs of 2 counsel for 5 days. The issue of whether the second defendant should pay costs jointly and severally with the other parties was deferred for determination at trial.

Special circumstances justifying a costs order in land restitution matters can arise where: (1) a party with knowledge of proceedings and legal representation delays intervention until immediately before trial, necessitating postponement; (2) such delay spans approximately 5 years during which the party participated in conferences addressing the very issues later raised in the intervention; (3) a claimant community seeks to withdraw admissions and amend claims in a manner requiring substantial explanation and evidence, thereby necessitating postponement. Even in constitutional and public interest litigation concerning land restitution, parties may be mulcted in wasted costs where their conduct unreasonably causes postponement of trials and prejudices other parties.

The court noted that Dumisani Dludla was obviously a literate man who could not claim to be unaware of his rights and recourse to secure those rights. The court observed that whether the Regional Land Claims Commissioner was truly remiss in not establishing the validity of Dludla's claims and complying with section 10(4) of the RLRA could not be established on the papers and would have to be dealt with in evidence at trial. The court also observed that litigation for the restitution of land rights is constitutional in nature and involves public interest, which is why the court will not ordinarily order costs in land claim cases absent special circumstances.

This case is significant in South African land restitution jurisprudence as it addresses when costs may be awarded in constitutional land claims litigation, which ordinarily proceeds without costs orders due to the public interest nature of such matters. The judgment establishes that unreasonable delay and eleventh-hour procedural interventions that cause postponement of trials can constitute special circumstances justifying departure from the general no-costs rule. The case also illustrates the challenges courts face when there are internal disputes within claimant communities about representation and the extent of the Regional Land Claims Commissioner's obligations under section 10(4) of the RLRA to resolve such disputes. The judgment demonstrates the court's willingness to hold parties accountable for procedural conduct that wastes judicial resources and prejudices other parties, even in the context of constitutional rights litigation.