Muslim Judicial Council and Another v Chief Land Claims Commissioner and Another

The Muslim Judicial Council (MJC) and the Trustees of the Cammies Darries Heritage Land Trust applied to the Land Claims Court to review decisions of the Chief Land Claims Commissioner and the Regional Land Claims Commissioner refusing them state funding for legal representation under section 29(4) of the Restitution of Land Rights Act 22 of 1994. The refusals, dated 25 February 2022 and 31 March 2022, related to their participation as defendants and counter-claimants in ongoing restitution litigation (LCC 37/2003) concerning land in Macassar, Cape Town. After the review was launched, responsibility for providing legal representation to restitution litigants shifted to Legal Aid South Africa with effect from 1 April 2022 under a memorandum of understanding. By the time the matter was heard, the parties agreed that the funding decisions should be set aside to allow fresh applications to Legal Aid South Africa, but the respondents did not concede unlawfulness. The only remaining dispute was the appropriate costs order.

The Commission was ordered to pay 25% of the applicants’ costs on a party-and-party scale from the date of receipt of the answering affidavit, including the costs of two counsel. Save for this limited order, each party was directed to pay its own costs.

The judgment clarifies the application of costs principles in land restitution and social justice litigation, particularly where matters are resolved pragmatically without a merits determination. It underscores the duty of candour on state litigants to disclose material changes in administrative arrangements, and affirms that failures in this regard may justify partial adverse costs orders even where the State ultimately acts responsibly.