Greater Tenbosch Land Claims Committee and Others v Regional Land Claims Commissioner and Others

This is a land restitution claim involving eight Claimant Communities seeking restoration of over 150,000 hectares of land in Malelane, Mpumalanga, valued at approximately R1.2 billion. The Main Claimants (First to Fifth Plaintiffs) alleged dispossession under the 1936 Land Act without just and equitable compensation. Three other communities lodged competing claims, and seventy-one landowners opposed the claims. The matter was referred to the Land Claims Court in May 2006. The trial had been postponed seven times since 2007, at least four times due to the Main Claimants' lack of preparedness. A trial date was set for 2 August 2010 after a conference in May 2009. The Court directed that Dr Fisher, a social anthropologist, be appointed by the Regional Land Claims Commissioner to prepare an expert report by 26 February 2010. The report was only delivered in late July 2010. On 19 July 2010, ten court days before trial, the Main Claimants applied for a sine die postponement, claiming they could not proceed without Dr Fisher's report. The State-funded Claimants had legal teams totaling approximately 23 legal representatives including seven senior counsel. The landowners, who funded their own opposition, were ready to proceed and opposed the postponement seeking punitive costs.

• Whether a postponement should be granted where a party claims inability to proceed without an expert report
• Whether punitive costs should be awarded for a postponement application brought on the eve of trial
• What costs order is appropriate where a party has a history of dilatory conduct and non-compliance with court directives
• Whether costs should be awarded on an attorney and own client scale or as between attorney and client
• Whether equality before the law is compromised when one party receives state funding while the other bears its own costs

The Court ordered: (1) The First to Fifth Plaintiffs/Main Claimants to pay the Opposing Landowner Defendants the costs of the postponement application on a scale as between attorney and client, including costs of two counsel where applicable, and costs of the hearing days; (2) The costs occasioned by the postponement of the trial on a scale as between attorney and client, including costs of two counsel where applicable, reservation fees for two counsel and one attorney for the period up to 2 September 2010 limited to two days per week, and wasted qualifying fees of Defendants' expert witnesses where applicable.

Where a party in land restitution proceedings seeks a postponement on the eve of trial due to alleged inability to proceed without an expert report, and where that party has a history of dilatory conduct and non-compliance with court directives, a punitive costs order on a scale as between attorney and client is warranted. A party seeking the indulgence of postponement bears the burden of wasted costs even where the cause is an unforeseen event. The failure to prepare lay witness evidence that does not depend on expert reports constitutes blameworthy conduct. Postponement applications must be brought timeously, particularly in the Land Claims Court where circuit arrangements are complex. Prejudice to the opposing party that cannot be cured except by costs must be compensated through an appropriate costs order. State funding of one party's litigation does not excuse dilatory conduct or insulate that party from cost consequences, as all litigants are entitled to equal status before the law regardless of their financial means or the public interest nature of their claims.

The Court expressed concern about the inequality created when claimants litigate with state funding while bearing no financial consequences for postponements, while defendants bear their own costs. Meer J stated: "The perception that the Defendant Landowners are less equal before the law, is in all of the circumstances understandable, given the extent of legal funding to the Claimants, the value of what has already been restored to them and the financial income they reap therefrom. This is a matter to which attention must, I believe be given, by the requisite authorities." The Court quoted Sachs J in Biowatch Trust regarding equality before the law, noting that litigants should not be advantaged or disadvantaged based on their financial status or the nature of their cause. The Court observed that the Main Claimants' conduct displayed "seldom experienced such levels of disrespect and discourtesy from litigants" and warned "the time is fast approaching when the Court itself will be forced to take corrective measures." The Court reiterated its position from Quinella Trading that attorney and own client costs achieve little more than costs as between attorney and client, following Nel v Waterberg Landbouwers Ko-operative Vereeneging 1946 AD 597.

This case is significant for establishing the Land Claims Court's approach to repeated postponements and dilatory conduct in restitution matters. It addresses the tension between access to justice through state funding and equality before the law when one party is insulated from cost consequences. The judgment reinforces that restitution claimants, despite public interest considerations, are not immune from punitive costs orders where their conduct warrants it. The case demonstrates the Court's willingness to impose strict cost consequences for non-compliance with court directives and non-timeous postponement applications, even in the context of land restitution where costs orders are generally not favored. It also clarifies the limited role of court-appointed experts in settlement negotiations versus trial preparation, and confirms that claimants must prepare their own lay evidence and cannot rely entirely on state-appointed experts to build their case.