MM Ndlela and Others v LJ Nel

The applicants lodged labour tenant claims under section 16 of the Land Reform (Labour Tenants) Act No 3 of 1996 against the first respondent, owner of the farm Winterhoek in Mooi River, KwaZulu-Natal. The matter was referred to arbitration, where a conditional determination was made on 25 January 2005, declaring certain applicants to be labour tenants and awarding them joint ownership of approximately 85 hectares, conditional upon drilling water yielding at least 4900 liters per day. This determination was made a court order on 12 May 2005. The second and third respondents (Minister and Director General of Land Affairs) failed to implement the order. After successful water drilling in September 2007, the respondents still failed to comply with their statutory obligations under sections 23, 26 and 28 of the Act to compensate the landowner, grant advances/subsidies, and register the order. Multiple interlocutory applications followed due to non-compliance by applicants and state respondents. The applicants expressed reluctance to relocate and repeatedly refused to comply with court orders. They launched multiple abortive applications including attempts to set aside the arbitration determination and review Judge Bam's judgment. By February 2014, when the parties settled save for costs, the matter had been ongoing for over 12 years with numerous postponements and applications.

• Whether a costs order should be made against the applicants despite the matter being constitutional/public interest litigation involving labour tenancy rights
• Whether a costs order should be made against the second and third respondents (state organs) for their failure to implement court orders
• What principles apply to costs orders in constitutional and land reform litigation
• Whether the applicants' conduct constituted contempt of court and abuse of process warranting a punitive costs order
• Whether special circumstances existed to depart from the general rule against costs orders in land reform matters

The applicants and the second and third respondents were ordered to pay the costs of the application and the application of 14 April 2008, jointly and severally, taxed as between party and party, the one paying the other to be absolved. It was specifically declared that the applicants' cattle may not be attached to satisfy this order by way of execution.

In land reform and labour tenancy matters, which constitute constitutional/public interest litigation, the general rule is that costs orders should not be made against unsuccessful parties. However, special circumstances such as frivolous, vexatious or manifestly inappropriate conduct, deliberate and repeated non-compliance with court orders, or abuse of court process warrant departure from this rule and justify costs orders. State organs that fail to implement court orders in land reform matters and contribute to delays may be ordered to pay costs. The test is whether the conduct deserves censure by the court, with the ultimate goal being to do what is just having regard to all facts and circumstances.

The Court made strong obiter observations about the conduct of the applicants' attorney, Mr Sundeep Singh, in allowing clients to depose to affidavits containing scurrilous and unjustified attacks on the late Judge President Bam, describing the affidavit as being in contempt of court. The Court noted this conduct would deserve the strongest censure but refrained from further comment as Mr Singh was no longer a practicing attorney following proceedings by the Natal Law Society. The Court also observed that the third respondent's inaction and lack of urgency in bringing the matter to finality "has the real potential of making the general public lose faith in our state institutions." The Court noted it is trite law that a court becomes functus officio after pronouncing final judgment and that no review lies against a High Court judgment, facts that should have been known to the applicants' attorneys. The Court emphasized that as an organ of state, the third respondent carries the burden of ensuring both the interests of applicants and landowners are protected in land reform matters.

This case is significant in South African land reform jurisprudence for clarifying when costs orders may be made in labour tenancy and land reform matters despite the general rule against such orders in constitutional litigation. It demonstrates the Land Claims Court's willingness to impose costs where there is sustained non-compliance with court orders, abuse of process, or manifestly inappropriate conduct by both claimants and state organs. The judgment also highlights the duty of state organs (Department of Land Affairs) to actively implement court orders in land reform matters and the consequences of their failure to do so. The case illustrates the courts' frustration with protracted land reform litigation caused by deliberate non-compliance and vexatious applications. The protection of the applicants' cattle from execution demonstrates judicial sensitivity to the practical realities of ongoing relationships between landowners and labour tenants who must coexist on the same property.