The applicants, the Muslim Judicial Council (MJC) and the Trustees of the Cammies Darries Heritage Land Trust (CDH Trust), applied to review decisions by the respondents (the Chief Land Claims Commissioner and the Regional Commissioner, Western Cape) taken on 25 February 2022 and 31 March 2022 respectively, refusing them funding for legal representation in terms of section 29(4) of the Restitution of Land Rights Act 22 of 1994. The applicants were parties to restitution proceedings (case number LCC 37/2003) brought by the Macassar Land Claims Committee claiming restitution of land in Macassar, Cape Town. The applicants disputed the plaintiff's entitlement and had counter-claimed for restitution in respect of overlapping land. The applications for funding were submitted on 14 January 2022. In June 2022, after the impugned decisions, the applicants delivered notices of intention to amend their counter-claims. On 1 April 2022, Legal Aid South Africa took over the function of providing legal assistance to restitution litigants from the Land Rights Management Facility pursuant to a memorandum of understanding. The applicants were apparently unaware of this transition until the hearing in November 2023.
1. The Commission shall pay 25% of the costs of the applicants in the review application on a party and party scale from the date of their receipt of the answering affidavit, including the costs of two counsel. 2. Save as aforesaid, each party shall pay its own costs.
The binding legal principles established are: (1) In review proceedings challenging administrative decisions, the lawfulness of the decision must be assessed based on the circumstances that prevailed at the time the decision was made and the information that was then before the decision-maker, not on subsequent events or information; (2) In restitution matters involving social legislation, the Affordable Medicines Trust and Biowatch principles apply, such that costs are only ordered in special circumstances; (3) A State respondent in review proceedings has a duty to disclose material changes in administrative arrangements (such as transfer of functions) in its answering affidavit, and failure to do so may result in a costs order against the State even where the review does not succeed on the merits; (4) Where a party asserting a right of access to State funding for legal representation succeeds in a review against the State in the context of a restitution matter, they would ordinarily be entitled to costs.
The Court observed that it would be undesirable to express views on the merits of certain points raised by the applicants, as Legal Aid South Africa must now consider the applicants' predicament post-amendments in light of its own processes and requirements, and the Court should not pre-empt those decisions. The Court noted without deciding that the language of 'mootness' may not be apposite in the circumstances, stating the real underlying issue was whether effective relief could have been granted given the transfer of functions. The Court also noted in passing that the Land Court Act 6 of 2023 came into force on 5 April 2024 after the matter was argued, but did not express any view on its application to these proceedings. The Court acknowledged that while many engaged in land litigation may have been aware of the transition to Legal Aid South Africa, the transition was not effected by legislative act nor was it gazetted.
This case is significant for clarifying the principles applicable to costs in restitution matters involving social legislation, where the Affordable Medicines Trust and Biowatch principles apply and costs are only ordered in special circumstances. It also addresses procedural issues arising from the transition of legal aid provision in restitution matters from the Land Rights Management Facility to Legal Aid South Africa, and the importance of full disclosure by State respondents in review proceedings, particularly regarding material changes in administrative arrangements that affect the relief that can be granted. The judgment emphasizes that review applications must be assessed based on the information and circumstances that existed at the time the impugned decision was taken, not on subsequent developments or amended pleadings.