Judge Susannah Cowen said South Africa was waiting for land justice and the constitutional court should lead the way.
(Renata Larroyd)
The Judicial Service Commission (JSC) on Tuesday heard a plea for a radical shift in the judicial approach to land reform from the high court judge whom they recommended for appointment as deputy president of the land court.
Judge Susannah Cowen said it was regrettable that at this point in South African history most cases that served before that court concerned eviction disputes.
“We need to take an ambitious view of what land justice is about.”
Cowen said many judges who came to act at the court found that most cases on their roll were eviction matters.
“And that is not okay. The land court cannot in this day and age be a place that is mediating the evictions of farm workers — that is simply not delivering on the promise of the Constitution.”
Instead, she said the land court should be dealing with restitution and doing so in an effective way.
“So what we need to achieve, and this is what the Land Court Act that parliament recently passed enables by introducing permanent judges, we need to make the court a place where people know they can come to get restitution to mediate redistribution disputes, to finalise compensation disputes and to do it effectively and efficiently and quickly.”
This required resources in the form of not only a new court building, but through the proper resourcing of legal aid and the pro bono sector to assist land claimants.
“We are not going to be able to do this on goodwill alone. We are going to need to be properly resourced,” she said in reply to a question from Justice Minister Thembi Simelane with regard to how land reform could be enabled.
Cowen, who has been acting as the deputy president of the land claims court until this month, said it also meant bringing more of the legal fraternity to focus on the field.
“South Africans want to get the land question resolved, South Africans want to see land justice and we need to do what it takes to get people active in this space,” she said.
The Land Court Act, which was signed by President Cyril Ramaphosa a year ago, marks an attempt to speed up land reform by placing certain obligations on the state to use its resources to ensure fair, equal access to land.
It provides for the establishment of a land court, with the same status as a division of the high court.
Cowen said the Act marked a recognition by parliament for the need to revise “how we think about land law”.
“When I look at the land space I wonder why it has taken us so long to get to where we are and I do think we need to shift the ground quite radically.”
Questioned by advocate Tembeka Ngcukaitobi, the author of two works on land dispossession and reform, on her judicial philosophy on land, she said the constitutional court needed to lead in taking a more progressive approach because courts often found their hands tied by the common law.
“We are bound by stare decisis [the doctrine that compels courts to follow precedent] and stare decisis is a principle that is central to the rule of law in South Africa, which is a founding value. So as a lower court there is so much that one can do until matters ultimately get up to the constitutional court.
“So if I may use this opportunity, now that I have the audience to suggest to the constitutional court that there is a critical need to look at some of these issues.”
Judge Susannah Cowen. (Judges Matter)
Cowen said she believed that she had made a contribution in the area of cattle and grazing, including in a recent ruling in a case where the parties were now seeking to go to the constitutional court.
It could provide an opportunity for the apex court to lay down progressive jurisprudence in an area where historical injustice carried over into the present.
“We really need to rethink how we think about cattle and land and that is precisely because of the connection between cattle dispossession and land dispossession in this country, which, what we see in the court is ongoing.
“That colonial legacy of dispossession is ongoing and that requires full frontal re-examination of the common law, and how it applies in the context of land law.”
In sum, she said, she agreed fully with Ngcukaitobi that “there is real space to shift our jurisprudence into a more progressive jurisprudence”.
Cowen was one of the three candidates for the position.