Acting Judge Tembeka Ngcukaitobi SC of the Land Claims Court has once again ruled against Minister of Women, Youth and Persons with Disabilities Maite Nkoana-Mashabane. This relates to a 2019 judgment where he ruled she should personally pay costs in a case brought against her by the District Six Working Committee (D6WC).

In August 2019, Ngcukaitobi found Nkoana-Mashabane had failed in her duties as minister of rural development and land reform to provide restitution to District Six land claimants. At the time, he found she should pay the costs of the court. Then, in March 2020, at the Land Claims Court, Ngcukaitobi dismissed Nkoana-Mashabane’s leave to appeal his judgment, again with costs against her. 

In early October, Nkoana-Mashabane launched another application against the D6WC, again asking to have the application against her dismissed, including the costs order. According to a statement by the committee during the court case, Nkoana-Mashabane’s attorneys claimed she was no longer the minister of rural development and land reform, and the March appeal application had been brought by the current Minister of Rural Development and Land Reform, Thoko Didiza. 

In the March appeal hearing, it was revealed that Didiza had played no part in bringing an application to review the cost order against Nkoana-Mashabane. 

During the hearing held on Thursday 1 October, Nkoana-Mashabane’s attorneys claimed she should not be held personally responsible for the failure to provide restitution. 

But in the judgment, Ngcukaitobi ruled against Nkoana-Mashabane. He cited a late application – it is almost seven months since his March judgment against her and just over a year since his August 2019 judgment against her. In addition, he said, there was no confusion as to who would have to pay the costs, or else it would have been raised previously by her counsel. Ngcukaitobi questioned why this court application had only been brought now. 

In Ngcukaitobi’s ruling, he commented on this allegation by Nkoana-Mashabane: “There can be no fair comparison between the two [Nkoana-Mashabane and Didiza]. Minister Didiza has filed full and comprehensive reports about the steps she is personally taking to ensure the resolution of the land claim of the District Six Community.”

Ngcukaitobi described Nkoana-Mashabane’s claims of favouritism as “unfounded”. Under Didiza’s leadership, the department has laid out plans for land restitution for claimants. It has submitted all the required plans, as previously laid out by Judge Jody Kollapen in November 2018. 

At the moment, housing units are being constructed in District Six, while the City of Cape Town is working with stakeholders to create a neighbourhood framework plan for the community. Some of the first claimants had been expected to move back into the area by December, but Daily Maverick has since established this has been delayed to March 2021 because of the Covid-19 lockdown. 

“The court granted a personal costs order against her – making this the third personal costs order in favour of the District Six Working Committee following her reckless and negligent behaviour while she was minister of land affairs,” said Nicki van’t Riet, a lawyer from Norton Rose Fulbright, who took on the case pro bono for the committee. 

“The court referred to the application as ‘hopeless and one that verges on the vexatious’,” said Van’t Riet after the judgment. “This judgment serves as a cautionary tale for public officials and this is that they are to exercise their powers and functions with accountability, that they will not be permitted to abuse the court process just because of who they are and that the law will ultimately seek to protect those individuals who seek to assert their basic human rights.” 

The spokesperson for the D6WC, Karen Breytenbach, said the committee was delighted at the ruling as it confirmed South Africa still had a legal system that protects the poor. 

“We also consider today’s ruling a victory for the taxpayer who will now be protected from having to foot the multiple personal costs orders granted against the minister which she was refusing to pay out of her own pocket as she had been ordered to do,” said Breytenbach. 

When Daily Maverick tried to contact Nkoana-Mashabane’s office via telephone and SMS on Monday evening, there was no response. Daily Maverick will update this story once it receives comment from the minister. DM