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Minister of Rural Development and Land Reform Maite Nkoana-Mashabane has to personally appear in court on May 17 to explain her failure to comply with a court order regarding the development of District 6 for land claimants.
Acting Judge President of the Land Claims Court Shehnaz Meer and acting judge Tembeka Ngcukaitobi delivered this ruling on Wednesday. In November last year, Judge Jody Kollapen granted a declaratory order that Nkoana-Mashabane must produce a comprehensive plan for the restitution of District 6. She had to do this by February 26 this year, and her legal representation consented to the order.
However, the report provided to the court didn't contain the requested information – the plans for the developments, the cost and a timeframe. The District 6 Working Committee then approached the court to ask that the court declare that Nkoana-Mashabane failed to comply with the court order, that she should appear personally in court to explain herself and if not, declare her in contempt of court.The matter was set for hearing on Wednesday, but Nkoana-Mashabane and her department's legal counsel, advocate Helen Ngomane brought an application for postponement.
She argued that Nkoana-Mashabane wanted to exercise her right to appoint different legal counsel, and that she and her senior were only appointed on April 12, therefore they need a postponement.
Nkoana-Mashabane opposed the application to force her to appear in court, and Ngomane said it would not be in the interest of justice if Nkoana-Mashabane's arguments are not heard.
Ngomane's application did not sit well with the judges.
Ngcukaitobi asked why she couldn't file an answering affidavit to the applicants' founding affidavit of 12 pages, but found the time to file a 10-page application for a postponement.
Meer asked what happened between the 27th of March, when the applications brought their application, and 12 April.
Ngomane said a letter was sent to an official on March 27, instructing him to appoint new legal counsel, but he proceeded with the previous counsel, who appeared to be under the impression that they were still acting on Nkoana-Mashabane and the department's behalf.
"We don’t know the matter," said Ngomane. "We are new."
"Aaaaah!" groaned some of the District 6 claimants, who packed the public gallery.
"The District 6 case has been going on for far too many years," Meer said, to murmurs of approval from the gallery.
"How much would this cost the taxpayers?" Ngcukaitobi asked, with a stern expression.
Advocate Geoff Budlender SC, appearing for the claimants, said the evidence in "incontrovertible" that the report Nkoana-Mashabane produced was not what the court ordered her to do.
He said it didn't include the plans for the development, how it will be funded and the timeframe, and was done by "some planning consultants". He said her own counsel, when still on brief, said to her she didn't comply, and she has admitted, through a person speaking on her behalf, that she didn't comply.
He said the claimants are trying to obtain the houses they were promised and which is their right.
"The only way to do it is to put the minister on the spot," Budlender said.He said the minister had three opportunities to explain what happened."She remained silent."
"It's time for the minister to explain herself. That time is, with respect, long overdue."
Meer and Ngcukaitobi dismissed the application to postpone the matter, with the latter it has no merit, and "no adequate explanation for the inactivity".
They dismissed the application with costs and ordered that Nkoana-Mashabane to personally file an affidavit by May 6.
In this affidavit, she must explain all the steps taken to comply with the November 26 court order, and show cause why she is not in contempt of court and why she should not pay the costs of the application personally. She must also appear personally in the court on May 17.
Ngcukaitobi said the matter of whether she complied with the earlier court order and whether she is in contempt of court, will stand over until after her testimony.
On the steps of the High Court in Cape Town after the proceedings, chairperson of the District 6 Working Committee Shahied Ajam said the government has treated them "like slaptjips for the past 20 years".
He described the court proceedings as a victory for the people fo District 6 and the Western Cape.
He also said Nkoana-Mashabane had three opportunities to explain what she is going to do.
"Now she's going to be held personally responsible."
