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Black sash zacc4/8/2023 ![]() With the majority of the Constitutional Court ultimately upholding the decision of the LCC to appoint a Special Master, the case raises both conceptual as well as practical questions about (1) the relationship between rights and remedies, (2) substantive law and (3) separation of powers. In the case, three courts, the Land Claims Court (LCC), the Supreme Court of Appeal (SCA), and the Constitutional Court split on whether the adoption of a novel remedy – the appointment of a Special Master – overstepped the powers accorded to courts. Footnote 3 The case is of significant import not only for the process of land reform in South Africa, but also for providing nuance to a distinctly South African understanding of the separation of powers and the principles that govern appropriate relief in constitutional litigation. The majority judgment was authored by Justice Edwin Cameron on his last day in office and was hailed as ‘poetry in social justice’. These actions came in the backdrop of the long-running failure by successive ANC-led governments to restore land to those who were deprived of it during apartheid and the increasing public anger and political mobilisation in response to that anger. Footnote 1 The case was brought by a group of petitioners who claimed that the Department had violated their constitutional rights by failing to process their claims as labour tenants to certain property rights under the provisions of the Land Reform (Labour Tenants) Act 3 of 1996. ![]() The latest of these decisions was handed down on 19 August 2019 by the Constitutional Court of South Africa in Bhekindlela Mwelase v Director-General for the Department of Rural Development and Land Reform. A recent line of cases has forced the Court to consider what this means in the context of a constitutional system that is beset by a range of failures to institutionally deliver on its constitutional obligations. The longstanding jurisprudence of the Constitutional Court of South Africa requires that constitutional remedies be ‘effective’. These factors can provide doctrinal and normative guidance for courts – especially in the so-called Global South – that often operate under conditions of chronic recalcitrance, inattentiveness, inaction, or incompetence of the coordinate branches of government. We then apply these factors to the judgment of the Supreme Court of India in the Right to Food Case to better understand the ways they play out in a different jurisdictional context. The paper identifies a set factors that underpinned the Court’s decision that will be likely to influence the granting of invasive remedies in future cases. We approach these questions after considering the judgment in its socio-political context through a consideration of the factors underlying the granting of the remedy, from both a theoretical and comparative perspective. ![]() ![]() We argue that the case raises both conceptual and practical questions about the relationship between rights and remedies, substantive law, and the separation of powers. We focus on the recent judgment of the South African Constitutional Court in Bhekindlela Mwelase v Director-General for the Department of Rural Development and Land Reform – in particular its doctrinal innovation in appointing a Special Master to oversee the processing of labour tenant claims by the Department of Rural Affairs and Land Reform. This article concerns remedial design by courts in cases where constitutional rights are jeopardised by a recalcitrant administration. ![]()
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