In terms of the doctrine of separation of powers; specific functions, duties and responsibilities are allocated to and reserved for a distinctive sphere of government, namely, the Executive, Legislature or Judiciary. It is in terms of this doctrine, that it has been widely accepted that the judiciary cannot be involved in the formulation of policy, as this function is reserved for the legislature and or Executive and should it do so, this would amount to ‘judicial overreach’.


A recent constitutional court case, by Cameron J, dealt with the issue of judicial overreach and the constitutional court found that where necessary, the judiciary may be allowed to intervene in the functions of another sphere of government, should the circumstance permit it.


The case is: Mwelase and Others v Director-General for the Department of Rural Development and Land Reform and Another [2019] ZACC 30




This case deals with the issue of land claims and the delay in the processing of land claims by the Department of Rural Development and Land Reform. The Land Reform (Labour Tenants) Act was introduced on the 22nd March 1991 to address the issues that were faced by labour tenants and to deal with the issue of land restitution to the people that were deprived of land rights by racial subordination.


The Act provided a detailed process to be followed in order for a person to acquire the right to land. This involved an application, for specified property rights, to be made by the labour tenant, the department then must notify the land owner that such application has been made and if the claim is opposed and settlement cannot be reached the department must refer a claim to the Land Claims Court (LCC). This is where, in the above case, the issue arose, as the Department failed to adequately process the claims and make the referrals to the LCC, when opposition arose.


Proceedings in the Land Claims Court


The applicants referred the matter to the LCC, when after 19 years the Department had failed to refer their claims. In the LCC, the Applicants sought a structural relief order, whereby the Department was ordered to supply all applications filed that had not been settled or referred to the LCC. The parties had further agreed to an order that required the department to update the LCC on the progress of land claims, collection of data, settling claims and referrals of unsettled claims. The Department failed to provide the requested information.


The Applicant contended that the judicial supervision had failed and as such sought an alternative order of appointing a special master to intervene directly in the Department’s bureaucratic process.


The LCC found that an order for a special master was in line with the Restitution Act that empowered the LCC to conduct proceedings on an informal or inquisitorial basis.


The LCC found that the special master would assist the Department in achieving its objectives and thus granted the order for same.


Proceedings in the Supreme Court of Appeal (SCA)


The Department sought to appeal the order for the appointment of a special master.


The SCA overturned the decision of the LCC. The SCA agreed that the Department had failed to process or refer labour tenants’ applications timeously and the court endorsed the ruling that the Department be required to deliver to the LCC an implementation plan and the appointment of a senior manager to oversee the implementation of the plan; the court merely did not agree with the appointment of the Special Master.


The SCA found that the senior manager would be an official from the Department, therefore the responsibility to formulate policy and develop a national programme would remain the responsibility of the department.


The SCA found that the order by LCC for the appointment of a special master was a gross intrusion by a court into the domain of the Executive and thus a textbook case of judicial overreach.


Proceedings in the Constitutional Court (CC)


The Applicants appealed to the Constitutional Court (CC) and wished to have the order from the LCC reinstated.


The CC found that the Department, even after 20 years, has remained obstinate and shown unresponsiveness and a refusal to account to those that are dependent on its operations. The CC found that the issue mainly lies in the departments incapacity to fulfil its constitutional mandate and this incapacity has affected a large number of land right claimants.


The CC held that the doctrine of separation of powers does not imply a rigid adherence to the rules. The CC further held that all three branches of government share a commitment to the constitution and are engaged in a shared enterprise of fulfilling practical constitutional promises to the country’s most vulnerable and this shared commitment may result in overlaps that may create tension. 


The CC held that in cases of extreme right infringement, as seen in this case, the LCC may employ a remedial process which is extreme, even if this remedial relief means temporary, supervised oversight of administration where it has been shown that the administration is unable to perform.


The Constitutional Court held that the special master would be an agent of the Land Claims Court, as the court would be the one to set the scope of the master’s mandate and retain control over its role in formulation of the remedy. The CC held that the LCC is empowered to do this by the powers given to it by the Act. The CC further found that the constitution, further grants extensive power to the LCC when deciding constitutional matters and grants it the power to make any order that is just and equitable. The LCC was found to have the inherent power to regulate its own process and remedy wrongs, even if it means it employs materially innovative remedial measures, as seen in this case.


The CC held that the LCC directed itself properly in the case before it. The LCC saw that the Department was failing extensively and cried out for a remedy and the order granted by it was to remedy an institutional dysfunction. The Constitutional Court ultimately found that the appointment of a special master did not amount to judicial overreach, as the LCC was exercising its inherent discretion.


The order of the LCC was to be restored.




It is worth to note that the court agreed that, what the LCC sought to do amounted to judicial overreach, however, due to it being a specialised court with the inherent discretion to employ extra-ordinary measures, where necessary to carry out its responsibility and to ensure that its constitutional mandate is achieved; the overreach was justified.


The Applicants had firstly sought to follow the legislation and the internal processes of the Department, it was only after the repeated failings of the Department, that the Applicants then sought the intervention of the Court. An alarming amount of shortfalls by the Department was demonstrated by the Applicants and the constitutional court ultimately found that the impact of the shortfalls/failings by the Department, justified that employment of extra-ordinary measures.


Contributor:  Noluthando Dlamini (Senior Associate) (Public Law) (PMB Office)

Tel:  033 341 9100

E-mail:  noluthandod@tmj.co.za