GOOD NEWS for landowners defending ‘vexatious’ land claims

Landowners who previously had to personally foot the bill for legal fees to successfully defend themselves against vexatious or frivolous land claims will now have the option to request a court to award costs orders against the state or its legal represen

Two land reform legal experts say that landowners have been offered some respite following two recent precedent-setting costs orders issued against the state or its lawyers by the South African Land Claims Court (LCC).

Annelize Crosby, head of Agri SA’s Centre of Excellence on Land, said: “One of the biggest concerns of landowners who are confronted by [land] restitution claims is the cost implications of having to contest the validity of [these] claims in court. Litigation is very expensive, and restitution matters often complex. Restitution cases may be caught up in court for years and legal costs can run into millions of rand.”

In contrast, the state covered all of the legal and lawyers’ fees for land restitution claimants.

Crosby explained that in a “ground-breaking” judgment handed down on 16 March by the LCC, Judge Y Meer ruled that the landowners’ defence against a land restitution claim had been successful. Meer added that the claimant community’s legal representatives had instituted “vexatious, frivolous and abusive litigation” against the landowners, despite the claimant community’s case having no reasonable prospect of success from the outset.

“A costs order was, therefore, granted against the state. [Meer] also granted a punitive costs order by disallowing the [claimant community’s] legal team any costs,” she said.

Crosby added that, similarly, in a 25 May judgment handed down by Judge A Canca of the LCC, a costs order was issued against the state in favour of the landowners who had successfully defended themselves against a land restitution claim. Canca found that the claimants’ legal team in this case had also instituted litigation without any reasonable prospect of success. The judge also disallowed the fees of the claimants’ lawyers.

South African land claims law expert and attorney, Rob McCarthy of McCarthy & Associates, agreed with Crosby that Meer and Canca’s judgments had set a legal precedent.

“The result will be that any attorney acting for claimants, who fails to apply his/her mind properly to the merits of case, faces having to repay his/her and the advocate’s fees. […] Attorneys for the claimants must apply their mind to the

‘attorneys must apply their minds’

Lloyd Phillips ABOVE: Land reform legal experts have expressed the hope that recent costs orders against the state and its legal representatives will deter the instigation of vexatious land claims in the future.