On Monday, 30 March, Acting Judge of the Land Claims Court, Advocate Tembeka Ngcukaitobi (SC) dismissed a leave to appeal application by Minister Maite Nkoana-Mashabane in relation to her role in the District Six saga.

The application for leave to appeal was filed by Nkoana-Mashabane and was heard at the Land Claims Court at the Western Cape High Court on 5 March 2020. Nkoana-Mashabane was applying to appeal against an August 2019 court order where she was held in contempt of court for failure to provide restitution in the form of land for District Six land claimants. In that case, she was ordered to pay attorney costs for missing a court-mandated appearance while she was Minister of Rural Development and Land Reform.

In his August 2019 ruling, Ngcukaitobi severely criticised the minister, stating that she was “grossly unreasonable in her discharge of her constitutional duties”, as minister after she failed to assist land claimants of District Six. 

In the ruling for the application for leave to appeal, seen by Daily Maverick, Ngcukaitobi writes: “Taking into account the manifest lack of merit in the underlying application for leave to appeal, the entire matter should be struck from the roll, with costs to be paid by Minister Nkoana-Mashabane, in her personal capacity.”

Nkoana-Mashabane’s attorneys wanted leave to appeal to the Supreme Court, but Ngcuikaitobi stated: “To grant leave to appeal, I  should be satisfied of a reasonable prospect that the Supreme Court of Appeal ‘would’ come to a different conclusion, which is plainly not the case here … Minister Nkoana-Mashabane has had ample warning and notice that costs of pursuing this litigation would be borne by her. This entire litigation is about this very issue. Despite the warning, she has pursued this application. It is necessary to make it abundantly clear that the State is not liable for the costs of this application.”

At the 5 March 2020 court appearance, attorneys for Nkoana-Mashabane argued that she should not pay the costs order, but they could not answer Ngcukaitobi’s question if she should not pay these court-mandated costs, should the taxpayers or the department of Women, Youth and People with Disabilities – which she now heads – pay for the cost. 

On Monday, Ngcukaitobi struck the application off the roll, ordered the minister to personally pay for the costs incurred for this leave to appeal application and importantly, “the national head of the State Attorney, to investigate whether any funds belonging to the State through the Department of Women, Youth and Persons with Disabilities, have been used to pay the private attorneys of Minister Nkoana-Mashabane, and if so whether in their discretion there is any basis to recover any monies already paid”. DM