Post by cjm on Jul 13, 2014 12:20:37 GMT
In my post of 23 June 2014, the question of whether a court may refuse all relief - even where a claim otherwise complies with section 2 of the Restitution Act - was touched on. It was suggested that a court may not do that (although of course relief may be granted in the form of money only).
To bolster that view the ubi ius ibi remedium doctrine may be considered. Briefly, this means that where a claimant is considered to have a right, the courts have a duty to give effect to that right. This follows as a matter of substantive law. One should not confuse the issue of the inherent jurisdiction of the courts with this situation. Inherent jurisdiction is now bestowed on the courts by section 173 of the Constitution. See in general Taitz: The inherent jurisdiction of the Supreme Court, Juta (1985), pp66-71, 93-97. Not that the inherent jurisdiction of the Courts may be entirely irrelevant as a last resort - but it is not considered here.
As an aside one may question whether the Land Claims Court is not unnecessarily reticent with its powers in regard to inherent jurisdiction.
Tong op cit p20 describes the attitude of the Land Claims Court in the Richtersveld case, in regard to a jurisdictional issue, as follows:
Accepting that aboriginal title was not yet part of our common law, the claimants asked the Land Claims Court to develop the common law so as to allow for land claims based on this concept. The Court held that, as a creature of statute, it could not go beyond the jurisdiction bestowed on it by the Restitution Act of 1994, the Constitution or any other legislation. It was held further that the Constitution does not confer jurisdiction on the Land Claims Court to develop the common law. Such jurisdiction was said to be available only to the High Court, the Supreme Court of Appeal and the Constitutional Court.
Taitz op cit pp 4-8 points out that even the superior court structure derives from statute and it is submitted that the mere fact that a court is a creature of statute is neither here nor there with regard to inherent jurisdiction. The question is whether the inherent powers apply. Now, section 173 of the Constitution very clearly bestows inherent powers on the High Court.
The Restitution Act not only gives the Land Claim Court certain exclusive powers but specifically gives it High Court powers:
22 (2) Subject to Chapter 8 of the Constitution, the Court shall have jurisdiction throughout the Republic and shall have -
(a) all such powers in relation to matters falling within its jurisdiction as are possessed by a High Court having jurisdiction in civil proceedings at the place where the land in question is situated, including the powers of a High Court in relation to any contempt of the Court;
(b) all the ancillary powers necessary or reasonably incidental to the performance of its functions, including the power to grant interlocutory orders and interdicts;
(c) the power to decide any issue either in terms of this Act or in terms of any other law, which is not ordinarily within its jurisdiction but is incidental to an issue within its jurisdiction, if the Court considers it to be in the interests of justice to do so.
This seems pretty extensive to me and would include the section 173 inherent jurisdiction.
This issue does not seem to have been considered by either the Supreme Court of Appeal or the Constitutional Court when the Richtersveld appeal was heard.
To bolster that view the ubi ius ibi remedium doctrine may be considered. Briefly, this means that where a claimant is considered to have a right, the courts have a duty to give effect to that right. This follows as a matter of substantive law. One should not confuse the issue of the inherent jurisdiction of the courts with this situation. Inherent jurisdiction is now bestowed on the courts by section 173 of the Constitution. See in general Taitz: The inherent jurisdiction of the Supreme Court, Juta (1985), pp66-71, 93-97. Not that the inherent jurisdiction of the Courts may be entirely irrelevant as a last resort - but it is not considered here.
As an aside one may question whether the Land Claims Court is not unnecessarily reticent with its powers in regard to inherent jurisdiction.
Tong op cit p20 describes the attitude of the Land Claims Court in the Richtersveld case, in regard to a jurisdictional issue, as follows:
Accepting that aboriginal title was not yet part of our common law, the claimants asked the Land Claims Court to develop the common law so as to allow for land claims based on this concept. The Court held that, as a creature of statute, it could not go beyond the jurisdiction bestowed on it by the Restitution Act of 1994, the Constitution or any other legislation. It was held further that the Constitution does not confer jurisdiction on the Land Claims Court to develop the common law. Such jurisdiction was said to be available only to the High Court, the Supreme Court of Appeal and the Constitutional Court.
Taitz op cit pp 4-8 points out that even the superior court structure derives from statute and it is submitted that the mere fact that a court is a creature of statute is neither here nor there with regard to inherent jurisdiction. The question is whether the inherent powers apply. Now, section 173 of the Constitution very clearly bestows inherent powers on the High Court.
The Restitution Act not only gives the Land Claim Court certain exclusive powers but specifically gives it High Court powers:
22 (2) Subject to Chapter 8 of the Constitution, the Court shall have jurisdiction throughout the Republic and shall have -
(a) all such powers in relation to matters falling within its jurisdiction as are possessed by a High Court having jurisdiction in civil proceedings at the place where the land in question is situated, including the powers of a High Court in relation to any contempt of the Court;
(b) all the ancillary powers necessary or reasonably incidental to the performance of its functions, including the power to grant interlocutory orders and interdicts;
(c) the power to decide any issue either in terms of this Act or in terms of any other law, which is not ordinarily within its jurisdiction but is incidental to an issue within its jurisdiction, if the Court considers it to be in the interests of justice to do so.
This seems pretty extensive to me and would include the section 173 inherent jurisdiction.
This issue does not seem to have been considered by either the Supreme Court of Appeal or the Constitutional Court when the Richtersveld appeal was heard.