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Judge Luleka Flatela

Capacity: Judge
First Appointed: Landclaims Court (October 2022)
Gender: Female
Ethnicity: African
Date of Birth: November 1977
Qualifications: B. Proc (Walter Sisulu University), LLM (UNISA), Advance Certificate in ADR (University of Pretoria)

Key judgments:

  • Dhlamini v Barnard N.O and others (case no. LCC 132/2020)
  • Mahlangu v Du Plessis; Du Plessis v Mahlangu and Another (LCC 97/2021)
  • Oostenwald and Another v Retignled and Others (LCC 13R/2021) [2022] ZALCC 10

Candidate Bio:

Flatela was born in the Eastern Cape, where she studied and was conferred with her first tertiary qualification – a B. Proc degree. She then went on to study at UNISA where she obtained her LLM degree in 2005, specialising in commercial law. In 2010 Flatela obtained an advanced certificate in alternative dispute resolution from the University of Pretoria in association with AFSA.

Her legal career started in 2001 when she was completing her articles of clerkship at Burman Katz Attorneys in Gqeberha, which she completed in 2002. Between 2003 and 2006 she worked as a legal researcher at Mthatha high court. During this period, she researched for retired Justice Japhta and the current Deputy Chief Justice, Justice Maya.

Thereafter, Flatela worked as an assistant state attorney in the property law section until 2009, whereafter she was promoted to a senior assistant state attorney. She remained with the department of justice until 2015 when she founded Flatela Attorneys Inc., where she is currently the managing director and conveyancer.

Flatela prides herself in having had a positive impact in the skewed briefing patterns. While a senior assistant state attorney she endeavoured to brief mostly black women junior advocates.

Flatela also prides herself in ‘bringing justice to the people’. She earned herself the name, ‘the people’s lawyer’ during the fees must fall movement. During this time Flatela represented students in bail hearings, civil and disciplinary matters emanating from the fees must fall movement.

In the case of Kenny Motsamai v Minister of Justice Correctional Services case no: 2011/34327, Flatela represented Mr Motsamai in his parole application. Mr Motsamai is an ex APLA combatant. He had spent 27 years 11 months in prison for having murdered a white traffic officer during a bank robbery in 1989. With Flatela’s, Mr Motsamai was released on parole, he later joined the EFF and was elected as the permanent delegate to the NCOP.

Flatela has had the opportunity to act as a judge during 2021 and 2022. She first acted as a judge from April 2021 until May 2021 in the Eastern Cape High Court, Grahamstown. Her second acting sting was from July 2021 until January 2022 in the Gauteng High Court, Johannesburg and at the Land Claims Court.

During her acting stints, Flatela penned down three judgments. In the case of Dhlamini v Barnard N.O and others (case no. LCC 132/2020), Dhlamini sought to enforce his rights as provided for in the Extension of Security of Tenure Act 62 of 1997(ESTA) and other rights as enshrined in the Bill of Rights. He sought an application for a final mandatory interdict for restoration of his cattle, which were impounded and later sold in an auction by the fourth respondent’s brother, without Dhlamini’s consent. Dhlamini also sought an interdict prohibiting the respondents from obstructing his enjoyment of his long-term occupier’s rights.

Dhlamini had stayed on the respondent’s property (the farm) for 50 years and considered himself a long-term occupier and in the application, he sought a declaratory order to this effect. When Dhlamini first stayed on the farm there was agreement between him and the previous landowners on the terms and conditions of his stay on the farm. The first respondent sold the farm to the fourth respondent. Upon the sale of the property, it was agreed that no cattle would be kept on the farm, and this included Dhlamini’s cattle. Dhlamini’s cattle were impounded and later sold in an auction by the fourth respondent’s brother, without Dhlamini’s consent. After Dhlamini reported the unauthorised sale of his two cattle, the respondents offered to replace them, and Dhlamini agreed. However, as the respondent did not want any cattle kept on the farm Dhlamini had no other alternative farm to keep the cattle.

Dhlamini’s argument was that he was an occupier as defined by ESTA. His rights to the use of the land were binding upon the successor in title. By refusing him to keep the cattle the respondents were infringing his rights in terms of section 24 of ESTA.

According to the respondents, ‘when the third respondent acquired ownership of the farm, the fourth respondent’s mother had cattle on the farm and in terms of the agreement of sale, the cattle had to be removed by August 2018.’ Mrs Harmse, the previous owner of the land donated two calves to Dhlamini, as Dhlamini at that time had no cattle at all. Three of the five cattle he had had been sold in an auction and he had consented to the sale and received the proceeds from the sale. He exchanged the two remaining cattle for a bull with Mrs Harmse because he wanted to slaughter the bull for his wife’s funeral, and his two cattle were not in a good condition. Hence, he had no more cattle remaining and Mrs Harmse donated two calves to him upon the sale of the property to the third respondent.

In deciding the case, Flatela noted that the right to legally secure tenure is derived from section 25(6) of the Constitution and the Land Reform Act 3 of 1996. She noted that ‘[t]he Land Reform Act title states that the Act was promulgated to provide for the security of tenure of labour tenants and those occupying and using the land as a result of their association with labour tenants, to provide for the acquisition of land and rights in land by labour tenants and to provide for matters connected thereto.’ She added that ‘due to illegal eviction of the farmworkers that were taking place in the farms, ESTA was promulgated in 1997 for measures, with state assistance, to facilitate long term security of land tenure, to regulate the conditions of residence on certain land, to regulate the conditions of evictions of occupiers and matters connected therewith.’

Flatela decided that Mr Dhlamini had no right to keep the cattle on the farm because the respondents had cancelled their consent. She found that Mr Dlamini never had the right to keep the cattle on the respondent’s farm in the first place, because ‘the “right” of a long-term occupier is not in any true respect, substance, or form, a real “right”? It is not a real right because it is on the gracious discretion of the landowner to permit an occupier … prescribe to the occupier what they deem to be sufficient sustenance of the occupier.’ Flatela found that Dhlamini might have enjoyed better protection, had he relied on relevant provision of the Labour Tenant Act 3 of 1996 and applied to be declared a labour tenant. Flatela also noted that ESTA permits the conduct of the first respondent in serving Dhlamini with a twelve months’ notice to vacate the farm, notwithstanding his long-term service of 50 years on the farm and notwithstanding South Africa’s imbalances relating to land.

Flatela pointed out that ESTA is not in accordance with the provisions of section 25(6) of the Constitution, which provides that ‘[a] person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.’ She also noted that, should it be argued that ESTA does serve this purpose then prevailing jurisprudence suggests otherwise.

The Land Claims Court’s sole purpose is to hear disputes based on land reform legislation (Restitution of Land Rights Act, 1994, the Land Reform (Labour Tenants) Act, 1996 and the Extension of Security of Tenure Act, 1997). Thus, a person seeking appointment to this court must have the necessary qualifications, skills, expertise, and experiences that will enable them to discharge their duties as a judge in the LCC. Flatela will have to convince the Judicial Services Commission that she is duly qualified, has the necessary skills, expertise, and experience to be appointed to the LCC.

Flatela was shortlisted for the April 2022 JSC interviews. However, it transpired that she was not in good standing with the Legal Practice Council as she had not submitted her firm’s audit reports timeously. She was then called into a disciplinary hearing by the LPC, which reprimanded her.

October 2022 Interview

October 2022 JSC interview of Ms Luleka Flatela for appointment to the Gauteng Division of the High Court for Secondment to the Land Claims Court: Ms Flatela‘s application was successful.