Eviction appeal gets Concourt all fired up

Tuesday was newly appointed Chief Justice Mogoeng Mogoeng's first day back at the office — but now he is sitting in the Constitutional Court's most venerated seat.

Photographers' cameras whirred to every movement of the nine presiding judges and even whispers of body language were analysed for hints of a shifting balance of power.

The proceedings themselves were described by Justice Johan Froneman as the "rather unedifying spectacle [of] watching the different spheres of government trying to put the responsibility [to provide alternative accommodation for evicted residents of the Itireleng informal settlement] on someone else".

Residents of sections of Mooiplaas and Skurweplaas in Itireleng had applied for leave to appeal a 2009 North Gauteng High Court eviction order that would leave several hundred families homeless.

Mogoeng spent most of the day shifting around in his new hot seat, while the more experienced justices appeared inclined to defend the Concourt's reputation by doing what they do: being brilliant jurists.


And it was a compelling case, tackling urbanisation, the rights of private landowners and the right to housing.

Resident Gloria Ndimane, who has been on a housing waiting list since 1995, told the Mail & Guardian Mooiplaas was a squatter camp "pregnant with people". "It is overcrowded and we have nothing: no water, electricity and we dig a hole in the ground when we have to go to the toilet," said the single mother.

As Itireleng expanded, squatters spilled over from land expropriated by the municipality to land owned by the PPC cement company, but they were evicted in 2009. Many moved to a neighbouring property owned by Golden Thread Limited. Another court-sanctioned eviction resulted in them moving again to another plot of land, owned by PPC.

Called upon to adjudicate a matter that involved the "trilateral relationship" between the private landowners of the two separate plots, its illegal occupiers and the government — which earlier Concourt judgments had established had a constitutional obligation to provide alternative accommodation to evictees — some of the justices appeared unimpressed with submissions from the third of these parties.

Competency of local government
The City of Tshwane had argued that providing alternative housing for evicted squatters was not a competency of local government. Although it had not appealed against one of the two high court rulings that compelled the government to provide accommodation and had previously indicated it would need 18 months to comply, it now admitted it was unable to do so.

The municipality was flagrantly in contempt of court, the municipality's "attitude" showed a "disrespect for the legal system unseen in these courts", Justice Johann van der Westhuizen said.

Tshwane pleaded a lack of finances and other municipal infrastructural projects that needed attention first. But it also emerged that the municipality had applied to the wrong government department — land affairs and rural development rather than human settlements — for funding to accommodate the squatters.

Such bumbling and disregard for the "poor on the fringes of our cities" only fired up Van der Westhuizen and Froneman, as it did Deputy Chief Justice Dikgang Moseneke, who asked the municipality's counsel, Johan Botha, whether his clients were "suggesting that the homeless are totally last on the list of duties of a municipality".

"Why must they tar roads and put up Christmas lights or whatever before they must provide homes for poor people?" the deputy chief justice inquired.

Representing the Gauteng department of human settlements, Terry Motau SC told the court that municipalities needed to liaise with provincial government more swiftly on these matters and called for a two-year adjournment to allow the state to get its affairs in order. Grilled on whether the provincial government could assure the court that a resolution would be reached at the end of such an adjournment, Motau admitted it couldn't.

Nelly Cassim SC, for the national minister of human settlements, also wanted a two-year postponement. She submitted that the provision of emergency housing was within the competency of local government.

Because "administration and implementation were happening at municipal level — [the national department] can't do anything [so] we sit back and wait", Cassim said.

This drew the thunderous ire of Justice Zak Yacoob, who said he "would have thought that a joint co-operative effort" among spheres of government would have been the optimal approach to alleviating the community's distress.

Moseneke noted that the bickering among spheres of government was an "unseemly spat" in which government's failings translated into "this community [being left] stranded in a veld that is owned by somebody else".

He later wondered: "What practical, procedural jurisprudence should we develop to ensure private landowners aren't left to watch this spat?"

Clearly, Froneman, Moseneke, Van der Westhuizen and Yacoob had come out swinging. It was as if, on this first day on the job for a chief justice whose jurisprudential record and sympathies towards the executive have elicited public scepticism, they felt compelled to prove that the Constitutional Court remains a space where independence, intellectual rigour, concern for the poor and the rule of law remains paramount.

The case is continuing.

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Niren Tolsi
Niren Tolsi is a freelance journalist whose interests include social justice, citizen mobilisation and state violence, protest, the Constitution and Constitutional Court, football and Test cricket.

Related stories

The pandemic will change the electoral process

There’s a backlog of by-elections to get through before next year’s local government elections. Will voters go to the polls even though Covid protocols are in place?

Sticks and stones: Qwelane and the violence of words

Constitutional Court justice says homophobic article did not ignite fire of hate against the LGBTI community but added fuel to it

The Qwelane case: When human rights meet human rights

The Jon Qwelane case brings into focus the tension between hate speech and freedom of expression

Hlophe says ‘assassination plot’ is a bid to sully his name

Allegations that Western Cape Judge President John Hlophe planned to assassinate his deputy, Patricia Goliath, are leading to further instability on the Cape bench

Mmusi Maimane doesn’t want DA’s political ‘superstars’

The leader of the new One South Africa Movement says his former party has set itself on a course away from multiracialism after its recent policy conference

Homegrown vs Big Pharma: Who stands to benefit from the legal market for medical marijuana?

Cannabis is scheduled for its South African parole on September 18. Kelly McQue’s handy medical marijuana producers’ guide is an opening salvo against corporate medicine’s demand for exclusive rights to the plant’s healing powers
Advertising

Subscribers only

SAA bailout raises more questions

As the government continues to grapple with the troubles facing the airline, it would do well to keep on eye on the impending Denel implosion

ANC’s rogue deployees revealed

Despite 6 300 ANC cadres working in government, the party’s integrity committee has done little to deal with its accused members

More top stories

Finance probe into the Ingonyama Trust Board goes ahead

The threat of legal action from ITB chairperson Jerome Ngwenya fails to halt forensic audit ordered by the land reform minister

Ailing Far East Rand hospital purchases ‘vanity’ furniture

Dr Zacharia Mathaba, who purchased the furniture, is a suspected overtime fraudster and was appointed as Gauteng hospital chief executive despite facing serious disciplinary charges

Eusebius McKaiser: Reject the dichotomy of political horrors

Senekal shows us that we must make a stand against the loud voice of the populist EFF and racist rightwingers

Seals abort pups in mass die-off

There are a number of factors — a pollutant, virus or bacteria or malnutrition — may have caused the 12 000 deaths on Namibia’s coast
Advertising

press releases

Loading latest Press Releases…

The best local and international journalism

handpicked and in your inbox every weekday