The gap between the newly appointed Chief Justice Mogoeng Mogoeng and his deputy, Justice Dikgang Moseneke, was wide – literally and figuratively. They sat so far apart that another chair easily could have fitted between them.
There was an apparent uneasiness, or rather a slight tense discomfort, as the Constitutional Court convened on Tuesday with Justice Mogoeng assuming the hot seat, and the usually bubbly Justice Moseneke sitting quietly beside him – at a distance, though.
Justice Moseneke was passed over by President Jacob Zuma in favour of Justice Mogoeng, triggering a storm.
Not once did the two men look at each other during the proceedings.
Their body language attested to Justice Mogoeng’s statement during the Judicial Service Commission that he and Justice Moseneke were not friends but colleagues.
Justice Mogoeng’s posture – especially his walk – exuded an aura of confidence.
He sat down, fixing his white bib, deliberately staring at the ceiling as if to thank God, who he claimed gave him a signal that he would head the highest court in the land. At times he folded his arms and clasped his hands in a prayer-like posture.
But not much probing came from the man whose nomination sparked controversy.
Justice Moseneke, however, overshadowed him with his usual critical examining and probing of matters presented before court, although he had maintained an uncharacteristic silence during the first 40 minutes of the hearing.
The two men and seven other Concourt judges proceeded to hear a case brought by 350 families who were contesting their eviction from two plots of land in Mooiplaas near Atteridgeville, Tshwane.
The residents, who were shuttled to court in a minibus taxi, were appealing an eviction order granted by the Pretoria High Court last year. They argued that the City of Tshwane should have provided alternative accommodation before evicting them.
“This case concerns the basic human rights of a few hundred families. If the execution of court processes would lead to hundreds of families becoming vagabonds on the urban edge, it would seriously bring the legitimacy of the constitution, and the manner in which it balances rights, into question,” argued Lawyers for Human Rights representative advocate Rudolf Jansen on behalf of the residents.
The land belonged to PPC Aggregate Quarries.
Arguing on behalf of the cement company, advocate Matthew Chaskalson SC said that allowing land invaders to do as they pleased “encouraged land grabs”.
He stressed that the municipality had failed to provide alternative accommodation for residents who invaded private land.
Counsel for the municipality, advocate Johan Botha, pleaded poverty, saying “the order shouldn’t have been made against the municipality”.
“In terms of the constitution, the local government is not obliged to provide housing,” he said.
This prompted Justice Moseneke to ask if he was implying that the municipality had no statutory obligation to facilitate housing for the homeless.
Botha responded by saying that while the municipality was obliged, it was not legally compelled to provide housing from its resources.
It was the responsibility of the national and provincial governments.
But Nelly Cassim SC, counsel for the minister of human settlements, disagreed – the municipality had an obligation to comply with the high court order as the minister was only made party to proceedings three weeks ago, she noted.
After a long silence – only interjecting as a time keeper – Justice Mogoeng adjourned the court, reserving judgment. - The Star