This access is important if the constitutional values are to obtain the level of legitimacy required to secure their long- term future. Chief Justice Mogoeng Mogoeng has made this goal the touchstone of his leadership.
On one level, that of the Constitutional Court, he only has, at a minimum, to have the assistance of five of his colleagues to continue to construct a jurisprudence that delivers justice in substance to the poor and powerless. By contrast, in other courts he is dependent not only on his fellow judges but also on the department of justice, an altogether more formidable obstacle, as is illustrated by two events this past week.
In Motswagae v Rustenburg Local Municipality, the Constitutional Court upheld an appeal from 15 occupiers of land in North West. The buildings in which they lived were dilapidated; a renewal programme, in the pipeline for some years, would require the demolition of the buildings occupied by the applicants. No agreement could be reached on implementation of the plan. The applicants refused an offer of alternative accommodation from the municipality, which then hired a service provider to excavate the land. A photograph (part of the court record) showed that a deep excavation had taken place, leaving the foundations of the houses exposed.
The application sought to prevent further excavation. The high court held that the applicants had no clear right to interdict the construction process, because their rights to privacy and to remain in their houses had not been affected and, in any event, they should have objected initially to the development plans. The interdict was refused.
The Supreme Court of Appeal also refused the applicants’ petition to appeal.
But the Constitutional Court’s Justice Zac Yacoob, writing for a unanimous court, held that section 26(3) of the Constitution demanded that no one could be evicted from his or her home without a court order.
To the argument that the applicants had not been evicted, the court replied that “an eviction does not have to consist solely in the expulsion of someone from their home. It can also consist in the attenuation or obliteration of incidents of occupation.”
As the excavations could hardly be said to be slight attenuations of the applicants’ rights to peaceful and undisturbed occupation of their homes, the municipality could not act in this fashion without the requisite court order.
Here is a clear case of the Constitutional Court not only ensuring that poor people have access to justice, but also acting as the necessary leader to courts that, sadly, are unable to grasp or implement this imperative fully.
The second event, by contrast, reveals that there is only so much a chief justice or the Constitutional Court can do. Last week, advocates and attorneys were confronted by an understandably harassed Deputy Judge President Phineas Mojapelo of the South Gauteng High Court, who told them that, because the court’s email and fax system had been offline for some time, he and his judicial colleagues had not been able to examine the practice notices filed by the parties to the litigation.
Further, it was difficult to allocate trial courts because the recording equipment was not working. In the busiest court in South Africa, the court’s functions had been derailed because support services had collapsed – not for a few minutes or hours, but indefinitely!
For years there have been published reports about the poor conditions of the courts, but nothing seems to change. For the vital principle of access to justice to be implemented, the court administration has to deliver the basics.