Recusal of judge in City land dispute case turned down

THE Western Cape High Court case concerning the rights of landowners during property invasions continued yesterday after the recusal application for one of the judges was dismissed.

The SA Human Rights Commission (SAHRC) requested that Judge Hayley Slingers recuse herself from hearing the matter, because her husband worked for the City of Cape Town - one of the main parties in the dispute.

Judges Slingers, Vincent Saldanha and Mokgoatji Dolamo are currently presiding over the matter.

Yesterday the three dismissed the recusal application, with reasons still to be provided to the SAHRC.

Legal representative for the SAHRC, Norman Arendse SC, said they reserved their rights to appeal at a later stage, but would not object if proceedings continued yesterday.

“There's huge costs to the State in employing a counsel, and we've got to be responsive in that regard.

“We await the reasons from the court in due course, as indicated,” Arendse said.

The case involves the SAHRC, EFF and Housing Assembly challenging the constitutionality of counter-spoliation, a legal remedy that allows a person to forcibly re-take possession of property unlawfully taken from them, without a court order.

This followed shocking scenes of Bulelani Qolani being controversially dragged naked and humiliated from his Khayelitsha shack in June last year, when the City's law enforcement officers tore it down.

The SAHRC previously argued that the City should have applied the Prevention of Illegal Eviction and Occupation of Land Act (PIE), which was designed to protect the most vulnerable in society.

The City is in favour of the counter-spoliation, saying it gives landowners the right to protect their land.

The SAHRC and EFF, on the other hand, argue that demolition of structures on unoccupied land should only be supervised by the courts, as provided for in the Constitution.

As proceedings continued yesterday,

Stuart Wilson for shack dwellers movement Abahlali baseMjondolo, which has been admitted as a amicus curiae, or friend of the court, argued that engagement with community leaders of settlements was crucial in avoiding conflict.

“There can certainly be a role for engagement after possession has been established and before possession has been established.

“It's never too early to start engaging with poor or homeless people who are certainly looking for somewhere to go.

“There's absolutely no difficulty with the proposition of the City at least trying, once it sees an occupation might start, to go to a community,” Wilson said.

Sean Rosenberg SC, for the City, said the construction of PIE was relatively uncontroversial.

“The application of PIE may present difficulties, but we submit that the construction of PIE, which is contended for by the applicants, applies to any structure occupied or unoccupied,” Rosenberg said.

The matter is expected to continue today. questions to Home Affairs Minister Aaron Motsoaledi since he became a public representative in the national legislature.

Addressing Parliament earlier this year, Motsoaledi noted that the country needed a new marriage policy based on equality, nondiscrimination and human dignity.

He had said the three existing marriage laws had many weaknesses.

“The three acts do not cater or give recognition to Muslim marriages, Hindu marriages and marriages conducted according to Jewish rites.

“Despite the enactment of the Recognition of Customary Marriage Act, traditional marriages taking place in many royal families in terms of their traditions and rituals are still not in the statute books,” he said when delivering his policy speech.