This seemed to come as a surprise to the lawyers present, who had minutes earlier presented Judge Bernard Martin with a draft order they agreed to during lunch.
This draft order amended the interim relief granted by Judge Lee Bozalek in September so that it would only apply to the seven homeless applicants instead of having a moratorium effect.
In presenting the amended order, advocate Karrisha Pillay, for the City of Cape Town, said there was compromise on all sides and it would stand until the applicants brought an application to review the enforcement or constitutionality of the by-laws next year.
‘Courts are no rubber stamps’
The City’s lawyers, together with those for the homeless applicants and various ratepayers’ organisations (who were admitted as friends of the court on Thursday), agreed that any review should be instituted by February 21 and be heard on June 17.
But Judge Martin said the courts were not a rubber stamp, and he did not believe the amended order met the overriding interests of justice.
He extended Judge Bozalek’s order pending the outcome of review proceedings and said the parties could decide whether to stick to the proposed timetable or come up with a different one.
The applicants are Carin Theresa Rhoode-Gelderblom, Emily Smith, Vuyo Mbozi, Beulah Meyer, Natasha Persent, Xolani Siboxo and Patricia Geyser.
News24 previously reported that in terms of the by-law relating to streets, public places and the prevention of noise nuisances, the homeless were being fined R1 500 for keeping or starting a fire in a public place and R300 for obstructing pedestrian traffic on a pavement with any object or motor vehicle and sleeping in a stationary vehicle in a public place.
Small-scale littering or dumping attracted a fine of up to R500 in terms of the integrated waste management plan by-law.
‘Court must metaphorically remove its gown’
At the outset of proceedings on Thursday, Judge Martin set down the “rules of engagement” for the hearing and said they were dealing with fundamental human rights playing out within a particular socio-economic setting.
“Ubuntu demands that we operate in a different way to which we operated in the past. We have to view our actions through that particular lens,” he told the lawyers.
“It [the Constitution] says the court must metaphorically remove its gown, remove the blinkers that the adversarial procedure imposes on the courts, roll up our sleeves as judges and get our hands dirty in the social processes that are necessary to attain the vision of our Constitution.”
Advocate Nick de Jager, for the applicants, agreed and said the case “cries out for more active management” and the balancing of interests of all parties to attain, foster and encourage good neighbourliness.
‘Collapse of law and order’
Advocate Johan de Waal, representing the friends of the court, argued a balance had to be struck between the interests of the homeless applicants and those of residents such as ratepayers.
He feared that if Judge Bozalek’s order was extended, there might be civil disobedience by some people on the street thinking they could do what they want without consequences.
Judge Martin wondered where the evidence was for the collapse of law and order in the city since the order was granted in September.
The friends of the court include the Camps Bay Business Forum, ratepayers’ associations for the City Bowl, Atlantic Seaboard, Sea Point, Fresnaye and Bantry Bay, and neighbourhood watches for Gardens and Green Point.
It is not yet clear when the case will resume.