Judge suggests mediation

Johannesburg - Mediation was mooted in the Constitutional Court on Monday as a possible solution to the dispute over the temporary shelters for foreign nationals in Gauteng.

The court has given counsel for the refugees and the government until 10:00 on Tuesday to find agreement on a possible solution to the problem which avoids a court hearing.

This, after argument on whether the Constitutional Court was the proper forum to hear an appeal brought by foreign nationals Odinga Mamba, Vasco Mitabele, Kisa Milinga Issa and Davidzo Aabidah Maduviko, and the Consortium for Refugees and Migrants in South Africa (Cormsa).

They are challenging the Pretoria High Court's August 12 ruling that the government was not obliged to provide the victims of xenophobic violence with temporary accommodation for more than two months.

Gauteng authorities set up seven camps to temporarily house those displaced by the violence. One of the camps has since been closed.

The provincial government originally planned to close the rest by July 31, but extended the deadline to August 15. It has since undertaken not to close the camps until the matter is finalised.

Govt is trying mediation

"Has the question of mediation arisen at all?" Justice Albie Sachs asked during the hearing of arguments, which started at 14:00 on Monday and ran until about 18:30.

"Do you think there is any prospect mediation might help resolve, if not the whole problem, part of it?" Sachs asked.

Counsel for the Gauteng government, Quintus Pelser SC replied that the government had tried mediation and organisations were assisting the government in mediating between certain communities and displaced people.

Counsel for the foreigners, Nadine Fourie, indicated to the court that they did not oppose mediation, but were in favour of an order requiring the government to provide the court with progress reports.

The court has expressed reservations at the appeal being brought directly to it instead of first being heard in a lower forum such as a high court or by a full Bench of the Supreme Court of Appeal.

Not in best interests of justice

However, it acknowledged that referring the matter back to be heard in the lower courts might not be in the best interests of justice as this would mean it could take two years or more to finalise.

Justice Kate O'Regan suggested that instead of hearing the appeal on "papers drafted in great haste", the Constitutional Court instead enrol the matter towards the end of its sitting at the end of September.

It seemed to her that a bit of time, coupled with a willingness to resolve the situation "may well be the best way to resolve the problem".

The foreigners are asking the government to come up with a reintegration plan, publish it for public comment within 30 days and implement it within 60 days.

The government has argued that this is simply not feasible and will not work.

It has asked the court to let the government deal with the refugees itself, confident it will do so with the "utmost circumspection" even in the absence of an order to this effect.

- SAPA