Why must court be best de­fence from de­fence force dark arts?

Mail & Guardian - - Comment & Analysis - Tim Fish Hodg­son & Simphiwe Sidu

“This is yet another one of those cases where or­gans of state have al­lowed a situation to de­velop to a point where a court of law is called upon to ad­dress an is­sue con­cern­ing the so­cial well­be­ing and dig­nity of peo­ple,” be­gins the judg­ment of Judge Nor­man Davis, handed down by the high court in Pre­to­ria on Wed­nes­day.

The judg­ment was re­ceived with re­lief, ju­bi­la­tion and scep­ti­cism by the 600 Marievale res­i­dents, who have been in and out of court since Novem­ber, when they were evicted by armed sol­diers.

Marievale, near Nigel in Gaut­eng, has been un­der South African Na­tional De­fence Force (SANDF) con­trol for decades. The mil­i­tary base is cur­rently used for train­ing, though there were long pe­ri­ods when the base was not used by the army.

Some res­i­dents had been liv­ing there for be­tween 10 and 20 years. Some are for­mer sol­diers, mil­i­tary em­ploy­ees and their fam­i­lies; oth­ers have no con­nec­tion to the SANDF.

In his judg­ment, Davis high­lights the ev­i­dence pre­sented be­fore him: pho­to­graphs of in­jured res­i­dents and “nu­mer­ous ar­moured ve­hi­cles out­side houses to­gether with a mul­ti­tude of uni­formed South African Na­tional De­fence Force mem­bers bear­ing au­to­matic ri­fles”.

The SANDF told the court that they had not evicted any res­i­dents. In its court papers, “the chief of the army” claimed that what the res­i­dents ex­pe­ri­enced as a “trau­matic” evic­tion was merely a “train­ing ex­er­cise”. In open court last week the SANDF’s le­gal rep­re­sen­ta­tive said the res­i­dents had left their homes “of their own vo­li­tion”.

Davis re­jected these ar­gu­ments, em­phat­i­cally con­clud­ing that “un­der the guise of a train­ing ex­er­cise … mem­bers of the SANDF con­ducted what amounted to a forced re­moval”. He con­cluded that the “train­ing ex­er­cise” was a ruse “which sought to achieve the evic­tion of [the res­i­dents] through the back door”.

The res­i­dents said the SANDF’s le­gal po­si­tion ap­pears to be an ex­cuse to avoid fol­low­ing the pro­ce­dures of a court-or­dered evic­tion. Some sus­pect that the busi­ness in­ter­ests of mines op­er­at­ing in the area are ul­ti­mately be­hind the evic­tions.

The SANDF ar­gued that ac­cord­ing to the rel­e­vant leg­is­la­tion it is not law­ful for civil­ians to live on a mil­i­tary base. Though the judge ac­cepted this ar­gu­ment, he re­jected the idea that this en­ti­tled the SANDF to per­form an evic­tion with­out a court or­der. The un­law­ful­ness of Marievale res­i­dents’ oc­cu­pa­tion does not dis­qual­ify them from their con­sti­tu­tional rights.

As the Con­sti­tu­tional Court has re­peat­edly held, it is pre­cisely un­law­ful oc­cu­piers like the Marievale com­mu­nity that the Con­sti­tu­tion and the Pre­ven­tion of Il­le­gal Evic­tion Act seeks to pro­tect.

Because the SANDF did not launch an evic­tion ap­pli­ca­tion, the res­i­dents did not use the Act. If they had, they would have told the court that their evic­tion would not be “just and eq­ui­table”, as is re­quired by the Act be­fore the grant­ing of any evic­tion or­der.

In its court papers, the SANDF ar­gued that “there [are] no real con­sti­tu­tional rights or is­sues that the ap­pli­cants [want] to pro­tect”. This re­flects the at­ti­tude of the sol­diers who per­formed the evic­tion; res­i­dents said they were told by these sol­diers that “the Con­sti­tu­tion does not ap­ply to the army”. Asked for com­ment, an SANDF spokesper­son told jour­nal­ists that “Con­sti­tu­tion or no Con­sti­tu­tion … the de­part­ment of de­fence and the mil­i­tary is ex­er­cis­ing its right to en­sure that a mil­i­tary base re­mains a mil­i­tary base”.

In both Novem­ber 2017 and Fe­bru­ary 2018, re­ly­ing on their con­sti­tu­tional rights to hous­ing, the res­i­dents ap­proached the high court in Jo­han­nes­burg for or­ders in­ter­dict­ing the SANDF from evict­ing them.

These or­ders were granted but to no avail. The res­i­dents said that the SANDF sim­ply con­tin­ued to ha­rass them, even af­ter they had moved to the nearby Hap­pi­ness Vil­lage. Hap­pi­ness Vil­lage, Davis notes, is where “most of [the evicted res­i­dents] now live in squalor”.

Find­ing con­di­tions in Hap­pi­ness Vil­lage “un­bear­able” and with an icy Gaut­eng win­ter fast ap­proach­ing, the res­i­dents brought this third ap­pli­ca­tion to the high court in Pre­to­ria, which led to Davis’s judg­ment.

Davis was cau­tious in the rem­edy he granted the res­i­dents. He or­dered that they be re­turned to their homes on the mil­i­tary base within 30 days un­less their homes are no longer fit for habi­ta­tion, or are now oc­cu­pied by SANDF mem­bers. If ei­ther of these is the case then the court or­dered that ei­ther the de­fence de­part­ment or the SANDF must pro­vide the res­i­dents with tem­po­rary al­ter­na­tive ac­com­mo­da­tion

Chris Koit­sioe, the head of the Marievale Com­mu­nity As­so­ci­a­tion, said on Thurs­day that, if the SANDF ap­pealed the judg­ment, the res­i­dents would take the case to the Con­sti­tu­tional Court with the help of Lawyers for Hu­man Rights. “We hope ev­ery­thing will be fine. Maybe they have learnt the law is on our side and that this has gone too far,” he said.

In a state­ment af­ter the judg­ment, the de­part­ment of de­fence in­di­cated it “takes note of the judg­ment” and “will abide by the rul­ing”.

The judge or­dered that they return to their homes or that the mil­i­tary pro­vide al­ter­na­tive ac­com­mo­da­tion

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