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Simphiwe Sidu, Tim Fish Hodgson11 May 2018 00:00
The SANDF argued that according to the relevant legislation it is not lawful for civilians to live on a military base. (Gallo)
“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”.
Tim Fish Hodgson is legal adviser at the International Commission of Jurists and Simphiwe Sidu is a legal consultant at the commission. These are their own views
Simphiwe Sidu is a legal consultant at the commission. Read more from Simphiwe Sidu
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