Marievale residents react to setback in court

Disappointed after the defence minister and army were found not in contempt of court, evicted residents say that they don’t ‘have power as people’.

On 30 November 2017, community leaders Chris Koitsioe and Tumi Weyi were arrested for leading civilian residents in resisting an eviction from the Marievale military base conducted by the South African National Defence Force (SANDF).

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On the the first anniversary of the evictions, last Friday, 30 November 2018, Judge Norman Davis issued a judgment at the North Gauteng High Court dismissing a contempt of court application against the army. This is after the defence minister Nosiviwe Mapisa-Nqakula and the SANDF failed on numerous occasions to abide by previous court orders instructing them to restore the evicted community members to the Marievale base within 30 days.

Judgment not ‘straight talk’

Lawyers for Human Rights (LHR), who represented the evicted families, were disappointed by the judgment. “That is not how the law should work, it’s too soft on the state,” lamented Hlengiwe Mtshatsha, an attorney for the rights group.

The LHR also said it was hoping for criminal charges or a fine to be imposed on the minister.

Outside the court, community members sang struggle songs opposite a statue of the 19th century Boer leader Paul Kruger on Church Square in central Pretoria.

Bongiwe Nkosi, 34, who had personally experienced the brutality of the army during the evictions, and has since relocated more than four times, told New Frame that she expected more given how many times they had been to court. “For now, we are playing a cat-and-mouse business, it was supposed to be a straight talk,” she said.

Nkosi, like other community members, is not happy with the judgment. She remembers how they were excited in May after the court ruled that they had to be returned to their houses.

According to her, they received threats from the army, having allegedly been told “you only won in court but not here [in Marievale base]”. She now thinks this is likely to happen again. “We don’t have power as people, the only thing we have to do is to wait for the army,” she said.

Contempt of court dismissed

Judge Davis found that the necessary factors had not been established in order for the commander of the base, Colonel Reah Mkhize, and Mapisa-Nqakula to be held in contempt of court.

Davis said further that there were no solid grounds for contempt in that the minister had committed to comply with the initial order on the day it was issued, and had instructed the military command to implement it.

Additionally, according to Davis’s ruling, between 21 May and 20 June the army had been renovating the barracks that were previously occupied by the now displaced residents. The judge noted that the army spent “an unbudgeted expense”, more than R1.1 million, on renovations. As a result, a general of the South African Army issued an instruction to offer alternative accommodation to the civilians.

According to the judgment, the army failed to honour the court order due to insufficient capacity to accommodate the more than 300 hundred displaced civilians. In addition, “… the segregation of family units by gender is unacceptable restoration or alternative occupation. It infringes on the [residents’] right to dignity, privacy and adequate temporary housing as protected in sections 10, 14 and 26 of the Constitution,” said Davis.

The judge also found that, “although [the minister] may be criticised for not having followed up on the matter”, he could not “find that she had ‘acted with disdain’ as argued by [the legal representatives of the community] or that she had wilfully … acted contrary to the court order”.

What the new order says

Addressing the community members outside court, the LHR’s Thandeka Chauke said this judgment is an extension of the May order. However, it differs in that it has a clear timeframe.

Judge Davis ordered that the community must provide Colonel Mkhize with full particulars of those wishing to return to the base within five days, beginning on Monday 3 December.

Colonel Mkhize must within five days provide the LHR with a list of all available houses for reoccupation. In addition, within 15 days, the gender-separated bungalows must be partitioned into family units and occupied by families. The army was also ordered to provide alternative accommodation with temporary cooking and washing facilities.

The parties were ordered to pay their own costs, which was viewed as unfair by LHR. They are now thinking of appealing Davis’s judgment.

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