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[2021] ZAGPPHC 203
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Koetsioe and Others v Minister of Defence and Military Veterans and Others (12096/2021) [2021] ZAGPPHC 203 (6 April 2021)
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HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 12096/2021
REPORTABLE:NO.
OF
INTEREST TO OTHER JUDGES:NO.
REVISED
DATE:
6
APRIL 2021
In
the matter between:
CHRIS
KOETSIOE
First Applicant
FERNANDO
MUKUQUA
Second Applicant
THEMBA
MAPHANGA
Third Applicant
PIET
CHABALALA
Fourth Applicant
GRACINDA
MAZIVE
Fifth Applicant
BONISILE
MANGISA
Sixth Applicant
BULELANI
MAGABA
Seventh Applicant
MDUDUZI
MOKOMO
Eighth Applicant
and
MINISTER
OF DEFENCE AND MILITARY VETERANS
First
Respondent
SOUTH
AFRICAN NATIONAL DEFENCE FORCE
Second Respondent
OFFICER COMMANDING
MARIEVALE ENGINEERING
REGIMENT
Third Respondent
NOSIVIWE
NOLUTHANDO MAPISA-NQAKULA
Fourth Respondent
MAJOR
MEISSNER
Fifth Respondent
COLONEL
MAFIHLWASE REAH MKHIZE
Sixth Respondent
J
U D G M E N T
This
urgent application was heard virtually and otherwise disposed of in
the terms of the Directives of the Judge President of this
Division.
The judgment and order are accordingly published and distributed
electronically.
DAVIS,
J
[1]
Introduction
This is the judgment in
an urgent application relating to an ongoing saga of unhappy
co-existence of the Military and a number of
local residents in the
vicinity of the Marievale Military Base in Gauteng.
[2]
The parties
2.1
The eight applicants are individuals
residing in "[...]", being a semi-formal settlement
situated in an open piece of
land adjacent to the Marievale Military
Base.
2.2
The six respondents are the Minister of
Defence and Military Veterans, both in her official and personal
capacities, the South African
National Defence Force (SANDF) itself,
the Officer Commanding Marievale Engineering Regiment and two
senior military oficers
in their personal capacities.
[3]
The relevant background
3.1
Marievale Military Base is a designated
military training institution. It is utilized for the training
of newly appointed
members of the Military Police for crime
prevention and for training by the Army Support Base in Gauteng South
Region for facilities
control and maintenance as well as for landward
forces (i.e. infantry) in patrolling exercises. Training of
members of the
SANDF includes the making use of firearms,
pyrotechnics (in the form of smoke and hand grenades), dog training
and horse riding
(mounted activities).
3.2
[...] is a semi-formal settlement, arranged
in a square of permanent and semi-permanent housing structures with
an open quadrant,
situated on land adjacent to the Military Base
itself. The land belongs to neither the Village nor the Base
itself but is
under the “custody” of the SANDF and
utilized by it for training operations. The current existence
of [...] was
primarily as a result of prior occupation of the
Military Base by civilians when the Base had fallen into some state
of disrepair
in prior years. The unlawful occupation culminated
in litigation between the parties pursuant to unlawful self-help and
forced
removal by the Military.
3.3
This Court, on 9 May 2018,
inter
alia
ordered the interim occupation of
the Military Base by civilians to continue “
pending
the finalization of whatever legal proceedings [the Military] may
launch for the eviction of the applicants from the Marievale
Base or
the finalisation of an agreement between the parties, (with or
without the intervention of the other organs of State)
”.
3.4
Pursuant to an inability to resolve the
issues of occupation of the Base and the acquisition of alternate
accommodation by the civilians,
accusations of contempt of court and
counter-accusations of unlawful conduct led to this Court
supplementing its previous order
on 30 November 2018 by, inter alia,
ordering the following:
3.4.1
The Applicants are directed to
within 5 days from date of this order, furnish the Sixth Respondent
(or an officer designated for
this purpose by her) with full
particulars of those Applicants (with their families) who wish to
return to occupation in the Marievale
Military Base, including
particulars of family units or individuals, at the case may be as
well as identity numbers;
3.4.2
The Sixth Respondent (or an officer
designated by her) is ordered to:
3.4.2.1
Within 5 days from date of this
order, furnish a list of all houses available for re-accommodation by
the Applicants in the Marievale
Military base and to allow such
re-occupation;
3.4.2.2
Within 15 days from the date of this
order have the two refurnished bungalows partitioned into family
units and to allow occupation
thereby by the Applicants;
3.4.2.3
Within 60 days from the date of this
order ensure that the remaining Applicants not accommodated in terms
of paragraphs 2.2.1 and
2.2.2 be adequately alternatively temporary
accommodated in the base;
3.4.2.4
In furnishing the temporary
accommodation as aforesaid, the Respondents shall provide temporary
cooking and washing facilities to
the Applicants.
3.4.2.5
Compliance with all of the above
steps shall be reported before or due date thereof to the fifth
Respondent (or an officer designated
by him) and by him to the
officer of the fourth Respondents;
3.4.2.6
The designation of officer shall not
relieve the fifth or sixth Respondents of their obligations under
this order;
3.4.2.7
Should the fourth or the sixth
Respondent at any stage be informed that any party of this order or
that of 09 May 2018 is not implemented,
they shall forthwith ensure
that the necessary steps are done to do so; and
3.4.2.8
Each party to pay its own costs
.
3.5
Subsequent to the above two orders, the
Ekurhuleni Local Municipality made alternative land available for
occupation by the civilians
and assisted those who wished to do so,
to relocate thereto.
3.6
The parties’ legal representatives
also met in Cape Town on 22 February 2019 in order to resolve the
issue. The outcomes
of the meeting were minuted but the current
applicants deny the relevance of the meeting and its minutes.
3.7
What I do find relevant, however, is the
recordal in the minutes that “
all
parties around the table recognized that the Respondents were
represented by the highest decision-making officials and that
showed
the spirit in which the Respondents negotiated. In this regard
it is noted that the meeting was attended by Minister
herself, the
Chief of the SANDF, the Secretary for Defence, the Head of Legal
Services in the SANDF and all the officers involved
in the Marievale
Military Base issues
”.
3.8
The implementation of the search for a
peaceful resolution of the matter and alternate accommodation of the
occupiers in question
took quite some time and a further meeting was
convened at the instance of the Military, which took place on 22
September 2020
between itself and the [...] Community, the purpose of
which has been minuted as being “…
that
the idea is to find solutions to problems that we are both
encountering rather than running to court without first engaging
with
one another. That working together and attempting to resolve
issues amongst ourselves is of critical importance
”.
3.9
The minutes of the meeting further indicate
that Ms Du Plessis from Lawyers for Human Rights, who still
represents the applicants,
inter alia
indicated that three families were larger than previously indicated
and that they needed permission to extend their “shacks”.
This was pursuant to an agreement that the number of previous
occupiers to whom the orders of 9 May 2018 and 30 November 2018
referred, not be increased and that the number of dwellings and the
extent thereof also not be increased. The result was that
the
members of the community had been identified, together with their
family members and that the dwellings in the village had
been
numbered. The military consented to the request regarding the
three families and indicated that it would not unfairly
deny any
similar request. The further undertakings were recorded as
follows:
“
The
community representatives and LHR undertook to ensure that no new
occupant would be allowed to join the [...] community as a
resident
and that, should same happen, they will immediately inform the
Military for relevant immediate action to be taken.
An updated
list of those staying at [...] given the fact that some have already
relocated to [...], would be shared amongst the
parties
”.
3.10
The reference to “[...]” is a
reference to the alternate land made available via the intervention
of the Ekurhuleni
Municipality. In this regard, on 18 June
2020, the Military had already provided “feedback”
relating to the voluntary
relocation of a large number of residents
as follows:
3.10.1
On 20, 21 and 22 May 2020 some 10 families
had voluntarily vacated bungalows in the Marievale Military Base and,
with the assistance
of transport provided by the Military, relocated
(together with their furniture) to [...] in [...]
3.10.2
In the period between 25 May 2020 to 5 June
2020 a further 19 individuals relocated from permanent structures in
the Base to [...]
by way of civilian removal trucks contracted by
themselves.
3.10.3
During the same period, three temporary
houses were dismantled by members of the community themselves and
relocated via civilian
removal trucks contracted by themselves to
[...] (these were houses 2A, 7A and 19A).
3.10.4
The same occurred in respect of some 35
other numbered “shacks” by the owners and/or occupiers
thereof over the same
period. A further number of 20 occupiers
of numbered and identified barracks also relocated with private
transport to [...].
3.10.5
Three members of the community were
relocated, at their own insistence, from shacks numbers 72, 75 and 81
back from [...] to [...]by
way of SANDF removal transportation.
3.11
The result of the above should be that
there are no longer any civilians unlawfully occupying the Military
Base but also that the
extent of the community or the numbers of
occupants of the [...] should have been greatly reduced.
3.12
However, there appears to be some dispute
regarding some of the “relocations” as the record
indicates that Makhubela,
J on 22 May 2020 issued a rule nisi in case
No 22746/2020 regarding the declaration of certain evictions at the
Military Base and
[...] as being unlawful. This was apparently
as a result of the fact that the relocations took place without the
Ekurhuleni
Municipality having formulated or presented the members of
the community with a formal “relocation plan”.
Apparently,
such a plan is still outstanding. The relocations
were also perceived to be contrary to an undertaking by the
Municipality
that relocations would not take place during
“lockdown”. It is not clear on the papers whether
this allegation
referred to the “lockdown” under level 5
of the regulations promulgated in terms of the
Disaster Management
Act 57 of 2002
or during the whole (indefinite) period of the State
of Disaster.
3.13
It appears that during July 2020 certain
confrontations took place between the Military and the [...]
Community as a result of military
training exercises, the
restrictions placed on movement to and from the Village and the
demolition of allegedly newly built shacks.
The details of
these occurrences and factual disputes regarding what actually
happened, need not be resolved in the current application,
but what
is relevant is that Neukircher J on 31 July 2020 ordered as follows
in this Court, by way of a further rule nisi, varying
the order
referred to in paragraph 3.12 above:
3.13.1
“
Declaring the restrictions
placed on the freedom of movement of the Applicants to be unlawful
and unconditional;
3.13.2
Declaring the measures to restrict
the access to and from [...]including the erection of a military
access control gate, to be unlawful
and unconstitutional;
3.13.3
Declaring the detention and/or
forced confinement of the First Applicant to be unlawful and
unconditional;
3.13.4
Declaring the closure of informal or
spaza shops to be unlawful an unconstitutional;
3.13.5
Declaring the discharge of military
flares, smoke and thunder grenades and firearms in the vicinity of
[...] by the First to Third
Respondents to be unlawful and
unconstitutional;
3.13.6
Declaring the instruction/demand by
the solders or members of the Second Respondent that the First
Applicant should remove his livestock
from the property to be
unlawful;
3.13.7
Interdicting the First to Third
Respondents form entering [...] or restricting any person’s
access to the settlement;
3.13.8
Ordering the first and Third
Respondent to remove the access control gate at the entrance to [...]
immediately;
3.13.9
Interdicting the First to Third
Respondents from conducting any military exercise in [...] and
discharging any kind of military
ordnance, including flares, smoke
and thunder grenades and firearms in the vicinity of [...]
”
.
3.14
The return date of the
abovementioned rule nisi has since been extended and re-extended,
ultimately to 30 July 2021 and is being
opposed by the respondents
thereto. In the meantime, the rule still has interim effect.
[4]
The basis for the current relief
4.1
In the present application, the applicants
seek the following relief:
4.1.1
“
Declaring the demolition of
the houses in [...] to be unlawful and unconstitutional;
4.1.2
Declaring the acts of assault,
torture and harassment committed by solders against certain residents
of [...] to be unlawful and
unconstitutional;
4.1.3
Declaring the discharge of firearms
in the vicinity of [...] by the soldiers employed and supervised by
the Respondents to be unlawful
and unconstitutional;
4.1.4
Ordering the Respondents to
immediately, within two days of this order, rebuild the houses that
were demolished and repair the houses
that were damaged;
4.1.5
Ordering the Respondents to pay an
amount of R 10 000 to compensate the Applicants whose house were
demolished and personal belongings
damaged;
4.1.6
Referring the complaints of torture
and other gross human rights violations to the South African Human
Rights Commission for investigation;
4.1.7
Interdicting and restraining the
Respondents from intimating, threatening, harassing and/or assaulting
the Applicants;
4.1.8
Interdicting and restricting the
Respondents from causing any damages to the Applicants’ houses
and personal property;
4.1.9
Interdicting the First and Third
Respondents from discharging any kind of military ordinances,
including firearms in the vicinity
of [...];
4.1.10
Ordering the Respondents to pay the
Applicants’ costs of the application on the punitive scale of
attorney and client
”
.
4.2
The events which prompted the present
application, are alleged to have occurred over three days, being 7, 8
and 11 March 2021. The
applicants allege that on Sunday 7 March 2021
a group of about 100 soldiers “…
armed
with R4 assault rifles and pangas approached [...] and started
assaulting residents and demolishing shacks …
”.
This was apparently preceeded by 4 soldiers having entered the
village at 16h00 on that day to investigate the construction
of new
houses. Early in the morning, on the next day, 8 March 2021,
Major Meissner and Staff-Sergeant Simelane and some 30
soldiers are
alleged to have entered the village and some of those who then
patrolled the village, made comments about the first
applicant and
allegedly stated that he will be “dealt with” when he
goes to town. The villagers telephoned Ms
Du Plessis of the LHR
who then telephoned Major Meissner whereafter the soldiers returned
to their base. On 11 March 2021
the soldiers returned and
demolished the three houses (numbers 9, 44 and 36) which had
previously been demolished on 7 March 2021
and which have since been
rebuilt, as well as house number 61.
4.3
Attached to the founding affidavit are
photographs of the demolished houses, which appear to be mostly
corrugated iron and sink
structures as well as photographs and
confirmatory affidavits of the other seven applicants. They, in
various degrees, corroborate
the above brief description of the
events of the 7
th
and 8
th
March. Although shots had been fired, no-one was hit.
These seven applicants however, relate tales of how they were
beaten
by the soldiers, butted with rifles, forced to roll in the mud and
wash in the river. They were asked why they did
not want to
move to [...]. Their ordeal went on for a number of hours, into
the night.
4.4
The attacks are denied by the Military.
It appears that the demolition of the three houses are conceded but
the allegation
is that they were newly erected structures in breach
of the villagers’ own prior agreement. The return of the
soldiers
later on the 7
th
of March was apparently as a result of stone-throwing by the
villagers themselves and damage caused by them to windows and housing
units that form part of the Military Base. The Military also
allege that they had reacted to a “tip-off” from
inside
the village, that they were investigating the discharge of a fire-arm
from within the village and that illegal miners, which
have sunk
illegal and unsafe shafts, some even raising concern as to the safety
of the Base’s munitions stores, abound around
the village and
that a white VW Golf, used by the miners, often park at the first
applicant’s yard. The damage to military
property by the
stone-throwing is confirmed by photographs and, to an extent,
conceded by the applicants, but allegedly this was
in a form of
self-defence. The presence of the illegal miners is confirmed
by a handwritten letter from them, setting out
their plight and lack
of funding to feed themselves, addressed to the Officer Commanding of
the Base.
4.5
From a conspectus of the evidence and,
applying such a robust approach as can be done on the papers in
respect of the factual disputes,
it appears that, on a balance of
probabilities, the facts are the following: the villagers have
breached the terms of their
undertaking to the Military and, as
people relocate to [...], their places and their housing units are
filled by others, new houses
are being erected, these are temporary
structures and are quickly re-erected after demolition, the
stone-throwing by the villagers
has taken place and the presence of
the illegal miners (“zama-zamas” on the papers) and their
mining activities, have
all been established. However, on the
other hand, having regard to the photographs, detailed descriptions
and confirmatory
affidavits, I find that the soldiers have entered
the village, have demolished at least three houses and have created
general havoc
on the night of 7 March 2021 during the course of which
some villagers, including some of the applicants, had been beaten.
One must also accept that this has instilled a sense of fear in the
villagers and that they have a reasonable apprehension of the
possibility of these events reoccurring, should there not be any form
of intervention.
[5]
Evaluation
5.1
The applicants argued that the demolition
of the houses in question, temporary structures though they may be,
amounted to an attempted
forceful eviction. I agree. The
fact that this took place without a court order, amounted to unlawful
conduct and a
breach of section 26(3) of the Constitution. It
matters not that houses may have been erected or occupied contrary to
the
agreement reached with the Villagers (of which the first
applicant, as their representative was a part). A breach of contract
does
not justify self-help which amounts to spoliation. The
fact that eviction may not take place without a court order has been
expressly mentioned in the order of this court referred to above made
on 9 May 2018 already.
5.2
I understand that the Military has
previously indicated that they do not wish to “run to court”,
but, if the villagers
breach the agreement, the military is not
entitled to resort to taking the law into their own hands. The
Constitutional Court
has, inter alia in
Motswagae
and Others v Rustenburg Local Municipality and Another
2013 (2) SA 613
(CC) held that section 26(3) of the Constitution
“
guarantees to any occupier
peaceful and undisturbed occupation of their homes
unless
a court authorises interference
”
(my underlining) and that eviction cannot be orchestrated “though
the back door” (paragraphs [12]and [16]).
5.3
Any assault on any of the applicants, and
other villagers in circumstances as alleged by them, would also
clearly be unlawful.
The exact detail and extent of such
assaults need however not be determined on an urgent basis as the
applicants envisage proceeding
in part B of their application to
claim damages. In view of the huge factual disputes
foreseeable, it might be difficult
to determine those aspects without
the hearing of oral evidence, but I put my concerns in this regard no
higher than that as it
is for the court hearing part B to determine
the issue.
5.4
Of course, the soldiers may protect
themselves against any unlawful attack and of course they have the
right and duty to protect
the Base as a military installation against
attacks, but the stone-throwing incident should not be taken out of
context and summarily
be elevated to such an attack. In any event,
only the force needed to repel an attack would be justifiable and not
the entering
and raiding of the village.
5.5
Which brings me to another aspect: even if
the Military was concerned about the breaches of their agreement by
the villagers and
even if “zama-zamas” are being
harboured by the villagers, the village is not part of the Base over
which the Military
exercises jurisdiction and if there is any doubt
about this issue, the military has expressly been prohibited by an
order of this
court, being that issued by Neukicher J, from entering
the village. Until this order is set aside, the Military may
not set
foot in the village. This prohibition will, of course,
include the use of firearms and pyrotechnics inside the village.
5.6
On the other hand, the villagers have
established their community on a piece of land, not only adjacent to
a military base, but
where the military is conducting training
exercises. As long as the military do not enter the Village or
endanger the lives
of the villagers, the villagers must accept that
they reside in the vicinity of an area where military activities will
continuously
be taking place. They are, in that sense, in no
different position of any other person living in case proximity of
military
installations of there are many dotted around the country.
[6]
Dispute-resolution
6.1
The abovementioned paragraph, namely the
consequences of living on the doorstep of an active military base and
the history of the
parties’ co-existence in close proximity of
each other and the previous progress made through dialogue raise the
issue of
alternate dispute resolution.
6.2
The fairly recently introduced Rule 41A of
the Uniform Rules of this Court Obliges a party “
in
every … application …
”
to indicate by notice whether such a party agrees to or opposes
referral of the dispute to mediation. In the past
year, many
disputes in this division have successfully been referred to
mediation, mostly by judges especially trained in alternate
dispute
resolution. The rule not only requires a notice but clearly
contemplated that a party must have considered the issue
earnestly
prior to exercising its election. This is clear from the
requirement that a party must state its reasons for its
belief that a
dispute is or is not capable of being mediated.
6.3
The applicants have completely disregarded
this rule and its requirements. In the answering affidavit of
the Chief of the
South African Army, this point is expressly raised.
The applicants’ response is surprising, to say the least.
It is simply this: “
This is an
urgent application brought by the applicants following violent and
unlawful actions by the respondents. The Rule
41A process is
not required in this instance
”.
Adv De Vos SC, who appeared for the applicants together with adv van
Garderen, was equally dismissive of the concept
of mediation.
6.4
I find the attitude of the applicants and
their legal advisers to be clearly wrong on this score. The
circumstances of this
case, without underplaying the nature of the
respondent’s conduct, or the conduct of soldiers under their
command, actually
screams for an alternate dispute resolution
attempt, rather than a purely legal challenge. This was not a
case of an inexplicable
set of random acts. They came about as
a result of a history of attempted co-existence. The need for
alternate solutions
is even more so required in view of what has
previously been stated in paragraph 3.8 above. The possibility,
or rather probability,
of a resolution, is evident from the
applicants’ own papers: if, by way of a simple telephone
call, Ms Du Plessis could
halt the conduct which took place on 8
March 2021, as alleged by the applicants, wouldn’t a meeting
the next day not only
have prevented the further alleged conduct of
11 March 2021 and possibly the application itself?
6.5
In my view, it is clear that this matter
could have (and still can) benefit from mediation. The blunt
refusal by the applicants
to even consider, let alone attempt it is,
in the circumstances of the case, which include their own breach
their undertaking,
so disconcerting, that I shall reflect upon it
when considering the issue of costs as this court is entitled to do
in terms of
Rule 41A(9)(b).
6.6
Let me also be clear about the following:
the requirement to mediate peaceful co-existence does not detract
from the wrongfulness
of the soldiers’ conduct nor does it mean
that the villagers must suffer such conduct. Far from it.
Such conduct
amounts to “state brutality” as described in
Khosa v Minister of Defence and Military
Veterans
2020 (5) SA 490
(GP) at [55].
[7]
Consideration of the relief
In considering what
relief the applicants are entitled to, one must have regard to what
court orders are already in place as well
as what relief would be
appropriate in the circumstances, bearing in mind that part B of the
applicants’ Notice of Motion
is still to follow and that the
applicants, as indicated in their Notice of Motion, still intend
supplementing their papers in
this regard. In view hereof, I
shall deal with the relief prayed for in Part A of the Notice of
Motion consequentially as
follows:
7.1
Prayer 1: urgency
I have determined that
this matter was sufficiently urgent to merit a hearing on this
Court’s urgent motion court roll.
7.2
Prayer 2: demolition of houses
As indicated, the actions
of the Military amounted to taking the law into their own hands as
well as effectively amounting to eviction
of the occupiers of those
houses without a court order. That is unlawful and must not
occur again.
7.3
Prayer 3: assault and harassment are
unlawful
Clearly delicts were
committed. Whether the harassment amounts to “torture”
as alleged by the applicants and to
what extent it happened can best
be adjudicated during the hearing of Part B. Steps must be
taken to prevent the re-occurrence
of such unlawful conduct.
7.4
Prayers 4 and 10: discharge of firearms
and military ordnance in the vicinity of [...]
The discharge of firearms
if done with the intent to harass the villagers would be unlawful.
As indicated earlier, the Military
is entitled to proceed with
training exercises on the adjacent piece of land. If the
discharge of firearms occurs as part
of normal military operations,
that would ordinarily neither be unlawful nor unconstitutional.
The order of Neukircher J,
has, however, in the circumstances of this
case, in the interim placed a restriction on such activities in the
vicinity of the
village. This restriction stands and must be
obeyed until finalisation of the rule nisi.
7.5
Prayers 5 and 6: rebuilding of the
houses and compensation
From the evidence it
appears that the houses which had been demolished on 7 March 2021 had
been rebuilt by the villagers within
three days. In the absence
of any evidence to the contrary, the probabilities are that the same
would have happened in the
more than two weeks since the demolitions
on 11 March 2021 to date of hearing. Any compensation payable,
if any, should form
the subject of Part B of the application.
7.6
Prayer 7: Referral to the Human Rights
Commission
There is no evidence that
the applicants or the Lawyers for Human Rights have been prevented
themselves form approaching the Human
Rights Commission and that they
need a court order to enable such referral.
7.7
Prayers 8 and 9 an interdict
The relief claimed in
these prayers are of a general nature and, insofar as the contents
thereof are not already covered by the
order of Neukircher, J, they
constitute a restatement of law. In view of the recent
occurrences however, an order ensuring
compliance with the previous
orders and the law appears to be justifiable and necessary.
7.8
Prayer 11: costs
The applicants claim
costs on a punitive scale. Although, as found above, members of
the Military have committed breaches
of law and although some of
those breaches, such as assault and intimidation are deplorable and
serious in nature, those acts pertain
to the conduct of individual
soldiers or their commanders, if it had been authorized by them.
No grounds have been established,
either in fact or in law, why the
Minister or colonel Mkhize should be personally liable for this
conduct or the costs occasioned
thereby. One should also
distinguish between the costs of the application and the costs or
damages payable by those who have
committed delicts. In my
view, the costs of the application might well have been avoided by
mediation in the same fashion
as many of the previous aspects of
occupation or relocation have been dealt with. The question of
who should pay (and to
what extent they should pay) for the damages
caused by the delicts, form the subject matter of part B of the
application.
At the adjudication thereof every proven
perpetrator, be it of a delict or for being in contempt of court
should receive whatever
order the court hearing that part will
determine to be just and fair. Costs of the application, again
on a punitive scale,
is also claimed by the applicants in Part B of
their application. In the exercise of my discretion and even
bearing in mind
the success the applicants have achieved in this
urgent application, I find that each party shall pay their own costs
in respect
of Part A of the application.
[8]
Orders
1.
It is declared that none of the housing
structures in “[...]”, situated adjacent to the Marievale
Military Base, Gauteng,
may be demolished without an order of court.
2.
The Respondents are ordered to take all
necessary steps to ensure that members of the South African National
Defence Force adhere
to the existing orders of this court made on 9
May 2018 and 30 November 2018 in case number 22663/2018 and the
pending rule nisi
issued in case number 22746/2020 until the
finalization thereof.
3.
The Respondents are similarly ordered to
take all necessary steps to ensure that members of the South African
National Defence Force
do not assault, harass or threaten any member
or occupant of the [...].
4.
The issue of compensation, damages and
determination of all aspects related to the relief claimed in Part B
of the Notice of Motion
are postponed sine die.
5.
Each party shall pay its own costs in
respect of Part A of the Notice of Motion.
N DAVIS
Judge
of the High Court
Gauteng
Division, Pretoria
Date
of Hearing: 30 March 2021
Judgment
delivered: 6 April 2021
APPEARANCES:
For
the Applicants:
Adv A de Vos SC together with
Adv J van Garderen
Attorney for the
Applicants:
Lawyers
for Human Rights, Pretoria
For the
Respondents:
Adv T C Kwinda
Attorney for the
Respondents:
The
State Attorney, Pretoria