With the residents of Marievale appearing in the Pretoria High Court on Wednesday, 9 May to have their housing rights protected, TIM FISH HODGSON gives us a breakdown of the laws governing the military and housing evictions.
How does the Constitution apply to the military?
The Constitution, which is the highest source of domestic law in the country, is directly relevant both to the eviction itself and to the conduct of the military. Any conduct of the military inconsistent with the Constitution is â€œunlawful and invalidâ€ and the SANDF and its personnel, as agents of the State under the Constitution must â€œrespect, protect, promote and fulfillâ€ the rights in the Bill of Rights.
Eviction without a court order is unlawful under section 26(3) of the Constitution. According the Constitutional Court, eviction processes must involve prior meaningful engagement with occupiers. Unlawful occupiers must always be treated with â€œcare and concernâ€. Legislated processes must always be followed, regardless of who the occupiers are and who the landowner is. This includes the need for a court order prior to the eviction.
Because of the importance of a home as a â€œzone of personal intimacy and family securityâ€ too and the â€œshockâ€ caused by forced removals, the Constitutional Court has made it clear that all evictions are an area in which the state in all its forms (including the military) must tread very carefully:
â€œSection 26(3) [of the Constitution] evinces special constitutional regard for a personâ€™s place of abode. It acknowledges that a home is more than just a shelter from the elements. It is a zone of personal intimacy and family security. Often it will be the only relatively secure space of privacy and tranquillity in what (for poor people in particular) is a turbulent and hostile world. Forced removal is a shock for any family, the more so for one that has established itself on a site that has become its familiar habitat.â€
Forced evictions, which could render those evicted homeless without prior â€œmeaningful engagementâ€, are also clearly unlawful under international law. As a State Party to the International Covenant on Economic, Social and Cultural Rights, South Africa must ensure â€œprior to carrying out any evictions â€¦ that all feasible alternatives are explored in consultation with the affected persons, with a view to avoiding, or at least minimizing, the need to use forceâ€.
Moreover, the SANDF is itself a constitutionally entity: it is empowered and regulated by the Constitution and has no power to take any action inconsistent with it. The Constitution specifically sets as the SANDFâ€™s â€œprimary objectâ€ the obligation â€œto defend and protect [the] people in accordance with the Constitutionâ€.
Can the military participate in evictions?
Generally, the law allocates no competency to the military in evictions whatsoever regardless of whether such evictions take place on private or public land (including military-owned) land. Without such power, any participation of military in evictions â€“ whether violent or not – is unlawful. The SANDF told the court that all of its actions are merely crime prevention activities. The residents say this is just a â€œruse to harass and intimidate the civilian residents of Marievaleâ€.
There are two very limited lawful means by which military officials might acquire the authority to participate in an eviction.
The first way is if they are military officials specifically appointed and clearly identified as â€œmilitary policeâ€. Military police officers are empowered to perform the ordinary functions of police officers including preventing and combating crime. Military police officers have no more or less powers and obligations then any ordinary police officers and are generally empowered in order to police the military â€“ not civilians. Nevertheless, since police officers have no lawful power to evict any person without a court order under any circumstances, nor do military police officers. So, military police, may participate in evictions only to the extent that they are specifically directed to in terms of a court order.
A second way that military officers could acquire the power to participate in an eviction is through military deployment for a targeted, time bound purpose. Military deployment, while permitted by the Defense Act is a matter of last resort. This is precisely because of the risk of abuse of military power by the executive and the intimidating stature of the military. According the Constitution, only the President, as Commander in Chief of the army, may authorise the deployment of the defense force. When the president does sign off on such a deployment, they must report to Parliament almost immediately on where, why, and how many soldiers have been so deployed and for how long they will be deployed. The Defense Act requires the President to give such notice within 24 hours of the commencement of such a deployment.
It is not clear that all of the military officials that were involved the evictions were â€œmilitary policeâ€. Even if they were, they had no power to evict the residents in the absence of a court order. Thus far, President Ramaphosa, the Commander in Chief of the SANDF, has been silent throughout and has not deployed the military to Marievale. The inescapable conclusion therefore, is that any participation of the military in the eviction of the Marievale residents was an unlawful and unconstitutional violation of the residentsâ€™ rights.
Some relevant international law principles and practices relating to the military
As a general matter, in terms of international law, it does not align with good practice for military forces to perform what are by the nature law enforcement activities ordinarily performed by the police. This is the case too in terms of South African law. For example, the UN Human Rights Council has recently stressed â€œthe importance of adequate training for officials exercising law enforcement duties assigned to deal with public protests, and of refraining, to the extent feasible, from assigning military personnel to perform such duties.â€
Moreover, under international human rights law, the conduct of the SANDF engages the responsibility of the State, and human rights violations committed by the SANDF are attributed to the State. This is also true in terms of the South African Constitution in terms of which the SANDF is an â€œorgan of stateâ€ which is obliged to â€œrespect, protect, promote and fulfillâ€ all rights in the Bill of Rights.
Tim Fish Hodgson is a Legal Adviser for the International Commission of Jurists based in Johannesburg, South Africa. He tweets from @TimFish42.