Koetsioe and Others v Minister of Defence and Military Veterans and Others (12096/2021) [2021] ZAGPPHC 203 (6 April 2021)

Koetsioe and Others v Minister of Defence and Military Veterans and Others (12096/2021) [2021] ZAGPPHC 203 (6 April 2021)

The court found that the demolition of housing structures by the military without a court order amounted to unlawful eviction and a breach of section 26(3) of the Constitution. The military's actions constituted self-help and spoliation, regardless of any breach of agreement by the villagers. Assaults and harassment by soldiers were found to be unlawful, though the extent and damages are to be determined in Part B of the application. The discharge of firearms and military ordnance in the vicinity of the settlement is prohibited under existing interim court orders, which remain in force. The applicants' refusal to consider mediation under Rule 41A was criticised, and the court held that...

Citation
[2021] ZAGPPHC 203
Parties
Applicant: Chris Koetsioe; Applicant: Fernando Mukuqua; Applicant: Themba Maphanga; Applicant: Piet Chabalala; Applicant: Gracinda Mazive; Applicant: Bonisile Mangisa; Applicant: Bulelani Magaba; Applicant: Mduduzi Mokomo; Respondent: Minister of Defence and Military Veterans; Respondent: South African National Defence Force; Respondent: Officer Commanding Marievale Engineering Regiment; Respondent: Nosiviwe Noluthando Mapisa-Nqakula; Respondent: Major Meissner; Respondent: Colonel Mafihlwase Reah Mkhize
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 April 2021
Case Number
12096/2021
Procedural Posture
Urgent Application / Part A: Urgent Relief; Part B: Damages Postponed Sine Die
Outcome
Urgent relief granted in part; demolition of houses without court order declared unlawful; interdicts issued; compensation and damages postponed to Part B; costs for Part A not awarded.
Judges
N Davis
Legal Topics
Eviction Without Court Order, Section 26 Rights, Spoliation, State Brutality, Urgent Interdict, Mediation Rule 41a
Constitutional Law Civil Procedure Delict Eviction Without Court Order Section 26 Rights Spoliation State Brutality Urgent Interdict +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 4 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Chris Koetsioe

Applicant

Fernando Mukuqua

Applicant

Themba Maphanga

Applicant

Piet Chabalala

Applicant

Gracinda Mazive

Applicant

Bonisile Mangisa

Applicant

Bulelani Magaba

Applicant

Mduduzi Mokomo

Applicant

Minister of Defence and Military Veterans

Respondent

South African National Defence Force

Respondent

Officer Commanding Marievale Engineering Regiment

Respondent

Nosiviwe Noluthando Mapisa-Nqakula

Respondent

Major Meissner

Respondent

Colonel Mafihlwase Reah Mkhize

Respondent

Procedural Posture

Urgent Application / Part A: Urgent Relief; Part B: Damages Postponed Sine Die

Legal Issues

  1. 1 Whether the demolition of housing structures by the military without a court order constitutes unlawful eviction and breach of section 26(3) of the Constitution.
  2. 2 Whether assaults and harassment by soldiers against residents amount to actionable delicts.
  3. 3 Whether the discharge of firearms and military ordnance in the vicinity of the settlement is unlawful under existing court orders.

Ratio Decidendi

The court found that the demolition of housing structures by the military without a court order amounted to unlawful eviction and a breach of section 26(3) of the Constitution. The military's actions constituted self-help and spoliation, regardless of any breach of agreement by the villagers. Assaults and harassment by soldiers were found to be unlawful, though the extent and damages are to be determined in Part B of the application. The discharge of firearms and military ordnance in the vicinity of the settlement is prohibited under existing interim court orders, which remain in force. The applicants' refusal to consider mediation under Rule 41A was criticised, and the court held that...

Court Disposition

Urgent relief granted in part; demolition of houses without court order declared unlawful; interdicts issued; compensation and damages postponed to Part B; costs for Part A not awarded.

Orders

  • No housing structures in the settlement adjacent to Marievale Military Base may be demolished without a court order.
  • Respondents must ensure members of the South African National Defence Force adhere to existing court orders and pending rule nisi until finalisation.