The Gauteng High Court in Johannesburg, South Africa, has issued a sweeping interdict against Operation Dudula, an anti migrant group, prohibiting it from a range of unlawful activities targeting foreign nationals in a landmark judgment handed down on Tuesday.
The court also
delivered a profound reinterpretation of immigration enforcement powers,
affirming that the rights to dignity and privacy apply to “everyone” within
South Africa’s borders, irrespective of citizenship.
The judgment,
by Judge Leicester Rock Adams, followed an application by associations who
promote and fight for human rights in general and for the individual rights of
their members – Kopanang Africa Against Xenophobia, the South African Informal
Traders Forum, the Inner City Federation and the Abahlali Basemjondolo
Movement.
These civic
groups sought relief against Operation Dudula, its leaders, and various
government departments for their roles in, or failure to curb, a persistent
campaign of xenophobic violence and intimidation.
The applicants
sought to stop Operation Dudula’s “pattern of unlawful conduct,” which they
argued violated the Constitution.
Such conduct is
alleged to include: intimidation, harassment and assault of foreigners, making
of public statements that constitute hate speech, wearing apparel that closely
resembles the official uniforms of the security forces, interfering with public
access to and the public’s right to access health care services, interfering
with access to, or the operations of, schools or harassing learners, teachers
or parents, unlawfully evicting people from their homes and unlawfully removing
informal traders from their stalls or interfering with the employment of
persons in shops and businesses.
They also asked
the court to compel the government to implement its own National Action Plan
(NAP) to combat xenophobia and to clarify that the powers granted by Section 41
of the Immigration Act are not a licence for warrantless raids and arbitrary ID
checks.
Judge Adams
found overwhelmingly in the applicants’ favour on the core issues, declaring
that “only an immigration officer or a police officer has the power in terms of
Section 41 of the Immigration Act 13 of 2002 to demand that another private
person produce her / his passport or other identity documents… and that no
private person has the power to do so unless expressly so authorised by law.”
Consequently,
Operation Dudula, along with its members Zandile Dabula and Dan Radebe, were
“interdicted and restrained from demanding that any private person produce her
/ his passport or other identity documents to demonstrate her / his right to be
in the Republic.”
The final order
goes much further, prohibiting Operation Dudula from:
“Intimidating, harassing and/or assaulting any
individuals that they identify as being foreign nationals,
“Making public statements that constitute hate
speech on the grounds of nationality, social origin or ethnicity;”
“Interfering with the access of foreign
nationals to health care services;”
“Interfering with access to, or the operations
of, schools and intimidating or harassing learners, teachers or parents;”
“Unlawfully
evicting foreign nationals from their homes;” and “Unlawfully removing foreign
nationals from their trading stalls.”
In his
reasoning, Judge Adams detailed a sustained pattern of activity by Operation
Dudula, which included the incitement that led to the murder of Elvis Nyathi in
Diepsloot in 2022, violent raids on buildings in Johannesburg, attacks on
informal traders and blockades of healthcare facilities that forced pregnant
women to give birth at home.
“The undisputed
evidence before me indicates that since 2021 Operation Dudula has emerged as
one of the most visible and violent proponents of xenophobia, targeting foreign
nationals and those perceived to be foreign,” said the judge.
“Operation
Dudula has also targeted public healthcare facilities, using threats and
violence to prevent foreign nationals from accessing healthcare. In August and
September 2022, Operation Dudula picketed outside the Kalafong Hospital and the
Hillbrow clinic, refusing access to those they deemed to be foreign nationals.
“During January
2023, Operation Dudula picketed at the Jeppe Clinic, resulting in many patients
being turned away, including pregnant women. As a result, at least two women
were forced to give birth at home, without any proper health care.”
“Operation
Dudula has also targeted schools, demanding the removal of non-South African
teachers and undocumented learners. Operation Dudula’s conduct resulted in the
permanent closure of at least one school in Jeppestown, which had 300 learners
and 40 staff. The school was forced to close after concluding that it could not
guarantee the safety of its staff and learners, following threats by Operation
Dudula and the intimidation of its employees.”
Judge Adams
said Operation Dudula and its members have engaged in violent and unlawful
activities across the Gauteng Province, whose “undisputed and uncontested
evidence” is extensively documented by the applicants with over 30 supporting
and confirmatory affidavits from victims and witnesses.
“The aforegoing
incidents follow a common pattern, revealing a modus operandi. It routinely
incites hatred against foreign nationals on public platforms, particularly
through social media, blaming foreigners for all manner of social ills. It then
leads unauthorised gatherings and raids directed at threatening and harassing
foreign nationals and those who are perceived to be foreign.”
The judge
anchored his judgment in constitutional principles, quoting South Africa’s
Constitutional Court where the rights to privacy and dignity in the
Constitution attach to ‘everyone’ and not just to citizens.
“Human dignity
has no nationality,” he said.
Judge Adams
also directed the South African government “to take all reasonable measures to
combat xenophobia, racism and related forms of unfair discrimination” in line
with its constitutional and international law obligations.
“That
commitment is reflected in the NAP, referenced supra and which was adopted and
approved by Cabinet on 28 February 2019 and formally launched on 25 March 2019.
This Plan expressly seeks to give effect to South Africa’s commitments under
the 2002 Durban Declaration and Programme of Action. The government has also
adopted a National Action Plan Implementation Plan, representing the steps to
be taken to implement the National Action Plan over a five-year period from
2019/2020 to 2023/2024.”
In a crucial
part of the ruling, the court provided a binding, constitutional interpretation
of Section 41 of the Immigration Act, frequently used by the South African
Police Service (SAPS) and the Department of Home Affairs (DHA) to conduct
dragnet, warrantless raids and operations in public streets, as well as in
private homes and businesses.
“The
applicants, with a view to ensuring the effective protection of rights, seek
declaratory and interdictory relief, confirming that the s 41 powers may not be
exercised by private individuals, other than police officers and immigration
officials. I have already indicated supra that the applicants are entitled to
such a declaratory order for the reasons alluded to above.”
Judge Adams
declared that the powers conferred by this section:
“are confined
to public places and do not authorise warrantless searches in private places
that include the home and places of study, work or business;”
“require that
an immigration officer or police officer hold a reasonable suspicion that a
person is unlawfully in South Africa in order to request them to identify
themselves;” and
“do not permit
the interrogation, arrest and detention of children under the age of 18, except
as a measure of last resort.”
However, the
court did not grant all the relief sought, finding that the applicants had
“failed to present credible evidence” to support their claim that the SAPS and
DHA actively supported or colluded with Operation Dudula.
“Applicants’
claim that the SAPS and the DHA support or collude with Operation Dudula not
accepted – interdictory and declaratory relief sought in that regard not
granted by the court – held that the applicants have failed to present credible
evidence in support of the claim,” Judge Adams said.
The judge also
declined to declare that the SAPS had systemically breached its constitutional
duties, noting that while there were individual failures, the police had, in
several instances, investigated complaints and opened dockets.
Since
interdictory relief was granted, Operation Dudula and the government
respondents were also hit with costs.
South Africa
has experienced successive waves of xenophobic violence in the last two decades
with Judge Adams quoting a report by an independent monitor, Xenowatch, which
found that from 2008 to 2021, xenophobic violence had resulted in at least 612
deaths, the displacement of 122 298 persons and looting or damage to 6 306
shops or properties.
“The report
notes that ‘Gauteng is by far the most affected by the violence,” said Judge
Adams.
“With 329
incidents, it accounts for almost 40 percent of all incidents recorded in the
county’. These figures are likely a significant underestimation due, in large
part, to reluctance on the part of victims to report criminal conduct, out of
fear of further victimisation and a lack of confidence in the state
authorities.” CITE
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