SA High Court bans Operation Dudula from harassing foreign nationals

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.