In a case two years in the making, Kopanang Africa Against Xenophobia (KAAX) and several other civil society organisations finally had their day in court on Monday for a legal challenge filed against the anti-migrant group Operation Dudula, the Department of Home Affairs (DHA) and the South African Police Service (SAPS).
KAAX, the South African Informal Traders Forum, the Inner City Federation and Abahlali baseMjondolo, represented by the Socio-Economic Rights Institute, filed the legal challenge in 2023 to ask the court to prevent Operation Dudula from assaulting or harassing foreign nationals and to stop Operation Dudula from impeding access to healthcare services and schools for the children of international migrants.
The DHA and SAPS were added as respondents to the application for failing to protect vulnerable communities from Operation Dudula’s xenophobic conduct and, in some instances, for allegedly colluding with or supporting the group’s activities.
The courtroom was packed on Monday morning, and many of those who came to watch the proceedings unfold had to stand as advocate Jason Brickhill presented the civil organisations’ heads of argument.
In a case already beset with delays, Operation Dudula’s treasurer-general, Solomon Kekana, attempted to persuade the court to further delay proceedings, claiming that his organisation was only informed of the two-year-old application on Sunday.
Brickhill, supported by the DHA’s legal team, opposed the postponement.
“Operation Dudula was served at its registered address, and we have the returns of service. They’ve had the papers for two years and made a public decision to ignore the proceedings,” said Brickhill.
Judge Leicester Adams agreed, and the proceedings were allowed to continue unopposed by Operation Dudula because the group failed to file an opposing motion.
Unlawful conduct by Operation Dudula
In delivering the applicants’ case, Brickhill outlined what he termed a clear modus operandi and pattern of unlawful activities perpetrated by Operation Dudula since the organisation’s inception in 2021. This includes:
• Hate speech and incitement: The applicants detailed how Operation Dudula engaged in hate speech and incited harm against migrants through public gatherings and social media. In the affidavit, they cited tweets and public statements that allegedly promote violence and spread false information, such as the claim that there are more than 15 million “illegal foreigners” in South Africa.
• Unlawful demands for documents: Brickhill accused the anti-migrant group of illegally demanding that private individuals produce identity documents to prove their right to be in South Africa, a power the applicants argue is reserved for immigration and police officers under the Immigration Act.
• Wearing military-style uniforms: The applicants argue that Operation Dudula members routinely wear military camouflage apparel at gatherings, which contravenes the Regulation of Gatherings Act and the Defence Act. “The wearing of military apparel at gatherings of this nature is intended to convey threats. They are intended to convey that those at gatherings are exercising the authority of military forces,” said Brickhill.
• Targeting businesses and traders: This includes forcibly shutting down businesses and informal trading stalls operated by migrants and demanding the dismissal of migrant employees. In one incident, there was an arson attack on the Yeoville market after threats from the group.
• Illegal evictions: According to the applicants, Operation Dudula members threatened and carried out violent, unlawful evictions of migrants and South Africans from their homes without court orders, notably at Msibi House in New Doornfontein.
• Interfering with access to services: This involved the anti-migrant group obstructing access to healthcare facilities and schools by threatening and removing migrants. The affidavit mentions incidents at Jeppe Clinic and the forced closure of the Streetlight Schools: Jeppe Park Primary School.
“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. Dudula means ‘to force out’, and this name captures its objective of expelling foreign nationals from South Africa regardless of their immigration status,” Brickhill argued.
Home Affairs and SAPS complicity
In tandem with Operation Dudula’s alleged unlawful conduct was the applicants’ accusation that the DHA and SAPS failed to perform their constitutional duties.
Brickhill argued that the SAPS failed to investigate complaints and protect victims, and colluded with or acquiesced to Operation Dudula’s actions. The affidavit alleges that police were present but failed to act during attacks in Jabavu and that the Jeppe Police Station refused to assist victims of the Msibi House eviction.
“There are instances where the applicants attempted to lay charges. Either they were turned away from the police station and told to go back to their countries, or they had to wait for hours for assistance,” he said.
The NGOs also accused the DHA of supporting Operation Dudula by conducting raids at the group’s instigation.
The applicants asked the court for several orders to stop Operation Dudula’s alleged unlawful activities and to compel government action against it. They sought interdicts to restrain Operation Dudula from harassing individuals, demanding identity documents, making hate speech, interfering with access to healthcare and schools, and conducting illegal evictions.
The applicants also asked the court to declare that the SAPS and the DHA failed in their constitutional duties and must stop supporting or colluding with Operation Dudula.
A key part of the relief sought is a constitutional challenge to declare section 41 of the Immigration Act invalid because it allows for warrantless searches without reasonable suspicion.
The applicants asked the court to direct the government to implement its national action plan to combat xenophobia and to order the respondents to pay the legal costs of the application.
Several amicus curiae, including Media Monitoring Africa and Section27, made submissions to the court in support of KAAX’s application. Judge Adams postponed proceedings until Tuesday.