The Gauteng High Court in Johannesburg has issued a landmark ruling ordering the anti-migrant group Operation Dudula to immediately stop blocking foreign nationals from accessing healthcare and education services in South Africa. This decision comes after the group was found to be engaging in vigilantism by demanding identity documents from individuals.
Judge Leicester Adams delivered the scathing judgment on Tuesday, stating that only immigration officers or police officers have the power under section 41 of the Immigration Act to demand passports or IDs from individuals to demonstrate their right to be in South Africa. No private person, including Operation Dudula members, has this authority unless expressly authorized by law. The ruling explicitly interdicted the group from such actions, highlighting the unconstitutional nature of their operations.
Operation Dudula, led by Zandile Dabula and Dan Radebe, has been actively blocking foreigners from accessing public health facilities and schools, often by checking identification at entrances. Their actions have been criticized as xenophobic and unconstitutional, with the group arguing that they need to prioritize South Africans over migrants. This has led to numerous incidents where foreign nationals were denied essential services, exacerbating tensions in communities.
The case was brought to court by several organizations, including Kopanang Africa Against Xenophobia, SA Informal Traders Forum, Inner City Federation, and Abahlali BaseMjondolo, who were represented by the Socio-Economic Rights Institute of South Africa. These groups argued that Operation Dudula’s activities violate the constitutional rights of foreign nationals and contribute to a climate of fear and discrimination. The court’s ruling affirms these concerns and sets a legal precedent.
In addition to stopping the demand for identity documents, the court order prohibits Operation Dudula from intimidating, harassing, or assaulting individuals identified as foreign nationals. It also bans them from making public statements that constitute hate speech on grounds of nationality, social origin, or ethnicity, whether at gatherings, on social media, or elsewhere. This comprehensive restriction aims to curb the spread of xenophobic rhetoric.
The ruling further restrains the group from interfering with foreign nationals’ access to healthcare services, schools, homes, trading stalls, and employment. It orders Operation Dudula to communicate this order to all its office-bearers and members, ensuring widespread awareness of the legal restrictions. Failure to comply could result in further legal consequences for the organization and its leaders.
The government is directed to take reasonable steps to implement the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia, and Related Intolerance. This includes establishing an early warning and rapid response mechanism for xenophobic threats and collating and publishing disaggregated data on hate speech and hate crimes, including prosecution rates. These measures are intended to address systemic issues and promote accountability.
Judge Adams also clarified that the powers under the Immigration Act are confined to public places and do not authorize warrantless searches in private places like homes, workplaces, or schools. He emphasized that these powers require a reasonable suspicion that a person is unlawfully in South Africa and do not permit the interrogation, arrest, or detention of children under 18 except as a last resort. The costs of the case were awarded against Operation Dudula, its leaders, and government respondents, marking a significant legal victory for migrant rights advocates and setting the stage for improved enforcement of human rights protections.