The Human Rights Commission (HRC) has accused the government of failing to act against the vigilante groups that prevent non-nationals and undocumented individuals from accessing public healthcare facilities across the country.
This follows a KwaZulu-Natal High Court (Durban) decision last Friday to strike the HRC’s urgent application off the roll, which sought to stop the groups – Operation Dudula and March and March – from unlawfully blocking migrants any access to public hospitals like Addington, reports IOL.
In striking the matter off, the court ruled it was not urgent.
Operation Dudula and March and March have consistently accused the government of failing to address South Africa’s migration challenges, arguing that foreign nationals are placing undue pressure on the public healthcare system. They want foreign nationals to be denied medical care.
In a statement on Friday, the HRC said it had approached the court after multiple failed attempts to engage the SAPS and the Department of Health on the matter.
“Despite direct engagements and calls by the commission and civil society organisations urging the relevant state actors to enforce the law and uphold constitutional rights, the SAPS and the Department of Health have failed to take any effective steps to prevent these vigilante groups from unlawfully preventing patients from accessing healthcare services,” the HRC said.
In its founding affidavit, the HRC had cited specific incidents at Addington Hospital in July, where the two groups prevented people from entering.
The application was also against the Minister of Police, Home Affairs, Health, and the Health MEC in KwaZulu-Natal for failing to fulfil their constitutional obligations to protect those denied access by the two groups.
News24 reports that notice for the application, however, was served on the two groups and other respondents only on 6 October, giving them just four days to prepare answering affidavits to the HRC’s 260-page founding affidavit.
“This is a weighty matter, and can’t be dealt with on an urgent basis… asking the court to sanction the police to use tear gas and rubber bullets against citizens fighting for this must be ventilated in a full-blown hearing,” said Advocate Griffiths Madonsela, SC, representing March and March and its founder, Jacinta Ngobese-Zuma.
He argued that the HRC had not attempted to engage in dialogue with his clients before going to court, and that not giving enough time to respond to the allegations was an “abuse of court processes”.
Advocate Vishalan Naidoo, instructed by the State Attorney representing the Ministers and MEC cited as respondents, argued that the notice of motion granted in September by Judge Bruce Bedderson ordered that the HRC provide an unredacted founding affidavit which revealed the identities of those it referred to in the July incidents.
“The unredacted version with names should have been served to us so that Home Affairs can investigate if those people are properly registered in preparing answering affidavits. The incidents were in July; there is no urgency.”
Advocate Muhammad Zakaria Suleman, representing the HRC, said that while he did not specify whether there had been any recent incidents, the “incidents have been going (on) since July”.
Acting Judge David Saks agreed with the respondents, saying that they had been put under undue pressure with no evidence of any new incidents, and thus deemed there was no urgency in the application.
Saks struck the urgent application off the roll with costs.
Outside the court, Ngobese-Zuma said they were pleased that the court showed the HRC it was not above the law.
“We are not stopping South Africans and people who are correctly documented, but we don’t want people who are not supposed to be in our country getting laws to favour them so that they can deplete the resources we already don’t have.”
Zandile Dabula, leader of Operation Dudula, said: “I hope that South Africans can see that we are for them. HRC is very questionable. Now we will have time to meet with our legal representatives to finalise everything,” she said.
Targeted campaign
Since June this year, anti-migrant group turned political party Operation Dudula and the NGO March and March have been running a relentless campaign prohibiting migrants from entering state hospitals and clinics – in fact almost anyone who has no documentation, including, in some cases, legitimate South Africans – across Gauteng and pockets of KwaZulu-Natal.
This has continued for months, despite being in violation of Section 27 of the Constitution, which guarantees the right to access healthcare regardless of immigration status or nationality.
The Daily Maverick reports that commissioner Chris Nissen said Addington Hospital’s security staff were increasingly refusing to intervene and allegedly ignoring the actions of March and March and Operation Dudula at the facility’s gates.
Despite Naidoo, representing the Ministers and KZN Health MEC, saying that the HRC did not provide evidence of recent incidents, and thus there was no urgency regarding the application, several civil society organisations have reported that the disruptions continue.
This was echoed by the HRC’s legal representative, Advocate Muhammad Zakaria Suleman, who told the court that incidents had been ongoing since July.
Daily Maverick sent questions to both the SAPS in Gauteng and the Gauteng Basic Education Department to find out how the departments planned to stop Dudula’s continued disruptions – which are apparently being widened to include schools next year.
In response, Gauteng SAPS spokesperson Lieutenant-Colonel Mavela Masondo said: “The South African Police Service in Gauteng, Johannesburg Metro Police, as well as Gauteng traffic wardens, deploy officials to restore calm and maintain law and order at health facilities where protests have been reported. These deployments are as and when needed.”
Masondo said officials were “not passive at the affected health facilities”, and that law enforcement agencies “worked closely with the Departments of Health and Education to prevent, combat and investigate crimes affecting them”.
In the meantime, several non-government entities have taken it upon themselves to protect the interests of targeted migrant groups by taking action in the courts.
In September, the EFF filed a murder case against Operation Dudula after the death of a one-year-old Malawian child in July – when Operation Dudula had allegedly barred the baby and mother from getting treatment at Alexandra Community Health Centre in Johannesburg.
Operation Dudula has denied the allegations, saying none of its members was at the clinic on that day, News24 reported.
Several other organisations have had Operation Dudula in their crosshairs even before the group’s latest target campaign.
In June, Daily Maverick reported on a legal bid by migrant rights group Kopanang Africa Against Xenophobia (KAAX), the South African Informal Traders Forum, the Inner City Federation, and Abahlali baseMjondolo to have the Gauteng High Court (Johannesburg) interdict Operation Dudula from assaulting, harassing or intimidating migrants and to stop Operation Dudula from impeding access by the children of migrants to healthcare services and schools.
The Department of Home Affairs and the SAPS were added as respondents to the application for what the civil society organisations called “state-enabled xenophobia”.
Home Affairs and the SAPS were accused of collusion for failing to protect migrant communities from Operation Dudula’s targeted harassment and assault since its inception in 2021.
Judgment was reserved on 11 June.
See more from MedicalBrief archives:
Murder charge against Operation Dudula after baby’s death
Staff accused of helping vigilantes block migrants from clinics
Free healthcare for migrants ‘a mistake’, says Minister
SA mulls law review on migrant healthcare