Members of Operation Dudula have been interdicted from “taking the law into their own hands” and uttering hate speech in their “xenophobic” campaign against immigrants, writes Tania Broughton for GroundUp, with the court also granting an interdict preventing the organisation from demanding ID documents from the public.
Gauteng High Court Judge Leicester Adams, in his ruling on Tuesday, directed the government to implement the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and related intolerances.
However, he refused to declare that the South African Police Service (SAPS) had breached its constitutional duties to combat and investigate related crimes and said there was no evidence that either SAPS or the Department of Home Affairs (DHA) was “colluding” with Operation Dudula.
The matter had been brought by Kopanang Africa Against Xenophobia, the South African Informal Traders Forum, the Inner City Federation, and Abahlali BaseMjondolo, in what they described as a challenge to the xenophobic and racist speech and conduct of Operation Dudula and some of its office-bearers.
The litigation was launched in a two-part application. In February last year, the court granted the order sought in Part A, which prohibits the naming of about 40 people who gave affidavits about what they had witnessed or experienced at the hands of Operation Dudula.
Part B was argued before Adams in the High Court earlier this year.
The human rights organisations allege that Operation Dudula has harassed and intimidated people by demanding to verify identity documents, forced business to close, prevented informal traders from operating, evicted people from their homes without a court order, worn uniforms resembling the police or military, and denied people access to healthcare and education.
This was without any authority and in violation of people’s rights, they say.
Operation Dudula did not participate in the case. It noted on social media that it had been served with the papers but said it would not oppose the application. It tried to intervene later and asked for a postponement of the matter, but this was refused.
In his ruling, Adams said human dignity had no nationality.
“It is the case of the applicants, in a nutshell, that Operation Dudula and its members have, on a constant and consistent basis, made themselves guilty of unlawful conduct, which falls foul of the Constitution,” he said.
“They also contend that the South African Government is complicit in such unlawful conduct … at the very least it has woefully failed in its constitutional and legal obligations to take reasonable and effective steps to address the unlawful conduct and the broader threat of xenophobia in our society.”
The judge said SAPS denied the allegations against it. But the police did accept that only immigration or police officers have the power to demand that a person must produce his or her identity document.
The DHA also denied any collusion with Operation Dudula.
The judge said xenophobia was a serious threat to human rights, as had been acknowledged in the national action plan and by the government in its decision to bind itself to a range of relevant international treaties.
“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. In isiZulu, Dudula means to force out. Its members have engaged in violent and unlawful activities across the Gauteng province.”
Detailing a range of incidents, the judge said there was a common pattern, inciting hatred against foreign nationals on public platforms and blaming them for “all manner of social ills”.
He said Operation Dudula members had taken the law into their own hands and there was a danger of future harm if the organisation were not stopped.
This, he said, was borne out by the fact that since being served with the application, the members had continued to act unlawfully. As a result, he said, he would grant the interdict.
On the issue of its members “wearing military style uniforms”, Adams said the uniforms did not bear the distinctive mark or crest of an SANDF uniform. For this reason, he declined to order that they be banned from wearing them.
On the national action plan, the judge wrote that the applicants had said it had been more than five years since its adoption but critical aspects had not been implemented.
The plan specifically emphasised the need for proper monitoring, data collection and an effective response to acts of xenophobic violence.
He said the government and the DHA offered “very little by way of resistance” to the request that he direct the government to take reasonable steps to implement the plan.
“The high watermark of the DHA’s grounds of opposition is to the effect that the government bears no responsibility for the implementation of the plan. As contended by the applicants, this is an astounding approach to adopt,” the Judge said, noting that the plan “explicitly places the burden of implementation on the shoulders of government”.
For this reason, he ordered the government to implement the plan.
But Adams declined to take issue with what was alleged to be “police inaction”, saying the police had acted reasonably to deal with matters relating to foreign nationals.
On the allegation of “collusion”, Adams said SAPS had admitted that it had previously escorted Operation Dudula members on some of their “missions”, explaining that where SAPS is requested to escort a march or protest, it had an obligation to do so to ensure peace.
The DHA had also admitted that it had communicated and met with Operation Dudula members.
He said the matter was a “factual inquiry”, and there was no clear evidence before him to factually conclude any collusion.
Adams also clarified the powers of SAPS and DHA officials with regard to the Immigration Act, declaring that
• it does not authorise warrantless searches in private places;
• an officer must hold a reasonable suspicion that a person is unlawfully in South Africa before requesting them to identify themselves; and
• it does not permit interrogation, arrest and detention of children, except as a measure of last resort and in a manner consistent with the Constitution.
He ordered Operation Dudula and the government respondents to pay the costs of the application.
dudula judgment
GroundUp article – Judge interdicts Operation Dudula (Creative Commons Licence)
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