Activists have gone to court again to compel the state to stop xenophobic vigilantes from stopping immigrants and undocumented people from accessing health services. This comes as Operation Dudula activists, alreadly interdicted in a previous court ruling from blocking access to healthcare, are defying the order and continuing with their actions (see report below).
GroundUp reports that Médecins Sans Frontières, the Treatment Action Campaign and Kopanang Africa Against Xenophobia (KAAX) have gone to the Gauteng High Court (Johannesburg) to compel the state to ensure that people have safe and unhindered physical access to the Rosettenville and Yeoville clinics. The case has been brought on an urgent basis.
They want the vigilantes removed from gatekeeping at the clinics. In heads of argument, SECTION27, representing the plaintiffs, said the various respondents in the City of Johannesburg, Health Departments, and the SAPS have “a collective duty to ensure safe and unhindered access to healthcare”.
“However, they have taken no meaningful and effective steps to protect access to these clinics, they have failed to implement any co-ordinated plans, and they have not responded to the applicants’ repeated demands for action.”
The applicants therefore seek a mandatory interdict requiring that the respondents take all reasonable measures to ensure safe access to the Yeoville and Rosettenville clinics; remove any unauthorised people hindering access at the health facilities’ premises; station adequate numbers of trained security guards at all access points; place public notices at all access points prohibiting unauthorised interference and stating that violators will be removed and reported to the police; and report all incidents of obstruction to SAPS, with the expectation that SAPS will provide all necessary assistance to ensure access to these facilities.
Part B of the case seeks a final interdictory relief with broader structural relief to address vigilantism in other healthcare institutions across Gauteng.
Operation Dudula
The court action follows numerous reports of xenophobic vigilante actions at dozens of clinics, with Rosettenville and Yeoville being “hot spots”.
Vigilantes have denied patients access to antiretroviral therapy (ART), immunisation of children, essential medication for the management of chronic diseases, and from getting referrals to provincial and national healthcare facilities.
The organisations say the denial of access to healthcare affects the broader public, as untreated illnesses and disrupted medical treatment can have serious consequences for communities.
Gauteng High Court Judge Leicester Adams earlier this month granted an interdict preventing Operation Dudula members from demanding ID documents from members of the public.
The judge also directed the government to implement the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and related intolerances.
But Operation Dudula appears to have continued its xenophobic vigilantism in violation of the interdict.
SECTION27 argues that they are “not able to identify the vigilantes operating at the Yeoville and Rosettenville clinics and, even if their identities could be established, they are likely to be replaced by further, unknown individuals”.
It therefore seeks relief through the current application, since “only the respondents have the means and legal authority to demand that the vigilantes identify themselves, and to take effective action to remove them from their premises”.
The applicants noted that xenophobic vigilantes acted “in full view of security staff and even police officers who have failed to stop such actions. Security staff have also been observed assisting or collaborating with the unidentified individuals”.
Passing the buck
In responding heads of argument, the national and provincial Health Departments maintain they are “not directly involved in the management and administration of clinics”, which fall under the City of Johannesburg, and they were “inappropriately joined in these proceedings”.
In its response, SAPS maintained “that it has discharged its duty and will continue to do so as mandated by the constitution”, and “the applicants have failed to discharge the onus resting on them that the SAPS respondents have done nothing to investigate and arrest vigilantes.”
“Instead, the uncontroverted evidence is that the police have arrested, investigated and submitted dockets to the NPA for decisions to prosecute.”
In its heads of argument, SECTION27 said the respondents were engaged in an exercise of collective buck-passing.
Judgment was reserved and will be delivered to the parties via email next week.
Witness testimony plus a visit by GroundUp to clinics confirmed that not only Operation Dudula members, but also willing clinic security guards are continuing to deny immigrants access to health facilities, writes Kimberly Mutandiro.
GroundUp visited three clinics and saw immigrants being turned away by security guards and Dudula members.
The xenophobic group’s leader told GroundUp that “ordinary citizens have joined the struggle outside our mandate”.
The National Department of Health has urged people to make a police report if anyone – including healthcare staff – prevents them from accessing medical help.
GroundUp spoke to numerous migrants who said Operation Dudula had not only blocked their access, but that this was sometimes in collaboration with clinic staff.
Witness testimonies
One woman said her 19-year-old daughter with HIV was chased from Alberton Clinic by Operation Dudula after they had checked their IDs.
Her daughter was trying to collect her ARVs, which will run out within the next two weeks.
Another woman last received her ARVs and blood pressure pills from Spartan Clinic in Kempton Park in July. She had been attending the clinic since 2017 without any problems. When she went to the clinic last week, Operation Dudula turned her away before she could get her medicines.
“I can’t die just because some people are trying to gain attention through politics,” she said. “If I die, who is going to take care of my children?”
A nine-year old girl is one of those affected. She has been taking ARVs since she was six, said her mother, who had been collecting her medicines from Charlotte Maxeke Hospital until Operation Dudula started guarding the hospital three months ago, preventing immigrants from accessing care.
She now has to buy ARVs from a pharmacy for herself and her daughter whenever she is able to get money.
“When her medicine runs out, she goes for days without ARVs until I manage to get money.”
GroundUp visited Spartan clinic and the clinic at the Kempton Park civic centre last week, and Rosettenville and Alberton North clinics the next day.
At the Spartan Clinic a plain-clothed woman seated beside a security guard at the gate checked the IDs of every person entering. Most people had South African IDs.
Later in the day, the mother of the nine-year-old entered, and both the woman checking IDs and the security guard told her to leave. They said only people with South African IDs were allowed in. Shortly thereafter, another security guard also appeared and the three shouted for the woman to leave the clinic.
When GroundUp asked the security guards and the woman checking IDs asked why they had turned the woman away, they said a “a new rule” had been passed by the community that only South African citizens are allowed in, and that all foreign nationals should be barred from entering, regardless of their illness.
When asked if clinic staff approved of the “new rule”, they said management would confirm their story.
One staffer said the woman checking IDs and others standing at the gate were from Operation Dudula and that the clinic had been instructed not to treat foreigners. When asked if the Department of Health had approved this, she said the matter was “political and beyond the clinic’s control”.
The patient said she and other foreign nationals were denied entrance not only to this same clinic but the Kempton Park civic centre clinic daily.
At the Kempton Park clinic, two car guards said Operation Dudula had already checked IDs early in the morning before the clinic opened.
Outside Rosettenville clinic, two women were checking IDs, and a security guard behind the gate said everyone had to pass through the women before being allowed in. The two women said only South African ID holders were allowed inside.
While the two women did not admit to being Operation Dudula members, immigrant informal traders nearby said both women were from Operation Dudula.
At the Alberton North clinic, two women in green reflective vests who sat at the entrance said all foreigners should go to the Unjani Clinic in Germiston for free treatment or to Dischem, Clicks, or private facilities.
When asked where the instruction came from, they said it was a decision made by both the clinic and the community.
A web search indicated that Unjani Clinic charges a R300 fee.
Court order
Kopanang Africa Against Xenophobia, the South African Informal Traders Forum, the Inner City Federation, and Abahlali BaseMjondolo, had previously asked the courts to interdict Operation Dudula from denying healthcare access to immigrants, and on 4 November, the Gauteng High Court ruled in their favour
However, Mike Ndlovu from KAAX said the organisation has continued to receive complaints of immigrants being harassed or turned away at clinics, mostly in Gauteng and KwaZulu-Natal, and to a lesser extent from Limpopo and Mpumalanga.
“Our own monitoring and reports from partners like Doctors Without Borders (MSF) confirm it. MSF’s recent assessment found patients being barred from more than half of the health facilities they visited in Gauteng,” he said.
“The accounts are distressing: people living with HIV have gone for weeks without medication,” he added, saying the actions of Operation Dudula were in contempt of court. He called for the court ruling to be enforced.
GroundUp asked Zandile Dabula, leader of Operation Dudula, if she denied Operation Dudula has been preventing immigrants from accessing health services since the court ruling. She did not answer.
The 4 November court order said that Operation Dudula had to communicate the order to its members. GroundUp asked Dabula if and how this had been done. She did not respond.
GroundUp also sent questions to Dabula asking if she were aware that Dudula members were still blocking access to clinics after the interdict. She did not respond.
National Department of Health spokesperson Foster Mohale said the department was not aware of Operation Dudula’s current actions.
“If it is happening, it means they are deliberately breaking the law and undermining the court ruling, which is a serious offence,” he said.
He said the department needed evidence to prove that clinic staffers were denying people without IDs access to healthcare, so that action could be taken against the implicated officials.
“Anyone who breaks the law must be reported to law enforcement agencies,” he added.
See more from MedicalBrief archives:
Defiant Operation Dudula to appeal ruling
Court orders Operation Dudula to stop targeting migrants
Interdict bid against Operation Dudula dismissed over lack of urgency