By Lehlohonolo Lehana.
Civil society organisations finally had their day in court 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.
During the proceedings, 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.
Advocate Jason Brickhill representing the civil organisations 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.
“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,” argued Brickhill.
‘There is a consistent pattern where public healthcare facilities were targeted, arguing that foreign nationals should not be treated in those facilities and calling on people to gather at the facilities — Kalafong Hospital and Jeppe Clinic. They [Operation Dudula] chased foreigners out of those waiting rooms.
“It begins with inciting hatred on public platforms, either gatherings or social media, blaming foreigners of all sorts of social ills, and these gatherings are aimed at threatening and harassing foreign nationals. What follows is chasing people away from hospitals, threatening schools and evicting or threatening people with eviction.”
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.
Operation Dudula is not opposing the application; however, Home Affairs and Saps have opposed certain aspects of the litigation.
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.