A chilling accusation has emerged from the High Court in Johannesburg, where civil society organisations are battling against Operation Dudula: that police officers are telling foreign nationals to "go back to your countries" when they attempt to report crimes committed against them by the anti-immigrant group.
This shocking claim underscores the core argument of the NGOs – that the South African Police Service (SAPS) is failing in its duty to protect vulnerable communities and, in some instances, is even colluding with or acquiescing to Operation Dudula's actions.
The courtroom was packed on Monday as legal counsel for Kopanang Africa Against Xenophobia (KAAX), the South African Informal Traders Forum (SAITF), the Inner City Federation (ICF), and Abahlali baseMjondolo presented their case against Operation Dudula, the Department of Home Affairs (DHA), and the SAPS. These organisations, represented by the Socio-Economic Rights Institute, are seeking a court order to prevent Operation Dudula from assaulting or harassing foreign nationals, impeding access to healthcare services and schools for migrant children, and engaging in other unlawful activities.
The legal challenge, two years in the making, accuses Operation Dudula of a clear pattern of unlawful conduct since its inception in 2021. Advocate Jason Brickhill, representing the NGOs, outlined a disturbing modus operandi that includes:
- Hate speech and incitement: Spreading false information and promoting violence against migrants through public gatherings and social media. The affidavit cites tweets and public statements that allegedly claim there are more than 15 million “illegal foreigners” in South Africa.
- Unlawful demands for documents: Illegally demanding that private individuals produce identity documents, a power reserved for immigration and police officers under the Immigration Act.
- Wearing military-style uniforms: Displaying military camouflage apparel at gatherings, contravening the Regulation of Gatherings Act and the Defence Act. "The wearing of military apparel at gatherings of this nature is intended to convey threats. They are intended to convey that those at gatherings are exercising the authority of military forces," said Brickhill.
- Targeting businesses and traders: Forcibly shutting down businesses and informal trading stalls operated by migrants and demanding the dismissal of migrant employees. The affidavit notes an arson attack on the Yeoville market after threats from the group.
- Illegal evictions: Carrying out violent, unlawful evictions of migrants and South Africans from their homes without court orders, notably at Msibi House in New Doornfontein.
- Interfering with access to services: Obstructing access to healthcare facilities and schools by threatening and removing migrants, including incidents at Jeppe Clinic and the forced closure of the Streetlight Schools: Jeppe Park Primary School.
However, the most damning accusations are levelled against the SAPS and the DHA. Brickhill argued that the SAPS has failed to investigate complaints, protect victims, and has even 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. This alarming claim, that police officers are actively discouraging foreign nationals from reporting crimes against them, paints a disturbing picture of a system failing to uphold the rule of law and protect the most vulnerable.
The NGOs also accused the DHA of supporting Operation Dudula by conducting raids at the group’s instigation.
Adding to the gravity of the situation, 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. Judge Leicester Adams dismissed the request, noting that Operation Dudula had been served at its registered address and had made a public decision to ignore the proceedings. Consequently, the proceedings continued unopposed by Operation Dudula because the group failed to file an opposing motion.
The applicants are seeking a range of court orders to stop Operation Dudula’s alleged unlawful activities and to compel government action. This includes interdicts to restrain Operation Dudula from harassing individuals, demanding identity documents, making hate speech, interfering with access to healthcare and schools, and conducting illegal evictions. They are also seeking a declaration that the SAPS and the DHA failed in their constitutional duties and must stop supporting or colluding with Operation Dudula. A key part of the relief sought is a constitutional challenge to declare section 41 of the Immigration Act invalid because it allows for warrantless searches without reasonable suspicion.
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.
The outcome of this case could have far-reaching implications for the protection of foreign nationals in South Africa and the accountability of state institutions in upholding the Constitution. The allegations of police complicity and the blatant disregard for the law displayed by Operation Dudula raise serious concerns about the resurgence of xenophobia and the erosion of fundamental rights in the country.
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