Gauteng High Court orders Operation Dudula to stop identity checks on foreign nationals

Operation Dudula has been ordered to stop demanding passport or other identity documents from foreign nationals who want to access health and education services in the country.

On Tuesday, Gauteng High Court Judge Leicester Adams handed down a scathing ruling on the organisation, largely accusing it of using vigilantism in its operations.

The judge declared that only an immigration officer or a police officer has the power in terms of section 41 of the Immigration Act 13 of 2002, to demand that another private person produce her or his passport or other identity documents to demonstrate their right to be in South Africa and that no private person has the power to do so, unless expressly so authorised by law.

”The first respondent (Operation Dudula), the eleventh and twelfth respondents (Operation Dudula leaders Zandile Dabula and Dan Radebe) are hereby interdicted and restrained from demanding that any private person produce her/his passport or other identity documents to demonstrate her/his right to be in the Republic,” read Judge Adams’ order.

The matter was brought by Kopanang Africa Against Xenophobia, SA Informal Traders Forum, Inner City Federation and Abahlali BaseMjondolo, who were represented by the Socio-Economic Rights Institute of SA.

According to the ruling, Operation Dudula, Dabula and Radebe are interdicted and restrained from intimidating, harassing and or assaulting any individuals that they identify as being foreign national; making public statements that constitute hate speech on the grounds of nationality, social origin or ethnicity at public gatherings, on social media platforms or in any other way as well as interfering with the access of foreign nationals to health care services and or their right to such access.

In addition, they must not interfere with access to, or the operations of schools and intimidating or harassing learners, teachers or parents at schools and unlawfully evicting foreign nationals from their homes.

They must also stop unlawfully removing foreign nationals from their trading stalls or interfering with the employment of foreign nationals in shops and businesses and instigating, encouraging or inciting any other person to perform any of the acts prohibited by this order, on social media, at gatherings in terms of the Regulation of Gatherings Act 205 of 1993, or in any other way.

”The first respondent (Operation Dudula) is hereby ordered and directed to communicate this order to any and/or all of its office-bearers and members. The second respondent (the government) is hereby directed and ordered to take reasonable steps to implement the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance including by: - (a) taking steps to establish an early warning and rapid response mechanism regarding threats of xenophobic hate speech and hate crimes,” Judge Adams ruled.

The government must also collate and publish disaggregated data in respect of xenophobic hate speech and hate crimes including the prosecution and conviction of persons who commit such offences.

”It be and is hereby declared that on a proper interpretation of section 41 of Immigration Act 13 of 2002, the powers conferred on an immigration officer or police officer: (a) are confined to public places and do not authorise warrantless searches in private places that include the home and places of study, work or business,” the judge stated.

Judge Adams declared that that on a proper interpretation of the Immigration Act, the powers conferred on an immigration officer or police officer require that they hold a reasonable suspicion that a person is unlawfully in South Africa in order to request them to identify themselves as a citizen, permanent resident or foreigner.

However, the Act does not permit the interrogation, arrest and detention of children under the age of 18, except as a measure of last resort and in a manner that is consistent with the Constitution.

He ordered Operation Dudula, the government, acting Police Minister Firoz Cachalia, national police commissioner General Fannie Masemola, Justice Minister Mmamaloko Kubayi, Dabula and Radebe to pay the costs.

loyiso.sidimba@inl.co.za