2 days ago
Home Affairs and police deny collusion with Operation Dudula as court battle continues
Accusations of 'state-enabled xenophobia' flew in the Gauteng Division of the High Court on Wednesday as SAPS members and Home Affairs officials denied colluding with the anti-migrant group Operation Dudula.
Kopanang Africa Against Xenophobia (KAAX), the Department of Home Affairs (DHA) and the South African Police Service (SAPS) returned to the Gauteng Division of the High Court in Johannesburg on Wednesday for the second day of the legal challenge by KAAX and several other rights organisations against the anti-migrant organisation Operation Dudula.
As on the previous day, the gallery was packed with members of civil society organisations that supported the application. The only difference on Wednesday was the significant number of Operation Dudula members, who sat side by side in the gallery with the migrants they oppose.
Operation Dudula's president, Zandile Dabula, was also present in the courtroom as the legal representatives for the DHA and SAPS presented their heads of argument in opposition to the applicants' legal challenge.
On Tuesday, Daily Maverick reported that KAAX, the South African Informal Traders Forum, the Inner City Federation and Abahlali baseMjondolo filed the legal challenge in 2023 to ask the court to prevent Operation Dudula from assaulting, harassing or intimidating migrants 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 allegedly failing to protect vulnerable communities from Operation Dudula's xenophobic conduct and for allegedly colluding with or supporting the group's activities.
State-enabled xenophobia
One of the arguments that advocate Jason Brickhill, representing the applicants, made on Tuesday was that the SAPS and the DHA colluded with Operation Dudula.
'There is clear evidence that SAPS officials have, at times, acted in concert with Operation Dudula, entering buildings and detaining individuals identified as foreign nationals, including children, without any lawful basis. That sort of collusion undermines constitutional protections and amounts to state-enabled xenophobia,' said Brickhill.
Advocate William Mokhare SC, representing Home Affairs, countered by saying, 'To suggest that meeting with Dudula translates to collusion is an absurd proposition. Collusion is a very strong word; it has very strong connotations, it's a serious allegation that cannot be lightly made, it must be made when one has got evidence.'
Mokhare said the applicants' bid to interdict the minister of home affairs from colluding with Operation Dudula was inappropriate, and there were other remedies available.
He defended section 41 of the Immigration Act, which the applicants sought to have declared constitutionally invalid because it allows for warrantless searches without reasonable suspicion. He argued that the legislation does not authorise warrantless raids or searches of homes but simply allows immigration officers or the police to request the identification of any person, not just immigrants.
The SAPS legal team also denied all the allegations made by the applicants.
Addressing the applicants' complaint that the SAPS had breached its constitutional duties, advocate W Isaaks maintained that the SAPS had acted within its constitutional and legislative obligations.
He denied that the SAPS failed to investigate complaints of criminal conduct by Operation Dudula members against migrants, claiming the police responded to and investigated incidents when complaints were made.
Isaaks dealt with some of the examples the applicants cited on Tuesday, including that officers at the Norwood Police Station refused to investigate and pursue charges against Operation Dudula members who threatened and assaulted traders in Orange Grove in 2022 and looted their businesses.
He said the police had opened a case of intimidation and malicious damage in that instance, and provided a case number (251/03/2022).
He turned to the killing of Elvis Nyathi, who was beaten to death by a mob in an incident that was allegedly incited by Operation Dudula in April 2022, and for which the applicants argued that no members of the anti-migrant group were arrested.
Isaaks argued that SAPS investigation into the murder led to arrests, though the case was later struck from the roll due to witness non-cooperation, which falls under the National Prosecuting Authority's purview.
He denied that the police colluded with Operation Dudula, saying that joint operations with the DHA were lawful and necessary for identification and verification purposes, and were not conducted at the instigation of Operation Dudula.
Judgment was reserved.
'No one will stop us'
After the proceedings concluded, members of Operation Dudula gathered outside the court, singing, dancing and bandying about the word ' Makwerekwere ' (a derogatory term for African foreign nationals). At the centre of the camouflage-clad crowd was the organisation's president, Dabula.
She told Daily Maverick Operation Dudula only learnt on social media that the proceedings were happening. (The group was in fact emailed the founding affidavit in 2023.)
Responding to allegations that members of the SAPS accompanied them on raids and that foreign nationals had been arrested outside the scope of the law, Dabula said, 'They're talking about things that they don't have proof of. For instance, they're talking about SAPS accompanying us on our operations. There's nothing like that.'
She insisted that law enforcement members were present only to verify documents and that any document checks followed legal procedures.
'Every time we ask you to produce your document, you'll see or hear us saying, 'Go, the SAPS will verify your document. Because we know we can't physically even look at their documents … it's within their rights, but also there's a citizen's arrest that we can apply as citizens of this country.'
She said Operation Dudula was the 'mouthpiece of South Africans' and the nation was facing an 'immigration crisis'.
'People are … seeing us as the only hope that talks about this foreign issue, and we don't mince our words. When we're saying that we want them to leave, we mean just that,' she said.
KAAX's Dale McKinley said Operation Dudula did not speak on behalf of the South African public.
'There is a very small vocal minority, which is amplified on social media to make it appear as if large populations of South Africa are xenophobic. This is the point that we were making about Operation Dudula; they contested the elections as a political party, and they got fewer votes than we have members,' said McKinley. DM
