The
court
also
delivered
a
profound
reinterpretation
of
immigration
enforcement
powers,
affirming
that
the
rights
to
dignity
and
privacy
apply
to
“everyone”
within
South
Africa’s
borders,
irrespective
of
citizenship.
The
judgment,
by
Judge
Leicester
Rock
Adams,
followed
an
application
by
associations
who
promote
and
fight
for
human
rights
in
general
and
for
the
individual
rights
of
their
members
–
Kopanang
Africa
Against
Xenophobia,
the
South
African
Informal
Traders
Forum,
the
Inner
City
Federation
and
the
Abahlali
Basemjondolo
Movement.
These
civic
groups
sought
relief
against
Operation
Dudula,
its
leaders,
and
various
government
departments
for
their
roles
in,
or
failure
to
curb,
a
persistent
campaign
of
xenophobic
violence
and
intimidation.
The
applicants
sought
to
stop
Operation
Dudula’s
“pattern
of
unlawful
conduct,”
which
they
argued
violated
the
Constitution.
Such
conduct
is
alleged
to
include:
intimidation,
harassment
and
assault
of
foreigners,
making
of
public
statements
that
constitute
hate
speech,
wearing
apparel
that
closely
resembles
the
official
uniforms
of
the
security
forces,
interfering
with
public
access
to
and
the
public’s
right
to
access
health
care
services,
interfering
with
access
to,
or
the
operations
of,
schools
or
harassing
learners,
teachers
or
parents,
unlawfully
evicting
people
from
their
homes
and
unlawfully
removing
informal
traders
from
their
stalls
or
interfering
with
the
employment
of
persons
in
shops
and
businesses.
They
also
asked
the
court
to
compel
the
government
to
implement
its
own
National
Action
Plan
(NAP)
to
combat
xenophobia
and
to
clarify
that
the
powers
granted
by
Section
41
of
the
Immigration
Act
are
not
a
licence
for
warrantless
raids
and
arbitrary
ID
checks.
Judge
Adams
found
overwhelmingly
in
the
applicants’
favour
on
the
core
issues,
declaring
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
/
his
passport
or
other
identity
documents…
and
that
no
private
person
has
the
power
to
do
so
unless
expressly
so
authorised
by
law.”
Consequently,
Operation
Dudula,
along
with
its
members
Zandile
Dabula
and
Dan
Radebe,
were
“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.”
The
final
order
goes
much
further,
prohibiting
Operation
Dudula
from:
“Intimidating,
harassing
and/or
assaulting
any
individuals
that
they
identify
as
being
foreign
nationals,
“Making
public
statements
that
constitute
hate
speech
on
the
grounds
of
nationality,
social
origin
or
ethnicity;”
“Interfering
with
the
access
of
foreign
nationals
to
health
care
services;”
“Interfering
with
access
to,
or
the
operations
of,
schools
and
intimidating
or
harassing
learners,
teachers
or
parents;”
“Unlawfully
evicting
foreign
nationals
from
their
homes;”
and
“Unlawfully
removing
foreign
nationals
from
their
trading
stalls.”
In
his
reasoning,
Judge
Adams
detailed
a
sustained
pattern
of
activity
by
Operation
Dudula,
which
included
the
incitement
that
led
to
the
murder
of
Elvis
Nyathi
in
Diepsloot
in
2022,
violent
raids
on
buildings
in
Johannesburg,
attacks
on
informal
traders
and
blockades
of
healthcare
facilities
that
forced
pregnant
women
to
give
birth
at
home.
“The
undisputed
evidence
before
me
indicates
that
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,”
said
the
judge.
“Operation
Dudula
has
also
targeted
public
healthcare
facilities,
using
threats
and
violence
to
prevent
foreign
nationals
from
accessing
healthcare.
In
August
and
September
2022,
Operation
Dudula
picketed
outside
the
Kalafong
Hospital
and
the
Hillbrow
clinic,
refusing
access
to
those
they
deemed
to
be
foreign
nationals.
“During
January
2023,
Operation
Dudula
picketed
at
the
Jeppe
Clinic,
resulting
in
many
patients
being
turned
away,
including
pregnant
women.
As
a
result,
at
least
two
women
were
forced
to
give
birth
at
home,
without
any
proper
health
care.”
“Operation
Dudula
has
also
targeted
schools,
demanding
the
removal
of
non-South
African
teachers
and
undocumented
learners.
Operation
Dudula’s
conduct
resulted
in
the
permanent
closure
of
at
least
one
school
in
Jeppestown,
which
had
300
learners
and
40
staff.
The
school
was
forced
to
close
after
concluding
that
it
could
not
guarantee
the
safety
of
its
staff
and
learners,
following
threats
by
Operation
Dudula
and
the
intimidation
of
its
employees.”
Judge
Adams
said
Operation
Dudula
and
its
members
have
engaged
in
violent
and
unlawful
activities
across
the
Gauteng
Province,
whose
“undisputed
and
uncontested
evidence”
is
extensively
documented
by
the
applicants
with
over
30
supporting
and
confirmatory
affidavits
from
victims
and
witnesses.
“The
aforegoing
incidents
follow
a
common
pattern,
revealing
a
modus
operandi.
It
routinely
incites
hatred
against
foreign
nationals
on
public
platforms,
particularly
through
social
media,
blaming
foreigners
for
all
manner
of
social
ills.
It
then
leads
unauthorised
gatherings
and
raids
directed
at
threatening
and
harassing
foreign
nationals
and
those
who
are
perceived
to
be
foreign.”
The
judge
anchored
his
judgment
in
constitutional
principles,
quoting
South
Africa’s
Constitutional
Court
where
the
rights
to
privacy
and
dignity
in
the
Constitution
attach
to
‘everyone’
and
not
just
to
citizens.
“Human
dignity
has
no
nationality,”
he
said.
Judge
Adams
also
directed
the
South
African
government
“to
take
all
reasonable
measures
to
combat
xenophobia,
racism
and
related
forms
of
unfair
discrimination”
in
line
with
its
constitutional
and
international
law
obligations.
“That
commitment
is
reflected
in
the
NAP,
referenced
supra
and
which
was
adopted
and
approved
by
Cabinet
on
28
February
2019
and
formally
launched
on
25
March
2019.
This
Plan
expressly
seeks
to
give
effect
to
South
Africa’s
commitments
under
the
2002
Durban
Declaration
and
Programme
of
Action.
The
government
has
also
adopted
a
National
Action
Plan
Implementation
Plan,
representing
the
steps
to
be
taken
to
implement
the
National
Action
Plan
over
a
five-year
period
from
2019/2020
to
2023/2024.”
In
a
crucial
part
of
the
ruling,
the
court
provided
a
binding,
constitutional
interpretation
of
Section
41
of
the
Immigration
Act,
frequently
used
by
the
South
African
Police
Service
(SAPS)
and
the
Department
of
Home
Affairs
(DHA)
to
conduct
dragnet,
warrantless
raids
and
operations
in
public
streets,
as
well
as
in
private
homes
and
businesses.
“The
applicants,
with
a
view
to
ensuring
the
effective
protection
of
rights,
seek
declaratory
and
interdictory
relief,
confirming
that
the
s
41
powers
may
not
be
exercised
by
private
individuals,
other
than
police
officers
and
immigration
officials.
I
have
already
indicated
supra
that
the
applicants
are
entitled
to
such
a
declaratory
order
for
the
reasons
alluded
to
above.”
Judge
Adams
declared
that
the
powers
conferred
by
this
section:
“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;”
“require
that
an
immigration
officer
or
police
officer
hold
a
reasonable
suspicion
that
a
person
is
unlawfully
in
South
Africa
in
order
to
request
them
to
identify
themselves;”
and
“do
not
permit
the
interrogation,
arrest
and
detention
of
children
under
the
age
of
18,
except
as
a
measure
of
last
resort.”
However,
the
court
did
not
grant
all
the
relief
sought,
finding
that
the
applicants
had
“failed
to
present
credible
evidence”
to
support
their
claim
that
the
SAPS
and
DHA
actively
supported
or
colluded
with
Operation
Dudula.
“Applicants’
claim
that
the
SAPS
and
the
DHA
support
or
collude
with
Operation
Dudula
not
accepted
–
interdictory
and
declaratory
relief
sought
in
that
regard
not
granted
by
the
court
–
held
that
the
applicants
have
failed
to
present
credible
evidence
in
support
of
the
claim,”
Judge
Adams
said.
The
judge
also
declined
to
declare
that
the
SAPS
had
systemically
breached
its
constitutional
duties,
noting
that
while
there
were
individual
failures,
the
police
had,
in
several
instances,
investigated
complaints
and
opened
dockets.
Since
interdictory
relief
was
granted,
Operation
Dudula
and
the
government
respondents
were
also
hit
with
costs.
South
Africa
has
experienced
successive
waves
of
xenophobic
violence
in
the
last
two
decades
with
Judge
Adams
quoting
a
report
by
an
independent
monitor,
Xenowatch,
which
found
that
from
2008
to
2021,
xenophobic
violence
had
resulted
in
at
least
612
deaths,
the
displacement
of
122
298
persons
and
looting
or
damage
to
6
306
shops
or
properties.
“The
report
notes
that
‘Gauteng
is
by
far
the
most
affected
by
the
violence,”
said
Judge
Adams.
“With
329
incidents,
it
accounts
for
almost
40
percent
of
all
incidents
recorded
in
the
county’.
These
figures
are
likely
a
significant
underestimation
due,
in
large
part,
to
reluctance
on
the
part
of
victims
to
report
criminal
conduct,
out
of
fear
of
further
victimisation
and
a
lack
of
confidence
in
the
state
authorities.
Kathryn
