The South African Human Rights Commission (SAHRC) on Friday failed in its attempt to interdict members of Operational Dudula and March and March from blocking access to health care facilities.
Durban high court acting judge David Saks said the issue was not so urgent that it warranted giving the two organisations, and the government respondents, such short notice to oppose the application.
He struck it off the roll and directed the commission to pay the costs of the application.
The commission first approached the court on an ex parte basis on September 30.
Judge Bruce Bedderson granted an order, directing that while it must serve and file an unredacted application on the respondents he barred anyone, including the media, from disclosing or publishing the names or countries of origin of those who claimed to have been chased away from hospitals by the two groupings over the past months.
Bedderson adjourned the matter to Friday October 10 and it came before judge Saks.
Advocate Muhammad Zakaria Suleman, for the commission, argued that at least an interim interdict should be granted given the “narrow factual issues”. He said while the SAPS had not yet filed an opposing affidavit, the national commissioner had issued a standing instruction but the police “had not taken action”.
He argued that this was a different application to one brought by the Southern Africa Refugee Organisation Forum, which had recently been struck off the roll.
He argued that the two organisations were refusing access to the hospital to a range of people, including South African citizens, permanent residents, asylum seekers and refugees, and some undocumented people.
“They cannot legally obstruct anyone, or insist on seeing their ID’s. We are just seeking to give people access to the hospital.”
Advocates Vishalan Naidu, for the police and other government respondents, and Griffits Madonsela, for March and March, both said the matter should be struck from the roll because their clients had not been given adequate time to consult and prepare papers.
Madonsela said his clients only had “a problem” with undocumented illegals who were “swamping” the health system, to the detriment of citizens.
He said the commission wanted the court to sanction the police using “teargas and guns”, and to be the arbiter of what was a very important issue.
“We want it (the application) to be dealt with urgently, but in a regular manner,” he said.
“We intend bringing a counter application to regulate access to health care.”
In its application, the commission was seeking an interdict against members of Operation Dudula and March and March from demanding IDs from and interfering with anyone attending healthcare facilities and directing the police to take action against anyone who did.
In his affidavit, commissioner Chris Nissen said vulnerable people, including children, pregnant and breast-feeding women, were being denied the right to access medical treatment because of “these criminal, unlawful self-help methods” by “vigilante groups”.
The commission had approached state actors calling on them to enforce the law. But little had been done, he said.
Both the commission and Lawyers for Human Rights had received complaints from people who had been refused access to medical treatment.
Nissen detailed their experiences, in redacted form, in his affidavit. One, claimed he had been turned away after his green South African book was deemed unacceptable unless it was verified in person by a home affairs official.
“What began in June 2025 as isolated refusals of entry has escalated,” Nissen said. At Addington Hospital, security personnel were increasingly refusing to intervene or deliberately ignoring the actions of the two groups at the hospital gates.
In response to a letter from Lawyers from Human Rights, MEC of health in KwaZulu-Natal Nomagugu Simelane responded that “what happens beyond the gates is beyond their control” but the hospital CEO had engaged with the protesters and police in an attempt to de-escalate the situation.
But the “profiling” of patients continued, Nissen said.
In August this year, the national police commissioner gave a national instruction to “activate resources and co-ordinate plans and initiatives” to ensure the safety and security of all people seeking medical attention at public health facilities, and directing that anybody who is a victim of this crime should report the matter to their local police station.
While drafting the application, Nissen said the commission had sent its own people to Addington Hospital, to observe who was being turned away.
“The reports make it clear that if certain people are not urgently treated, for example children who need vaccinations and those with TB, they will spread diseases to the community. This case affects the health and well-being of everyone.
“Chronic conditions like diabetes and hypertension, can have potentially fatal outcomes if not treated,” he said.
He said Section 27 had also intervened, saying that heavily pregnant women may be forced to give birth at home, putting their and their babies’ lives at risk.
He said the protests were scaling up at other healthcare facilities around South Africa.
In an interim answering affidavit, Jacinta Ngobese-Zuma, on behalf of the March and March movement, said the interdict was “seeking to prevent citizens from assisting the State in detecting and curbing continuing unlawful conduct by illegal foreigners”.
“Yet this is the civic duty, even obligation, of every citizen. The SAPs cannot be everywhere all the time.”
She said the movement’s members denied assaulting, intimidating or harassing anyone or that they were “vigilantes”.
“We place the citizens of this country at the forefront as beneficiaries of the hard-earned freedom promised in the constitution. We dispute that the measures, legislative or otherwise, taken by the state to accord illegal foreigners free-reining access to health care are rational.”
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