A group of civil society organisations has launched a court case against Operation Dudula to stop its members from demanding people’s ID documents, harassing and assaulting people who they claim to be foreigners, evicting them from homes and jobs, and stopping them from going to clinics and schools.
They also want the court to “interdict and restrain” the police and department of home affairs from colluding with Operation Dudula and to declare that the police have failed in their constitutional duty to investigate and arrest Dudula members for criminal conduct.
The organisations, Kopanang Africa Against Xenophobia, the South African Informal Traders Forum, the Inner City Federation and Abahlali baseMjondolo Movement SA, have asked the Johannesburg high court to partially strike down section 41 of the Immigration Act as unconstitutional because it allows immigration officials to enter people’s homes and private spaces without warrants and demand identification, even where there is no reasonable cause to do so.
The “biggest threat” was that Operation Dudula would incite and instigate others to harm those they identified as foreigners, said Nomzamo Zondo, executive director of the Socio-economic Rights Institute (Seri), at a press conference on Wednesday. Seri is representing the organisations in court.
Operation Dudula’s members “own their violence with pride”, Zondo said. Seri’s lawyers had also been targeted, according to an affidavit by the group’s deponent. The deponent’s name, and the names of about 40 witnesses, have been redacted in the court papers because of fears of intimidation and reprisals.
The affidavit says there has been a rise in xenophobic speech and hate crimes that was threatening to result in a repeat of previous waves of xenophobia that were seen in 2008, 2015 and 2019.
“Vigilante hate groupings ... are openly and unlawfully promoting xenophobic hatred, threatening foreign nationals and inciting harm, with the apparent support or acquiescence of some organs of state. There have already been several violent incidents and at least one horrific murder motivated by xenophobia,” says the affidavit.
The murder of Elvis Nyathi happened on April 6 2022. On that day, the former leader of Operation Dudula, Nhlanhla Lux, joined a march in Diepsloot that was protesting against the murders of several people, high crime rates and ineffective policing. The affidavit says Lux addressed the protesters, attributing the high crime rates to the presence of foreign nationals and called for those present to deal with foreigners in their community.
“Later that evening, a mob formed and went from house to house demanding passports or money from people suspected of being foreign nationals. The mob beat, stoned and burnt to death a Zimbabwean, Mr Elvis Nyathi, with some bystanders laughing and recording the attack on their mobile phones.”
Two days later the police conducted warrantless raids in Diepsloot, asking residents to produce ID documents. “It was also reported that SAPS members applied a test of asking residents to identify the word for ‘elbow’ in isiZulu. One policeman was subsequently reported for this conduct but ... was not disciplined,” said the affidavit.
In more than 30 pages, the affidavit details other incidents in Rosettenville, Maboneng, Soweto, Orange Grove, Yeoville and central Johannesburg in which members of Operation Dudula harassed, evicted and attacked people they believed were foreigners — often in the presence of the police who, says the affidavit, looked on and did little. When incidents were reported to the police, the police often refused to investigate or arrest people, says the affidavit.
In New Doornfontein, Operation Dudula “carried out a violent and illegal attack” at a building called Msibi House on December 15 and 17 2022, says the affidavit. In August, Operation Dudula issued a notice to “all the people who are illegally occupying this building”, saying it had learnt from the owner that there were “illegal immigrants” in the building and that the “same people” were committing crime.
They gave them five days to vacate, failing which “we have no choice but to use all necessary measures at hand to remove you”. On December 15 unidentified men in military uniform and Operation Dudula T-shirts went to Msibi House and announced that all foreigners should vacate and return to their countries of origin, says the affidavit.
“Msibi House was home to about 300 people, many of whom are blind and indigent. Its residents included both South Africans and foreign nationals,” says the affidavit.
On December 17 at 11pm, the same group came back “wielding machetes and whips”.
“The removals were accompanied by beatings and derogatory language ... Many of the residents’ belongings were stolen or destroyed.” All the residents were evicted, including the South Africans. One of the residents, a woman, was beaten and stripped naked.
When residents went to the Jeppe police station, “the police officers also told them to return to their home countries”, says the affidavit.
It is unlawful for a private person to demand an ID from another private person, says the affidavit. It is also unlawful for civilians to wear clothes that resemble military uniforms and the affidavit documents a number of occasions when Operation Dudula members openly wore these in view of police.
The affidavit details incidents in which members of Operation Dudula chased people away from clinics, including a child, saying they did not have passports or IDs. It details similar conduct at schools.
The organisations are seeking to interdict such conduct. They also want the court to order the government to implement its own 2019 Action Plan Against Racism and Xenophobia, including putting in place an early warning system and rapid response mechanism when there are threats of xenophobic hate speech or hate crimes.
Speaking at the press conference, Treatment Action Campaign national chair Sibongile Tshabalala said the public healthcare system was “in crisis”. But blaming other Africans would not solve the problem, which was corruption and mismanagement. The TAC was one of a number of organisations that attended to support the court action..
Thapelo Mohapi, general secretary of Abahlali baseMjondolo, said he wanted to address the idea that it was only middle-class people who protested against xenophobia.
“I come from a shack. But I know humanity,” he said.
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