Legal bid to protect migrants dismissed while Operation Dudula’s campaign intensifies

The latest legal bid to stop anti-migrant groups from violating the rights of migrants has failed after the KwaZulu-Natal Division of the High Court in Durban ruled against the South African Human Rights Commission (SAHRC) on Friday, 10 October.

Since June this year, the anti-migrant group turned political party, Operation Dudula, and NGO March and March have focused attention on blocking migrants from accessing healthcare at public hospitals and clinics across Gauteng and pockets of KwaZulu-Natal.

This targeted campaign has continued for months, even though it violates Section 27 of the Constitution, which guarantees the right to access healthcare regardless of immigration status or nationality.

On Friday, the SAHRC turned to the Durban high court to interdict Operation Dudula and March and March from refusing migrants access to medical care outside hospitals and clinics in Durban.

The ministers of police, home affairs, health and the MEC for health in KwaZulu-Natal were added as respondents in the urgent application for failing to fulfil their constitutional obligations to protect the healthcare rights of migrants.

According to the SAHRC, the addition of the government officials came after multiple engagements over the disruptions, with both the Department of Health and the office of the National Commissioner of Police, failed to result in tangible action.

“These state organs, through their engagements with the SAHRC and in the media, indicated that steps would be taken to prevent the denial of access to public healthcare facilities by vigilante groups and individuals. The conduct of Operation Dudula and March and March continues unabated, and no steps appear to be taken to assist the affected patients seeking medical services,” the commission said.

However, Acting Judge David Saks struck the SAHRC’s urgent application from the roll, stating that it was not urgent enough to give the respondents only two days to respond to the 260-page founding affidavit, as they were notified only on Monday, 6 October, three days before the application was set to be heard.

In its founding affidavit, the SAHRC detailed how the commission and several people, including South African citizens, permanent residents and asylum seekers, were denied access to Addington Hospital in July.

Commissioner Chris Nissen said the hospital’s security personnel were increasingly refusing to intervene and allegedly ignoring the actions of March and March and Operation Dudula at the medical facility’s gates.

Advocate Vishalan Naidoo, representing the ministers and KZN health MEC, argued that the incidents outlined in the answering affidavit happened in July, and the SAHRC did not provide evidence of recent incidents, which meant there was no urgency regarding the application.

However, several civil society organisations have reported that the disruptions continue. This was echoed by the SAHRC’s legal representative, advocate Muhammad Zakaria Suleman, who told the court that incidents had been ongoing since July.

Read more: Operation Dudula blockades deny migrants access to at least 53 clinics countrywide

Acting Judge Saks agreed with the respondents and struck the urgent application off the roll, with costs.

Dudula sets sights on schools

While another legal bid to interdict the violation of migrant rights has faltered, Operation Dudula, which has set its sights on contesting the local government elections next year, is expanding its focus to public schools with an announcement that it would bar the children of migrants from accessing education when the new academic year starts in 2026.

Dudula’s announcement was more than just empty words. On 22 September, the group took to the streets of Soweto, Johannesburg, to call for the schools to “put South Africans first” and deny migrant children placement.

The organisation claims that migrant children take school placements from South African children, and says that this compounds overcrowding in the South African school system. The group has not provided evidence to support this claim.

EWN reported that Gauteng Department of Education spokesperson Steve Mabona met Operation Dudula during the disruptions in Soweto and told the group that schools were not immigration centres and their only role was to provide education.

“We have a constitutional obligation to make sure that we teach all children. Constitutionally, all children of school-going age must be at school. Now it’s even worse – there is an introduction of (mandatory) Grade R and law dictates that those children must be taught,” Mabona said.

Dudula’s disruption of schools and the group’s plans also evoked the ire of Basic Education Minister Siviwe Gwarube, who said Operation Dudula would face the full might of the law if it disrupted schools.

According to the Department of Basic Education, Gwarube had met the Acting Minister of Police and requested that the joint operations structures between the Department of Basic Education, the South African Police Service (SAPS) and Provincial Education Departments be activated to monitor and manage these disruptions.

Strong statements have been issued condemning the group’s actions. The government has been criticised for not taking tangible action to protect the rights of migrants.

Daily Maverick sent questions to both SAPS in Gauteng and the Gauteng DBE to find out how the departments planned to stop Dudula’s continued disruptions.

The questions included:

• What steps are being taken to address these disruptions and protect the rights of those affected?
• What are the plans to prevent future disruptions and ensure that all residents—regardless of nationality or legal status—can safely access healthcare and education?

Responding to the questions, Gauteng SAPS spokesperson Lieutenant Colonel Mavela Masondo said:

“The South African Police Service in Gauteng, Johannesburg Metro Police, as well as Gauteng traffic wardens, deploy officials to restore calm and maintain law and order at health facilities where protests have been reported. These deployments are as and when needed.”

Masondo said officials were not passive at the affected health facilities. Gauteng law enforcement agencies worked closely with the departments of health and education to prevent, combat and investigate crimes affecting them.

Daily Maverick had not received a response from the Department of Basic Education by the time of publication.

Read more: Operation Dudula threat to remove migrant children from schools sparks warning from activists

EFF, NGOs step in

In the meantime, several non-government entities have taken it upon themselves to protect the interests of targeted migrant groups by taking action in the courts.

In September, the Economic Freedom Fighters filed a murder case against Operation Dudula. This followed the death of a one-year-old Malawian child in July, after Operation Dudula allegedly barred the baby and mother from accessing medical care at the Alexandra Community Health Centre in Johannesburg.

Operation Dudula has since denied the allegations, stating that none of its members were at the clinic on that day, News24 reported.

Several organisations have had Operation Dudula in their crosshairs even before the group’s latest target campaign.

In June, Daily Maverick reported on migrant rights group Kopanang Africa Against Xenophobia (KAAX), the South African Informal Traders Forum, the Inner City Federation, and Abahlali baseMjondolo’s legal bid to have the Gauteng Division of the High Court in Johannesburg interdict Operation Dudula from assaulting, harassing or intimidating migrants and to stop Operation Dudula from impeding access by the children of migrants to healthcare services and schools.

The Department of Home Affairs and the SAPS were added as respondents to the application for what the civil society organisations called “state-enabled xenophobia”. Home Affairs and the SAPS were accused of collusion for failing to protect migrant communities from Operation Dudula’s targeted harassment and assault since the political party’s inception in 2021.

Read more: Operation Dudula in the dock — rights organisations confront anti-migrant group in court battle

Read more: Home Affairs and police deny collusion with Operation Dudula as court battle continues

Judgment was reserved on 11 June, and not much has been heard since.

Speaking to Daily Maverick on behalf of KAAX, Dale McKinley said that Operation Dudula’s continued harassment of migrants indicated its disregard for the rule of law.  “They are thumbing their nose at our law, at any kind of judicial oversight,” he said.

“The reason we took the legal case was precisely to prevent these kinds of things – so that we could get a court injunction and interdict to prevent Operation Dudula from harassing … violating other international migrant rights. Yet they’re doubling down and continue to do this,” McKinley said.

Referring to a timeline for the judgment, he said: “We are waiting for the judgment; we don’t know when it will be handed down. It can take another few days. It could be another few weeks. We hope it’s not very long because we need some finality on this.” DM