NGOs ask for legal clarity over Dudula's 'xenophobic' deeds

Civil organisations have told the high court in Johannesburg that there is a need for legal clarity on Section 41 of the Immigration Act, which they argue is being used by Operation Dudula to unlawfully arrest and detain migrant children. 

This is part B of the court case against Dudula, which resumed in court on Tuesday, with the groups also accusing police of enabling the group's activities, saying the state is not playing its role (to protect the children). 

Adv Jason Brickhill, representing Kopanang Africa Against Xenophobia (KAAX), said this kind of “collusion” undermines constitutional protections. 

“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. 

KAAX and others demand that Dudula must – among other things – stop harassing foreign nationals, interfering with their access to healthcare services and removing them from their stalls where they ply their trade. 

While the SA Human Rights Commission (SAHRC) was also served with papers by KAAX, it also acknowledged the police’s ability to discern right and wrong in regards to Section 41.

“In a case where a 15-year-old girl was arrested unaccompanied and detained with adults ... the police confirmed the facts and said it was permitted under Section 41, which changed the legal landscape,” said Adv Irene de Vos from the SAHRC.

However, De Vos said there were notable contradictions in SAPS’s affidavits. “First, they invoke the Child Justice Act, then say the child will be immediately released and then refer to the Children’s Act. We urge this court to clarify which legal framework applies when minors are encountered.”

Adv Nomonde Nyembe from Section27 said Dudula has violated migrant children’s rights to healthcare and education.

“These children were prevented from accessing clinics. A pregnant woman was chased away by armed Dudula members and later gave birth at home. At Jolly Park Primary School, Dudula’s actions led to the school’s closure, denying children their right to education,” she said. 

Meanwhile, Brickhill highlighted the use of military-style uniforms by Dudula members during public gatherings.

“It is a deliberate tactic meant to intimidate and falsely imply official authority. The resemblance [to SANDF regalia] is striking. It’s the same camouflage pattern ... caps, jackets and trousers. This violates the Regulation of Gatherings Act,” he said. 

The applicants are not asking the court to arrest Dudula members, Brickhill said. “We’re asking for clarity, so that SAPS knows what the law requires at these gatherings. This is about protecting the public and preserving order,” he said. 

The matter will continue in court today.

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