REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

CASE NO: 2023-044685
DATE: 4 November 2025
In the matter between:
KOPANANG AFRICA AGAINST XENOPHOBIA First Applicant
SOUTH AFRICAN INFORMAL TRADERS FORUM Second Applicant
INNER CITY FEDERATION Third Applicant
ABAHLALI BASEMJONDOLO MOVEMENT SA Fourth Applicant
and
OPERATION DUDULA First Respondent
GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Second Respondent
MINISTER OF POLICE Third Respondent
NATIONAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE SERVICE Fourth Respondent
MINISTER OF HOME AFFAIRS Fifth Respondent
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Sixth Respondent
MEMBER OF THE EXECUTIVE COUNCIL:
GAUTENG DEPARTMENT OF HEALTH Seventh Respondent
MINISTER OF HEALTH Eighth Respondent
MINISTER OF BASIC EDUCATION Ninth Respondent

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MEMBER OF THE EXECUTIVE COUNCIL:
GAUTENG DEPARTMENT OF EDUCATION Tenth Respondent
ZANDILE DABULA Eleventh Respondent
DAN RADEBE Twelfth Respondent
THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION Thirteenth Respondent
SECTION 27 First Amicus Curiae
THE INTERNATIONAL COMMISSION OF JURISTS Second Amicus Curiae
MEDIA MONITORING AFRICA (‘MMA’) Third Amicus Curiae
THE UNITED NATIONS SPECIAL RAPPORTEUR
ON HUMAN RIGHTS DEFENDERS Fourth Amicus Curiae
Neutral Citation: Kopanong Africa against Xenophobia and others v Operation
Dudula and Other s (2023-044685) [2025] ZAGPJHC ---
(4 November 2025)
Coram: Adams J
Heard: 10 and 11 June 2025
Delivered: 4 November 2025 – This judgment was handed down
electronically by circulation to the par ties' representatives by
email, by being uploaded to CaseLines and by release to SAFLII.
The date and time for hand -down is deemed to be 10:00 on
4 November 2025.
Summary: Application for interdictory and declaratory relief against Operation
Dudula and against the Government of South Africa – section 41 of the
Immigration Act 13 of 2002 – application for declarator that only Immigration
Officials and Police Officers have the power to demand identification from
persons – Operation Dudula interdicted from demanding that any private person
produce identification – application for declarator that S APS breached its
constitutional duties to combat and investigate crime and to uphold and enforce
the law refused – Operation Dudula also interdicted from unlawful conduct and
conduct which amounts to them taking the law into their own hands and hate
speech –

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The National Action Plan to Combat Racism, Racial Discrimination, Xenophobia
and related intolerance – the Government is directed to implement the said
plan –
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 –
Section 41 of the Immigration Act 13 of 2002 – to be interpreted such that it
authorises warrantless searches only in public spaces and not in private places
that include the home and places of study, work or business – also to be
interpreted in a way which requires the immigration officer or police officer to
hold a reasonable suspicion that a person is unlawfully in South Africa in order
to request them to identify themselves as a citizen, permanent resident or
foreigner – lastly, the court held that the said section is to be interpreted in such
a manner that the interest of minor children is safeguarded –
Application succeeds – applicants granted some relief sought in their
application, others refused.

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ORDER
(1) It be and is hereby declared 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 to demonstrate her / his right to be in the
Republic of South Africa and that no private person has the power to do so
unless expressly so authorised by law.
(2) The first respondent, the eleventh and twelfth respondents be and are
hereby 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.
(3) The first respondent, the eleventh and the twelfth respondents be and are
hereby interdicted and restrained from: -
(a) Intimidating, harassing and/or assaulting any i ndividuals that they
identify as being foreign nationals;
(b) Making public statements that constitute hate speech on the grounds of
nationality, social origin or ethnicity at public gatherings, on social
media platforms or in any other way;
(c) Interfering with the access of foreign nationals to health care services
and/or their right to such access;
(d) Interfering with access to, or the operations of, schools and intimidating
or harassing learners, teachers or parents at schools;
(e) Unlawfully evicting foreign nationals from their homes;
(f) Unlawfully removing foreign nationals from their trading stalls or
interfering with the employment of foreign nationals in shops and
businesses;

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(g) Instigating, encouraging or inciting any other person to perform any of
the acts prohibited by this order, on social media, at gatherings in terms
of the Regulation of Gatherings Act 205 of 1993, or in any other way;
(4) The first respondent be and is hereby ordered and d irected to
communicate this order to any and/or all of its office -bearers and
members.
(5) The second respondent be and is hereby directed and ordered to take
reasonable steps to implement the National Action Plan to Combat
Racism, Racial Discrimination, Xenophobia and Related Intolerance,
including by: -
(a) taking steps to establish an early warning and rapid response
mechanism regarding threats of xenophobic hate speech and hate
crimes;
(b) collating and publishing disaggregated data in respect of xenophobic
hate speech and hate crimes, including the prosecution and conviction
of persons who commit such offences.
(6) It be and is hereby declared that on a proper interpretation of section 41 of
Immigration Act 13 of 2002, the powers conferred on an immigration
officer or police officer:
(a) 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;
(b) 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 as a citizen, permanent resident or
foreigner; and
(c) do not permit the interrogation, arrest and detention of children under
the age of 18, except as a measure of last resort and in a manner that
is consistent with section 28(1)(g) of the Constitution.

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(7) The first, second, third, fourth, sixth, eleventh and twelfth respondents,
jointly and severally, the one paying the other to be absolved, shall pay the
applicants costs of their opposed Special Motion, such cost to include the
costs of three Counsel, where so employed, and in regard to Counsel’s
costs incurred after 12 April 2024, same shall be on scale ‘C’ of the tariff
applicable in terms of Uniform Rule of Court 67A.
JUDGMENT
Adams J:
[1]. As was held by the Constitutional Court in Residents of Industry House1,
the rights to privacy and dignity in the Constitution attach to ‘everyone’ and not
just to citizens. Human dignity has no nationality. The fact that an individual is a
non-citizen or undocumented does not mean that her / his basic human rights
can be violated without consequences. That flies in the face of the founding
provisions and values of our constitution. This matter implicates the foregoing
principles.
[2]. The applicants are all voluntary public benefit associations . They
promote and fight for human rights in general and for the individual rights of
their members. So, for example, the first applicant (‘Kopanang Africa ’) is a
voluntary association established to fight against xenophobia in South Africa.
The second applicant (‘SAITF’) is an association of informal traders, which
promotes and fights for the rights of its members, who consist, as the name
suggests, of informal traders. The third applicant (‘ICF’) is a voluntary
association, which has as its objectives the improvement of the lives and living
conditions of the residents of the Johannesburg inner city . It also defends
unlawful evictions on behalf of its members. The fourth applicant (‘Abahlali’) is a
national association of shack dwellers, based in Durban, with branches in

1 Footnote 13.

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Johannesburg and Cape Town . It works to improve the living conditions of
people living in informal settlements by protecting informal settlement residents
from unlawful eviction . They also advocate and fight for the provision of basic
services for shack dwellers and has, as one of their objectives, the facilitation of
transparent, fair and participatory informal settlement upgrading processes.
[3]. The first respondent (Operation Dudula) is a voluntary association that is
registered as a non-profit company, with the stated objective of expelling foreign
nationals from South Africa. The eleventh and twelfth respondents are
executive members of Operation Dudula. I shall refer to these two respondents
and the first respondent collectively as the ‘Operation Dudula respondents’. The
second to the tenth respondents are the Government of the Republic of South
Africa and various national and provincial depart ments of the government. Only
the third and fourth respondents (collectively referred to as ‘ the South African
Police Service’ or ‘ the SAPS’) and the fifth respondent (‘Department of Home
Affairs’ or ‘DHA’ ) are opposing some of the relief sought on behalf of the
applicants. The other government respondents have indicated their intention to
abide the decision of this court.
[4]. In total four amici curiae have been admitted and have participated fully
in these proceedings. In the main, the amici curiae have made submissions with
a view to assisting the court in the adjudication of this matter, which
submissions align with the case on behalf of the applicants. The South African
Human Rights Commission (‘the SAHRC’), although cited by the applicants in
their application as the thirteenth respondent, has adopted the same approach
and presented evidence and made submissions in support of and which aligns
with the applicants’ case.
[5]. The application was duly served on the first respondent and the twelfth
respondent on 18 May 2023 . Subsequently, Operation Dudula in social media

respondent on 18 May 2023 . Subsequently, Operation Dudula in social media
and on other platforms confirmed that it had received service of the application
but indicated that they would not be opposing the application. It is mainly for this
reason that I refused an application for a postponement of the matter by

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Operation Dudula at the commencement of the hearing before me on 10 June
2025. The matter accordingly proceeded on an unopposed basis as against the
Operation Dudula respondents.
[6]. In this opposed application, which came before me as a Special Motion
on 10 and 11 June 2025, the applicants apply for wide ranging relief against the
Operation Dudula respondents, as well as against the Government
respondents. The relief sought is in the form of interdictory relief, as well as for
declaratory orders directed mainly at the conduct of Operation Dudula. There
are also ancillary relief prayed for by the applicants, and it may be apposite, in
the interest of crystallizing the issues in the matter, to cite from the amended
notice of motion, which reads , in the relevant part, that the applicants apply for
an order in the following terms: -
‘1. Declaring that only an immigration officer or police officer has the power in terms
of section 41 of the Immigration Act 13 of 2002 to demand that another private
person produce their passport or other identity documents to demonstrate their
right to be in the Republic and that no private person has the power to do so
unless expressly so authorised by law;
2. Interdicting and restraining the first respondent, the eleventh and twelfth
respondents from demanding that any private person produce their passport or
other identity documents to demonstrate their right to be in the Republic;
3. Declaring that members of the first respondent who publicly wore clothing
resembling the uniform of the South African Defence Force without authorisation
in terms of the Defence Act 42 of 2002 have contravened section 8(8) of the
Regulation of Gatherings Act 205 of 1993 and section 104(5) of the Defence Act
42 of 2002.
4. Declaring that the South African Police Service breached its constitutional duties
to combat and investigate crime and to uphold and enforce the law by failing to
reasonably investigate and/or charge members of the first respondent, who

reasonably investigate and/or charge members of the first respondent, who
publicly, and in some instances in the presence of members of the South African
Police Service, wore clothing resembling the uniform of the South African
Defence Force in contravention of the section 8(8) of the Regulation of
Gatherings Act 205 of 1993 and section 104(5) of the Defence Act 42 of 2002.

9
5. Interdicting and restraining the first respondent and the eleventh and twelfth
respondents from:
5.1. Intimidating, harassing or assaulting any and/or all individuals that they identify
as being foreign nationals;
5.2. Making public statements that constitute hate speech on the grounds of
nationality, social origin or ethnicity at public gatherings, on social media
platforms or in any other way;
5.3. Wearing or authorising office -bearers or members of the first respondent to
wear apparel that resembles the uniforms worn by members of the security
forces, including the South Police Service and the South African National
Defence Force, in public;
5.4. Interfering with the access of foreign nationals to health care services;
5.5. Interfering with access to, or the operations of, schools and intimidating or
harassing learners, teachers or parents at schools;
5.6. Unlawfully evicting foreign nationals from their homes;
5.7. Unlawfully removing foreign nationals from their trading stalls or interfering
with the employment of foreign nationals in shops and businesses;
5.8. Instigating, encouraging or inciting any other person to perform any of the acts
prohibited by this order, on social media, at gatherings in terms of the
Regulation of Gatherings Act 205 of 1993, or in any other way;
6. Directing the first respondent to communicate this order to all of its office -bearers
and members;
7. Directing the second respondent to take reasonable steps to implement the
National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and
related intolerance, including by:
7.1. taking steps to establish an early warning and rapid response mechanism
regarding threats of xenophobic hate speech and hate crimes;
7.2. collating and publishing disaggregated data in respect of xenophobic hate
speech and hate crimes, including the prosecution and conviction of persons
who commit such offences.
8. Declaring that the South African Police Service, by failing to reasonably

8. Declaring that the South African Police Service, by failing to reasonably
investigate complaints against members of the first respondent arising from
allegations of criminal conduct aimed at foreign nationals, has breached its
constitutional duties to combat and investigate crime, to protect and secure the
inhabitants of the Republic and their property, and to uphold and enforce the law.

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9. Interdicting and restraining the South Afri can Police Service from supporting or
colluding with Operation Dudula, its office -bearers and members, including in
particular (but without limiting the generality of this order) conducting police raids
targeting whole communities at the instigation of the first respondent or any of its
office-bearers or members in the absence of a warrant or a reasonable suspicion
that identified individuals have committed a criminal offence;
10. Interdicting and restraining the Minister of Home Affairs and the Department of
Home Affairs from supporting or colluding with the first respondent, its office -
bearers and members, including in particular (but without limiting the generality of
this order) conducting raids, with or without the police, targeting whole
communities at the instigation of the first respondent or any of its office -bearers
or members in the absence of a warrant or a reasonable suspicion that identified
individuals have committed a criminal offence;
11. Declaring section 41 of the Immigration Act 13 of 2002 inconsistent with the
Constitution and invalid to the extent that:
11.1. It is not confined to public places, but authorises warrantless searches in
private places that include the home and places of study, work or business;
and,
11.2. that the provision does not 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 as a citizen,
permanent resident or foreigner.
11.3. It authorises the interrogation, arrest and detention of children under the
age of 18, without adequate safeguards consistent with section 28(1)(g) and
28(2) of the Constitution.
12. Suspending the order of invalidity in paragraph 11 for a period of twenty -four (24)
months to enable Parliament to remedy the unconstitutionality;
13. Directing that, during the period of suspension referred to in paragraph 12, the

13. Directing that, during the period of suspension referred to in paragraph 12, the
words ‘on reasonable suspicion’ and ‘in a public place’ be read into section 41 of
the Immigration Act, so that it shall provide:
‘When so requested on reasonable suspicion by an immigration officer or a
police officer in a public place, any person over the age of 18 shall identify
himself or herself as a citizen, permanent resident or foreigner, and if on
reasonable grounds such immigration officer or police officer is not satisfied
that such person is entitled to be in the Republic, such person may be

11
interviewed by an immigration officer or a police officer about his or her
identity or status, and such immigration officer or police officer may take such
person into custody without a warrant, and shall take reasonable steps, as
may be prescribed, to assist the person in verifying his or her identity or
status, and thereafter, if necessary detain him or her in terms of section 34.’
14. Referring the order in paragraphs 11 to 13 to the Constitutional Court for
confirmation.
14A. In the alternative to paragraphs 11 to 14 above, it is declared that on a proper
interpretation of section 41 of Immigration Act 13 of 2002, the powers conferred
on an immigration officer or police officer:
14A.1. 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;
and
14A.2. require that an immigration officer or police officer hold a reasonable
suspicion that a person i s unlawfully in South Africa in order to request
them to identify themselves as a citizen, permanent resident or foreigner.
14A.3. do not permit the interrogation, arrest and detention of children under the
age of 18, except as a measure of last resort and in a manner that is
consistent with section 28(1)(g) of the Constitution.
14B. The National Commissioner of the South African Police Service is directed to
effect appropriate amendments to or supplementation of the Nation al Instruction
12 of 2019, titled ‘Arrest and Treatment of illegal foreigner ’, to ensure that the
guidance provided to members of the SAPS on the application of section 41 of
the Immigration Act is aligned with this Court’s order within 60 days of the date of
this order.’
15. Directing the first to thirteenth respondents and any of the other respondents that
oppose the application, jointly and severally, to pay the applicants' costs.
16. Granting such further and/or alternative relief that the court may deem
appropriate.’

16. Granting such further and/or alternative relief that the court may deem
appropriate.’
[6]. The case on behalf of the applicants in a nutshell is that Operation
Dudula and its members have, on a constant and continuous basis, made
themselves guilty of unlawful conduct, which falls foul of the Constitution. Such
conduct is alleged to include: intimidation, harassment and assault of certain
individuals, notably foreigners; the making of public statements that constitute

12
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.
[7]. The applicants therefore seek interdictory relief against Operation Dudula
and its named office -bearers, coupled with declaratory orders, to address its
pattern of unlawful conduct.
[8]. The applicants also contend that the South African Government is
complicit in such unlawful conduct. At the very least, so the case on behalf of
the applicants goes, the Government has woefully failed in its constitutional and
legal obligations to take reasonable and effective steps to address Operation
Dudula's unlawful conduct and the broader threat of xenophobia in our society.
The applicants therefore apply for an order inter alia compelling the government
to take reasonable and effective steps to imple ment its National Action Plan to
Combat Racism, Racial Discrimination, Xenophobia and Relate d Intolerance
(‘the National Action Plan ’). As against the SAPS, the applicants seek relief
requiring it to fulfil its constitutional obligations to prevent, combat and
investigate criminal conduct, as well as interdictory relief against both the SAPS
and the DHA to prevent the se two government departments colluding with or
supporting Operation Dudula.
[9]. As already indicated, the Operation Dudula respondents have failed to
deliver notice of intention to oppose and the application for interdictory and
declaratory relief sought against them is unopposed.
[10]. The SAPS denies that it breached its constitutional or legislative
obligations and accordingly contends that the applicants are not entitled to the

obligations and accordingly contends that the applicants are not entitled to the
relief sought against the SAPS. It does, however, agree and accept that only an
immigration or police officer has the power in terms of section 41 of the

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Immigration Act 13 of 2002 to demand that another person produce her / his
passport or any other identity documents to demonstrate her / his right to be in
the Republic and that no private person has the power to do so unless
expressly authorised by law. The relief sought in prayer 1 of the notice of motion
is therefore not disputed by the SAPS and can and should be granted.
[11]. The DHA denies the serious allegations of possible breaches on its part
of its constitutional and legislative duties and obligations and of the applicable
law. The applicants have not , so the contention on behalf of the DHA goes,
produced any evidence in support of their allegations against the DHA, who
submits that a factual basis has not been established in these proceedings for
the relief sought against it. As regards the relief sought by the applicants
relating to the implementation of the National Action Plan (‘NAP’), the DHA’s
case is that, on a proper interpretation of the NAP, it has to be accepted that the
Government is not solely responsible for the implementation of the said plan
and it, therefore, cannot be compelled to unilaterally implement same. The DHA
also contends that t here is no justi fiable need to either amend s 41 or a
declaring it inconsistent with the Constitution. Section 41 , so the contention
goes, operates within the compendium of laws including, among others, other
provisions of the Immigration Act, the Criminal Procedure Act and the
Identification Act. Concerning any arrest of a minor for a criminal offence, the
relevant provisions of the Children’s Act also come into play. From the outset,
so the argument is concluded, when dealing with issues relating to immigration,
it should be borne in mind that any person who is not authorised to be within the
Republic breaks the law and commits a criminal offence.
[12]. Therefore, i n issue in this application is whether the applicants have
made out a case for the wide-ranging relief sought by them. In that regard, t he

made out a case for the wide-ranging relief sought by them. In that regard, t he
applicants seek five categories of relief, as reflected in the amended notice of
motion. I intend dealing with those five categories separately and in turn , whilst
at the same time dealing with the facts relevant to the adjudication of these
issues.

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[13]. As already indicated, the Operation Dudula respondents have elected
not to oppose the application. In public statements following the issue and
service of the application , they confirmed that they were aware of it and had
decided to ignore the court proceedings. As a result, the core of the interdictory
relief against the Operation Dudula respondents, as reflected in prayers 2, 5
(excepting the prayer relating to wearing by its members of apparel that
resembles the uniforms worn by members of the security forces – dealt with
later on in this judgment) and 6 of the amended notice of motion, is unopposed.
[14]. Xenophobia, according to the National Action Plan to Combat Racism,
Racial Discrimination, Xenophobia and Related Intolerance (‘NAP’)2, ‘is an
unreasonable fear, distrust or hatred of strangers, foreigners or anything
perceived as foreign or different and is often based on unfounded reasons and
stereotypes. It can manifest itself in several ways in a country. For example, it
can be through victimisation on the basis of one’s nationality or appearance,
brutal assaults, murders, ethnic cleansing in an area and mass expulsion from
the country’.
[15]. This is a complex form of unfair discrimination that targets individuals
based on intersecting protected characteristics, including actual or perceived
citizenship, race, colour, language and ethnic or social origin, among other
grounds. Xenophobia is linked to racism. International instruments and
government's own 2019 NAP deal with xenophobia as a form of discrimination
associated with racism. The form of xenophobia experienced in South Africa,
and with which this application is concerned, is best understood as xeno -
racism, as it is directed predominantly at black African foreign nationals.
[16]. The government's NAP acknowledges the scourge of xenophobia in
South African society in the following terms: -

2 National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance , 13

March 2019.

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‘South Africa has, in the past and more recently, experienced widespread and violent
forms of xenophobia resulting in the deaths and injuries to people as well as looting
and destruction of property.’
[17]. The NAP further acknowledges that xenophobia is largely directed at
fellow Africans, which has deep roots in South Africa's history of anti -black
racism during the colonial and apartheid periods. The National Action Plan
notes that:
‘The many years of a racist and isolationist policy of apartheid have planted seeds of
xenophobia, particularly towards Africans, undoing centuries of brotherhood and
sisterhood among Africans in South Africa and those from other parts of the continent.
This is how Africans have come to be the worst victims of xenophobia in contemporary
South Africa.’
[18]. The country has experienced successive waves of xenophobic violence
in the last two decades. A report by an independent monitor, Xenowatch, finds
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. With 329 incidents, it accounts for almost 40% of al l incidents
recorded in the county ’. These figures are likely a signi ficant 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.
[19]. Xenophobia presents a serious threat to human rights, as acknowledged
in the government's NAP. The state is subject to both constitutional and
international law obligations to address this threat. The rights afforded by the
Bill of Rights apply to all persons within South Africa's borders, regardless of
their nationality or immigration status. These protections include the rights to
life, dignity, equality, freedom and security of the person, education, housing,

life, dignity, equality, freedom and security of the person, education, housing,
and healthcare, which are afforded to ‘everyone’, without distinction. The state
has corresponding obligations, under section 7(2) of the Constitution, to

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respect, protect, promote and fulfil these rights, requiring the state to take
‘reasonable and effective’ measures to prevent and address rights violations.
[20]. These constitutional duties are reinforced by South Africa's international
law commitments. Sections 39(1)3 and 2334 of the Constitution require courts to
draw guidance from international law in giving content to constitutional rights
and obligations, an obligation that extends to both binding ( ‘hard’) and non -
binding (‘soft’) international instruments5.
[21]. South Africa is party to, and is bound by, a range of international treaties
that impose relevant obligations, including : (a) the International Covenant on
Elimination of All Forms of Racial Discrimination; (b) the International Covenant
on Economic, Social and Cultural Rights ; (c) the International Covenant on Civil
and Political Rights; and (d) the African Charter on Human and Peoples' Rights.
[22]. While xenophobia is not mentioned by name in these instruments, the
rights and protections they contain all impose obligations to combat and
address xenophobia 6. South Africa has committed itself to implementing the
Durban Declaration and Programme of Action, adopted at the 2002 United
Nations World Conference against Racism, Racial Discrimination, Xenophobia
and Related Intolerance7. That declaration recognises that ‘xenophobia against
non-nationals, particularly migrants, refugees and asylum seekers, constitutes

3 Section 39(1)(b) provides that when interpreting the Bill of Rights, a court ‘must consider international
law’.
4 Section 233 of the Constitution requires that ‘[w]hen interpreting any legislation, every cou rt must prefer
any reasonable interpretation of the legislation that is consistent with international law over any
alternative interpretation that is inconsistent with international law ’. This requires that a court is to
prefer an interpretation that aligns with international law standards, rather than that which is

inconsistent with such standards.
5 S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)
(Makwanyane) at para 35.
6 See Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and
Related Intolerance , 'The Phenomenon of Xenophobia and its Conceptualization, Trends and
Manifestations' (2016) A/HRC/32/50 at paras 6 to 14. All of these instruments prohibit discrimination
on relevant grounds, including race, colour, language, religion, and national or social origin, and
further require that states parties secure the rights of all persons within their territory.
7 United Nations, Durban Declaration and Plan of Action, adopted at the World Conference Against
Racism, Racial Discrimination, Xenophobia and Related Violence, 8 September 2001, endorsed by
the UN General Assembly Resolution 56/266 of 15 May 2002 (Durban Declaration).

17
one of the main sources of contemporary racism ’ and commits states to
concrete action to combat xenophobia and related discrimination.
[23]. In bringing this application, the applicants sought to give effect to these
constitutional and international commitments.
[24]. With that legal and legislative framework in mind, I now proceed to deal
with the case of the applicants against the Operation Dudula respondents,
[25]. The undisputed evidence before me indicates that s ince 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. In
isiZulu ‘ Dudula’ means ‘to force out ’. The name therefore refers to Operation
Dudula's stated objective of expelling foreign nationals from South Africa,
regardless of their immigration status.
[26]. Operation Dudula was formed in June 2021 when a group of people
marched through Soweto on a ‘clean-up mission’ to shut down businesses run
by foreign nationals. This group formalised as a voluntary association that is
registered as a non-profit company. It has office bearers, social media accounts
and it stages highly organised gatherings, attended by members wearing
branded t -shirts and military style uniforms, displaying Operation Dudula
banners and slogans.
[27]. Operation Dudula and its members have engaged in violent and unlawful
activities across the Gauteng Province. The undisputed and uncontested
evidence of these activities is extensively documented in the applicants’
founding papers, with over thirty supporting and confirmatory affidavits from
victims and witnesses. Some of the undisputed incidents are set out in the
paragraphs which follow.
[28]. On 6 April 2022, Operation Dudula's then leader, Mr Nhlanhla ‘Lux’
Dlamini, addressed a crowd in Diepsloot, blaming foreigners for high crime

18
rates and calling for those present to deal with foreign nationals. 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 national, Mr Elvis Nyathi, with some
bystanders laughing and recording the attack on their mobile phones.
[29]. Operation Dudula has conducted unlawful raids on buildings in
Johannesburg, involving threats, intimidation, assaults and the eviction or
attempted eviction of residents. For example , on 6 February 2022, members of
Operation Dudula, led by Mr Dlamini, raided a church -run shelter, the Tsietsi
Mashinini Centre in Jabavu, Soweto. They went door -to-door, demanding that
residents provide their identification documents. Operation Dudula members
became violent and started harassing the residents and damaging their goods.
During August 2022, Operation Dudula issued eviction notices to residents of
Msibi House in New Doornfontein, giving them five days to vacate the building.
In December 2022, men in military -style uniforms and Operation Dudula t-shirts
returned to the building, wielding machetes and whips . T hey assaulted the
residents and evicted them from the building. And o n 30 November 2023,
Operation Dudula arrived at Eastleigh Court in Hillbrow and demanded , by way
of a loud hailer that all foreign nationals in the building must vacate with
immediate effect or will be forcibly removed. This group returned on 7
December 2022, evicted people and put their own tenants in the building.
[30]. Operation Dudula has repeatedly threatened and attacked informal
traders and businesses that are perceived to be owned and run by non -South
Africans. In January 2022, Operation Dudula members attacked and threatened
informal traders at the Chris Hani Baragwanath Taxi Rank in Soweto. These
attacks took place almost every day for approximately a week. On 30 January

attacks took place almost every day for approximately a week. On 30 January
2022, Operation Dudula m arched in Rosettenville , delivering notices to shop
owners, warning them to hire South Africans only or close their shops,
otherwise they would be forcefully removed. Throughout 2022, Operation
Dudula targeted traders in Orange Grove, and during March 2022, an Operation
Dudula member attacked a pregnant Zimbabwean informal trader. When

19
members of the public intervened, Operation Dudula members threatened them
with assault. During June 2022, Operation Dudula members went door -to-door
in Orange Grove issuing ‘shut down’ notices to businesses, demanding that all
businesses owned by non -South Africans close their doors within seven days.
These notices were printed on an official Operation Dudula letterhead, bearing
its non-profit company registration number. And on 21 June 2022, a fire broke
out at the Yeoville Market involving a suspected ar son attack, which gutted
about a third of the market. This incident took place a week after Operation
Dudula had marched to the market and threatened informal traders, telling them
to leave the market. The traders resisted and refused to leave. The arson attack
followed shortly after this march.
[31]. 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.
[32]. 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.
[33]. The aforegoing incidents follow a common pattern, revealing a modus
operandi. It routinely incites hatred against foreign nationals on public platforms,

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.

20
Operation Dudula's conduct has included chasing patients out of public
hospitals and clinics, targeting schools, evicting people from their homes,
removing traders from stalls, and further acts of violence, intimidation,
harassment and incitement.
[34]. The interdictory relief sought against the Operation Dudula respondents
is unopposed, with the only exception being the relief relating to the wearing of
military uniforms. I am satisfied that a case is made out on behalf of the
applicants for the relief sought against Operation Dudula . The simple point
about this portion of the application is that it can safely be said the applicants
have satisfied the trite requirements for a final interdict, that being that (a) a
clear right must be demonstrated; (b) there must be an injury actually committed
or reasonably apprehended; and (c) the absence of suitable alternative
remedies.
[35]. In Commercial Stevedoring Agricultural and Allied Workers' Union and
Others v Oak Valley Estates (Pty) Ltd and Another (Oak Valley) 8, the
Constitutional Court explained the importance of interdicts in the constitutional
dispensation as follows.
‘In a constitutional order, interdicts occupy a place of importance. In granting an
interdict a court enforces “the principle of legality that obliges courts to give effect to
legally recognised rights". The purpose of injunctive relief is to "put an end to conduct
in breach of the applicant's rights". An interdict is intended to protect an applicant from
the actual or threatened unlawful conduct of the person sought to be interdicted.’
[36]. The applicants rely on a range of clear rights which, if not protected by
an interdict, will continue to be violated and threatened by Operation Dudula,
including the rights to equality, human dignity, life, freedom and security of the
person, education, housing and healthcare. Importantly, Operation Dudula's
vigilante conduct also constitutes a clear violation of the rule of law.

vigilante conduct also constitutes a clear violation of the rule of law.

8 Commercial Stevedoring Agricultural and Allied Workers' Union and Others v Oak Valley Estates (Pty)
Ltd and Another (CCT 301/20) [2022] ZACC 7; [2022] 6 BLLR 487 (CC); 2022 (7) BCLR 787 (CC);
2022 (5) SA 18 (CC) (Oak Valley) at para 19.

21
[37]. In Chief Lesapo v North West Agricultural Bank and Another 9, the
Constitutional Court emphasised that:
‘No one is entitled to take the law into her or his own hands. Self-help, in this sense, is
inimical to a society in which the rule of law prevails, as envisioned by section 1(c) of
our Constitution, which provides:
"The Republic of South Africa is one, sovereign, democratic state founded on the
following values:
(c) Supremacy of the constitution and the rule of law”.’
[38]. Taking the law into one's own hands is thus inconsistent with the
fundamental principles of our law.
[39]. As regards actual harm, the undisputed evidence reveals a clear pattern
of unlawful acts perpetrated by Operation Dudula, its public representatives,
and its members, including incitement of violence and hate speech . It has
engaged in the incitement of violence, the propagation of hate speech and other
unlawful conduct both at gatherings and on its social media platforms. This is in
clear contravention of section 8(6) of the Regulation of Gatherings Act 205 of
1993 (Gatherings Act). Section 10 of the Promotion of Equality and Prevention
of Unfair Discrimination Act 4 of 2000 (Equality Act) further prohibits speech that
incites harm on grounds that include nationality, social origin, race and ethnicity.
[40]. Operation Dudula has, in a sustained pattern of activity, targeted informal
traders, shopkeepers and employees, by attacking traders and unlawfully
directing businesses and traders to cease to operate, or directing businesses to
dismiss foreign employees. This is in clear violation of the right to dignity.
Operation Dudula's conduct is also in breach of the right to freedom and
security of the person, which includes the right to be free from all forms of
violence, from both public and private sources. Moreover, Operation Dudula has
evicted foreign nationals (and South African nationals living with them) from

evicted foreign nationals (and South African nationals living with them) from
their homes or has attempted to do so. This is in clear violation of section 26(3)

9 Chief Lesapo v North West Agricultural Bank and Another [1999] ZACC 16; 2000 (1) SA 409 (CC); 1999
(12) BCLR 1420 (CC) at para 11.

22
of the Constitution and the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (PIE Act), which provide that no person may
be evicted from their home without an order of court, in addition to other
substantive and procedural requirements.
[41]. Operation Dudula has interfered with access to health care at public
health facilities, including threatening and forcibly removing foreign nationals
from facilities. This is in violation of the section 27(1)(a) right of access to health
care services and reproductive health care, which imposes an obligation on
private persons to desist from preventing or impairing this right of access.
Similarly, Operation Dudula has interfered with access to education, including
by threatening foreign teachers and learners at public schools, resulting in the
closure of at least one school in Jeppestown, Johannesburg. This is in direct
breach of the right to basic education under section 29(1)(a) of the Constitution,
which imposes a ‘negative obligation ’ on private persons to refrain from
impairing the existing enjoyment of this right. The right to a basic education is
afforded to all children, regardless of their immigration status. This conduct is
further in breach of the compulsory school attendance requirements under
section 3(6)(b) of the Schools Act 84 of 1996, which prohibits any person ‘… ,
without just cause, [from] prevent[ing] a learner who is subject to compulsory
attendance from attending a school ’. This conduct is an offence, which is
subject to a fine or imprisonment for a period not exceeding six months.
[42]. Importantly, Operation Dudula has routinely demanded that private
persons produce their personal identity documents establishing legal status in
South Africa and inciting other private persons to so demand personal identity
documents.
[43]. As for the requirement of reasonable apprehension of ongoing and future
harm, there is no doubt in my mind that the applicants have established a

harm, there is no doubt in my mind that the applicants have established a
reasonable apprehension of future injuries if interdictory relief is not granted.

23
The requirement of a ‘reasonable apprehension’ was explained by the Appellate
Division in Minister of Law and Order v Nordien10 as follows.
‘A reasonable apprehension of injury has been held to be one which a reasonable man
might entertain on being faced with certain facts. The applicant for an interdict is not
required to establish that, on a balance of probabilities flowing from the undisputed
facts, injury will follow: he has only to show that it is reasonable to apprehend that
injury will result. However, the test for apprehension is an objective one. This means
that, on the basis of the facts presented to him, the Judge must decide whether there is
any basis for the entertainment of a reasonable apprehension by the applicant.’
[44]. The reasonable apprehension of further harm in this case is supported
by undisputed facts. First, when served with a formal letter of demand,
Operation Dudula failed to provide any undertaking to desist from this unlawful
conduct and it has persisted with that unlawful conduct. Second, the evidence
presented in the supplementary founding affidavit demonstrates that, since
launching these proceedings, Operation Dudula and its members have
continued to act unlawfully and have engaged in the very conduct impugned in
these proceedings. The supplementary founding affidavit details further and
persisting incidents of incitement and hate speech, unlawful demands for
personal identity documents, directing traders to cease to operate, unlawful
evictions and acts of vigilantism. Third, the unlawful conduct documented in the
founding papers demonstrates a repeated pattern, involving a clear modus
operandi, that is consistent with Operation Dudula's publicly stated aims.
Following the launch of the proceedings, Operation Dudula confirmed that it
intends to ignore the court proceedings.
[45]. Lastly, it is so, as contended on behalf of the applicants, that t here is no
suitable alternative to interdictory relief, as it would be impossible for the

suitable alternative to interdictory relief, as it would be impossible for the
applicants or affected persons to approach a court for a discrete order in
response to every single separate incident of harassment or unlawful conduct,
nor would that be an appropriate use of judicial resources. Alternative relief

10 Minister of Law and Order v Nordien 1987 (2) SA 894 (A) at 896G -I, restated with approval in Oak
Valley id at para 19.

24
refers to suitable alternative judicial remedies. Criminal procedures are not, in
general, an effective alternative to the grant of an interdict restraining unlawful
conduct. In any event , interdictory relief and further action by SAPS are not
mutually exclusive. The interdictory relief sought by the applicants would
empower the SAPS to take effective action in future to address Operation
Dudula's unlawful conduct, by providing the SAPS with clear guidance on the
type of activities that are prohibited.
[46]. All of the aforegoing translate into a proper case having been made out
on behalf of the applicants for the declaratory and interdictory relief against the
Operation Dudula respondents. I therefore intend granting the applicants that
relief.
[47]. That brings me to the applicants’ case relating to the wearing by
Operation Dudula members of clothing resembling South African National
Defence Force (‘SANDF’) uniforms.
Clothing Resembling Military Uniforms
[48]. The only portion of the interdictory relief against Operation Dudula that is
opposed concerns Operation Dudula members wearing clothing resembling
military uniforms. The SAPS and the DHA contest this relief.
[49]. The applicants submit that the wearing of the military style attire by
members of Operation Dudula contravenes the provisions of s 8(6) and (8) of
the Regulation of Gatherings Act 205 of 1993 (‘Gatherings Act’) and s 104(5) of
the Defence Act 42 of 2002 ( ‘Defence Act’), which, according to the applicants,
contain separate prohibitions on such activities.
[50]. Section 8(8) of the Gatherings Act prohibits the wearing of ‘any form of
apparel' that ‘resembles’ the uniform worn by inter alia the SANDF. Section
12(1)(c), read with s 12(1)(j), of the Gatherings Act makes it a criminal offence
to contravene section 8 and empowers the SAPS to ensure compliance with the
Gatherings Act. Section 104(5) of the Defence Act prohibits ‘[a]ny person who,

25
without authority, possesses or wears prescribed uniforms distinctive marks or
crests, or performs any prohibited act while wearing such uniform or with such
uniform, distinctive marks or crests ’. Contravening that provision is an offence
carrying a fine or imprisonment for a period not exceeding five years.
[51]. Whilst the facts in relation to the wearing of military style attire by
Operation Dudula members are not in dispute, the SAPS and the DHA contend
that there is no legal basis to take steps to prevent or arrest Operation Dudula
members wearing the said clothing at gatherings. The applicants claim that the
SAPS failed to investigate and charge member of operation Dudula who wore
clothing resembling the uniform of the SANDF in contravention of the section 8
(6) of the Regulation of Gatherings Act 205 of 1993 and sec tion 104(5) of the
Defence Act 42 of 2002.
[52]. Section 104 (5) of the Defence Act 42 of 2002 provides as follows: -
‘(5) Any person who, without the written authority of the Chief of the Defence Force,
possesses or wears any uniform or part thereof, distinctive mark or crest that has been
determined by the Chief of the Defence Force as official attire in the Defence Force, or
performs any prohibited act while wearing such uniform or with such uniform, distinctive
mark or crest, is guilty of an offence and liable on conviction to a fine or imprisonment
for a period not exceeding five years.’
[53]. It was submitted on behalf of the SAPS that a plain reading of this
section clearly speaks to the possession and wearing of an actual SANDF
uniform with its distinctive mark or crest. This section does not make mention of
‘resemblance’ or ‘likeness’ to an SANDF uniform. It is therefore contended by
the SAPS that this section is not applicable to the complaint by the applicants.
[54]. I agree with this submission. In my view, the section, interpreted
textually, contextually and purposively, only prohibits the wearing of actual

textually, contextually and purposively, only prohibits the wearing of actual
SANDF unforms with the distinctive mark o r crest. The provision says so in as
many words. Moreover, the purpose of the provision is clearly aimed at a
prohibition against holding oneself out as a member of the SANDF.

26
[55]. Section 8 (8) of the Regulation of Gatherings Act provides as follows: -
‘(8) No person shall at any gathering or demonstration wear any form of apparel
that resembles any of the uniforms worn by members of the security forces, including
the Police and the South African Defence Force.’
[56]. In my view, the evidence before me does not support a conclusion, as
contended for by the applicants, that the military style attire worn by members of
Operation Dudula at their gatherings ‘resemble any of the uniforms worn by
members of the security forces’. Importantly, the clothing worn by Operation
Dudula members do not bear the distinctive mark or crest which distinguishes a
SANDF uninform, for example, from those worn at gatherings by the said
members. Therefore, at a factual level, I am of the view t hat the applicants have
not demonstrated that the provisions of s 8(8) have been contravened by the
Operation Dudula respondents.
[57]. I therefore do not accept the contention on behalf of the applicants that
the members of Operation Dudula contravenes s 8(8) of the Gatherings Act in
that they wear ‘ any form of apparel' that ‘resembles’ the uniform inter alia worn
by members of the SANDF. It is not, in my view, sufficient that the attire
‘resembles’ the SANDF uniform as per the Oxford English Dictionary, namely ‘to
be like, to have a likeness or similarity to, to have some feature or property in
common with’ with it. The important point for me is that the clothes worn by the
Operation Dudula members do not bear the distinguishing mark o r crest of the
SANDF uniform. To hold otherwise would be stretching the definition in the
context of this matter and, in particular, having regard to the related legislation
referenced supra, that being s 104(5) of the Defence Act.
[58]. For these reasons, the applicants are not entitled to the relief sought by
them in relation to wearing uniforms by the members of Operation Dudula. That

them in relation to wearing uniforms by the members of Operation Dudula. That
relates to both the declaratory and the interdictory relief sought against
Operation Dudula and the SAPS.

27
The Alleged Failure by the Government to F ully Implement the National
Action Plan
[59]. The government's stated policy position, in line with its constitutional and
international law obligations, is to take all reasonable measures to combat
xenophobia, racism and related forms of unfair discrimination. 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.
[60]. The UN Guidelines on the Development of National Action Plans Against
Racial Discrimination (UN Guidelines), which are referenced throughout the
NAP, describe the purpose of such plans as being to ‘help States give effect to
their international human rights obligations related to the elimination of racial
discrimination’. These Guidelines emphasise that ‘State bodies, including the
national institution for racial equality, ministries or departments of justice,
foreign affairs, defence, education, health and so on, are responsible for
implementing the plan’.
[61]. It is the case on behalf of the applicants that more than five years after its
adoption, critical aspects of the NAP and its Implementation Plan have not been
implemented. They therefore contend that the government has failed in three
critical respects: (a) It has not operationalised an early warning system and
rapid response mechanism in respect of racist and xenophobic violence and
hate crimes; (b) It has not established or operationalised a system to collect
disaggregated data on racist and xenophobic of fences and hate crimes; and
(c) It has not taken proper steps to roll out social mobilisation campaigns to

(c) It has not taken proper steps to roll out social mobilisation campaigns to
combat racism, xenophobia and related forms of intolerance.

28
[62]. The Plan specifically emphasised the need for proper monitoring, data
collection and an effective response to acts of xenophobic violence , in the
following terms:
‘It is imperative to monitor and report on attacks and to reach out to communities
affected by violence to reduce fear, assist victims, and improve reporting of incidents, It
is equally important to promote a spirit of integration through engaging communities
where xenophobia is most rampant. Government should send out clear messages that
violence against foreign nationals and xenophobic attacks will not be tolerated and that
those involved in such activities will be prosecuted.’
[63]. The Implementation Plan of the NAP further set dates and targets for the
rollout of these mechanisms, recording that:
(a) The Department of Justice (or other government entity) was to conduct a
baseline study on the levels of racism, racial discrimination, xenophobia
and related tolerance by 31 March 2020, and to analyse the disaggregated
data to determine patterns, trends and challenges by 30 September 2020;
(b) The DOJ (or other government entity) was to establish an ‘effective
governance structure’ in the form of a National Focal Point to implement
the National Action Plan, by 1 April 2020;
(c) The DOJ was to secure funding for the implementation of the National
Action Plan by 31 March 2020;
(d) The DOJ and Statistics South Africa were to collect disaggregated data on
racism, racial discrimination, xenophobia and related tolerance in the form
of a virtual data repository for ongoing use, to be operationalised by 31
March 2021;
[64]. The NAP further recorded government's commitments that police would
‘prioritise’ the investigation of xenophobic hate crimes, that the prosecuting
authority would deal with such cases ‘efficiently and speedily' and that such
cases would be monitored.

29
[65]. The applicants submit that t he government has failed to do any of the
aforegoing and to fully implement its own NAP. Such failure, so the case on
behalf of the applicants goes, constitutes a breach of its section 7(2)
constitutional obligations to respect, protect and promote rights , which requires
the state to take ‘reasonable and effective ’ steps. That, in turn, requires more
than the mere adoption of a plan , but it also requires action to implement those
plans.
[66]. For these reasons, the applicants apply for the relief sought in paragraph
7 of the amended notice of motion, referred to above.
[67]. The government and, in particular, the DHA offer very little by way of
resistance to this relief sought by the applicants.
[68]. The high watermark of the DHA’s grounds of opposition to this relief is to
the effect that the government bears no responsibility for the implementation of
that Plan. As contended by the applicants, t his is an astounding approach to
adopt. Moreover, it demonstrates a mis understand of the contents and purpose
of the NAP, which explicitly place s the burden of implementation on the
shoulders of government. The Plan specifically acknowledges, at paragraph
159, that ‘[g]overnment is responsible for creating a le gal and policy framework
for the prevention of racism, racial discrimination, xenophobia and related
intolerance as well as for the effective implementation of the prevention
measures and practices’.
[69]. Whilst the NAP calls for the engagement and assistance of civil society
and private actors, this does not detract from the government's primary legal
responsibility for the protection, promotion and fulfilment of rights. The buck
stops with the government for any failures to implement the Plan, as it is the
primary bearer of constitutional obligations under section 7(2) of the
Constitution.

30
[70]. In these circumstances, I find myself in agreement with the applicants
contention that the government's unexplained failures to give proper effect to
critical components of the NAP are an unconstitutional violation of its duties.
The just and equitable remedy that must follow is a mandamus, requiring the
government to take reasonable steps to implement its own plan, as is sought in
prayer 7 of the notice of motion. Such an order is consistent with this Court's
just and equitable remedial powers under section 172(1)(b) of the Constitution.
The Alleged Failures by the SAPS to Combat, Prevent and Investigate
Criminal Conduct
[71]. In addition to its general section 7(2) constitutional obligations, the SAPS
has a specific duty under section 205(3) of the Constitution ‘to prevent, combat
and investigate crime, to maintain public order, to protect and secure the
inhabitants of the Republic and their property, and to uphold and enforce the
law’.
[72]. The SAPS's constitutional duties are reinforced by section 13 of the
South African Police Services Act 68 of 1995 (SAPS Act). Section 13 (1) to
(3)(a) provides that:
‘(1) Subject to the Constitution and with due regard to the fundamental rights of every
person, a member may exercise such powers and shall perform such duties and
functions as are by law conferred on or assigned to a police official.
(2) Where a member becomes aware that a prescribed offence has been committed,
he or she shall inform his or her commanding officer thereof as soon as possible.
(3) (a) A member who is obliged to perform an official duty, shall, with due regard
to his or her powers, duties and functions, perform such duty in a manner
that is reasonable in the circumstances.’
[73]. The SAPS is therefore one of the primary state agencies responsible for
the protection of the public in general, including foreign nationals, against the
invasion of their fundamental rights by perpetrators of criminal conduct.

31
[74]. The case on behalf of the applicants is that there are numerous
instances, as detailed in their founding papers, where the SAPS failed in its
duties to adequately protect the public from Operation Dudula's unlawful
conduct. These failures, so the case for the applicants goes, fall into the
following three broad categories: (a) The failure to act when crimes were
committed in the presence of the police; (b) The refusal to assist or accept
complaints when foreign nationals went to police stations to lay charg es; and
(c) The failure to take reasonable and effective steps to investigate crimes
reported to the police.
[75]. The allegation is made that t here are multiple instances on the papers
where the police stood passively by while Operation Dudula members engaged
in unlawful conduct. So, for example, it is alleged that o n 6 February 2022, at
the Tsietsi Mashinini Centre, in Jabavu, Soweto, members of the SAPS
accompanied Operation Dudula members in a raid of the Centre, in which
Operation Dudula members went door -to-door, harassing residents and
demanding that they produce documentation. The applicants submit that n o
explanation is provided for why SA PS officers were present, nor is there any
explanation as to why the SAPS officers failed to intervene to prevent Operation
Dudula's unlawful conduct, which included the harassment and intimidation of
residents and the destruction of their property.
[76]. SAPS officers are also alleged to have been present in Diepsloot on 6
April 2022, when the then leader of Operation Dudula addressed a crowd and
incited violence against foreign nationals, calling for people to deal with foreign
nationals in their community. Mr Elvis Nyathi was murdered by a mob in
Diepsloot later that evening after the mob went door to door demanding
passports from people . In the gathering earlier in the day, Operation Dudula’s
leader acknowledged the presence of the police when he said:

leader acknowledged the presence of the police when he said:
‘We will wait for the police to leave and then disperse to the streets and our approach
will depend on the people we are fighting, if those people have guns and weapons, we
also have guns and weapons.’

32
[77]. The response of the National Commissioner of the SAPS, who deposed
to the answering affidavit, is to deny knowledge of these events , which,
according to the applicants, does not suffice to establish a genuine dispute of
fact. The applicants give further examples of instances where members of the
SAPS allegedly stood by and watched whilst Operation Dudula made itself
guilty of unlawful attacks on other individuals.
[78]. In their founding papers, the applicants also detail evidence of the police
refusing to assist foreign nationals in laying charges against Operation Dudula
members. So, for example, it is alleged that o n 13 June 2022, at the Norwood
police station, SAPS members initially refused to open cases against Operation
Dudula members who had threatened informal traders in Orange Grove. At the
time, a Sergeant Mtshali allegedly made xenophobic remarks that ‘foreign
nationals are tiring’.
[79]. What is more, so the contention on behalf of the applicants goes, t he
relevant evidence of these failures is not genuinely in dispute by the SAPS.
[80]. The applicants make the point quite poignantly that the S APS's
unreasonable inaction and its lack of transparency is illustrated by its response
to the murder of Mr Nyathi in Diepsloot in April 2022 following an Operation
Dudula gathering – a crime which caused national and international outrage . In
the aftermath of Mr Nyathi's murder, so it is alleged by the applicants, the SAPS
proceeded to conduct a ‘joint operation’, instead of investigating the murder and
the vigilante violence, and in the process t argeted foreign nationals. The SAPS
further admits that while arrests were subsequently made, the murderers
remain at large and there have been no successful prosecutions. No details are
provided about the status of the investigations and what steps, if any, the SAPS
is taking to continue these investigations.
[81]. This indicates, so the applicants contend, that the manner in which the

[81]. This indicates, so the applicants contend, that the manner in which the
SAPS investigated the murder of Mr Nyathi falls far below the standard set by
the Constitutional Court.

33
[82]. For all of these reasons, the applicants apply, on the basis that the SAPS
has failed in its constitutional duties and on the basis that rights in the Bill of
Rights have been infringed by the SAPS, for ‘ appropriate’ and ‘just and
equitable’ relief under sections 38 and 172(1)(b) of the Constitution. That relief,
so the contention is concluded, should take the form of an order that SAPS
should be required to fulfil its constitutional obligations to prevent, combat and
investigate crimes committed by Operation Dudula and/or its members.
[83]. The SAPS denies that it breached its constitutional or legislative
obligations and therefore contends that the a pplicants are not entitled to the
relief sought by them against the SAPS . It denies that it has failed to protect
victims of attacks by Operation Dudula or that they have failed to take steps to
prevent Operation Dudula from committing crimes.
[84]. As regards, for example, the 6 February 2022 incident referred to by the
applicants, the SAPS expressly denies that its members accompanied
Operation Dudula, who, according to the SAPS, were in fact accompanied by
church leaders. Moreover, the conduct complained about was not in the
presence of the SAPS.
[85]. As for the incident in Diepsloot on 6 April 2022, during which Mr Nyathi
was killed, the applicants allege that police officers were present when the
leader of Operation Dudula addressed a crowd and incited violence. And the
third incident relates to the SAPS’s failure to intervene when Operation Dudula
attacked waiters in the Maboneng precinct.
[86]. In respect of these incidents, the case on behalf of the SAPS is that they
did respond to the precinct when they were called. They continued to monitor
the situation and remained at the scene in order to maintain law and order and
to protect the patrons and the employees. A number of the employees, so the
SAPS avers, laid complaints, as a result of which dockets were opened for
further investigation and/or arrests.

34
[87]. As for the applicants’ claims that the SAPS refused to assist
complainants or to receive complaints arising from xenophobic attacks, two
particular incidents are referenced by the applicants.
[88]. The Applicants allege that on 13 June 2022 , the Norwood Police Station
SAPS members refused to open cases against Operation Dudula members who
had threatened informal traders. In response to these assertions by the
applicants, the SAPS provided references to dockets opened on 13 June 2022
for intimidation and malicious damage to property under case number
251/03/2022. In addition, the SAPS indicates that the complainants were
provided with the contact details of the investigating officer for progress
updates.
[89]. The SAPS accordingly submits that the aforegoing demonstrates that
they not only received complaints but they also investigated the claims made by
foreign nationals. I agree with this submission. Whilst it is so that the a pplicants
maintain that there is a pattern of reluctance or refusal by the SAPS to act
against Operation Dudula , the SAPS has, in my view, demonstrated that they
have indeed acted where they were called upon to do so.
[90]. The same applies to the claims by the applicants that the SAPS failed to
properly investigation complaints expeditiously. In its answering affidavit , the
SAPS provides clear accounts where complaints were laid and dockets were
opened. By way of example, the SAPS points out that in the murder case of Mr
Nyathi, suspects were arrested. However, subsequently the case was struck
from the roll due to witness es failing to co -operate. The SAPS handed over its
suspects, the witness and the docket to the National Pr osecting authority to
secure the convictions of the suspects.
[91]. The point about the SAPS’s case on this aspect of the matter is that they
have always acted reasonably and that it cannot be said with conviction that
they have thus far failed in their statutory and legislative duties. To further

they have thus far failed in their statutory and legislative duties. To further
demonstrate the aforegoing, the SAPS provided the a pplicants with the full fire

35
inquiry documents , including statements from shop owners, vendors and
foreigners, in relation to the inquiry into the Yeoville marketplace fire, which
includes statements of a witness indicating that the fire started in shop 20 ,
where a stove was left on, which seemingly caused the fire to start. The SAPS,
during its aforesaid investigations, indiscriminately interviewed and obtained
statements from all the shop owners and vendor whether foreign or not.
[92]. In AK v Minister of Police 11, the Constitutional Court at para 17 held as
follows: -
‘[71] It follows from the above that the enquiry must be centred on whether the SAPS
acted reasonably in the circumstances, considering the resources which were available
to them at the time. Whether the SAPS acted reasonably is based on, amongst others,
the positive obligation imposed on organs of state to respect, protect, promote and fulfil
the rights in the Bill of Rights. I therefore agree with the applicant that the SAPS must
establish that they took reasonable and appropriate measures available to them in the
circumstances. Furthermore, in my view, the enquiry must centre on whether the SAPS
took reasonable measures to protect and fulfil the rights of women, such as the
applicant, to dignity, equality and freedom and security of the person, including the right
to be free from violence from both public and private sources.’
[93]. Also at para 86, the Constitutional Court held as follows: -
‘[86] For these reasons, the police investigation was negligent. The police failed to
take reasonable measures which were available to them in the circumstances. They
furthermore failed to act promptly and expeditiously so as to follow up on any available
leads. The investigation was not deficient because it failed to result in a successful
prosecution of the applicant's perpetrators, but because the methodology was flawed;
the police failed to act diligently and with the skill required of them by the Constitution.’

the police failed to act diligently and with the skill required of them by the Constitution.’
[94]. On the basis of this authority and having regard to the evidence before
me, I conclude that the SAPS has within its framework acted reasonably in its
investigations of reported matters relating to foreigners. The applicants have
therefore, in my view, failed to demonstrate why the court should exercise its

11 AK v Minister of Police 2023 (2) SA 321 (CC).

36
discretion in favour of the applicants for the declaratory relief sought against the
SAPS.
SAPS and the DHA alleged Communications and Collusion with Operation
Dudula
[95]. The applicants contend that the answering affidavits of the SAPS and the
DHA disclose that there has been ongoing engagement and communication
between state officials and Operation Dudula, the details of which have not
been provided to the court, despite express invitation and demand. The SAPS
admits that it has previously ‘escorted' Operation Dudula members on some of
their ’missions’. In that regard, the National Commissioner of the SAPS states in
its answering affidavit that ‘where the SAPS is requested to escort a march or
protest, it has an obligation to do so to ensure it remains peaceful ’. And the
DHA admits that it has had communications and meetings with Operation
Dudula, but, according to the applicants, also elects not to disclose any details,
disturbingly suggesting that it has no records of these engagements.
[96]. The Director-General of the DHA, who deposed to its answering affidavit,
states that ‘the DHA does admit communicating from time to time , and when
necessary, with civic organisations, including Operation Dudula’. He
furthermore confirms that the DHA admits ‘having communicated with Operation
Dudula in the past, however there is no record of any correspondence AND/OR
letters between the DHA and Operation Dudula’.
[97]. The applicants furthermore note that the SAPS and DHA admit
conducting joint operations in areas that had been specifically targeted by
Operation Dudula. For example, the National Commissioner of the SAPS
specifically admits a ‘joint operation between the SAPS and immigration
officials’ in Diepsloot, immediately following the murder of Mr Nyathi, with the
purpose of ‘verify[ing] the status in the particular area’. The applicants make the
point, in that regard, that no details are provided as to how this ope ration was

point, in that regard, that no details are provided as to how this ope ration was
planned, who gave the orders to conduct these operations, for what reasons,

37
and whether there were communications with Operation Dudula in the process.
Disturbingly, so the submission on behalf of the applicants goes, in the
aftermath of a murder allegedly instigated by Operation Dudula, the response of
the SAPS was to conduct an operation in the area to ‘verify the status ’ of non-
national residents.
[98]. The aforegoing, so the case on behalf of the applicants is concluded on
this aspect of the matter, coupled with the deliberate refusal to disclose relevant
engagement with Operation Dudula by both the SAPS and the DHA, ground
sufficiently a basis for an order in terms of prayers 9 and 10 of the notice of
motion prohibiting collusion with Operation Dudula including the conduct of
raids at its instigation. Such an order, according to the applicants, would prohibit
support for or collusion with Operation Dudul a, interdict the SAPS and the DHA
from ‘conducting raids targeting whole communities at the instigation of
[Operation Dudula] or any of its office -bearers or members in the absence of a
warrant or a reasonable suspicion that identified individuals have committed a
criminal offence’.
[99]. The DHA has in its answering papers denied allegations concerning any
collusion with Operation Dudula. What is denied, in particular, by the DHA is
that it or its officers collude and join forces with Operation Dudula when
conducting searches against illegal foreigners . The DHA submits that the
applicants have not , in their founding papers , produced any evidence which
prove any of the allegations of collusion and therefore contends that the sought
relief should be refused on the basis that it is without any factual grounds.
[100]. The DHA explains that when raids and searches are done, it is governed
by sections 33(5) and (6) of the Immigration Act. It denies being involved in any
of the alleged raids and searches alleged in the founding papers . Moreover, so
the DHA contends, the applicants have failed to prove and establish, as they

the DHA contends, the applicants have failed to prove and establish, as they
are required to do in order to establish a clear right if they were to obtain
interdictory relief, that the DHA has factually colluded with Dudula. This is a
factual enquiry. There are no clear facts in the founding papers to sustain the

38
allegations of support and collusion other than speculations and suspicions. The
SAPS adopts a similar approach to that of the DHA, namely that a factual basis
has not been established to support the relief sought in relation to collusion.
[101]. I agree with these contentions on behalf of DHA and the SAPS. And the
interdictory relief sought in that regard by the applicants should not be granted.
Section 41 of the Immigration Act
[102]. Section 41 of the Immigration Act is frequently used by the SAPS and the
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 th e 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.
[103]. Secondly, the applicants have mounted a constitutional challenge to
s 41, alternatively , ask for declaratory orders on the proper interpretation of
these powers, to ensure that these powers are exercised by state officials in a
manner that is consistent with human rights. This addresses the question of
how these powers may be lawfully exercised.
[104]. Section 41 of the Immigration Act gives immigration officials and police
officers the power to request any person to identify themselves and their
immigration status, in the following terms: -
‘41 Identification
(1) When so requested by an immigration officer or a police officer, any person shall
identify himself or herself as a citizen, permanent resident or foreigner, and if on
reasonable grounds such immigration officer or police officer is not satisfied that
such person is entitled to be in the Republic, such person may be interviewed by
an immigration officer or a police officer about his or her identity or status, and

an immigration officer or a police officer about his or her identity or status, and
such immigration officer or police officer may take such person into custody

39
without a warrant, and shall take reasonable steps, as may be prescribed, to
assist the person in verifying his or her identity or status, and thereafter, if
necessary detain him or her in terms of section 34.’
[105]. As submitted on behalf of the applicants, the powers envisaged by s 41
has five components: (a) Stop and identification: An immigration officer or police
officer may request that any person identify themselves as a citizen, permanent
resident or foreigner, without any restrictions or guidance on the time, place, or
reasons for this demand ; (b) Interview: After this request for identification, if ‘on
reasonable grounds ’ an immigration or police officer is not satisfied that the
person is entitled to be in the Republic, they may interview the person about
their identity or status ; (c) Arrest and detention without a warrant: The person
may then be arrested and taken into custody without a warrant, for purposes of
further steps to verify their identity or status ; (d) Verification: While in custody,
the immigration officer or police officer will then take steps to assist the person
in verifying their identity, following the procedure prescribed in regulation 37 of
the Immigration Regulations ; and (e) Section 34 detention: The person may, ‘if
necessary', be further detained in terms of s 34 of the Immigration Act, which is
the provision regulating detention of illegal foreigners pending deportation.
Section 34 permits the arrest and detention of a person, without a warrant, for a
period of up to 48 hours, which may later be extended by a court for an initial
period of up to 30 days and a further period of up to 90 days.
[106]. Regulation 37, titled ‘Identification’, provides that:
‘An immigration officer or police officer shall take the following steps in order to verify
the identity or status of the person contemplated in section 41(1) of the Act:
(a) access relevant documents that may be readily available in this regard;

(a) access relevant documents that may be readily available in this regard;
(b) contact relatives or other persons who could prove such identity and status;
(c) access Departmental records in this regard; or
(d) provide the necessary means for the person to obtain the documents that may
confirm his or her identity and status.’

40
[107]. In Lawyers for Human Rights v Minister of Home Affairs and Others 12,
the Constitutional Court declared s 34 to be constitutionally invalid, it suspended
that order for 24 months and granted an interim reading -in order to ensure
protections pending the enactment of amendments. When Parliament failed to
pass amending legislation in time, the Constitutional Court granted further
supplementary relief, expanding the interim protections pending the enactment
of remedial legislation13.
[108]. A failure or refusal to comply with a s 41 request for identification carries
harsh criminal sanctions under section 49(6) of the Immigration Act, punishable
by up to five years' imprisonment.
[109]. As I have already indicated, the applicants have mounted a constitutional
challenge to s 41 . They, in particular, take issue with the manner in which the
powers conferred on immigration officials and police officers ought to be lawfully
exercised in a manner that is consistent with the constitution and the individual
rights enshrined in the Bill of Rights.
[110]. The applicants impugn s 41 on the ground that it is not consistent with
the rights guaranteed by the Bill of Rights and they have identified three
constitutional defects in the said section and its application , namely: (a) These
powers are not confined to public places, but have been used to conduct
warrantless searches in private places that include the home and places of
study, work or business; (b) The section does not impose any guidance, internal
safeguards or constraints for when or how these s 41 powers may be used. For
instance, it does not require that an immigration officer or police officer act
reasonably or hold a reasonable suspicion that a person is unlawfully in South
Africa, in order to request them to identify themselves as a citizen, permanent
resident or foreigner ; and (c) Section 41 authorises the arrest and detention of

resident or foreigner ; and (c) Section 41 authorises the arrest and detention of

12 Lawyers for Human Rights v Minister of Home Affairs and Others [2017] UCC 22; 2017 (10) BCLR 1242
(CC); 2017 (5) SA 480 (CC).
13 See Ex parte Minister of Home Affairs and Others; In re Lawyers for Human Rights v Minister of Home
Affairs and Others [2023] ZACC 34; 2024 (1) BCLR 70 (CC); 2024 (2) SA 58 (CC).

41
children, without adequate safeguards that are consistent with the children's
constitutional rights.
[111]. The applicants contend that s 41 should either be declared invalid due to
these unconstitutional defects, alternatively it should be read down to preserve
its constitutional validity, with appropriate declaratory relief to give proper
guidance on its application.
[112]. This constitutional challenge , so the applicants’ case goes, has its
genesis in the fact that s 41 has been repeatedly used by the DHA and the
SAPS to conduct so -called ‘joint operations ’, in which communities that had
previously been targeted by Operation Dudula are subjected to raids. The
Minister of Home Affairs have confirmed that these raids had involved
warrantless searches and invoked s 41 as the legal basis for this conduct. In
correspondence between the Minister and the legal representatives of the
applicants, the Minister stated that ‘ section 41 permits an immigration officer or
a police officer to exercise the powers bestowed upon him or her without a
warrant’. The DHA has also officially adopted the approach that ‘[t] he
immigration officers and members of the SAPS do not require any warrant to
request someone to identify himself or herself. Section 41 even permits
detention of a person so identified without a warrant’.
[113]. The applicants contend that t he indiscriminate nature of these s 41
powers means that any person may be arrested and detained if they are unable
to provide documentation, including citizens and children. That is confirmed by
the further evidence presented by the SAHRC of the arrest of a 16 -year-old girl,
who is a South African citizen, when she was unable to provide identification to
police officers.
[114]. The first challenge relates to the exercise of the s 41 powers in p rivate
spaces during warrantless raids . The Constitutional Court has repeatedly
confirmed that warrantless searches and raids are a severe violation of

42
constitutional rights, including the rights to privacy and dignity 14. Section 14 of
the Constitution grants everyone the right to privacy, which specifically includes
the right not to have one's person, home or property searched 15. This right is
intimately connected with the right to dignity, guaranteeing a ‘right to a sphere of
intimacy and autonomy that should be protected from invasion’16.
[115]. In Residents of Industry House 17, in a constitutional challenge to a
provision of the South African Police Service Act 68 of 1995 that permitted
warrantless raids of buildings targeting foreign nationals, Mhlantla J (for a
unanimous Constitutional Court on these issues) held:
‘The rights to privacy and dignity in the Constitution attach to "everyone" and not just
citizens. Human dignity has no nationality. It appears to me that the respondents were
under the impression that because the applicants were largely suspected to be non -
citizens or undocumented they could repeatedly over many months at any hour of the
day or night violate their rights without consequence. This cannot be so.’
[116]. On the basis of these authorities, the applicants contend that, t o the
extent that s 41 authorises warrantless raids on homes and businesses, as
contended for by the Minister, it constitutes a severe limitation of these rights,
for which no justification is provided . This therefore stands to be declared
invalid.
[117]. In response to the applicants’ claim for the aforegoing relief , the DHA
and the SAPS adopt an interpretation of s 41 that directly contradicts their
conduct and position before the litigation . The DHA in its answering affidavit

14 See Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg and Others v
Minister of Police and Others [2021] ZACC 37; 2023 (3) SA 329 (CC); 2022 (1) BCLR 46 (CC)
(Residents of Industry House) at paras 49 to 57, and the cases cited there.
15 Section 14 provides that: -

15 Section 14 provides that: -
‘Everyone has the right to privacy, which includes the right not to have –
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.’
16 Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) at para 27.
17 Footnote 13.

43
states that ‘[i] t is not correct that section 41 permits warrantless raids of
people's homes and other places. There is no provision for such in the section,
and there are no words in the section approximating such an effect ’. The
Director-General further states that ‘[i]mplicit to the provisions of s 41 are the
guidelines and guiding principles set out in s 33 of the Act for searches and
arrest’. The deponent for the SAPS, the National Commissioner, states that
"[o]n [a] reasonable reading and interpretation of the section it does not permit
warrantless raids of any kind’.
[118]. This, in my view, amounts to a concession on the part of the DHA and
the SAPS that s 41 does not permit of warrantless stops, raids and searches .
The said section must accordingly either be declared invalid to the extent that it
permits warrantless searches, alternatively, it must be read down to preserve its
constitutional validity.
[119]. Section 41 is , in my judgment, indeed capable of a constitutionally
compatible reading, that does not permit warrantless searches . I agree with the
applicants that it is in the interests of justice to grant the declaratory relief
sought by the applicants in prayer 14A.1 of the amended notice of motion ,
which would confirm that the powers conferred on DHA officials and SAPS
officers by s 41 ‘do not authorise warrantless searches in private places that
include the home and places of study, work or business’.
[120]. Such a declaratory order would be a just and equitable remedy in the
circumstances, particularly given the apparent confusion and disagreement
within the DHA and SAPS over the scope of their s 41 powers. Declaratory
relief in such circumstances plays an important role, in providing guidance on
the future use of s 41 powers. As the Constitutional Court observed in Rail
Commuters Action Group v Transnet Ltd t/a Metrorail 18 ‘[a] declaratory order is
a flexible remedy which can assist in clarifying legal and constitutional

a flexible remedy which can assist in clarifying legal and constitutional

18 Rail Commuters Action Group v Transnet Ltd t/a Metrorail [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005
(4) BCLR 301 (CC) 107.

44
obligations in a manner which promotes the protection and enforcement of our
Constitution and its values’.
[121]. I am of the view that the same argument applies to the second ground on
which the constitutional challenge is directed at s 41, namely the said section
confers an unguided discretion on immigration officials and police officers to
stop and question any person, which is not qualified by any requirement of
reasonable suspicion or any other restrictions on how these powers should be
exercised.
[122]. The applicants contend that it appears from the pre-litigation conduct and
the positions of the SAPS and the DHA that they both consider s 41 to confer
an unconstrained power to request any person, anywhere and at any time, to
produce their documents, without the need for a warrant even if the request is
made in a private place. This appears from correspondence from the Minister of
Home Affairs , confirming the use of s 41 in joint SAPS / DHA operations
throughout Johannesburg targeting whole parts of the City through warrantless
raids of homes and businesses, as well as from their conduct.
[123]. On this interpretation adopted by the SAPS and the DHA, any
immigration official or SAPS officer may stop any person and request that they
identify themselves, at any time and any place, in any manner, and for any
reason (or without any particular reason).
[124]. As submitted on behalf of the applicants, t his is a coercive power that is
coupled with a duty to cooperate on pain of criminal sanction. Any person who
fails or refuses to cooperate or respond to this request to identify themselves is
guilty of a criminal offence, punishable by up to five years' imprisonment. If they
do answer, and their answer is disbelieved for any reason, they face the risk of
being arrested and detained without a warrant while officials conduct further
inquiries under s 41 and face the risk of further detention under s 34 if the
officials are not satisfied with the outcome of those investigations.

45
[125]. These risks are not confined to non -citizens. Any citizen who is
undocumented or has lost or misplaced their identity documents would face the
same risks, as confirmed by the experience of the minor child, Ms SN, a South
African national whose complaint was investigated by the SAHRC.
[126]. This directly limits the rights to privacy and dignity, which together confer
a general ‘right to be left alone by the state ’, unless specific conditions are
satisfied. It also implicates the section 12(1) right not to be ‘deprived of freedom'
arbitrarily or without just cause, a right which is expressly not confined to
circumstances of arrest and detention . These freedom rights are implicated
whenever a person is accosted by a police officer or immigration official, using
their s 41 powers, and is prevented from walking away or remaining silent, on
pain of criminal sanctions for non -cooperation. However, these s 41 powers are
not qualified by any requirement that police officers or immigration officers must
have reasonable cause for stopping and questioning a person or any other
guidance on when or how these powers may be lawfully exercised.
[127]. The Constitutional Court has repeatedly held that it is unconstitutional to
afford broad discretionary powers that threaten constitutional rights without
appropriate guidance on their use.
[128]. In Dawood and Another v Minister of Home Affairs and Others; Shalabi
and Another v Minister of Home Affairs and Others; Thomas and Another v
Minister of Home Affairs and Others 19, the Constitutional Court struck down a
statutory provision that conferred unguided discretionary powers on immigration
officers to grant or refuse foreign spouses temporary residence permits. There
the Court held that:
‘[54] We must not lose sight of the fact that rights enshrined in the Bill of Rights must
be protected and may not be unjustifiably infringed. It is for the Legislature to ensure

be protected and may not be unjustifiably infringed. It is for the Legislature to ensure
that, when necessary, guidance is provided as to when limitation of rights will be
justifiable. It is therefore not ordinarily sufficient for the Legislature merely to say that

19 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home
Affairs and Others; Thomas and Another v Minister of Home Affairs and Others [2000] ZACC 8; 2000
(3) SA 936 (CC); 2000 (8) BCLR 837 (CC) 54 – 55.

46
discretionary powers that may be exercised in a manner that could limit rights should
be read in a manner consistent with the Constitution in the light of the constitutional
obligations placed on such officials to respect the Constitution. Such an approach
would often not promote the spirit, purport and objects of the Bill of Rights. Guidance
will often be required to ensure that the Constitution takes root in the daily practice of
governance. Where necessary, such guidance must be given. Guidance could be
provided either in the legislation itself on where appropriate , by a legislative
requirement that delegated legislation be properly enacted by a competent authority.
[55] Such guidance is demonstrably absent in this case. It is important that
discretion be conferred upon immigration officials to make decisions concerning
temporary permits. Discretion of this kind, though subject to review, is an important part
of the statutory framework under consideration. However, no attempt has been made
by the Legislature to give guidance to decision -makers in relation to their power to
refuse to extend or grant temporary permits in a manner that would protect the
constitutional rights of spouses and family members.’
[129]. I conclude that s 41 is capable of a constitutionally compatible
interpretation. It can and should be interpreted as requiring a police officer or
immigration official to hold a reasonable suspicion that a person is unlawfully in
South Africa before they may request a person to identify themselves as a
citizen, permanent resident or foreigner. That is reflected in the declaratory
relief sought in prayer 14A.2 of the amended notice of motion.
Children's Rights
[130]. The SAHRC presented uncontested evidence that, as a consequence of
section 41, a 15-year-old child, Ms SN, was detained after she could not provide
documentation to prove her citizenship or immigration status. Ms SN was
subjected to this treatment even though she is a citizen. In its answering

subjected to this treatment even though she is a citizen. In its answering
affidavit to the SAHRC, the SAPS's deponent, Brigadier Nevhuhulwi, does not
deny that SN was interrogated and then arrested under section 41. The SAPS
also does not deny that section 41 has been and will continue to b e applied to
children in this way.

47
[131]. While the SAPS acknowledges that it applies section 41 to children, it
suggests that if a member of SAPS ‘ascertains that the individual being arrested
is a minor child, that child will be immediately released ’. However, no formal
guidance to that effect is to be found in section 41 itself, t he Children's Act 38 of
2005, the Child Justice Act 75 of 2008 or in the National Instruction referenced
in the SAPS' answering affidavit.
[132]. Thie means, as contended on behalf of the applicants, that s 41 has the
potential to be interpreted with unconstitutional and rights-limiting
consequences for all whom it impacts, including adults and children. However,
the impact on children is a matter for particular concern, as courts are required
by section 28(2) of the Constitution and the Children's Act to ensure that the
best interests of children are considered paramount in all matters concerning
the child.
[133]. It is not in the best interests of children to subject them to such
questioning under s 41, which carries criminal sanctions for any failure or
refusal to cooperate. It is also unconstitutional to subject children to warrantless
arrest and detention under s 41, except as a matter of last resort and subject to
safeguards.
[134]. I am therefore of the view that s 41 should be read down to avoid these
unconstitutional consequences, with an appropriate declaratory order, as
reflected in prayer 14A.3.
Conclusion and Costs
[135]. In this application, the applicants seek to prohibit conduct by Operation
Dudula that is unlawful . They also apply for orders requiring the SAPS and the
DHA to discharge their obligations in their dealing with Operation Dudula and
victims of its conduct . Moreover, the applicants seek an order requiring the
government to implement its own policy — the 2019 National Action Plan — to
combat racism and xenophobia . And lastly the applicants apply to have s 41 of
the Immigration Act subjected to appropriate const itutional scrutiny. As I have

48
already indicated supra, the applicants are entitled to some of the relief sought
by them in their amended notice of motion and they are not entitled to other
relief.
[136]. As for costs, the applicants have been substantially successful against
Operation Dudula and those government respondents, who opposed the
application. This means that, applying the general rule that a successful party
should be awarded the costs of his suit, the applicants should be awarded the
costs of the opposed application as against the foregoing respondents.
Order
[137]. In the result, I make the following order:
(1) It be and is hereby declared 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 to demonstrate her / his right to be in the
Republic of South Africa and that no private person has the power to do so
unless expressly so authorised by law.
(2) The first respondent, the eleventh and twelfth respondents be and are
hereby 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.
(3) The first respondent, the eleventh and the twelfth respondents be and are
hereby interdicted and restrained from: -
(a) Intimidating, harassing and/or assaulting any individuals that they
identify as being foreign nationals;
(b) Making public statements that constitute hate speech on the grounds of
nationality, social origin or ethnicity at public gatherings, on social
media platforms or in any other way;
(c) Interfering with the access of foreign nationals to health care services
and/or their right to such access;

49
(d) Interfering with access to, or the operations of, schools and intimidating
or harassing learners, teachers or parents at schools;
(e) Unlawfully evicting foreign nationals from their homes;
(f) Unlawfully removing foreign nationals from their trading stalls or
interfering with the employment of foreign nationals in shops and
businesses;
(g) Instigating, encouraging or inciting any other person to perform any of
the acts prohibited by this order, on social media, at gatherings in terms
of the Regulation of Gatherings Act 205 of 1993, or in any other way;
(4) The first respondent be and is hereby ordered and directed to
communicate this order to any and/or all of its office -bearers and
members.
(5) The second respondent be and is hereby directed and ordered to take
reasonable steps to implement the National Action Plan to Combat
Racism, Racial Discrimination, Xenophobia and Related Intolerance,
including by: -
(a) taking steps to establish an early warning and rapid response
mechanism regarding threats of xenophobic hate speech and hate
crimes;
(b) collating and publishing disaggregated data in respect of xenophobic
hate speech and hate crimes, including the prosecution and conviction
of persons who commit such offences.
(6) It be and is hereby declared that on a proper interpretation of section 41 of
Immigration Act 13 of 2002, the powers conferred on an immigration
officer or police officer:
(a) 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;

50
(b) 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 as a citizen, permanent resident or
foreigner; and
(c) do not permit the interrogation, arrest and detention of children under
the age of 18, except as a measure of last resort and in a manner that
is consistent with section 28(1)(g) of the Constitution.
(7) The first, second, third, fourth, sixth, eleventh and twelfth respondents,
jointly and severally, the one paying the other to be absolved, shall pay the
applicants costs of their opposed Special Motion, such cost to include the
costs of three Counsel, where so employed, and in regard to Counsel’s
costs incurred after 12 April 2024, same shall be on scale ‘C’ of the tariff
applicable in terms of Uniform Rule of Court 67A.
__________________________ __
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg

51
HEARD ON: 10 and 11 June 2025
JUDGMENT DATE: 4 November 2025
FOR THE APPLICANTS: J Brickhill, with C McConnachie and
Z Raqowa
INSTRUCTED BY: SERI Law Clinic,
Braamfontein, Johannesburg
FOR THE FIRST, ELEVENTH AND
TWELFTH RESPONDENTS: No appearance
INSTRUCTED BY: No appearance
FOR THE SECOND RESPONDENT: No appearance
INSTRUCTED BY: No appearance
FOR THE THIRD AND FOURTH
RESPONDENTS (THE SAPS): W Isaaks
INSTRUCTED BY: The State Attorney, Johannesburg
FOR THE FIFTH RESPONDENT
(THE DHA): W Mokhare SC, with K Mnyandu
INSTRUCTED BY: The State Attorney, Johannesburg
FOR THE SIXTH, SEVENTH, EIGHTH
AND NINTH RESPONDENTS:
No appearance – all of these
respondents delivered notice of
intention to abide the Court’s decision
INSTRUCTED BY: The State Attorney, Johannesburg
FOR THE TENTH RESPONDENT
(MEC for EDUCATION, GAUTENG): No appearance
INSTRUCTED BY: The State Attorney, Johannesburg
FOR THE THIRTEENTH
RESPONDENT (THE HRC of SA): I De Vos
INSTRUCTED BY: The Human Rights Commission of
South Africa, Johannesburg

52
FOR THE FIRST AMICUS CURIAE
(SECTION27): N Nyembe
INSTRUCTED BY: Section27, Braamfontein
FOR THE SECOND AMICUS CURIAE
(THE INTERNATIONAL COMMISION
OF JURISTS or ICJ):
T Pooe
INSTRUCTED BY: Webber Wentzel, Cape Town
FOR THE THIRD AMICUS CURIAE
(MEDIA MONITORING AFRICA
TRUST or MMA):
Deborah Mutemwa, with
Akhona Mehlo
INSTRUCTED BY: Power & Associates Incorporated,
Rosebank, Johannesburg
FOR THE FOURTH AMICUS CURIAE
(UNITED NATIONS SPECIAL
RAPPORTEUR ON HUMAN RIGHTS
DEFENDERS):
Jatheen Bhima
INSTRUCTED BY: Lawyers for Human Rights,
Braamfontein, Johannesburg