Disturbing court judgment ignores our rights

As Operation Fiela has swept through the country, it has violated the rights of many people, both South Africans and foreigners. LHR’s urgent application to interdict unlawful search and arrest raids in the course of Operation Fiela raised significant questions of law for those affected by the operation, as well as the wider public.

LHR challenged the constitutionality of the operation’s search and arrest raids, which were being carried out in private homes in the early hours of the morning without obtaining warrants.

The police and army used section 13(7) of the South African Police Service Act to cordon off areas in communities to conduct their search and arrest operations. LHR argued that this provision is supposed to be utilised in situations in which there is an immediate need to restore order in an area. It submitted that there appears to be no reason why warrants could not have been obtained in the ordinary course of the legal process in raids at the Johannesburg Methodist Church and Fattis Mansion that took place on 8 May 2015, as well as the numerous other raids that have taken place across the country over the last two months.

Evidence gathered from people who were detained and their family members shows that the army and police kicked down doors in the early hours of the morning and even stood on people’s heads while searching their rooms. There have been reports that South Africans were arrested in the course of the operation, either because they were mistaken for foreigners or because they were living with foreigners.

Alarmingly, the Department of Home Affairs responded to this contention in its answering affidavit by stating that it was unaware of any arrests of South Africans living with foreigners but that - because the Immigration Act makes it an offence punishable by imprisonment for anyone to knowingly assist an illegal foreigner to remain in the country - it would be “perfectly within the rights of the South African Police Services or anyone else for that matter, to arrest and lay charges against such South Africans.”

LHR argued that this conduct was a violation of individuals’ rights to privacy and dignity and that the police and army should be interdicted from conducting further raids and searches of private dwellings without warrants and without following the correct procedures set out the in the Criminal Procedure Act and Immigration Act.

LHR also requested an order interdicting the respondents from arresting and detaining suspected undocumented foreigners without following the procedure to assess an individual’s status set out in the Immigration Regulations, and from detaining people for longer than 48 hours for the purpose of ascertaining their immigration status. As much as the government has continued to deny that the operation has targeted foreigners, the arrest figures tell a different story .

LHR also asked the court to make an order declaring that the President’s deployment of the South African National Defence Force in Operation Fiela was unlawful as the President did not give notice in the Government Gazette as required by the Defence Act.

These are all essential questions of law which have an immediate impact on those affected by Operation Fiela. But Judge Jan Hiemstra did not deal with any of them because he simply removed the application from the roll due to “lack of urgency”. The judge felt that LHR had not succeeded in proving that Operation Fiela was an ongoing trend and that Operation Fiela happened only once, on 8 May 2015.

This finding is problematic for a number of reasons. The contention that Operation Fiela only “happened once” is not true. Numerous raids across the country have been reported over the past few months, many of which involved forced entry into private dwellings. Two days after this application was struck down, raids in private homes in Du Noon in Milnerton took place. Videos have been posted showing doors being kicked down with force and broken down using sledgehammers. The SAPS website details raids and arrests having taken place under its “successes”. Days before the application was heard, on Saturday 20 June, the army essentially shut down the Cape Town Station and arrested 86 people, 81 of whom were allegedly undocumented migrants. Groundup reported eye-witness accounts of this incident.

There are also reports of the anti-xenophobia camps, set up to protect victims of xenophobia, being raided last week. In view of this, it is difficult to understand how this matter did not qualify as urgent.

Other concerning issues arose prior to these court proceedings. LHR had to obtain a court order to get access to those detained, and many people were deported before they could consult with them. They were therefore denied their right to legal representation. In the case of people from countries in turmoil, such as Burundi at present, their deportation would be a violation of the international law principle of non-refoulement, which states that governments may not deport an individual to a country where they will face persecution.

Perhaps the most disconcerting aspect of Judge Hiemstra’s decision to strike the case from the roll, is the fact that he ordered Lawyers for Human Rights to pay the state’s costs. An essential and unique feature of South Africa’s jurisdiction is that private parties in constitutional litigation are not ordered to pay the costs of the state. This is known as the Biowatch principle — after the case in which it was first applied — and was reaffirmed earlier this year by the Constitutional Court in Tebeila Institute v Limpopo College of Nursing. This principle is vital because the threat of a hefty costs order discourages parties from challenging constitutionally questionable practices of the state.

The failure to apply the Biowatch principle by Judge Hiemstra amounts to punishing an NGO for attempting to ensure that the Constitution is upheld.

In a comment on Twitter, someone asked LHR who they were protecting by going to court in this matter, implying that LHR are trying to protect criminals. This view is extremely short-sighted. LHR stated in its papers that they do not refute the validity of the objective of crime prevention, but they object to the manner in which Operation Fiela has been implemented. The nature of this operation has caused the rights of many law-abiding individuals, including foreigners who do have a legal right to remain in the country and South Africans who have committed no crimes, to be violated.

This application was not to “protect criminals”. The relief was aimed at protecting the rule of law and the South African public from abuses of power by the government. And that is the crux of the issues surrounding Operation Fiela.

The South African government has repeatedly demonstrated that it views itself to be above the law. It has also shown itself to be adept at diverting attention away from its failings. Its conduct in deploying the army without following the requisite procedure, and authorising the disregard for the fundamental human rights of individuals in the course of Operation Fiela, are yet more examples of this. It is disappointing that the judge essentially endorsed the government’s belief that it need not obey the law by declining to answer vital questions about the legality of Operation Fiela on an urgent basis, despite the fact that the operation, and the human rights violations that come with it, are ongoing.

Wallis is a Candidate Attorney at the Legal Resources Centre. Views expressed are not necessarily GroundUp’s.