Press statement: Judgment reserved in case against discriminatory targeting of foreign traders in Limpopo


Judgment has been reserved in the North Gauteng High Court after hearing two days of arguments against the discriminatory targeting of foreign traders in Limpopo by police and the Department of Home Affairs.

LHR is battling a controversial police crackdown called “Operation Hardstick” that has been used to unfairly target foreign traders. The right to trade is a necessity given the length of time it takes to acquire permits from the Department of Home Affairs, exacerbated by the closure of several refugee reception offices nationwide.

In the case of Somali Association of South Africa and others v Limpopo Department of Economic Development, Environment and Tourism and others, Lawyers for Human Rights challenged the unlawful practice preventing refugees and asylum-seekers from trading and operating businesses within Limpopo.

LHR intervened in the case to ensure the powers of the police, local municipalities and the other respondents are exercised lawfully and with due regard for the rights of refugees and asylum-seekers. LHR is representing the Somali Association of South Africa, the Ethiopian Community of South Africa as well as several individual refugees and asylum-seekers whose livelihoods are being negatively affected by the actions of the respondents.

These infringements are being carried out in two ways:
• The Limpopo Department of Economic Development, Environment and Tourism is refusing to accept applications for trading licenses; and
• A crackdown on illegal businesses, known as ‘Operation Hardstick’, has been used by the police to unfairly target refugees and asylum-seekers.

Acting for LHR, Advocate Kate Hofmeyr emphasized that the police’s Operation Hardstick – meant to crack down on illegal trade – had instead been used to discriminately target refugees and asylum-seekers operating spaza shops in Limpopo. “The police have not given us a single instance in which Operation Hardstick was used against a South African citizen,” said Hofmeyr in court, adding that a lack of any records of arrests during the operation made it impossible to verify numbers.

Advocate Isabelle Ellis, for the South African Police Service, responded that it was not the duty of police to educate refugees and asylum-seekers on the laws of the country in obtaining permits. “Police are not there to provide legal advice – that would be an undue obligation on the police,” she said. She continued that any goods confiscated during raids were the result of illegal trade, denying that police had used Operation Hardstick to target foreign nationals.

In LHR’s submissions it was made clear that neither the Minister of Home Affairs nor the Standing Committee for Refugee Affairs had disputed any of the facts in LHR’s case. Extensive interviews by LHR show that these traders have been unable to find an alternative avenue to survive and so have turned to informal trading to sustain themselves. Statistics show that foreign nationals are less likely to find work than their South African counterparts.

Hofmeyr highlighted that refugees and asylum-seekers had not been allowed to make applications for permits to trade at the Limpopo Department of Economic Development, Environment and Tourism.

Acting on behalf of the Department of Home Affairs and the Standing Committee for Refugee Affairs, Advocate Mike Bofilatos SC argued that the Constitution’s Bill of Rights was restricted to South African citizens and could not be seen to ensure the right of foreign traders to own these shops. “One gets the impression that they aren’t concerned with improving their job attraction capability. They are interested in entering business,” he said. In response to this question posed by Judge Ranchod who presided over the case, “Are refugees also immigrants and should they be governed by the Immigration Act” Bofilatos stated that, “refugees are less than immigrants”.

Bofilatos further claimed foreign traders were “misleading” the public, explaining that he was not “convinced that they are what they are making themselves out to be, vulnerable people”. “It was their choice to come to this country. If they have difficulty entering the job market – one would have expected to see some type of movement to improve their language skills. How do you run a business if you don’t speak the language,” he asked.

LHR has taken the stance that the fundamental rights in the Bill of Rights merely provide a baseline of rights – a minimum of what is required. Parliament has the ability to expand on these rights.