Judge says Operation Fiela application isn't urgent

An attempt to have the way Operation Fiela/Reclaim is executed declared unlawful will have to go through the normal court processes.This was the result on Tuesday when Lawyers for Human Rights (LHR) brought an urgent application in the North Gauteng High Court in Pretoria for an order declaring that some parts of the operation's application on the ground contravened the National Defence Act‚ the South African Police Service Act and the Immigration Act‚ as well people's constitutional right to privacy.

Judge Jan Hiemstra said he had no reason to believe that the alleged unlawful operations were likely to happen again and struck the application off the roll for lack of urgency. He also ordered that LHR pay the costs of the other parties.

LHR brought the case against the Presidency‚ the departments of home affairs and defence and the South African Police Service.

The human rights organisation’s main argument revolved around the validity of a section in the Police Act used to cordon off specific areas for search and seizure operations without a warrant.

LHR counsel‚ advocate Paul Kennedy‚ said that the police commissioner was using the section as “carte blanche” to remove migrants from the country. The section is usually used in situations where public order must be restored or public safety ensured.

“Not only are individuals’ lives being trampled on in different ways‚ but the operation is being carried out in ways that are unlawful‚” Kennedy said. “It would be inappropriate to allow the authority to continue acting unlawfully.”

But advocate Mike Bofilatos‚ appearing for the government departments‚ said that there was nothing to suggest the continuation of the section's use in the future procedures of Operation Fiela/Reclaim‚ and thus LHR's argument for an urgent interdict fell flat.

Hiemstra agreed.

“There is no evidence that this was a trend‚” said Hiemstra. “I have no reason to believe it will happen again.”

Advocate Bantubonke Tokota‚ appearing for the police and the South African National Defence Force‚ said that LHR's argument was purely speculative.

“There is nothing to set aside because it is already in the dustbin‚” he said.

Tokota said it would be wrong to stop members of the police doing their duty and that the section rightly allowed the police to act without a warrant.

Operation Fiela/Reclaim was launched in April after xenophobic violence swept through KwaZulu-Natal and Gauteng. According to the government‚ it was meant to crack down on crime and criminals but it has been criticised for targeting foreigners.

Various raids took place across the country including in Hillbrow‚ Belville‚ Groblershoop in the Northern Cape and Korsten in Port Elizabeth. LHR said in court papers that 12 000 people were reportedly arrested in KwaZulu-Natal.

On May 5‚ hundreds of people were arrested and taken to the Johannesburg Central police station after the Central Methodist Church and Fatti's Mansion were raided in the dead of night. Some of the detained claimed SAPS and SANDF members used excessive force‚ kicking down doors without warning. Detainees said that their rooms were left in chaos and that money was taken from them.

LHR believes the SAPS and SANDF acted without proper authorisation‚ in that search warrants were not issued by magistrates or judges. They also said that the raid was “clearly” an immigration raid.