Court rules Operation Fiela challenge not urgent

An attempt to have aspects of the controversial Operation Fiela declared unlawful and unconstitutional heard as an urgent matter was struck off the roll at the Pretoria High Court on Tuesday.

Judge Jan Hiemstra said that after having carefully read the papers and listening to argument by the applicants, Lawyers for Human Rights (LHR), and the government, which included the ministers in the Presidency, Home Affairs, Defence and Police and the chief of the SANDF, he had decided that the matter was not urgent.

''I find that the application is not urgent and it is therefore removed from the roll,'' said Hiemstra.

Operation Fiela began after xenophobic attacks in South Africa in April, with the government explaining that it was in response to pleas by affected communities that criminal elements be removed.

Its focus included drugs, contraband, undocumented migrants, human trafficking and prostitution, hijacked and condemned buildings, illegal possessions of firearms and ammunition, illegal occupation of land and possession of illegal goods.

LHR believe the operation was primarily an immigration clampdown, and was conducted without proper authorisation.

LHR has been in court before over arrests made on May 8 in Johannesburg when it could not get access to the people arrested.

Advocate Paul Kennedy argued that those raids, on Fattis Mansions and the Central Methodist Church, were conducted under a Section 13(7) SA Police Service Act authorisation.

This authorisation, he continued, only allows for an area to be cordoned off for the purposes of restoring order and public safety. For searches and seizures, the government agencies involved were supposed to have obtained a warrant from a magistrate or judge in terms of the Criminal Procedure Act (CPA).

Searches of property or a person without a warrant issued in terms of the CPA would be a violation of the right to privacy in terms of the Constitution, he argued.

Kennedy said that the only searches and seizures permitted in terms of the Section 13(7) warrant would be, for example, if there had been looting in a cordoned off area where police would be allowed to stop a person carrying off something looted.

LHR was not challenging the entire operation, but merely certain aspects which it believed constituted violations of the law.

''It must be heard urgently because the damage that will occur, will occur quickly. Operaton Fiela is an operation that is currently happening.''

The government's counsel advocates Mike Bofilatos and Bantubonke Tokota disputed that the application should be treated as urgent.

Bofilatos said the operation was being conducted in seven provinces, but that LHR was only referring to the Johannesburg operation.

Tokota added that one of the clauses of Section 13 did in fact permit searches, and so the LHR application was ''in the dustbin'' and not urgent.

In refusing the application for it to be heard urgently, Hiemstra said: ''The factual situation is there was a possible abuse of power by the provincial or national commissioner of police by issuing authorisation under S13(7) of the SAPS Act. There is no evidence that this was a trend that is going to happen again in the near future.

''There is no suggestion on the papers that the situation in the country is such that it may be necessary at any moment to act in the same manner, whether it was lawful or not.''

He also ordered that LHR pay costs.

LHR lawyer David Cote said afterwards that they would decide how to proceed - whether to enroll as a matter to be heard in the normal course of applications.

LHR had hoped that if Hiemstra had allowed the matter to be heard urgently, they would ask him to declare as unlawful the deployment of the SA National Defence Force (SANDF) in co-operation with SAPS under Operation Fiela without the required notice being given in the Government Gazette in terms of Section 19 (2) of the Defence Force Act 42, and that he declare the authorisation issued under Section 13(7) of the SAPS Act for operations which took place in Central Johannesburg on 8 May 2015 unlawful and be set aside.

LHR also wanted an order interdicting national police commissioner Riah Phiyega and Gauteng commissioner Lesetja Mothiba from issuing any further authorisations in terms of Section 13(7) of the SAPS Act for operations under Operation Fiela ''insofar as any future operation is not necessary to restore public order or to ensure the safety of the public in a particular area''.

LHR also wanted the respondents interdicted from conducting further operations under Operation Fiela within private dwellings without warrants issued by a magistrate or judge under the CPA; to interdict the respondents from using force to enter or gain access into private dwellings; and to not keep people detained in Operation Fiela for the purpose of verifying identities and status for longer than 48 hours.