Press statement: Application challenging Operation Fiela-Reclaim removed from urgent roll

The urgent high court application to interdict the government from continuing with Operation Fiela-Reclaim raids unless legislative provisions are adhered to has been removed from the urgent roll in the high court in Pretoria.

Lawyers for Human Rights (LHR) brought the challenge in light of grave concerns around the legality of Operation Fiela-Reclaim - a joint operation conducted by the police, army and department of home affairs.  Specifically, LHR views the decision to implement raids in the early hours of the morning, in “cordoned off” areas with the army and Department of Home Affairs (and without the warrants required by legislation) as blatantly unlawful. The raids also appear to target non-nationals despite claims to the contrary.

LHR would like to reiterate its call on government to respect the rule of law when conducting these police operations and adhere to its constitutional obligations, including section 14 of the Constitution that ensures the right to privacy.  People also have the constitutional right not to be arbitrarily or unlawfully detained and have the right to access legal representation, both of which are fundamental constitutional principles and both of which have been denied to detainees arrested under Operation Fiela.  It was only after LHR obtained several court orders that we were able to even consult with detained clients and secure their release.  For some, it was too late and they had already been deported in circumstances which LHR views as both unlawful and in the utmost bad faith by the government.

The departments of home affairs and police have maintained that Operation Fiela-Reclaim has been conducted in terms of section 13(7) of the SAPS Act. However, reliance on this section is incorrect and seems to be a convenient manner of circumventing the lawful requirement of obtaining a warrant. This provision details how police operations can be carried out and clearly states that only situations requiring the restoration of public safety can justify early morning raids and entry to people's homes without a court order.

In arguments for urgency, LHR's counsel Advocate Paul Kennedy highlighted that Fiela is ongoing and poses an imminent threat to more individual's constitutional rights.

Judge Hiemstra found that LHR had failed to prove that Operation Fiela was an ongoing trend and concluded that Operation Fiela only happened once on 8 May 2015.  We are disappointed by this outcome and will continue to monitor the raids as they continue across the country to ensure that they are fully compliant with the Constitutional and do not unlawfully infringe upon the rights of the public. 

We are equally concerned about the cost order which was issued against LHR in what is clearly constitutional litigation. The Constitutional Court has dealt with the issue of costs in public interest litigation where constitutional rights are brought before a court. In the matter of Biowatch, the Constitutional Court said that costs should not be used to prevent litigants from bringing cases of constitutional importance before the courts.