Press statement: LHR files high court challenge against Operation Fiela-Reclaim

Lawyers for Human Rights (LHR) has launched a high court challenge against the way in which Operation Fiela-Reclaim is being conducted across the country. 

LHR is seeking an order declaring that the way in which this operation has been conducted in people’s homes is unlawful and unconstitutional to the extent that they were carried out without proper compliance with the need for warrants, under a deliberate misapplication of the South African Police Service Act and at night in a manner which resembled an immigration clampdown that appeared to target foreign nationals under the auspices of a crime “clean up”. 

The matter will be heard on Tuesday, 23 June 2015, in the high court in Pretoria.

Following the xenophobic violence that took place in KwaZulu-Natal and elsewhere in the country in April, President Jacob Zuma appointed an Inter-Ministerial Committee (IMC) to deal with issues of migration. This move was welcomed but the IMC responded to xenophobia by instituting Operation Fiela, which it claims is a crime-fighting operation to restore law and order on South Africa’s streets while targeting specific crimes relating to drugs, prostitution, illegal trading and undocumented migrants. 

On 8 May 2015, a raid – as part of the larger Operation Fiela-Reclaim - took place in the Johannesburg city centre and saw foreign nationals targeted and arrested in their homes in the early hours of the morning by police and military officials and supported by immigration officers from the Department of Home Affairs.  We were informed by the police that this operation had taken place under the SAPS Act, which meant there was no warrant issued by a court, as required by law.

LHR is gravely concerned that operations that are conducted in violation of section 14 of the Constitution that guarantees the right to privacy and not to have one’s home searched unless it is authorised and done in accordance with governing legislation. This action may only be conducted with the authorisation of a warrant and only on reasonable grounds. This is fundamental to our constitutional dispensation, the right to dignity and the rule of law. 

“This case is not about stopping the government’s ability to fight crime but ensuring that it does so within the confines of the law,” said LHR’s David Cote.  “In the normal course of operations, police must get warrants to enter people’s homes. There is no reason why they should not do so under Operation Fiela-Reclaim.”

Unfortunately, this operation comes on the heels of no less than three urgent high court applications in the last month seeking access to the same clients arrested on 8 May in Johannesburg.  Once at the Lindela Repatriation Facility, many of our clients were deported before their matters could be heard in court in clear violation of these court orders.  This ongoing violation of the rights of foreign nationals by Home Affairs, including the right to choose and consult with a legal practitioner while in detention, is a reflection of the government’s misguided attempt to deal with xenophobia.