Court rules against SAHRC: Application against March and March, Operation Dudula deemed 'not urgent'

In a significant blow to the South African Human Rights Commission, the Durban High Court has rejected its urgent application against anti-immigrant groups policing hospital access.

The court struck the matter off the roll on Friday, ruling it not urgent despite claims that foreign nationals were being denied critical healthcare. 

SAHRC filed an urgent application asking the court to stop several parties from blocking people's access to healthcare services, especially at Addington Hospital. These parties included two organisations (March and March movement and Operation Dudula), government officials (the Health Minister, KwaZulu-Natal's Health MEC, Addington Hospital's CEO, and the Home Affairs Minister), and individuals like Jacinta Ngobese-Zuma, who founded the March and March movement.

Additionally, the SAHRC wanted the court to direct the station commander of Point police station, the CEO of Addington Hospital, and the MEC of Health in KZN to maintain public order, to protect and secure the right of persons seeking to access healthcare services at any healthcare facility.

The application also sought to prevent Dudula and March and March from demanding that any private person produce their identity document, passport, or any document demonstrating their right to be in the country.

Advocate Muhammad Suleman, representing the SAHRC, said the matter was urgent and asked for the court to issue an order or a temporary order, as women and children were affected by the actions of the two groups. 

To support his urgent argument, Suleman cited incidents that happened in July of foreign nationals being denied access to Addington Hospital.  

However, the counsels for the respondents said they were given four days to have a look at the 260-page application document filed against them. They further stated that the urgency claimed by the Commission was self-created.

Advocate Vishalan Naidoo, instructed by the office of the State attorney representing the ministers and MEC cited as respondents, argued that the notice of motion granted in September by Judge Bruce Bedderson ordered that SAHRC provide an unreduced founding affidavit revealing the identities of those it referred to in the July incidents.

“The unreduced version with names should have been served to us so that Home Affairs can investigate if those people are properly registered,” Naidoo said. 

Advocate Griffiths Madonsela SC, representing March and March, Ngobese-Zuma and others, asked for the matter to be struck off the roll, emphasising the importance of the matter. 

Madonsela questioned the procedure that was followed by SAHRC in the matter.

“This is a weighty matter. It cannot be dealt with on an urgent basis. Asking the court to sanction the police to use teargas and rubber bullets against citizens advocating for this country. This must be ventilated in a full-blown hearing,” he said. 

He told the court that the March and March have no problem with people accessing healthcare services. 

“Our gripe with the current state of affairs is against people of SA being constrained to access healthcare services where the undocumented exhaust resources of the state. We can't have a state that does not take care of its citizens but does that for the undocumented. Charity begins at home,” Madonsela SC stated. 

Acting Judge Dave Saks agreed with the respondents, saying that they had been put under undue pressure with no evidence of any new incidents, and deemed there was no urgency in the application. 

Outside the court, Ngobese-Zuma said the court ruling demonstrated that no one is above the law, and that includes SAHRC. 

“They cannot just wake up one morning and decide that they want to take us all to court and say the police must arrest us. There is due process that must be followed,” she said. 

Moreover, she welcomed the ruling, describing it as a victory, and said the court has granted them time to be able to prove everything that they have been saying. 

Dudula's Zandile Dabula said she was happy with the ruling. “I hope that South Africans can see that we are for them. SAHRC is very questionable. Now we will have time to meet with our legal representatives to finalise everything,” she said. 

nomonde.zondi@inl.co.za