Judge Stuart Wilson, in his ruling on Thursday, said: “I had to go no further than to direct the relevant organs of state to do what they are plainly obliged to do within existing legislation and policy. That is to act in a co-ordinate way to ensure access to the clinics.”

“The weakness of the state’s response to a well-organised attack on some of the most vulnerable people in our society is of grave concern,” he said. “I am under a duty to grant effective relief to remedy that shortcoming.”

The urgent matter was heard in late November, initiated by the Treatment Action Campaign, Médecins Sans Frontières and Kopanang Africa Against Xenophobia.

The respondents were the managers of the Yeoville and Rosettenville clinics, the City of Johannesburg, and local, provincial and national health and police authorities.

In an interim order, the government entities have now all been directed to take reasonable measures to ensure safe and unhindered physical access to the clinics, to put a stop to the vigilante blockades, to ensure that there are adequate numbers of security guards at entrances, and to report all incidents to the police. The applicants intend to also apply to the court for a final order which will cover all health facilities in Gauteng.

The police have been ordered to provide all necessary assistance to ensure compliance with the order.

The respondents must also file a report within 10 court days, detailing actions they have taken to comply with the interim order.

“Xenophobia is one of the greatest threats to democracy and human rights we presently face,” Judge Wilson said. “Leaving aside the fact that it feeds on that most toxic of human instincts – the hatred of the other – forgetting that it is animated by the fantasy that the presence of foreign nationals in South Africa immiserates the lives of its citizens and overlooking that, in its practised form, it is merely another kind of racism, the problem is its misdirection.”

“If we can blame foreigners we need not look to ourselves for solutions to the poverty and inequality that scar our society.”

The judge said the applicants had been getting complaints about the vigilante groups blocking access to the clinics by immigrants by demanding to see their identity documents.

“It appears that those blocking access rely on the passivity of the clinic staff. Security guards and frontlife staff and managers have done little or nothing,” Wilson said.

“On the papers, it seems that those blocking access have at times been allowed to operate from inside the clinics themselves, effectively taking over the security guards’ access control function.”

He said the government departments did not dispute these facts nor did they deny that conduct was unlawful.

“The health authorities contended that they have no direct responsibility or control over the clinics and they have no interest in what goes on outside the clinics’ gates.” In other words, said the judge, their lawyers had submitted that if vigilantes gathered outside to block access, the health authorities had no legal obligation to interfere.

“This position is so extraordinary, that I had to ask (the counsel) to explain it to me twice. When I had come to grips with it, I was satisfied that it is wholly misguided,” he said.

Wilson added, “If the vigilantes have overwhelmed the security guards (and there is little to suggest this on the papers) then security needs to be enhanced,” he said. “If the security guards are actively assisting the vigilantes because they are sympathetic to their aims, steps must be taken to discipline or replace them.”

SAPS had said it had now issued a national instruction “seeking to activate resources and co-ordinate plans” and had asked what else it could be expected to do. “The answer, it seems to me, is plain enough. Wrest control of the clinics from the hands of the vigilantes or show that it is beyond the capacity of the police, and other state roleplayers, to do so,” the judge said.

Wilson said whatever steps had been taken so far, had been completely ineffective, at least at the two clinics. He said the vigilantes were reported, but they were not prosecuted and the blockades carried on.

“It is undisputed that the harm is severe and ongoing. It seems to me that there has been no credible opposition to put up the interim relief.

“The applicants have a strong prima facie right to the final relief they seek – the adoption of effective measures to eradicate the activities of the vigilantes,” Judge Wilson said.

He gave the applicants leave to approach the court on the same papers for further action to enforce the order.

Written by Tania Broughton for GroundUp and republished with permission. The original article can be found here.

The post “Wrest control of the clinics from the hands of the vigilantes” judge tells state appeared first on ProtectionWeb.

GroundUp spoke to immigrants who claim they have been blocked from accessing life-saving medicines at Johannesburg clinics. They accuse the anti-immigrant group Operation Dudula of blocking their access, sometimes in collaboration with clinic staff.

This is despite a court order preventing Operation Dudula from doing this.

To protect identities, we have used first names or pseudonyms.

Witness testimonies

Beauty, who has a 19-year-old daughter with HIV, says her daughter was chased away from Alberton Clinic by members of Operation Dudula. She claims Operation Dudula members checked IDs and her daughter was removed from the queue.

Beauty’s daughter was at the clinic to collect her antiretrovirals (ARVs). She says she will run out in two weeks.

Kudzai, who is 35, last received her ARVs and blood pressure pills from Spartan Clinic in Kempton Park in July. She had been attending the clinic since 2017 without any problems. When she went to the clinic last week, members of Operation Dudula turned her away before she could get her medicines, she says.

“I cannot die because some people are trying to gain attention through politics. I just want to live and take care of my children. If I die, who is going to take care of my kids?” said Kudzai.

She said the health department must urgently intervene to make sure no one is denied access to life-saving medication.

Chenai is nine. She has been taking ARVs since she was six. Her mother, Janet, claims Chenai was receiving her medicines from Charlotte Maxeke Hospital until Operation Dudula members started standing at the hospital three months ago, preventing immigrants from accessing care. Janet says she now has to buy ARVs from a pharmacy for herself and Chenai, and then only when she has money.

“When her medicine runs out, she goes for days without ARVs until I manage to get money. Operation Dudula members should have a heart because even children are suffering,” said Janet. Her and Chenai’s current stock of ARVs will soon run out.

Cathrine has been collecting ARVs from the Jeppe Street clinic. But for three months, she has struggled to access her medication because Operation Dudula has been blocking her, she says. She managed to buy ARVs from a pharmacy once. She sometimes skips doses so that her pills last longer.

“We should not be denied ARVs, because without them we will die,” said Cathrine.

We went to clinics to see for ourselves

I visited Spartan clinic and the clinic at the Kempton Park civic centre on Thursday. I visited Rosettenville and Alberton North clinics on Friday.

At the Spartan Clinic a woman in plain clothes sat next to a security guard at the clinic gate, checking IDs of every person who went into the clinic. Most people who went in had South African IDs. Later in the day, Kudzai went into the clinic, past both the woman and the security guard. Both the woman checking IDs and the security guard followed her and instructed her to get out. They told her only people with South African IDs were allowed to get inside the clinic. In a short while another security guard joined and they all started shouting for the woman to leave the clinic.

I approached the security guards and the woman who was checking IDs and identified myself as a reporter. I asked why they chased Kudzai away, when she desperately needs ARVs.

They answered that “a new rule” had been passed by the community that only South African citizens are allowed to attend the clinic and that all foreign nationals should be chased away, regardless of what their illness is.

When asked if clinic staff approved of the “new rule,” they said management inside the clinic would confirm the truth of what they had said. Up to three other people had also gathered at the gate.

One member of staff who had come out of the clinic revealed that the woman checking IDs and others standing at the gate were from Operation Dudula and that the clinic had been instructed not to treat foreigners. When we asked if the Department of Health approved of this, the woman said the matter was “political and beyond the clinic’s control”.

I asked if they were aware that some of the people being chased away were on ARVs. The staff member repeated that the clinic had been instructed by members of Operation Dudula to turn immigrants away.

The patient added that she and other foreign nationals were being chased away from the same clinic and one at the Kempton Park civic center daily. She said many people in desperate need of care were now afraid to approach the two clinics.

At the Kempton Park civic centre clinic we found people already inside the clinic. Two car guards told us that Operation Dudula had already checked IDs early in the morning before the clinic opened.

At Rosettenville clinic on Friday two women sat outside the clinic checking IDs. A security guard standing behind the clinic gate said everyone had to pass through the women before going inside the clinic. The two women said only South African ID holders were allowed inside the clinic and not foreign nationals.

“All foreigners should either go to private doctors or go back and fix their countries. We no longer have enough medication in our clinic because of foreigners,” said one woman.

The two said immigrants were not allowed in the clinic with or without legal documents and regardless of what medication they were taking.

While the two women did not admit to being members of Operation Dudula, immigrant informal traders selling fruits and vegetables near the clinic said the women were members of Operation Dudula, wearing ordinary clothes (instead of the uniform that Dudula members wear).

Both women said the decision to chase foreign nationals from the clinic had been decided upon by the community.

At the Alberton North clinic in Johannesburg South, where Beauty’s daughter used to take her medication, two women in green reflective vests sat at the clinic entrance. They said all foreigners with different illnesses should go to the Unjani Clinic in Germiston for free treatment or to Dischem, Clicks, or private facilities if willing to pay. When asked where the decision comes from, they said it was a decision made by both the clinic and the community.

The women did not admit to being members of operation Dudula, but immigrants who spoke to us nearby said they were Operation Dudula members.

“We have been told that the clinic does not have enough medication to give foreigners. Some foreigners we referred to Unjani Clinic reported to us that they managed to get help there,” said one of the two women.

A web search indicated that Unjani Clinic charges a R300 fee.

Court order

Kopanang Africa Against Xenophobia, the South African Informal Traders Forum, the Inner City Federation, and Abahlali BaseMjondolo went to court to interdict Operation Dudula from denying access to health care to immigrants.

On 4 November the Gauteng High Court in Johannesburg ruled in their favour and stopped Operation Dudula from demanding ID documents from members of the public and from preventing foreign nationals from accessing health care.

Mike Ndlovu from KAAX says the organisation has since received numerous complaints of immigrants being harassed or turned away at clinics, mostly in Gauteng and KwaZulu-Natal and to a lesser extent from Limpopo and Mpumalanga.

“Our own monitoring and reports from partners like Doctors Without Borders (MSF) confirm it. MSF’s recent assessment found patients being turned away from more than half of the health facilities they visited in Gauteng,” said Ndlovu.

“The accounts are distressing: people living with HIV have gone for weeks without medication,” Ndlovu said, adding that the actions of Operation Dudula are in contempt of court. He called for the court ruling to be enforced.

We asked Operation Dudula

GroundUp put the witness testimonies to Zandile Dabula, leader of Operation Dudula, over WhatsApp before we visited the clinics. (Dabula is herself explicitly interdicted by the 4 November ruling.)

“May thy produce proof that those people are from Operation Dudula since you know even ordinary citizens have joined the struggle outside our mandate,” she responded.

We explicitly asked her if she denied Operation Dudula has been preventing immigrants from accessing health services since the court ruling. She did not answer.

The 4 November court order says that Operation Dudula has to communicate the order to their members. So we asked Dabula if and how this had been done. She did not answer.

After I visited the clinics, GroundUp sent questions to Dabula asking if she was aware that Dudula members were blocking access to clinics. She did not answer.

Department of Health Responds

National Department of Health spokesperson Foster Mohale said the department is not aware of Operation Dudula’s current actions.

“If it is happening, it means they are deliberately breaking the law and undermining the court ruling, which is a serious offence,” said Mohale.

He said the department needs evidence to prove that some clinic staffers are denying people without IDs access to healthcare, including ARVs, to take action against the implicated officials.

“Anyone who breaks the law must be reported to law enforcement agencies, including police,” he added.

Order of the Gauteng High Court

Here is an extract of the order by Judge Leicester Adams in the Gauteng High Court on 4 November.

1) It be and is hereby declared that only an immigration officer or a police officer has the power in terms of section 41 of the Immigration Act 13 of 2002 to demand that another private person produce her / his passport or other identity documents to demonstrate her / his right to be in the Republic of South Africa and that no private person has the power to do so unless expressly so authorised by law.

(2) The first respondent, the eleventh and twelfth respondents be and are hereby interdicted and restrained from demanding that any private person produce her / his passport or other identity documents to demonstrate her / his right to be in the Republic.

(3) The first respondent, the eleventh and the twelfth respondents be and are hereby interdicted and restrained from: –

(a) Intimidating, harassing and/or assaulting any individuals that they identify as being foreign nationals;

(b) Making public statements that constitute hate speech on the grounds of nationality, social origin or ethnicity at public gatherings, on social media platforms or in any other way;

(c) Interfering with the access of foreign nationals to health care services and/or their right to such access;

(d) Interfering with access to, or the operations of, schools and intimidating or harassing learners, teachers or parents at schools;

(e) Unlawfully evicting foreign nationals from their homes;

(f) Unlawfully removing foreign nationals from their trading stalls or interfering with the employment of foreign nationals in shops and businesses;

(g) Instigating, encouraging or inciting any other person to perform any of the acts prohibited by this order, on social media, at gatherings in terms of the Regulation of Gatherings Act 205 of 1993, or in any other way;

(4) The first respondent be and is hereby ordered and directed to
communicate this order to any and/or all of its office-bearers and
members.

Written by Kimberly Mutandiro for GroundUp and republished with permission. The original article can be found here.

The post Operation Dudula blocks access to clinics, violating court order appeared first on ProtectionWeb.