Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others

1. Case Title & Citation 

Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others  

(2023/044685) [2025] ZAGPJHC 1102 (4 November 2025) 

2. Court Name and Bench 

Name of the court: High Court of South Africa Gauteng Division, Johannesburg Name of the Judge: Adams J 

Bench type: Single bench of High Court 

3. Date of Judgement  

4 November 2025 

4. Parties involved 

First Applicant: Kopanang Africa Against Xenophobia 

Second Applicant: South African Informal Traders Forum 

Third Applicant: Inner City Federation 

Fourth Applicant: Abahlali Basemjondolo Movement SA 

And  

First Respondent: Operation Dudula 

Second Respondent: Government of the Republic of South Africa 

Third Respondent: Minister of Police 

Fourth Respondent: National Commissioner of the South African Police Service Fifth Respondent: Minister of Home Affairs 

Sixth Respondent: Minister of Justice and Correctional Services 

Seventh Respondent: Member of the Executive Council: Gauteng Department of Health Eighth Respondent: Minister of Health 

Ninth Respondent: Minister of Basic Education 

Tenth Respondent: Member of the Executive Council: Gauteng Department of Education Eleventh Respondent: Zandile Dabula 

Twelfth Respondent: Dan Radebe 

Thirteenth Respondent: The South African Human Rights Commission 

First Amicus Curiae: Section 27 

Second Amicus Curiae: International Commission of Jurists 

Third Amicus Curiae: Media Monitoring Africa (‘MMA’) 

Fourth Amicus Curiae: The United Nations Special Rapporteur on Human Rights  Defenders 

5. Facts of the Case 

In this case the applicants allege that Operation Dudula has been violating the rights of the  foreigners that are staying in South Africa. The applicants are seeking interdictory relief  and declaratory orders to stop Operation Dudula from continuing with their unlawful  conducts, their conducts include: intimidation, harassment, assault, spreading of hate  speech against foreigners, denying foreigners access to health care services, education and  wearing of uniform that looks like South African National Defence Force.1 

The applicant also allege that the government is condoning such conducts because they  never took necessary steps to address the unlawfulness of Operation Dudula’s conduct and  the broader threat of xenophobia in our country.2 The applicant is seeking an order from  court to compel the government to implement National Action Plan to Combat Racism,  Racial Discrimination, Xenophobia and Related Intolerance.3 The applicants also seek a  relief that will require the South African Police Services (SAPS) to fulfil their constitutional  duties, they also want a relief for both the Department of Home Affairs(‘DHA’) and SAPS  to prevent them from supporting Operation Dudula.4 

6. Issues Raised 

• Whether the conduct of Operation Dudula amount to unlawful conduct. • Whether the wearing of clothing resembling military uniform by Operation  Dudula contravenes with the provision of section 8(6) and (8) of the Regulation  of Gathering Act 205 of 1993 and section 104(5) of the Defence Act 42 of 2002. • Whether the government of South Africa has failed to fully implement the  National Action Plan. 
• Whether SAPS has failed to combat, prevent and investigate criminal conduct. 
• Whether the DHA and SAPS have communicated and supported Operation  Dudula. 
• Whether detaining a child under section 41 of the Immigration Act is a violation  of the Children’s rights. 

7. Arguments of the parties 

Applicant’s argument 

The applicants argue that should they not get a relief against Operation Dudula, rights such  as equality, human dignity, life, freedom and security of the person, education, housing and  healthcare will continue to be violated.5 The applicant relied on the case of Chief Lesapo v  North West Agricultural Bank and Another in which the Constitutional Court emphasised  that no one is entitled to take the law into her own hand and that the rule of law prevails,  the Constitution of the country is the supreme law.6 The applicants submit that the uniform  that Operation Dudula wears contravenes with Regulation of Gatherings Act 205 of 1993  section 8(6) and (8) and Defence Act 42 of 2002 section 104(5).  

The applicant states that section 8(8) of the Gathering Act doesn’t allow any person to wear  any clothing that resembles the uniform of the South African National Defence Force and  they submit that the SAPS failed to investigate and charge Operation Dudula for this  offence.7The applicant submits that the government had failed to implement NAP for more  than 5 years since its adoption. SAPS has failed to protect the public from the unlawful  conducts of Operation Dudula because there are many instances where the SAPS was  present when Operation Dudula broke the law but the police didn’t take any action against  Operation Dudula. According to the applicant SAPS broke their constitutional duties by  failing to take necessary steps against Operation Dudula.  

The applicant further claims that the fact that the DHA and SAPS don’t want to disclose  their engagement with Operation Dudula, they are entitled to a relief that would stop the  DHA and SAPS from communicating and supporting operation Dudula.8 The applicant also  contends that section 41 of the Immigration Act violates the rights of children by allowing  children to be detained. 

Respondent  

Notice of intention to oppose was never delivered by Operation Dudula and interdictory  and declaratory relief application sought against them is unopposed.9 

The SAPS and DHA contend they don’t have any duty to arrest or to prevent Operation Dudula for wearing uniform that looks similar to that of military.  The SAPS argue that section 104(5) of the Defence Act speaks about the actual uniform of  SANDF, which has a distinctive mark or crest, not uniform that resembles the uniform.10 

The DHA stated that it is not the responsibility of the government to implement the National  Action Plan. The SAPS denies that it has breached its constitutional duties as to combat,  prevent and investigate criminal conduct. The SAPS contend that they have given attention  to all the cases that were opened against the violence caused by Operation Dudula and also  gave the applicants the enquiries that contain statements from shop owners, vendors and  foreigners.11The DHA denied the allegations that it is colluding with Operation Dududla, it  specifically denies the allegation that it colludes and work closely together with Operation  Dudula when there’s a search for illegal foreigners.12 An approach that was adopted by  SAPS is similar to the one of the DHA, which is that factual basis was not identified in  order to support the relief that the applicant is seeking with regards to this matter. 

8. Judgement/ Final Decision  

• The court granted the applicants declaratory and interdictory relief against  Operation Dudula for acting unlawfully and violating the rights of foreigners.
• Regarding the wearing of uniform resembling SANDF, the court stated that the  applicants are not entitled to either declaratory or interdictory relief for this issue. 
• The issue of the government not fully implementing the National Plan Action, the  court decided to grant the applicants with mandamus because it is suitable remedy  for such issues.  
• The issue of SAPS failing to combat, prevent and investigate criminal conduct, the  court didn’t grant the applicants with declaratory relief.  
• The alleged communication and collusion with Operation Dudula, the court found  that the applicants are not entitled to interdictory relief in this matter. 
• Regarding the issue of section 41 on children, the court stated that the section should  be read down to avoid unconstitutional consequences.13
• The Operation Dudula and the government respondents that opposed the application  bear the costs. 

9. Legal Reasoning/Ratio Decidendi 

• The unlawful conduct of Operation Dudula, the court granted relief to the  applicants- The court found that conduct of Operation Dudula violates the  constitutional rights of foreigner. The right to equality, right to life, right to human  dignity, right to freedom and security of the person, these rights are for everyone  living in South Africa. 
• Section 41 of the Immigration Act doesn’t permit warrantless stops, raids and  searches.14 The section must be read down in order to continue being  constitutionally valid.  
• Only police officers are allowed to stop and search people, private persons are not  allowed to do so. 
• Section 41 is in conflict with the Constitution and the children’s Act when it comes  to the rights of children. It must be read down in order to remain consistent with the  legislation that deals with children’s rights. 

10. Conclusion 

This case is a landmark case in South Africa because it has changed how section 41 of the  Immigration Act must be read in order to remain valid. The rights of foreign nationals have  been violated for so long even before Operation Dudula was formed. This case will help  foreign nationals to feel protected and welcomed in South Africa and it would also  discourage people from forming organisations that promote discrimination. Equality,  Human dignity and life are rights conferred to everyone living in South Africa and even  those foreign nationals that came to South Africa are entitled to these rights. This case will  help to reduce racism and inequality especially looking at the injustices of the past, no one  deserves to be treated in an inhuman way. Motho ke Motho ka batho which means a person  is a person because of other people, in this case, South Africa needs foreign nationals too  in order to strive as a country, no country can succeed without the help from other countries.  

Reference(S): 

Kopanang Africa Against Xenophobia and Others v Operation Dudula and Other  (2023/044685) [2025] ZAPJHC 1102 (4 November 2025). 

1 Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others (2023/044685) [2025]  ZAGPJHC 1102 (4 November 2025) [6 &7]. 

2 Kopanang Africa Against Xenophobia v Operation Dudula [8]. 

3 Kopanang Africa Against Xenophobia v Operation Dudula [8]. 

4 Kopanang Africa Against Xenophobia V Operation Dudula [8].

5 Kopanang Africa Against Xenophobia v Operation Dudula [36]. 

6 Kopanang Africa Against Xenophovia v Operation Dudula [37]. 

7 Kopanang Africa Against Xenopjobia v Operation Dudula [51] 

8 Kopanang Africa Against Xenophobia v Operation Dudula [98]. 

9 Kopanang Africa Against Xenophobia v Operation Dudula [9].

10 Kopanang Africa Against Xenophobia v Operation Dudula [53]. 

11 Kopananf Africa Against Xenophobia v Operation Dudula [83 & 91]. 

12 Kopanang Africa Against Xenophobia v Operation Dudula [99]. 

13 Kopanang Africa Against Xenophobia v Operation Dudula [133].

14 Kopaang Africa Against Xenophobia v Operation Dudula [119].