Diepsloot raids ‘illegal’, say lawyers

Human rights and immigration lawyers say it is illegal for police officers to stop people and ask for identification if they do not have a search warrant or reasonable suspicion of a crime having been committed.

However, for weeks the South African Police Service (SAPS) and immigration officers have allegedly been targeting those that they believe “look like” non-South Africans in parts of Diepsloot and Alexandra in northern Johannesburg. Three weeks ago, Police Minister Bheki Cele said such raids would be conducted in Soweto, Diepsloot and Alexandra.

Such profiling is a breeding ground for an aggressive application of the law that ends up going unchecked, according to prominent immigration lawyer Craig Smith. 

“We find ourselves going back to the Dark Ages, going back to times in our very dark past where you have a total disrespect of the rule of law and you are treating these foreign individuals as you would deal with livestock out in a rural yard,” Smith told the Mail & Guardian.  

Since the beginning of the year, vigilante group Operation Dudula has been targeting foreign nationals in various townships, chanting slogans telling them to leave and accusing them of “stealing” jobs from locals. This comes after Home Affairs Minister Aaron Motsoaledi tabled changes to immigration laws regulating temporary residence and business permits in parliament last year.

Under the proposals, businesses will be required to ensure that 80% of their workforce consists of South African citizens or permanent residents, while the exceptional skills permit has been replaced by a critical skills visa. This visa grants immigration into the country for work purposes, whereas the exceptional skills permit allows foreigners to look for jobs in their field of expertise without being bound to an employer.  

Smith believes the raids are a “knee-jerk reaction” from the department of home affairs after years of failing to monitor illegal immigration by conducting lawful searches and raids on a regular basis. Targeting only townships to conduct these aids is unlawful and tantamount to racial profiling, he added.

“That is something that should never be allowed. It is going for the vulnerable, it’s going for the soft targets and whether it, therefore, becomes a mere political act to show that government is performing, is questionable.”

In Diepsloot, M&G journalists witnessed an immigration officer commanding a boy: “Khuluma is’Tsonga.” The boy responded well enough for the immigration officers to be satisfied he was South African, and escaped being labelled an illegal immigrant and arrested.

On the other side of the road a street vendor packed up his rickety makeshift stall and immigration officers escorted him to the back of a police van, under arrest for allegedly being an illegal immigrant. He was not read his rights, nor was a warrant of arrest produced.

For the past three weeks, the police and immigration officers have been raiding Diepsloot, arresting anyone they deem not South African and who cannot  produce identification. During one of the raids, it was evident that if anyone stopped by these khaki-clad immigration officers — including South Africans — could not produce a form of identification they would be thrown in jail. 

Asked what criteria the police use when deciding whom to stop, national SAPS spokesperson Colonel Brenda Muridili said she could not divulge operational protocol and declined to answer follow-up questions.

For two weeks provincial and national police failed to respond to the question about what these protocols were. The department of home affairs’ spokesperson Siya Qoza also did not respond to questions.

These raids are illegal, human rights lawyer Wayne Ncube told the M&G: “Police cannot go into private homes without the presence of a warrant.’’

In Diepsloot this is, however, the norm, making it a hostile place to live. 

One 31-year-old foreign national is selling socks and underwear pinned with brown pegs on a droopy line. Caroline Nzombe moved into the township in 2015 and says she is now raising her eight-month-old baby in fear of the community.

“Since the protest action began things have been difficult here because even if we stay inside our shacks we are scared of people here who act as the police asking for our IDs,” Nzombe said in isiZulu. But with nowhere else to go, living in fear is her only option. 

Just down the road from her, a convoy of about a dozen immigration vehicles and police vans are stationed on the side of the road. Dressed in khaki jumpsuits and black boots, the male and female officers are stopping everyone they suspect is non-South African, demanding proof of identity. 

That’s how 21-year-old Mthetheleli (last name not given) found himself being ushered into the back of a van. He was stopped while riding his motorcycle. Mthetheleli sits on the edge of the van with his legs dangling, his black sneakers smothered in brown dust from the gravel. Scrolling up and down the screen of his cellphone he anxiously pleads his case. He says he was born in South Africa but that his mother has his paperwork. She is in Soweto, over an hour’s drive away.

“My documents are in a file with my mom,’’ he stammers, a look of distress on his face.

After failing to get hold of his mother on the phone, he reconciles himself to his fate and retreats into the back of the van.

In March, the Pretoria magistrate’s court ruled against a similar stop-and-search operation, calling it unlawful in terms of the Criminal Procedure Act, which requires that there be reasonable suspicion for someone to be searched without a warrant.

In that case, the police minister argued that section 41 of the Criminal Procedure Act and the Refugee Act of 1998 state that a person must be in possession of their permit at all times. The minister and director of home affairs argued that section 31 of the Immigration Act of 2002 makes provisions for immigration officers to arrest illegal foreigners without a warrant. All these arguments were dismissed by magistrate Anita Myambo.

“Section 14 of the Constitution states that everyone has the right to privacy, which includes the right not to have their person or home searched, their property searched, their possessions seized, the privacy of their communications infringed,” Myambo noted. She referenced case law that found reasonable suspicion is the condition for a search without a search warrant. 

“Without reasonable suspicion or simply with subjective suspicion a search without a warrant is simply unlawful,” she said, dismissing the SAPS’s and department of home affairs’ case. 

Back in Diepsloot, however, some residents are not bothered about people’s rights. Clapping her hands and stomping her feet, with a huge grin across her face, Nombeko Jeje expresses her joy as she watches the immigration crackdown from a short distance away. The 41-year-old has been living in what she refers to as Sloot for two years and says the community doesn’t live in peace with foreign nationals.

“They shout at us and talk to us as if they are our landlord when they aren’t!” she exclaims. “I am happy that the police are checking for documentation because they can do something bad like commit murder and run away. Where will you find that person because they go back to their country?”

Sixty-one-year-old Simon Mzobe applauds officers leading the arrested into vans: “You are doing a good job, there is a breeze of fresh air now.” 

Born in Diepsloot, Mzobe accuses the police of taking too long to respond to crime, and alleges his wife was attacked by a foreign national.

“They beat my wife at home and [she] called me so we opened a case at the police station. A Zimbabwean national who was an employer did that,” he says, alleging that the employer suspected his wife of stealing from her. 

Legal win: R200 000 for Zim permit-holder

Roy Kamushinda, who was born in Zimbabwe, was stopped and arrested for 21 days in 2015 during a crime-prevention operation in Johannesburg because he failed to produce his permit, which he said he had left at home. According to court documents, when Kamushinda arrived at the police station he was instructed to call someone who would help him “make a plan”, which he understood to mean either paying bribe money or producing his permit. 

With his cellphone battery flat, he couldn’t call his landlord to ask them to bring his permit. Six days later he was finally interviewed by immigration officials. Despite carrying a questionnaire, the immigration officer only asked for Kamushinda’s name and surname. Kamushinda tried to explain he had a valid permit but was told that since he couldn’t present it, he would be deported. 

Days went by before he managed to convince a police officer to charge his phone and finally made contact with his landlord, who presented the permit the next morning. The landlord was then instructed to visit the department of home affairs to verify the authenticity of the permit. 

On the same day Kamushinda was transported to the Lindela Repatriation Centre to await deportation. There, he tried to show his permit to an officer, who said he needed to wait until 18 May 2015 to show the permit to another officer. 

The day came and he gave the permit to the officer, who made a copy and told Kamushinda to wait for it to be verified. Four days later Kamushinda spoke to the officer, who told him he would assist if he paid him R50. 

Fearing deportation, Kamushinda gave him his card and the officer withdrew R500 from his account before eventually returning his card. DNA samples and fingerprints were recorded and Kamushinda was returned to the initial station of arrest in Johannesburg on 26 May 2015. He was released the next day.
Kamushinda filed a case against the minister of police, the minister of home affairs and director general of home affairs for the unlawful treatment he experienced. He won the case in March 2022 after the defendants failed to prove there was reasonable suspicion to warrant a search of his person. The Pretoria magistrate’s court awarded him R200 000 in damages. — Bongeka Gumede

[/membership]