Between June 30 2017 and May 3 2018, 11 inner-city buildings in Johannesburg’s central business district were raided at the behest of the then-minister of police, Fikile Mbalula, and the then-mayor of Johannesburg, Herman Mashaba. Collectively, the buildings were raided more than 20 times, with some being raided as many as five times in 10 months.
The residents of these buildings, represented by lawyers acting on behalf of the Socio-Economic Rights Institute (Seri) are challenging the constitutionality of section 13(7) of the South African Police Services Act, and the grounds on which these raids were conducted. The matter, Residents of Industry House and Others vs Minister of Police and Others, was heard before a full Bench of the high court in Johannesburg on Monday. Judgment was reserved.
At this point, it’s worth recapping the events that led to the court case. In several raids, as many as 80 officials from the South African Police Service (SAPS), the Johannesburg metropolitan police department (JMPD), the department of home affairs and the City of Johannesburg descended on the buildings. Sometimes they would arrive in the early hours of the morning. Residents, some of whom were partially clothed and aggressively woken from their sleep, were forced out onto the streets. The officials demanded that the residents produce identification documentation and, while outside their homes, they were fingerprinted and body-searched. If residents failed to produce documentation, they were arrested.
Residents were made to wait for hours at a time while the police searched their homes. After the searches, residents returned to their homes to find that their doors had been kicked in, locks cut, partitions torn down, groceries and property left in disarray and, in some cases, money and valuables stolen. During the raids, residents were threatened with eviction, arrest and deportation and when they asked on what basis their homes were being raided, no warrant was ever produced.
For all but two of the 20 raids, the police obtained written authorisation to conduct raids in terms of section 13(7) of the SAPS Act. This section authorises the police to conduct warrantless searches on anyone and any property that falls within a cordoned-off area for up to 24 hours “where it is reasonable in the circumstances in order to restore public order or to ensure the safety of the public in a particular area”.
Former mayor Mashaba championed the raids as part of a so-called urban renewal initiative to bring back “law and order” and crack down on criminality in the city. The police used general crime statistics to obtain the written authorisation to conduct the raids. They also relied on commonly held prejudices about the residents whose homes they sought to raid, accusing them of surviving by “begging at robots” and describing them as “foreigners from Zimbabwe and Lesotho”. The police and the City of Johannesburg had neither evidence nor reasonable grounds on which to violate the privacy and dignity of the residents in these buildings.
The raids were used to gather information about the residents of the buildings. They targeted unlawfully occupied buildings with residents who were under threat of eviction and were seeking alternative accommodation from the City, and they specifically targeted foreign nationals.
Police officers motivated for the written authorisation by arguing, as stated in their legal affidavits, that the raids would form part of a plan to “assert the authority of the state” and that they would “aspire for… maximum arrests”. Section 13(7) of the SAPS Act gave the police and the City the power to suspend the constitutional freedoms of the residents to carry out an ill-informed and discriminatory project to “clean up” the City. The residents are litigating the legality and constitutionality of these raids.
But here lies the paradox: those entrusted with upholding the law crossed over into criminality by using the law to bypass existing laws and legal procedures to conduct the raids.
Both the Criminal Procedure Act and the Immigration Act provide the police and immigration officers with powers to conduct searches with a warrant. The purpose of obtaining the warrant is for the courts to make a decision based on provided “information on oath that there are reasonable grounds” to conduct a search.
By using section 13(7) of the SAPS Act, the police bypassed these laws and substituted the safeguards of judicial oversight available in the Criminal Procedure Act and Immigration Act with the mere discretion of an ordinary police officer. Police officers were reported to have arrested anyone who looked foreign and could not provide identification immediately, including South Africans who officials felt “looked too dark”.
The racial and ethnic profiling that formed the basis for these arrests and breached the protections found in both the Immigration Act and the Constitution. But even more harmful is that state-endorsed xenophobia legitimises public violence against foreign nationals.
In terms of section 205 of the Constitution, the police are mandated “to prevent, combat and investigate crime” and “protect and secure the inhabitants of the Republic and their property”. Their conduct during the raids went against their constitutional mandate.
Residents were treated as criminals: they had their privacy and dignity violated, their homes invaded and property destroyed or stolen by the police. Families with young children, young and elderly people, women and men alike — were terrorised for no reason other than being poor, possibly being foreign nationals and for living in an area that supposedly has high crime levels.
An elderly woman living with her children and grandchildren was accused of operating a creche and selling drugs to make a living. Residents’ committee members were deliberately sought out and accused of hijacking the buildings they lived in and of keeping illegal firearms. In none of the 20 raids were any illegal firearms found. Residents asking the police questions were often met with threats of violence or were promptly assaulted.
Police conduct during the raids epitomises the impunity with which the police have been known to act and illustrates disdain for the rights and humanity of people. Is it possible that the police treated the residents like this because they knew that they would have limited access to justice? The Socio-Economic Rights Institute (Seri) sees this case as an opportunity for the courts to acknowledge that the residents were wronged and to affirm their rights to dignity and privacy.
The legitimacy required for the police to conduct their duties depends, in part, on the public’s perception. Communities that the police serve deserve to trust and feel protected and respected by them. However, their degrading and humiliating treatment of the residents only served to further erode public confidence in the police.
The presumed criminality of those people who are policed and the criminal conduct of the police who raided their homes shines a light on the crisis in policing in South Africa. Section 13(7) of the SAPS Act was used to justify a violation of the residents’ constitutional rights to privacy and dignity as part of a project that envisions Johannesburg as a city that belongs to some to the exclusion of others.
We cannot support an “ends justify the means” style of policing that encourages conduct that tramples on people’s rights. Neither can we accept the othering of groups that the police and the City have decided are simply undesirable. Our history begs us not to.
Thato Masiangoako is a researcher at the Socio-Economic Rights Institute in Johannesburg