“Wrest Control of the Clinics From the Hands of the Vigilantes” Judge Tells State

 Today the Johannesburg High Court ordered the national and provincial departments of health, the City and Police to stop people blocking access to clinics, particularly by immigrants.

• The national and Gauteng departments of health and City of Johannesburg must stop people from blocking access to clinics, particularly by immigrants, the Gauteng High Court ruled on Thursday.
• The court also directed the state to ensure that there are enough security guards at clinic entrances.
• The police were ordered to help to ensure compliance with the order.
• The urgent matter, first heard in late November, was initiated by the Treatment Action Campaign, Médecins Sans Frontières and Kopanang Africa Against Xenophobia.

The Gauteng High Court in Johannesburg has ordered the national and Gauteng health departments and police to take firm action against “xenophobic vigilantes” blocking access to clinics, particularly by immigrants.

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.

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