Constitutional Court protects rights of detained immigrants

The Citizen – 18 August 2021

This despite the fact that it will now become very expensive to process the arrests of undocumented migrants.

Lawyers for Human Rights (LHR) has welcomed a unanimous Constitutional Court ruling upholding the rights of all detainees – also alleged illegal immigrants – to access our courts.

The Constitutional Court ruled that sections 34(1)(b) and (d) of the Immigration Act were inconsistent with the constitution and therefore invalid and gave parliament 24 months to issue new legislation to correct the defects in the act.

Although the ruling of invalidity was suspended, the court ruled that pending the enactment of amended legislation, any undocumented foreigner detained under section 34 of the act must be brought before court in person within 48 hours from the time of arrest or not later than the first court day thereafter if the 48 hours fall outside ordinary court days.

This also counts for foreigners currently already in detention.

The court ruled that the rights guaranteed in section 12 and 35 of the constitution – the right to challenge in court a detention within 48 hours of arrest and the right to be protected against arbitrary detention without trial – applied to foreign nations as well as South African citizens.

LHR said in a statement the ruling affirmed that all persons living in South Africa were protected by the law and not subject to arbitrary violations of their rights by authorities.

“This ruling will most importantly protect vulnerable individuals whose detention have in the past fallen beyond the reach of judicial oversight, resulting in widespread rights violations,” the rights group said.

LHR thanked Legal Aid South Africa, without whose financial support they would not have been able to wage a successful battle against state injustice, as well as People Against Suffering, Oppression and Poverty (Passop), which intervened in the application as a friend of the court.

LHR took the matter to the Constitutional Court for confirmation after the High Court in Pretoria ruled that the sections of the act were invalid, but Home Affairs appealed the ruling, arguing that the sections were consistent with the constitution and denying that arrested foreigners enjoyed the same protection under the constitution.

The Constitutional Court dismissed the state’s appeal and upheld the LHR’s argument that the legislation illegally authorised administrative detention without trial for purposes of deportation in violation of the constitution.

The organisation had instituted 115 cases against home affairs since 2009 and provided free legal assistance to arrested and detained foreigners who were in some instances detained without trial for periods of up to six months or longer.

Judge Chris Jafta said the LHR’s papers painted an unfortunate picture of widespread disregard for statutory requirements, which led to a violation of the rights of vulnerable people.

These lapses revealed shortcomings enacted by the Immigration Act in a system that was supposedly designed to promote dignity and human rights.

The state argued that it would increase costs as about 500 foreigners would have to appear in court daily countrywide, which would require a massive number of magistrates, but Judge Jafta said the mere increase in costs alone could not justify denying detainees the right to challenge the lawfulness of their detention.

He said an increase in costs would be unavoidable if each foreigner decided to exercise their right to challenge the decision to deport them, but the state should have budgeted for these costs, which are necessitated by the implementation of the act.

The court found that the reasons advanced by the state fell woefully short of justifying the limitation created by the impugned provisions of the act.

Judge Jafta stressed that arrest and detention without trial had been commonly used to suppress opposition to laws and policies of the former apartheid government, with detainees in most cases being beyond the reach of judicial oversight and subjected to torture and other forms of violence.

The constitution included section 12 in the Bill of Rights to outlaw this abuse of power and deprivation of personal freedom by guaranteeing everyone physical freedom and protection against detention without trial, Judge Jafta said.

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