Constitutional Court judges found themselves baffled by the conduct of the Department of Home Affairs after it ignored a 2017 court order to amend immigration legislation. The department returned to the court on Thursday to request a ‘revival’ of the order, which expired in June 2019. 

The department offered no apology for its tardiness, saying the 2019 elections had caused a delay in completing the amended legislation as politicians prioritised campaigning. The department also cited the Covid pandemic, which began months after the deadline had already passed, and the fire at Parliament, as reasons why the Immigration Act had not been amended.

Chief Justice Raymond Zondo questioned the department’s lawyer, Mike Bofilatos SC, about whether he had “missed” the apology to the court in the department’s court papers.

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“I may have missed this in the papers. But I don’t see any apology from the Minister or the Director General for what happened here. The order expired without the Minister and the Director General approaching this court asking for an extension. That is the usual thing to do,” Zondo said.

Bofilatos said the department was not requesting an extension, but rather wanted a revival of the order.

“What is the difference in substance in asking for an extension after the expiry of an order or asking for a revival of an order that has lapsed?” Zondo asked.

‘Indulgence’

Bofilatos went on to say that Home Affairs Minister Aaron Motsoaledi was asking for the court’s “indulgence… You can only compliment him for having come to court,” he said.

Zondo chuckled at Bofilatos’s suggestion that Motsoaledi should be complimented and responded: 

“I have been around for a long time. I don’t think I have seen anything like this. In terms of such an important order being allowed to lapse and the court being approached two years later.”

Adding fuel to the fire, Bofilatos clarified: “Well, Chief Justice, it’s actually three years at this point.”

“Why should the court not regard this as a pathetic dereliction of duty?” Zondo asked. Bofilatos offered no reply, saying he had made his submissions to the court.

Arbitrary detention

In 2016, Lawyers for Human Rights (LHR) had taken Home Affairs to court over the practical application of Section 34 1(b) and (d) of the Immigration Act. The sections authorised the administrative detention of undocumented foreigners for the purposes of deportation. The detention period can be extended from 30 days by a court, to 90 days or a maximum of 120 days. 

At the time, LHR had argued that, in many cases, people were being detained for more than 120 days – sometimes for six months or longer – without appearing in court or being informed of their rights in some cases.

“The applicant’s (LHR’s) papers paint an unfortunate picture of a widespread disregard for statutory requirements, which leads to a violation of the rights of vulnerable people. These lapses reveal shortcomings in the system enacted by the Immigration Act. A system that was designed to promote their ‘dignity and relevant human rights’,” the Constitutional Court said in the 2017 judgment.

“This provision grants drastic powers to an administrative official, the immigration officer. It empowers the officer to deport an illegal foreigner without the need for a warrant authorised by a court.

“To ameliorate the harshness of the exercise of this power, the provision requires the immigration officer to give the affected foreigner a written notice of the decision to deport and his or her right to appeal against the decision.

“Notably, the very same provision authorises an immigration officer to arrest and detain an illegal foreigner, pending his or her deportation. The exercise of this power is not subject to any objectively determinable conditions. Nor does the section lay down any guidance for its exercise.  

“There can be no doubt that in present form, section 34 (1) offends against the rule of law by failing to guide immigration officers as to when they may arrest and detain illegal foreigners before deporting them. More so because this power may be exercised without the need for a warrant of a court,” the Constitutional Court found in 2017.

The court agreed that there was a need for judicial oversight in the process and a halt to arbitrary detention.

“It is apparent from the Bill of Rights in our Constitution and the jurisprudence of this Court on the matter that automatic judicial control or review forms an integral part of safeguards guaranteed against detention without trial,” the court found.

Deadline

It ordered the department to amend the act to deal with these defects, giving it a 24-month deadline which ended in June 2019. 

The court also ordered that pending the finalisation of the legislation, “any illegal foreigner detained under section 34 (1) of the immigration act shall be brought before a court in person within 48 hours from the time of arrest or not later than the first court day after the expiry of the 48 hours, if 48 hours expired outside ordinary court days.” This is similar to the provision for all other arrests within the Criminal Procedure Act.

In an affidavit before the court, Home Affairs Director General Livhuwani Makhode said even though the department published the Draft Immigration Amendment Bill in June 2018, the process had stalled.

“Shortly after October 2018, and with the looming national elections (held on 22 May 2019), parliamentary activity, within the context of legislation awaiting amendment or awaiting enactment, was drastically reduced as Parliamentary MPs were taken up by the more pressing issue of preparing and canvassing for the forthcoming elections. This, in turn, severely hampered the finalisation of the Bill which, ultimately, as a consequence of the election of May 2019, jettisoned the timeous finalisation of the draft Immigration Amendment Bill,” Makhode said.

The department said the lack of new legislation was creating a nightmare in the magistrates’ courts. 

In his heads of argument, Bofilatos said that in January 2022, “a senior Johannesburg Court Magistrate directed that Magistrates should no longer entertain Section 34 enquiries into the detention of illegal foreigners”.

Motsoaledi had written to Parliament in June 2022 saying there was an urgent need to introduce the legislation because “different interpretations were being given to this Court’s judgment” and “the… situation was leading to an inability to deport illegal foreigners”.

‘Lazarus application’

Judge Steven Majiedt was critical of the department’s approach in this case, saying it had made a “Lazarus application”, going to the high court for an order that would essentially overrule a Constitutional Court decision.

“Here is the most striking problem in this case. They (Home Affairs) don’t… come to court when they realise in 2018 that they are not going to get this done. They have nine months to come to court. They don’t do that. They blame it on the elections. They blame it on the pandemic. The pandemic has nothing to do with the lethargy that happened here,” he said.

Representing Lawyers for Human Rights, advocate Steven Budlender criticised the conduct of the department and that of their legal team, saying taxpayers should not pay for this litigation.

“You can say what you want about the minister and his failure to do his job and his DG’s failure to do his job and the failure of their officials. But this is not how lawyers should be behaving when they represent clients. 

“What should happen is that the senior counsel and the attorneys involved should say, ‘You can’t behave like this. You’ve got to apologise, you’ve got to go cap in hand, we’ve got to cite LHR (in the court proceedings) and we’ve got to stop engaging in a hostile approach where you’re reporting Mr Mncube [LHR national director Zibusiso Wayne Mncube] for misconduct, where you say we should not get costs… And I’m afraid it is indicative of the approach of the department to NGOs in this sector,” he said.

The court will need to decide how to amend the current order to ensure the rights of those detained are not violated while the department concludes the legislation.

The LHR suggested a framework in which immigration officers and magistrates could be provided with some guidelines along with regular reports from the department on the progress of the new legislation.

The court was, however, concerned about overstepping by making an order that ventured into the realm of the legislature.