Concourt ruling set to end abuse of foreign detainees

OVER the past eight years, Lawyers for Human Rights (LHR) have fought at least 115 cases where the rights of illegal foreigners entering South Africa have been grossly violated.

After being arrested for deportation, many have been forced to sit in detention centres, often for months – and sometimes years – without realising their constitutional rights have been trampled.

On Thursday, the Constitutional Court confirmed a twoyear-old high court in Pretoria ruling that changed the law in a bid to prevent such abuse.

Before Thursday’s ruling, authorities could detain illegal foreigners for a 30 days before they would have to bring an application to court to extend such detention.

However, foreign detainees were often not brought to court in person, allowing them to be held for a further 90 days, usually without legal advice or appearing before a magistrate.

This “extra holding” was the result of a section of the Immigration Act that essentially allowed detention without trial, an apartheid-style policy that LHR has been fighting for over a decade.

After the recent judgment, Section 34 of the Immigration Act section will have to be augmented by Parliament within the next 24 months, after being declared inconsistent with the constitution.

Now, anyone detained under Section 34 will have to be brought before a court of law within 48 hours of their arrest, meaning they will have access to legal advice and judicial oversight.

In its arguments to the Constitutional Court, LHR argued that foreigners were often not informed of their rights and were unable to fight their arrests without access to legal resources.

“The applicant’s papers paint an unfortunate picture of a widespread disregard for statutory requirements which leads to a violation of rights of vulnerable people,” wrote Justice Chris Jafta in Thursday’s unanimous judgment.

“These lapses reveal shortcomings in the system enacted by the Immigration Act.”

The apex court lashed out at the State’s argument that foreigners do not enjoy the rights enshrined in the constitution, but also that further appearances in the lower courts would put a strain on the legal system’s resources.

“It claimed that apart from the increased costs in the running of courts, the 500 daily appearances would create logistical obstacles. With regard to financial resources, the State alleged that there would be a need to employ a ‘massive number of additional magistrates who will be required to consider these warrant confirmations’.

“A limitation of rights like physical freedom cannot be justified on the basis of general facts and estimates to the effect that there will be an increase in costs. The mere increase in costs alone cannot be justification for denying detainees the right to challenge the lawfulness of their detention,” the judgment read.

The Minister of Home Affairs and the director general were ordered to pay the costs of the proceedings, as well as provide the Constitutional Court with an affidavit confirming compliance with the ruling.

Wayne Ncube, senior attorney on record for the case, described it as an “amazing” ruling that served as a culmination of LHR’s 15 years of work on the issue.

“We’ve come a long way to where there is now a real impact on how detainees are treated. We now have to monitor the implementation, and if it’s not enough, we will consider further action,” he said.