60 days over illegal foreigners for Home Affairs
THE Department of Home Affairs has been given 60 days to file an affidavit in the Pretoria high court confirming its compliance with a ruling that all illegal foreigners who are in detention are brought before a court within 48 hours.
The Constitutional Court yesterday declared Section 34(1)(b) and (d) of the Immigration Act 13 of 2002 to be inconsistent with sections 12(1) and 35(2)(d) of the Constitution and therefore invalid.
The declaration of invalidity is suspended for 24 months to enable Parliament to correct the defect.
Judge Chris Jafta said pending legislation to be enacted within 24 months or upon the expiry of this period, any illegal foreigner detained under the Immigration Act shall be brought before a court in person within 48 hours from the time of arrest.
The Lawyers for Human Rights (LHR) brought an application against the Minister of Home Affairs alleging that the procedures and safeguards governing the detention of people suspected of being illegal foreigners under section 34 of the Act were unconstitutional. As it stands, the court is only mandated to review a detention in instances where individuals are held for more than 30 days.
The court heard that some people stay up to six months.
The LHR believed the immigration procedure denies individuals the constitutionally-guaranteed Section 12 right to be protected against arbitrary detention without trial.
Jafta said in the event of Parliament failing to pass corrective legislation within 24 months, the declaration of invalidity shall operate prospectively.
“The Minister of Home Affairs and the DG within 60 days from the date of this order, file an affidavit confirming compliance and the appeal is dismissed.”
The Pretoria high court may determine any dispute arising from that report.