60 days over il­le­gal for­eign­ers for Home Af­fairs

Afro Voice (KwaZulu Natal) - - Gauteng News - NONDUMISO ZWANE

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.

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