Illegal immigrants ruling hailed as ‘groundbreaking’

HUMAN rights lawyers claimed victory following the Constitutional Court’s groundbreaking judgment ordering that all “illegal foreign” nationals in detention at the time it handed down yesterday’s order against government, be brought before a court within 48 hours.

Previously the court was only mandated to review a detention in instances where individuals were held for more than 30 days. The country’s apex court declared section 34(1)(b) and (d) of the Immigration Act 13 of 2002 inconsistent with sections 12(1) and 35(2)(d) of the constitution and therefore invalid. The invalidity was suspended for 24 months to enable Parliament to correct the defect.

This shall operate prospectively in the event of Parliament failing to pass corrective legislation within two years, according to the judgment. Lawyers for Human Rights (LHR) had brought an application to appeal a ruling by the high court in Pretoria, charging that that section 34 of the Immigration Act did not sufficiently protect the right of those detained for immigration irregularities to present their cases in court and, as such, violates the constitution.

The matter concerned the procedures and safeguards governing the detention of people suspected of being illegal foreign nationals.

The LHR believed that every detainment under the Immigration Act should “trigger an automatic and prompt court review”.

It argued that current immigration procedure denied individuals the constitutionally-guaranteed section 12 right to be protected against arbitrary detention without trial.

“This ruling will most importantly protect vulnerable individuals whose detention has in the past fallen beyond the reach of judicial oversight resulting in widespread rights violations,” said LHR spokesperson Carol Mohlala. Judge Chris Jafta said the LHR sought to address the failures in the system by “attacking” the constitutionality of provisions which provided inadequate protection of foreigners’ rights.

He said the LHR painted an “unfortunate picture of a widespread disregard” for statutory requirements, which leads to a violation of rights of vulnerable people. These lapses reveal shortcomings in the system enacted by the Immigration Act. “To this end, the State undertakes to ensure that if a detainee wishes to appear in person, he or she will be afforded the opportunity to do so. This undertaking, however, does not cure the defect in the provisions.”

Home Affairs spokesperson David Hlabane said the department would respect the court’s decision.

This ruling will protect vulnerable individuals in detention