LAW | JOHANNESBURG 

Big victory for immigrant rights in Constitutional Court

Home Affairs must bring all detainees held under the Immigration Act before a magistrate within 48 hours

Image of Paddington Bear
Paddington Bear has become a symbol of the rights of immigrants. His creator Michael Bond died on Monday. (Image republished as fair use)
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The Constitutional Court declared sections of the Immigration Act, 2002 invalid and unconstitutional on Thursday. The Act allowed for immigrants to be detained without a court hearing.

The unanimous decision, written by Justice Chris Jafta, also ordered that all detainees held under the Immigration Act must be brought before a Magistrate within 48 hours. Also anyone currently detained under the Immigration Act must be brought before a court within 48 hours of the judgment.

The Minister of Home Affairs has to report on his compliance with this order within 60 days. The court made a costs order against the Minister.

The case was originally brought to the High Court in Pretoria by Lawyers for Human Rights. The Pretoria court declared some provisions in the Immigration Act unconstitutional. The judgment was then appealed by the Minister of Home Affairs to the Constitutional Court.

Under the Immigration Act, “illegal foreigners” (the prejudiced term used in the Act to describe a person who contravenes the Act, essentially people who are undocumented immigrants) could be arrested and detained for up to 30 days without a warrant. This period can be extended to 90 days if a warrant is obtained. This meant that a detainee could be kept in custody for up to 120 days without being brought before a judge or magistrate.

Under the Act, while a detainee may request that officers get a warrant for his or her detention (which involves having the matter considered by a magistrate), the Act does not require the detainee to attend court. In addition, detainees do not have the right to challenge the extension of their detention. 

This is in stark contrast to section 35 of the Constitution which places strict limitations on detention without trial. Under the Constitution, people who are arrested must be brought before a magistrate within 48 hours so that there is judicial oversight over their detention. As Justice Jafta highlighted in his judgment, detention without trial or judicial oversight was a common tactic employed by the apartheid government to suppress opposition and it is for this reason that there are special protections against this in the Constitution.

The Minister of Home Affairs argued that the constitutional protections against detention without trial did not apply to foreigners. The Department also attempted to justify the provisions by arguing that providing court hearings for persons detained under the Immigration Act would result in increased costs for the state.

The Constitutional Court stated that limiting the right to physical freedom cannot be justified based on increased costs alone and held that the limitation of rights by the Immigration Act was unjustifiable and, therefore, unconstitutional. The court declared the sections that provided for detention to be invalid and suspended the order of invalidity for 24 months. Parliament now has two years to amend the Act and bring it in line with the Constitution.

This case is a significant victory for the rights of immigrants in South Africa and affirms that they are entitled to equal protection and due process under the South African Constitution.

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