Press statement: LHR responds to detention of immigrants at police stations and SAPS’ incorrect interpretation of immigration laws

Lawyers for Human Rights are concerned by the ongoing practice of police stations being used to detain people for immigration reasons - often in poor and overcrowded conditions and for excessive periods of time.

This was demonstrated by the detention of more than 200 people for over two months at the Benoni Police Station and detention of more than 20 people at the Primrose Police Station on the East Rand. These detainees had not committed any crimes. Instead they were held for infringing the country’s immigration laws. Despite this, they were kept alongside criminal suspects without regard for their safety. 

“The State is entitled to remove undocumented migrants from the territory but only in accordance with immigration and other applicable laws. Being an illegal immigrant does not mean that you have lost all your rights,” explained LHR’s Kaajal Ramjathan-Keogh.

LHR was alerted to the Benoni Police Station detentions last week. The group was initially taken to the Lindela Repatriation Centre near Krugersdorp before being returned to the station’s holding cells. LHR received requests for assistance from detainees and were told about assaults by immigration and police officials in the police cells.

More worrying was the police’s refusal to allow legal representation to access those in detention - something guaranteed by Section 35 of the Constitution’s Bill of Rights. LHR twice attempted to consult with the group but was turned away both times after police and local immigration officers refused access. It was only under threat of legal action and intervention by the South African Human Rights Commission (SAHRC) that LHR was eventually granted access.

It was established that the nearly 200 people from Zimbabwe, Malawi, Mozambique, Ethiopia, Lesotho and Nigeria had not been advised of their legal rights and were detained in deplorable conditions – far below the minimum standards set out in the Immigration Act. During consultations, it became clear that dozens of people had been crammed into an extremely small space, with many being unable to lie down or having to sleep in the showers. There also appeared to be no judicial oversight of these detentions.

LHR uncovered a situation at the Benoni Police Station where a child had been detained in the same cells as adults and without regard for his age or the fact that children are only to be detained as a last resort. The child has been transferred to Lindela and remains in detention while the department of social development verifies his age and finds a suitable placement for him. The failure to act expeditiously is indicative of the lack of emphasis placed on the grave issue of child detention.

Another concern is a statement issued by the provincial commissioner of the South African Police Service detailing incorrect information about the period of time that police can lawfully detain those arrested on immigration grounds. According to the statement, SAPS have 30 days to confirm a person’s immigration status. This is incorrect. In fact, the Immigration Act states that SAPS/immigration officials have 48 hours to verify a person’s legal status before they are compelled to release them. The state must further inform such a person of their rights and may not detain such person for longer than 30 days without a court warrant. We are not aware of these procedures being followed in police stations.

“We are horrified, not only by the lack of scrutiny at police stations, but by the fact that the police are taking the law into their hands and actively stripping people of their rights and access to legal representation. This is not a police state. We are governed by laws and a Constitution that applies to every person within South Africa’s borders. We are very disappointed by the provincial commissioner’s unfortunate interpretation of the Immigration Act,” added Ramjathan-Keogh.

LHR welcomes Home Affairs Minister Malusi Gigaba’s visit to Lindela on Monday, 20 October but remains concerned about the detention of children  at the facility and prolonged detentions. At the time of the Gigaba’s visit, there was a 16-year-old child being detained at the facility.

For interviews contact:LHR’s Kaajal Ramjathan-Keogh on 011 339 1960