High Court declares parts of the new Immigration Act unconstitutional

Date: 01/01/2003

In the matter of Lawyers for Human Rights and Others v Minister of Home Affairs and others, LHR acting in the public interest, won an important legal victory today in the Pretoria High Court in which Judge Ben du Plessis declared core aspects of the new Immigration Act concerning the arrest and detention of foreigners unconstitutional. The judgment is a milestone in that it confirms and protects the constitutional rights and procedural safeguards of foreign nationals, whether legal or illegal. Furthermore, the judgment prevents the Department of Home Affairs from arbitrarily arresting and detaining foreigners.

According to LHR’s National Director, Adv Rudolph Jansen “ the judgment confirms the supremacy of constitutional and common law principles in the area of arrest and detention and will do much to curtail arbitrary arrests serving only administrative convenience at the expense of individual liberty.”

Specifically, LHR requested the court to declare Sections 34(1), 34(1)(d), 34(2), 34(8) and 34(9) of the Immigration Act inconsistent with the Constitution. The following summary explains the salient aspects of the judgment:

Section 34(1)

This section gives immigration officers the discretion to arrest and detain an illegal foreigner, without the need of a warrant, pending deportation. LHR argued that this provision allows an unacceptably wide discretion to arrest and detain foreigners, without clear guidelines to the arresting officer.

In his judgment, Du Plessis J found that this section only allows immigration officers to arrest persons who have already been determined to be illegal foreigners. In his words the section does not authorize an arrest of persons who are merely suspected of being illegal foreigners. The Department of Home Affairs must first exhaust the administrative procedures prescribed in S.8 of the Act which gives the affected person the opportunity and time to make representations and appeal the decision of the Department before the Department may proceed with further action, such as the arrest, detention and deportation. The importance of this line of reasoning is that it does not permit an arrest before completion of the legal process, as is the position in criminal law.

Moreover, an immigration officer has no additional discretion as to the purpose of the detention. “It must be for the purpose of deporting the illegal foreigner” only. In terms of the discretion implied by S 34(1), the court found that it restricts the arresting officer to an interpretation in favour of the foreigner and “allows an immigration officer to be humane. Although LHR requested the court to declare this provision invalid the organisation is satisfied that the Judge’s interpretation will adequately protect the rights of foreigners in this regard.
Section 34(2)
This section states that in cases where people are detained elsewhere than on a ship (including airplanes) and for purposes other than his or her deportation shall not exceed 48 hours. The court found that the exclusion of people detained on ships or planes leaves such persons without any procedural safeguards and is therefore in conflict with the constitution. For that reason the judge ordered the words “elsewhere than on a ship and” to be severed from the clause. The judgment therefore ensures that private entities which are given powers of detention are not above the law.
Section 34(8)
Section 34(8) allowed for an immigration officer to declare or notify a person at a port of entry that he/she is an illegal foreigner and for such a person to be detained and removed from the Republic by the master of the ship. In practice this implies that a person may be summarily ejected from the Republic without the prescribed administrative procedures.

In his judgment Du Plessis J ruled that a mere notification or declaration that a person is an illegal foreigner does not in fact make the person an illegal foreigner. Such a determination can only be made through the application of the administrative procedures prescribed in section 8 of the Act.
As a result the judge found that such powers given to immigration officers are arbitrary and unconstitutional. For that reason the judge declared the whole of section 34(8) unconstitutional and invalid. The judgment must now be referred to the Constitutional Court for confirmation of the High Court’s declaration of constitutional invalidity.
Lawyers for Human Rights would like to express its gratitude to its competent and expert legal team, comprising of advocates Anton Katz and Jan Minnaar and attorney Chris Watters, who represented the organization in this matter.

For further enquiries please contact:
Jacob van Garderen Adv Rudolph JansenNational Coordinator National DirectorRefugee Rights Project Lawyers for Human Rights012 – 320 2943 012- 320 2943082 820 3960 083 264 8029Jacob@lhr.org.za rudolph@lhr.org.za

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