PRESS STATEMENT | Con Court confirms sections of Immigration Act unconstitutional, makes personal cost order against Minister

Date: 30/10/2023

Judgment was handed down today, 30 October 2023, at the Constitutional Court in the matter of Ex Parte Minister of Home Affairs and Another in re Minister of Home Affairs v Lawyers for Human Rights (CCT 38/16), clarifying the rights of those detained under section 34(1) of the Immigration Act 13 of 2002.

On 29 June 2017 the Constitutional Court handed down judgment declaring section 34(1)(b) and (d) of the Act inconsistent with sections 12(1), 35(1)(d) and 35(2)(d) of the Constitution. The declaration of invalidity was suspended for 24 months from the date of the order to enable Parliament to correct the defect. Pending the enactment of legislation, the Court provided interim relief that any persons detained under section 34(1) of the Act was to be brought before a court in person within 48 hours from the time of arrest or not later than the first court day after the expiry of the 48 hours, if 48 hours expired outside ordinary court days.

Parliament failed to meet the 29 June 2019 deadline to enact the corrective legislation (now, in 2023, six years after the aforementioned 2017 order, Parliament has still not enacted corrective legislation). This has resulted confusion and uncertainty in the application of section 34(1) of the Act – courts have taken divergent positions on the legal effects of the expiry of the suspension period with some Magistrates’ Courts incorrectly applying the 2017 order by requiring detainees to prove the lawfulness of their documentation status while others have been unwilling to confirm detentions beyond 30 days resulting in almost automatic releases from detention. As a result of this some immigration officers have detained detainees beyond 30 days without bringing them before a court; and some Magistrates have been instructed not to handle section 34 applications.

The Minister and Director-General of Home Affairs approached the Constitutional Court in July 2022 on an ex parte basis seeking a revival of the 2017 Order for a further period of two years. Lawyers for Human Rights, the applicant in the 2017 proceedings, was admitted as an intervening party in these ex parte proceedings.

The Constitutional Court today affirmed LHR’s contention that the Court’s intervention was required to provide clarity on the proper interpretation of the 2017 Order, especially in light of the inaction and failure by the state to enact remedial legislation. In this regard, the Court ordered the following procedure to operate in instances where someone is detained pending deportation under section 34(1) of the Act:

(a) an immigration officer must apply the interests of justice criterion when considering the arrest and detention of a person in terms of section 34(1) of the Act;

(b) a detained person shall be brought before a court within 48 hours from the time of arrest;

(c) the court must apply the interests of justice criterion when this person is brought before it;

(d) the court may authorise the further detention of this person if it concludes that the interests of justice do not permit the person’s release;

(e) if the further detention of this person is ordered, they must again be brought before the court prior to the expiry of the authorised detention period and the court must again apply the interests of justice criterion at this stage;

(f) the court may then again authorise the further detention of this person, but by no more than 90 days, if it concludes that the interests of justice do not permit the person’s release; and

(g) whenever this person is brought before a court, they must be given an opportunity to make representations to the court.

“This process clearly articulated by the Constitutional Court leaves no room for the violation of an immigration detainees rights. Furthermore, the explicit imposition of the interests of justice criterion in the decision-making of immigration detainees means that all detention decisions must be made fairly and justly for all concerned,” Nabeelah Mia, Head: Penal Reform Programme, Lawyers for Human Rights.

On the issue of costs, the Court held that “this litigation has been conducted in a dreadful manner” and was “deserving of a punitive costs order”. The Court further held that the “applicants’ legal representatives have abysmally failed in their duty to represent their clients in the manner required by their professional rules”. Accordingly, the Court held that the Minister is to pay 10% of LHR’s fees in his personal capacity, the Director-General is to pay 25% of LHR’s fees in his personal capacity and the fees of the Home Affairs’ former legal representatives in this matter are disallowed.

For further information, contact:

Nabeelah Mia, Head of LHR”s Penal Reform Programme


Tel: 011 399 1960

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