PRESS STATEMENT | LHR back in Con Court on protection of rights for immigration detainees

Date: 24/05/2023

Lawyers for Human Rights (LHR) will be in the Constitutional Court on Thursday 25 May 2023 9:00am as an intervening party in an application brought by the Minister of Home Affairs and Director General of Home Affairs. The Minister seeks an order for the “revival” of the 2017 Constitutional Court order in Minister of Home Affairs v Lawyers for Human Rights [2017] ZACC 22; 2017 (10) BCLR 1242 (CC); 2017 (5) SA 480 (CC).

On 29 June 2017, the Constitutional Court delivered a unanimous judgment in favour of LHR declaring sections 34(1)(b) and (d) of the Immigration Act 13 of 2002 (the Act) inconsistent with the Constitution and invalid in that they did not adequately protect the rights of persons detained for purposes of deportation under the Act. The Court suspended the declaration of invalidity for 24 months so that Parliament could remedy the constitutional defects. The period of suspension expired on 29 June 2019 and to date, Parliament has failed to correct these defects in the law.

More than three years later – on 22 July 2022 – the Minister of Home Affairs and the Director General of Home Affairs (collectively “Home Affairs”) approached the Constitutional Court for direct access. In its application, Home Affairs argues that the failure to correct the defects in the law has led to some judicial officers taking the view that sections 34(1)(b) and (d) are no longer part of the Act at all leading to inconsistencies in the application of section 34 by judicial officers. Home Affairs is requesting an order for the “revival” of the Court’s order for a further period of two years to allow Parliament to correct the defects in the law as ordered in the 2017 Judgment.

LHR was admitted as an Intervening Party and seeks to be of assistance to the Constitutional Court in demonstrating how the Court can deal with Parliament’s failure to pass corrective legislation and to request clarity from the Court on the legal position and the rights of persons detained under section 34 of the Act.

Nabeelah Mia, Head of the Penal Reform Programme said “the failure by Parliament to pass legislation as ordered by the Constitutional Court has led to a violation of the rights of immigration detainees in that there is inconsistent judicial oversight over their detention. This means that they are not being brought before judicial officer to ensure that their detention is lawful and their rights are being protected at every stage”.

For further information, please contact:

Nabeelah Mia, Managing Attorney of the LHR Penal Reform Programme and Detention Monitoring Unit




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