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Press Release: Con­sti­tu­tional Court’s judg­ment on deten­tion under the Immi­gra­tion Act wel­comed

For Imme­di­ate Release: 29 June 2017


The Legal Resources Cen­tre wel­comes the Con­sti­tu­tional Court judg­ment handed down today, 29 June 2017, in Lawyers for Human Rights v Depart­ment of Home Affairs which held that the deten­tion of alleged or sus­pected ille­gal for­eign­ers with­out prompt judi­cial inter­ven­tion was uncon­sti­tu­tional.


The LRC rep­re­sented Peo­ple Against Suf­fer­ing, Oppres­sion and Poverty (PAS­SOP) as a friend of the court.


The mat­ter con­cerned the pro­ce­dures and safe­guards gov­ern­ing the deten­tion of peo­ple sus­pected of being ille­gal for­eign­ers under sec­tion 34(1) of the Immi­gra­tion Act 13 of 2002. The High Court had declared sec­tions 34(1)(b) and (d) of the Act con­sti­tu­tion­ally invalid. The Con­sti­tu­tional Court upheld the dec­la­ra­tions of con­sti­tu­tional inva­lid­ity.


Lawyers for Human Rights (LHR) had chal­lenged these sec­tions of the Act for two rea­sons. First the Act does not require that a detained per­son be auto­mat­i­cally brought before a court within 48 hours in order for the court to con­firm the law­ful­ness of their deten­tion, which is the case for other detained peo­ple.


Sec­ondly, LHR argued that, while the Act envis­ages a war­rant being obtained from a Mag­is­trates’ Court for the con­tin­ued deten­tion of the sus­pected ille­gal for­eigner, the Depart­ment of Home Affairs inter­preted this in a way that meant that the detained per­son did not have to appear in per­son before the Mag­is­trate con­cerned.


PAS­SOP sup­ported LHR’s argu­ments chal­leng­ing these sec­tions of the Act. PAS­SOP made sub­mis­sions to the court on the rel­e­vance of bind­ing and non-binding inter­na­tional legal instru­ments, for­eign law, reports of spe­cialised bod­ies, as well as stan­dards and guide­lines relat­ing to judi­cial over­sight of immi­gra­tion deten­tion.


PAS­SOP also argued that inter­na­tional and com­par­a­tive law must be con­sulted when inter­pret­ing sec­tion 34(1) of the Act. It fur­ther con­tended that the fail­ure of the impugned pro­vi­sions to pro­vide for min­i­mal pro­ce­dural safe­guards for immi­gra­tion deten­tion is incon­sis­tent with inter­na­tional guide­lines and stan­dards applic­a­ble to immi­gra­tion deten­tion.


We are pleased that the court embraced the con­sti­tu­tional con­sid­er­a­tions. We wel­come the judg­ment as a vin­di­ca­tion of con­sti­tu­tional prin­ci­ples and human rights for every­one in South Africa, includ­ing for­eign­ers, whose dig­nity and lib­erty must be respected by the state.







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