The Department of Home Affairs faced an uphill battle in the Constitutional Court yesterday when appealing a decision that it had unlawfully detained illegal immigrants in police stations in the Eastern Cape.
The department, along with minister Malusi Gigaba, formally lodged an appeal against the Supreme Court of Appeal (SCA) that it had detained 15 illegal immigrants – 14 Bangladeshis and one Ghanaian – in various police stations in Port Elizabeth without following the prescriptions of the law.
In the ruling, the SCA found that the law stipulated that detention of illegal foreigners pending deportation in terms of section 34(1) of the Immigration Act 13 of 2002 – illegal foreigners to be detained in a manner and place to be determined by the director-general, absence of evidence concerning such determination, principle of legality – detentions of unlawful.
The 15 illegal immigrants brought the matter before the SCA after the high court in Port Elizabeth found the department had acted lawfully.
The SCA disagreed and found that the department’s director-general, Mkhuseli Apleni, had not made such a determination during the time of the incarceration in 2010.
The SCA also found that the immigrants’ rights were infringed when they were placed in the same cells with awaiting-trial prisoners. Not only did the SCA find the department’s action unlawfully, it also ordered it to pay damages to the illegal immigrants.
The department was ordered to pay various amounts between R3 000 and R25 000 pending on the duration of incarceration of each of them.
Baldwin Ndaba — The Star 27 November 2015