Home Affairs must pay for damages

Home Affairs must pay for damages

Published by The Star [icon type=”icon-clock”] 27 November 2015

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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


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