Unlawful detention of illegal foreigners? December 2017

By THATO MASHISHI, Published in Human Rights Law

The word "illegal foreigner" in the context of the title to this article refers to a person who was in possession of an asylum seeker permit but had his or her status revoked, and is considered, therefore, to be in the country illegally.


Section 35 of the Constitution, 1996 provides rights to arrested, detained and accused persons. These rights, amongst others, include the right to be informed promptly of reasons for detention, and to be informed promptly of the right to choose and consult with a legal practitioner. These are rights which are enjoyed by everyone in the country. In terms of s34(1)(c) of the Immigration Act (13 of 2002) it is a requirement that an illegal foreigner be informed of his or her rights under s34(1)(a) and (b). A foreigner needs to be notified in writing of the decision of his or her deportation.

This notification also needs to stipulate that the foreigner has the right to appeal. Furthermore, the right to request that an arrest be confirmed by a warrant of court must also be relayed to him or her. In the event that 48 hours lapses after the request made by the foreigner and the warrant of court is not issued, he or she must be released, as that would suffice as grounds for unlawful detention. These rights must be explained to the foreigner upon arrest or immediately after the arrest, and where possible, in a language that the foreigner understands.

Failure to comply with s34(1) renders an arrest and continued detention unlawful. In Lawyers for Human Rights v Minister of Home Affairs and Others 2016 (4) SA 207 (GP), the High Court held that s34(1)(b) of the Immigration Act is unconstitutional and invalid, to the extent that it requires a detainee to request that his or her detention be confirmed by a court, rather than granting an automatic right that such a detention be confirmed by appearing in person in court. The court held that s34(1)(d) is unconstitutional and invalid to the extent that it provides for an extension of the period of detention without affording the detainee the right to appear in court in person at the time the request is made. The matter was taken on appeal and referred for confirmation to the Constitutional Court.

The Constitutional Court ordered that the order issued by the High Court be set aside. Section 34(1)(b) and (d) of the Immigration Act was declared to be inconsistent with s12(1) and 35(2)(d) of the Constitution and, therefore, invalid because it infringed on the right of freedom of security of persons and the rights of detainees to challenge the lawfulness of their detention, in person, before a court.

The appeal was dismissed and the declaration of invalidity suspended for 24 months from the date of the order to enable parliament to correct the defect.

The Constitutional Court held that, having decided that severance and reading-in were inappropriate remedies, it was not open to the high court to effectively amend s34(1)(b) by replacing the invalid provision with the one drafted by the court. What the High Court did, did not accord with the principle of separation of powers. It was the domain of parliament to amend legislation and not the courts.

The Constitutional Court also held that s34(1) of the Immigration Act provides discretionary powers without any guidance on how the discretion to arrest and detain illegal foreigners must be exercised, and that it may be susceptible to inconsistent application by immigration officers. Moreover, even where a defect is cured by a reading-in, parliament retains the power to amend the provision. Since the reading-in here will not address the absence of guidelines, it may not be employed. Therefore suspension of the declaration of invalidity appears to be appropriate and would enable parliament to correct the defects.

The Court ruled that any illegal foreigner detained under s34(1) of the Immigration Act shall be brought before a court in person within 48 hours from the time of arrest and not later than the first court day after the expiry of the 48 hours, if 48 hours expired outside ordinary court days, pending legislation to be enacted within 24 months.

All illegal foreigners in detention at the time the order was issued were ordered to be brought before a court within 48 hours from the date of the order or at a later date as determined by a court. In the event that parliament fails to pass corrective legislation within 24 months, the declaration of invalidity will operate prospectively.

The state was ordered to file on affidavit a report confirming compliance with the order, insofar as it required the state to bring illegal foreigners (in detention at the time the order was issued) before a court.

The Constitutional Court judgement is progressive and ensures that everyone in the country will be afforded treatment that is in accordance with the Constitution. Although this landmark decision is a victory for a vulnerable category of people in South Africa, true victory will lie in its successful implementation.

Mashishi is a Candidate Attorney with Fasken Martineau (South Africa). The article was supervised by Sushila Dhever, a Partner.