The Western Cape High Court has ruled that screeners at the Home Affairs office in Cape Town office are not allowed to refuse to take forms from the public. (Photo: Fani Mahuntsi / Gallo Images) 
The Eastern Cape High Court has ordered the Department of Home Affairs to pay damages up to a R1-million to a woman who admitted that she was illegally in the country after she was unlawfully detained for a month.
“It is rather confounding that the [Department of Home Affairs] pleaded ignorance of the provisions of section 34 of the Immigration Act. Section 34 is the provision of the Immigration Act empowering immigration officers to arrest and detain illegal foreigners pending deportation,” Judge Lindiwe Risi said in her ruling on 30 July 2024.
The woman, whose identity was not made public by the court, was arrested on 18 November 2022, for failing to have a permit or visa to be in South Africa. She was brought to the Mthatha Magistrates’ Court on 21 November 2022, where she pleaded guilty to contravening the Immigration Act and she was then fined.
She was subsequently detained at the Mthatha Central Police Station from 21 November 2022, pending her deportation. But she was released on 22 December 2022 after legal intervention.
She sued the Department of Home Affairs for R1-million, alleging that her arrest and detention were unlawful. Her claim was opposed by the Department of Home Affairs. Its legal team argued that it was illegal for someone without the necessary papers to enter and remain in South Africa, adding that they were within their rights to keep her detained.
The plaintiff stated in papers before court that she had admitted to being illegally in the country and had paid a R1,000 fine, but then she was detained for another month in the police cells without being given legal presentation or her incarceration being confirmed by a court.
She told the court that she was detained in deplorable conditions at the Central Police Station, which was not suitable for her detention, and that she was refused an opportunity to get an attorney. She was also not brought before a court within 48 hours of her arrest.
The legal team for the Department argued that they were entitled to arrest the plaintiff as she failed to identify herself as a foreigner who is lawfully in the country or as a citizen of the Republic. It claimed that the court authorised her further detention and she was duly informed of the decision to deport her and of the reasons for her continued detention.
They added that the Central Police Station was the place where illegal foreigners are detained pending deportation.
Officials fall foul of the law
The court heard from Home Affairs official Xola Memani that he had insisted that the plaintiff be detained after she was arrested. He said she could not produce the necessary permit or visa that authorised her to be in South Africa. He said further that she had been ordered to leave the country two years before she was arrested.
He testified that he and his colleagues left the court late on 21 November 2022, and as far as he knew no request was made to the court on this day for the confirmation of the plaintiff’s detention pending deportation.
It was his and his colleagues’ intention to return to court the following day to apply for the court’s confirmation of the plaintiff's detention from 21 November 2022 pending deportation.
The arrested herbalist was required to be present in court when an application was made for the confirmation of her further detention post-arrest, pending her deportation. Failure to bring the plaintiff to court would be an irregularity.
Memani did not return to court on 22 November 2022 as intended, but his colleagues did. It is from them that he heard of what transpired in court. He was informed that the magistrate confirmed the plaintiff’s detention on 22 November 2022, and backdated the confirmation to 21 November 2022, as he still recalled the plaintiff’s case from the previous day.
The plaintiff was also given notice on 21 November 2022 of the decision to deport her. An application was further made on 9 December 2022 for the extension of the plaintiff’s detention for a further period, pending her deportation. The magistrate further confirmed the extension of the plaintiff's detention on 9 December 2022.
The woman, however, was not brought to appear before the magistrate.
Another Home Affairs official, Msimelelo Maqeda, testified that he arrested the plaintiff in the Mthatha central business district on 18 November 2022, during an operation that was aimed at identifying illegal foreigners. She was hiding in a room where she and another female were conducting business as herbalists.
When the plaintiff and another woman who was with her came out of hiding and were asked why they were hiding from immigration officials they said they did not have permits authorising them to be in South Africa.
It appeared from further evidence by Home Affairs officials that they were under the impression that the woman’s detention had been confirmed by a magistrate. The court further heard that when it became clear that she would not be deported within 30 days, her detention was extended for 90 days.
Maqeda heard later that the plaintiff was released from detention after the department was served with court papers. Home Affairs officials denied that the woman told them she was an asylum seeker.
ConCourt ruling
In 2017, the Constitutional Court declared parts of the Immigration Act unconstitutional and suspended the order of invalidity for 24 months pending Parliament enacting corrective legislation to cure the defect.
The court added that pending action taken by Parliament, any illegal foreigner detained under the disputed sections of the Immigration Act shall be brought before a court in person within 48 hours from the time of arrest, or not later than the first court day after the expiry of the 48 hours if 48 hours expired outside ordinary court days.
The 24 months given to Parliament however expired in June 2019, and no amendments had been made.
In 2023, the minister of Home Affairs approached the Constitutional Court for the revival of the order it made in 2017. Parliament was given another 12 months to fix the law.
Read more: ConCourt hits Home Affairs minister, DG with personal costs order over immigration law case
In this hearing, the Constitutional Court supplemented the 2017 order by setting out the procedure that would be followed in the meantime when an illegal immigrant is to be arrested and detained as follows:
“An immigration officer considering the arrest and detention of an illegal foreigner must consider whether the interests of justice permit the release of such a person subject to reasonable conditions, and must not cause the person to be detained if the officer concludes that the interests of justice permit the release of such person subject to reasonable conditions.”
The court upheld its previous ruling that an arrested person must be brought before a court within 48 hours from the time of the arrest to decide if it will be in the interest of justice to release the person. And if not, further detention must be authorised by the court.
Read more: Aaron Motsoaledi must take responsibility for Immigration Act mess – Lawyers for Human Rights
Law is clear
“One thing remains clear – there ought not to have been any doubt in the mind of the immigration officers (and the court) regarding what was expected of them in their exercise of the discretion given to them in terms of [the law],” Judge Risi said in the Eastern Cape High Court.
“I emphasise that among the reasons why the Constitutional Court declared the provisions of the Immigration Act invalid in Lawyers for Human Rights was that they resulted in the detention of illegal foreigners for a period of more than 48 hours without any judicial oversight. They sanctioned the detention of the illegal foreigners without trial, in contravention of the Constitution.”
The judge said bringing a defendant to court was more than a mere formality.
“It ought to follow that bringing an illegal foreigner to court for the decision to be made regarding the confirmation of his/her detention pending deportation is not a matter of mere formality.
“As the Constitutional Court envisaged, it is required so that the illegal foreigner’s right to make representations in open court and/or challenge the decision to be made that is adverse to him/her may be realised.” DM