Pretoria - Nearly six years ago the Constitutional Court issued an order declaring sections of the Immigration Act invalid, which meant that detained immigrants had to be brought before court within 48 hours – but to date the government has not amended the law in this regard.
The court at the time gave the government two years in which to bring the law in line with the judgment. This had to be done by the end of June 2019. Now, nearly four years later, the Department of Home Affairs is returning to the Concourt to ask for a further two-year lifeline of its order in 2017.
In terms of the Immigration Act, immigrants – usually those who do not have documents to be in the country legally – could be arrested and detained for up to 30 days without a warrant.
In cases where warrants have been obtained, the time period can be extended to 90 days if a warrant is obtained, which means that detainees could be detained for up to 120 days before being brought before a court.
The Concourt in 2017 declared these sections of the act to be inconsistent with the Constitution and therefore invalid. The court suspended the declaration of invalidity for 24 months from the date of the order to enable Parliament to correct the defect.
However, it ordered that pending legislation to be enacted within two years or upon the expiry of this period, any illegal foreigner detained under this section of the Immigration Act shall be brought before a court in person within 48 hours from the time of arrest.
It also ordered that illegal foreigners who are in detention at the time this order is issued shall be brought before a court within 48 hours from the date of that order, or on such later date as may be determined by a court.
If Parliament fails to pass the corrective legislation within 24 months, the declaration of invalidity shall operate prospectively, the court ordered.
As the sections of the act have not yet been changed, Home Affairs is now asking the Concourt to “revive” the 2017 order, pending the government’s changing of the law to bring it in line with the judgment.
Lawyers for Human Rights, which was the applicant in the 2017 application, was also back in court yesterday as an intervening party in the “revival” application.
Home Affairs now argued that the failure to correct the defects in the law had led to some judicial officers taking the view that the sections under the spotlight were no longer part of the act at all. This, the court was told, was leading to inconsistencies and confusion in the application of the law by the courts.
Nabeelah Mia, the head of the Penal Reform Programme at Lawyers for Human Rights, said the failure by Parliament to pass legislation as ordered by the Concourt had led to a violation of the rights of immigration detainees in that there was inconsistent judicial oversight over their detention.
This meant that they were often not being brought before judicial officers to ensure that their detention was lawful and their rights were being protected at every stage. The matter concerned the procedures and safeguards governing the detention of people suspected of being illegal foreigners under the Immigration Act and who often face deportation.
Lawyers for Human Rights had initially challenged these sections of the act for a number of reasons, which included that 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.
Second, Lawyers for Human Rights argued that while the act envisaged a warrant being obtained from a magistrate’s court for the continued detention of the suspected illegal foreigner, Home Affairs interpreted this in a way that meant that the detained person did not have to appear in person before the magistrate concerned.
Pretoria News