New immigration laws for South Africa coming – five years too late

 ·20 Mar 2024

The Department of Home Affairs plans to introduce new amendments to South Africa’s immigration laws – missing a Constitutional Court deadline by five years.

In 2017, Lawyers for Human Rights took the Minister of Home Affairs and others to court over the treatment of detained foreign nationals.

The Constitutional Court ruled that sections 34(1)(b) and (d) of the Immigration Act of 2002 were invalid and unconstitutional. The sections state the following:

  • 34(1) Without need for a warrant, an immigration officer may arrest an illegal foreigner or cause him or her to be arrested, and shall, irrespective of whether such foreigner is arrested, deport him or her or cause him or her to be deported and may, pending his or her deportation, detain him or her or cause him or her to be detained in a manner and at the place under the control or administration of the Department determined by the Director-General, provided that the foreigner concerned-
    • (b) – may at any time request any officer attending to him or her that his or her detention for the purpose of deportation be confirmed by warrant of a Court, which, if not issued within 48 hours of such request, shall cause the immediate release of such foreigner;
    • (d) may not be held in detention for longer than 30 calendar days without a warrant of a Court which, on good and reasonable grounds, may extend such detention for an adequate period not exceeding 90 calendar days.

The Lawyers for Human Rights said that many foreigners were being detained for more than 120 days without appearing in court or being told of their rights.

In June 2017, the Constitutional Court suspended the period of invalidity for 24 months to enable parliament to correct the defect, giving the department until June 2019 to amend the laws.

However, the department missed this deadline and approached the Constitutional Court in 2023, four years after the deadline, to get an extension for the lapsed court order.

The court was less than impressed and ordered Minister Aaron Motsoaledi and Director-General Livhuwani Makhode to pay 10% and 25% of the legal fees for Lawyers for Human Rights, respectively.

New law

The Department has now gazetted an explanatory summary for the Immigration Amendment Bill 2023, with Motsoaledi intending to introduce the Bill to the National Assembly.

The Bill seeks to amend sections 31(1)(b) and (d) of the Immigration Act of 2002 to align with sections 12(1) and 35(2) of the Constitution, which state:

  • 12(1) – Everyone has the right to freedom and security of the person, which includes the right—
    • (a) not to be deprived of freedom arbitrarily or without just cause;
    • (b) not to be detained without trial;
    • (c) to be free from all forms of violence from either public or private sources;
    • (d) not to be tortured in any way; and
    • (e) not to be treated or punished in a cruel, inhuman or degrading way.

  • 35(2) Everyone who is detained, including every sentenced prisoner, has the right—
    • (a) to be informed promptly of the reason for being detained;
    • (b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly
    • (c) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
    • (d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;
    • (e) to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and
    • (f) to communicate with, and be visited by, that person’s—
      • (i) spouse or partner;
      • (ii) next of kin;
      • (iii) chosen religious counsellor; and
      • (iv) chosen medical practitioner.

Read: Massive shake-up for visas and immigration in South Africa

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