New immigration laws for South Africa

 ·9 Apr 2024

The Department of Home Affairs has tabled new immigration laws for South Africa – five years after a deadline from the Constitutional Court.

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

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

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

Section 34(1) of the Immigration Act can be found below:

  • (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-
    • (a) shall be notified in writing of the decision to deport him or her and of his or her right to appeal such decision in terms of this Act;
    • (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;
    • (c) shall be informed upon arrest or immediately thereafter of the rights set out in the preceding two paragraphs, when possible, practicable and available in a language that he or she understands;
    • 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, and
    • (e) shall be held in detention in compliance with minimum prescribed standards protecting his or her dignity and relevant human rights

South Africa’s highest court suspended the period of invalidity for 24 months to enable parliament to correct the issues, giving the Department until June 2019 to make the necessary amendments.

Nevertheless, the Department missed the deadline. In 2023, four years after the deadline, the Department approached the Constitutional Court to get an extension for the lapsed order.

The court did not respond positively, ordering Minister Aaron Motsoaledi and Director-General Livhuwani Makhode to pay 10% and 25% of the legal fees for Lawyers for Human Rights, respectively.

New Bill

Now, five years after the initial deadline, the Department has tabled the Immigration Amendment Bill in the National Assembly.

Clause 1 of the Bill amends the principal Act by removing sections 34(1)(b) and (d) of the Act.

Clause 1 also substitutes substitutes section 34(1)(c) to provide that the arrested foreigner shall be told of their rights upon arrest as set out in 34(1)(a).

This provides for the right to be notified in writing of the decision to deport him or her, the right to appeal such decision and their right to make representations to the court.

The amendment to section 34(1)(c) also states that the arrested foreigner shall be informed of the rights when possible, in a language that they understand.

“Clause 1 also inserts a new subsection (1A), into section 34 of the principal Act, to provide guidance to immigration officers and to the courts on the processes that must be followed, and on the considerations that must be had when they arrest and detain an illegal foreigner for purposes of deportation,” the Bill states.

The Immigration Amendment Bill can be found below (mobile users can click here):

Read: These are the only electric cars with a driving range of over 500km in South Africa

Show comments
Subscribe to our daily newsletter