Immigration Acts Ruling: Constitutional Court Grants Detainees Rights To Access Courts


Immigration Acts Ruling: The Constitutional Court has declared sections of the Immigration Act, 2002 invalid and unconstitutional.

On Thursday, the highest court unanimously declared the said Act – which allows for immigrants to be detained without a court hearing – inconsistent with the Constitution and therefore invalid.

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The Act stipulates in details that ‘illegal foreigners’ (undocumented immigrants) could be arrested and detained for up to 30 days without a warrant. This period can be extended to 90 days if a warrant is obtained.

This means that a person arrested for contravening the Immigration Act could be kept in custody for up to 120 days without being brought before a judge or magistrate, as detainees do not have the right to challenge the extension of their detention.

Handing down judgement, Justice Chris Jafta, who wrote down the court’s decision ordered that all detainees held under the Immigration Act must be brought before a Magistrate within 48 hours, adding that anyone currently detained under the Immigration Act must be brought before a court within 48 hours of the judgment.

The Court ruled that the rights guaranteed in section 12 and 35 of the South African Constitution – the right to challenge in court a detention within 48 hours of arrest and the right to be protected against arbitrary detention without trial – do not apply only to South Africans alone but also to foreign nationals.

The case was originally filed by the Lawyers for Human Rights in the High Court in Pretoria. The Pretoria court declared some provisions of the Immigration Act unconstitutional. The judgment was then appealed by the Minister of Home Affairs to the Constitutional Court.

Following the judgment, Minister of Home Affairs has been directed to report on his compliance with this order within 60 days. A cost order was also against the Minister. David Hlabane, Home Affairs spokesperson assured the department would respect the court’s decision.

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Meanwhile, Human rights lawyers have described the victory as groundbreaking. They thanked the Legal Aid South Africa and People Against Suffering Oppression and Poverty (PASSOP) for their all round support in the case.

Apparently, this case is a significant victory for the rights of immigrants in South Africa and affirms that they are entitled to equal protection and due process under the South African Constitution.