Judgment has been reserved in Lawyers for Human Rights’ constitutional challenge against the manner in which suspected undocumented foreigners are detained under Section 34 of the Immigration Act.
LHR filed the challenge in the High Court in Pretoria in June after the introduction of new immigration regulations. The application is aimed at ensuring court oversight of immigration detention.
LHR based its application on the sections of the Constitution stipulating that arrested persons must appear before a court within 48 hours, have right to appear in person before a court to challenge their detention and that that they may not be detained arbitrarily without just cause or without trial.
LHR further contends that Section 34 of the Constitution is unconstitutional as it only provides for a warrant to be issued by an immigration officer and not a court.
HR’s lawyer Wayne Ncube said in their experience many detainees were held without having their rights explained to them or being able to exercise these rights.
“This application is intended to ensure that there is sufficient oversight by courts when people are arrested for deportation,” he said. Advocate Steven Budlender, for LHR, submitted that in terms of the Immigration Act, a suspected undocumented foreigner could be detained for up to 30 days without a court warrant, whereafter a court order had to be sought for a further 90 days.
He said as things now stood, detainees were not brought in person before a court and everything was done on papers. He said having detainees appear before a court in person would give the magistrate the opportunity to assess the justification for detention individually and a chance to explain the person’s rights. It would also give the detainee a chance to explain if and why their detention was unlawful.
It would further ensure effective judicial oversight and control over detainees.
Home Affairs opposed the application arguing that those detained for the purposes of deportation did not need to appear in person, as it would mean an extra 500 court appearances per day.
The Department maintained there were sufficient protections under the Immigration Act and other legislation to prevent unlawful detention.