‘Not even a hint of an apology’: Motsoaledi ordered to pay costs of ‘shambolic’ immigration case

Parliament, Home Affairs Minister Aaron Motsoaledi, and the department’s director-general, Livhuwani Makhode, have come under fire for failing to amend the Immigration Act for the past six years.

The Constitutional Court (ConCourt) on Monday delivered its ruling on the matter between Motsoaledi and Lawyers for Human Rights (LHR) dating back to 2017.

Background

The ConCourt had declared Section 34 of the Immigration Act, which provided for the detention of foreign nationals in the country illegally for 30 days without automatic judicial oversight, unconstitutional and invalid.

The apex court ruled that Section 34(1)(d) was unconstitutional because it did not allow detainees to appear in court before the extension of their detainment for a further 90 days.

These sections were suspended for two years to give Parliament an opportunity to amend the legislation.

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However, Parliament failed to meet the June 2019 deadline, and even to date, the national legislature is yet to remedy the constitutional defects.

The matter was only revived in July last year when Motsoaledi and the Department of Home Affairs approached the ConCourt due to the confusion caused by the amendment delay, which led to some magistrates “incorrectly” applying the apex court’s 2017 order.

Home Affairs, in their ex parte application before the ConCourt, blamed the 2019 general elections, the Covid-19 pandemic in 2020, and the January 2022 fire that gutted parts of Parliament for its delay in fixing the Immigration Act.

‘Abysmal failure’

In a unanimous judgment, Justice Steven Majiedt rejected Home Affairs’ arguments, criticising Parliament and the department for their “abysmal failure to take steps to approach this court for an extension”.

Majiedt highlighted that the 2020 lockdown was almost a year after the deadline and the fire almost 18 months after. 

He said the explanation that MPs became preoccupied with the 2019 election was “disconcerting”.

“It is a grim acknowledgment, on the face of it, that campaigning for re-election was far more important to MP than meeting the deadline for the enactment of remedial legislation.”

The judgment also slammed Motsoaledi and Makhode for not displaying “the remotest hint of an apology” for the delays, although the ConCourt acknowledged that they were “largely dependent on the advice of their lawyers”.

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“But that does not absolve them from culpability for the shambles in this case,” Majiedt said in the judgment.

Furthermore, the judgment stated that the lawyers must take the major share of the blame for the “deplorable state of affairs” in the “shambolic” litigation, which was brought to the ConCourt without the LHR being informed.

“The court condemned the egregious fashion in which the litigation was conducted and the legal representatives’ failure in their duty to represent their clients as required by their professional rules,” a summary of the judgment reads.

Motsoaledi and Makhode were ordered to pay for 10% and 25%, respectively, of the costs from their own pockets, while the ConCourt “disallowed” their lawyers from getting any fees for the case.

pic.twitter.com/K2ebE4yqVn

— Constitutional Court (@ConCourtSA) October 30, 2023

12 months ‘grace period’

The apex court has given Parliament 12 months to make the necessary amendments to the legislation.

Subject to and pending the enactment of that legislation, the ConCourt also ordered:

• That an immigration officer must apply the interests of justice criterion when considering the arrest and detention of a person in terms of the act;
• A detained person shall be brought before a court within 48 hours from the time of arrest;
• The court must apply the interests of justice criterion when this person is brought before it;
• The court may authorise the further detention of this person if it concludes that the interests of justice do not permit the person’s release;
• If the further detention of this person is ordered, they must again be brought before the court prior to the expiry of the authorised detention period and the court must again apply the interests of justice criterion at this stage;
• The court may then again authorise the further detention of this person, but by no more than 90 days, if it concludes that the interests of justice do not permit the person’s release; and
• Whenever this person is brought before a court, they must be given an opportunity to make representations to the court.

If Parliament, however, fails to change the Act within the year, these orders will continue to apply until it does. 

LHR pleased with judgment

The LHR, which brought the original 2017 application, has welcomed the ConCourt’s ruling.

“This process clearly articulated by the Constitutional Court leaves no room for the violation of an immigration detainee’s rights,” Nabeela Mia, the head of Lawyers for Human Rights’ penal reform programme, said in a statement.

“Furthermore, the explicit imposition of the interests of justice criterion in the decision-making of immigration detainees means that all detention decisions must be made fairly and justly for all concerned.”