Constitutional Court protects rights of detained immigrants

Source: The Citizen, 30/06/2017

This despite the fact that it will now become very expensive to
process the arrests of undocumented migrants.


Lawyers for Human Rights (LHR) has welcomed a unanimous Constitutional
Court ruling upholding the rights of all detainees â€" also alleged
illegal immigrants â€" to access our courts.


The Constitutional Court ruled that sections 34(1)(b) and (d) of the
Immigration Act were inconsistent with the constitution and therefore
invalid and gave parliament 24 months to issue new legislation to
correct the defects in the act.


Although the ruling of invalidity was suspended, the court ruled that
pending the enactment of amended legislation, any undocumented
foreigner detained under section 34 of the act must be brought before
court in person within 48 hours from the time of arrest or not later
than the first court day thereafter if the 48 hours fall outside
ordinary court days.


This also counts for foreigners currently already in detention.


The court ruled that the rights guaranteed in section 12 and 35 of the
constitution â€" the right to challenge in court a detention within 48
hours of arrest and the right to be protected against arbitrary
detention without trial â€" applied to foreign nations as well as South
African citizens.


LHR said in a statement the ruling affirmed that all persons living in
South Africa were protected by the law and not subject to arbitrary
violations of their rights by authorities.


“This ruling will most importantly protect vulnerable individuals
whose detention have in the past fallen beyond the reach of judicial
oversight, resulting in widespread rights violations,” the rights
group said.


LHR thanked Legal Aid South Africa, without whose financial support
they would not have been able to wage a successful battle against
state injustice, as well as People Against Suffering, Oppression and
Poverty (Passop), which intervened in the application as a friend of
the court.


LHR took the matter to the Constitutional Court for confirmation after
the High Court in Pretoria ruled that the sections of the act were
invalid, but Home Affairs appealed the ruling, arguing that the
sections were consistent with the constitution and denying that
arrested foreigners enjoyed the same protection under the
constitution.


The Constitutional Court dismissed the state’s appeal and upheld the
LHR’s argument that the legislation illegally authorised
administrative detention without trial for purposes of deportation in
violation of the constitution.


The organisation had instituted 115 cases against home affairs since
2009 and provided free legal assistance to arrested and detained
foreigners who were in some instances detained without trial for
periods of up to six months or longer.


Judge Chris Jafta said the LHR’s papers painted an unfortunate picture
of widespread disregard for statutory requirements, which led to a
violation of the rights of vulnerable people.


These lapses revealed shortcomings enacted by the Immigration Act in a
system that was supposedly designed to promote dignity and human
rights.


The state argued that it would increase costs as about 500 foreigners
would have to appear in court daily countrywide, which would require a
massive number of magistrates, but Judge Jafta said the mere increase
in costs alone could not justify denying detainees the right to
challenge the lawfulness of their detention.


He said an increase in costs would be unavoidable if each foreigner
decided to exercise their right to challenge the decision to deport
them, but the state should have budgeted for these costs, which are
necessitated by the implementation of the act.


The court found that the reasons advanced by the state fell woefully
short of justifying the limitation created by the impugned provisions
of the act.


Judge Jafta stressed that arrest and detention without trial had been
commonly used to suppress opposition to laws and policies of the
former apartheid government, with detainees in most cases being beyond
the reach of judicial oversight and subjected to torture and other
forms of violence.


The constitution included section 12 in the Bill of Rights to outlaw
this abuse of power and deprivation of personal freedom by
guaranteeing everyone physical freedom and protection against
detention without trial, Judge Jafta said.