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A deplorable state of affairs`: ConCourt slams Motsoaledi, MPs for stalling Immigration Act amendments

Source: News24, 31/10/2023


• Home Affairs Minister Aaron Motsoaledi and his director-general incurred personal costs for failing to amend parts of the Immigration Act.
• The court issued the first order in 2017 which it suspended for two years to allow Parliament time to make the necessary corrections, to no avail.
• The court also slammed the MPs, who blamed the delays on Covid-19, elections and the Parliament fire.
The Constitutional Court slammed MPs, the Home Affairs Minister Aaron Motsoaledi, and the department`s director-general (DG) Livhuwani Makhode for failing to amend sections of the Immigration Act, six years after a court ordered it.
The apex court ruled on the matter between the DG, the minister and Lawyers for Human Rights (LHR) on Monday.
The court had in 2017 declared that Section 34(1)(b) and (d) of the Immigration Act 13 of 2002 was invalid and unconstitutional.
The court ruled that the sections were unconstitutional because they unlawfully conferred a power to detain an individual without objectively assessing circumstances warranting that power and did not allow detainees to appear in court before the extension of their detainment.
The court ruled on the unconstitutionality of the section: `The exercise of this power is not subject to any objectively determinable conditions. Nor does the section lay down any guidance for its exercise. There can be no doubt that in the present form, Section 34(1) offends against the rule of law by failing to guide immigration officers as to when they may arrest and detain illegal foreigners before deporting them more so because this power may be exercised without the need for a warrant of a court. The detention is quintessentially administrative.`
The court suspended its ruling for two years to allow MPs to make the necessary amendments.
In its judgment on Monday, the Constitutional Court criticised Parliament for disregarding the order and failing to acknowledge its June 2019 deadline.
The court was less than satisfied with the reasons for the delay, including the national elections in 2019, the Covid-19 pandemic in 2020, and the fire that destroyed parts of Parliament last year.
The explanation that MPs became preoccupied from October 2018 with the looming national elections of 2019 and were unable to attend to pass the remedial legislation is disconcerting. It is a grim acknowledgement, on the face of it, that campaigning for re-election was far more important to the members of Parliament than meeting the deadline for the enactment of remedial legislation.
The apex court ruled that the pending amendments had caused confusion around the legislation.
It added that Motsoaledi and the DG did not apologise for the delays despite failing to adhere to its deadline.
Motsoaledi and Makhode are liable for 10% and 25% personal cost orders, respectively.
`When their defiance of their constitutional obligations is egregious, it is they who should pay the costs of the litigation brought against them and not the taxpayer,` the court ruled.
It gave Parliament 12 months to make the necessary amendments to legislation.
Subject to, and pending the enactment of that legislation, the court 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.
`This process clearly articulated by the Constitutional Court leaves no room for the violation of an immigration detainee`s rights,` said Nabeela Mia, the head of Lawyers for Human Rights` penal reform programme.
`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.`


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