[Press Release] LHR to Challenge Constitutionality of Immigration Detention laws

13 March 2017  

Lawyers for Human Rights (LHR) will appear in the Constitutional Court tomorrow, Tuesday 14 March 2017, at 10:00am to challenge the constitutionality of the provisions of the Immigration Act relating to detention.  This application was originally set down to be heard in November 2016 but was postponed at the request of the State whose counsel was unavailable. 

Currently, the Immigration Act provides that someone determined to be an “illegal foreigner” by an immigration officer may be detained for 30 days by that officer without a warrant plus a further 90 days with a warrant issued in chambers by a magistrate.  At no point is a detainee brought in person before a court to explain why he or she should not be detained. 

An appearance in person is vital to protecting the rights of all detainees.  It allows the detainee to explain his or her circumstances, whether they in fact have valid documentation, whether they are refugees and not subject to deportation, tell the court any violations of their rights, ensure that children are not detained and provide access to lawyers. 

In February 2016, the Provincial Division of the Gauteng High Court (Pretoria) found that section 34(1) of the Immigration Act was unconstitutional as it did not provide for court oversight of detention as required by the Constitution of the Republic of South Africa, 1996.  This finding was subject to confirmation by the Constitutional Court. 

LHR has presented evidence collected over its 10 years of monitoring immigration detention of rights violations at police stations, prisons, international airports and the Lindela Holding Facility regarding long-term detentions, asylum seekers and refugees caught up in deportation proceedings and the failure of the Department of Home Affairs to inform detainees of their rights.

We would like to thank Legal Aid South Africa for their ongoing support in this case.      

 For more information, please contact:

Wayne Ncube

Attorney: Strategic Litigation Programme

Lawyers for Human Rights

Tel: 071 850 3434