North Gauteng High Court orders permanent closure of Musina detention facility

In a strongly worded judgment, the North Gauteng High Court has ordered the permanent closure of the detention facility for undocumented foreign nationals on the military grounds near Musina, commonly known as "SMG".

In February 2009, LHR launched an urgent High Court application seeking an order for the closure of the facility due to a number of factors, including the extreme unsanitary conditions of detention and the unlawful detention of young children and refugees under the Immigration Act.  Most of the detainees were Zimbabwe nationals seeking refuge in South Africa from the political and economic meltdown across the border.  Children were often arrested by police, military and immigration officials and detained and deported alongside adults without any regards to the devastating conditions from which they fled. 

The Court found that the various government departments involved, namely the South African Police Service, the Department of Home Affairs and the Department of Social Development, had abdicated their responsibilities under the Constitution and violated the rights of the detainees. 

The conditions of the facility have been widely reported in the media and human rights organisations.  This state of affairs was confirmed by the lack of genuine denials by government.  Detainees were held in unsanitary conditions, previously with no access to toilets, no medical facilities and inadequate food.  LHR lawyers witnessed detainees being beaten with a green rubber hose "as a punitive measure or a mechanism of crowd control."  These conditions were in stark violation of the minimum standards under international law as well as DHA's own Immigration Regulations. 

The court also found the treatment of children as "startling" and found that they had been unlawfully treated by SAPS, DHA as well as ignored by the Department of Social Development when LHR's lawyers made them aware of the presence of children at the facility.  Children were not adequately fed or accommodated with beds and blankets.  The Court cited an earlier High Court judgment which requires that all children must be cared for under the Constitution, no matter their immigration status. 

The Court was critical of the way that SAPS and DHA had "colluded" in creating a facility but neglecting their responsibilities under the law.  The Court did not accept the government's justification that the facility was simply an extension of the police station and therefore not subject to any standards.  Nor could the Director-General of Home Affairs simply abdicate his responsibilities under the Immigration Act, including ensuring that immigration detainees be held under the minimum conditions prescribed under the Immigration Regulations, 2005. 

In a clear statement on the application of the Constitution to immigration detentions, the court stated that conduct under the Immigration Act must conform to the Bill of Rights.  The Constitution is not simply a symbolic document, but has practical application especially where it concerns vulnerable groups. 

The detention facility has been operational for more than two years.  LHR has secured the release of approximately 5000 people being held in these unlawful conditions this year alone.  This is however a drop in the ocean compared to the 15 000 who were being detained and deported per month. 

"It is outrageous the amount of time and resources which have been devoted to defending this clear violation of human rights and degrading treatment of detainees," says Gina Snyman of Lawyers for Human Rights.  "In light of this judgment we call on the new Minister of Home Affairs to revisit the policy of detention and to review the conditions of detention in all immigration and police facilities."

The Department of Home Affairs has announced plans to introduce exemption permits to Zimbabwe nationals which will provide documentation to those persons who are currently in South Africa due to the continued difficult conditions in Zimbabwe.  LHR is concerned, however, that the roll-out for these permits has not yet taken place and DHA has been unable to give a timeline for its implementation.  In the meantime, Zimbabweans still live in uncertainty and are subject to arrest and detention. 

For more information please contact:

Gina Snyman              072 180 7524              gina [at] lhr [dot] org [dot] za

Jacob van Garderen   082 820 3960              jacob [at] lhr [dot] org [dot] za