Press statement: LHR launches constitutional challenge against section 34 of Immigration Act

Yesterday (Tuesday), the Gauteng High Court in Pretoria heard arguments regarding LHR’s constitutional challenge against the manner in which suspected undocumented foreigners are detained under Section 34 of the Immigration Act.

This challenge was filed in June 2014 after the introduction of the new immigration regulations and seeks to ensure court oversight of immigration detention, as provided for under the Constitution. LHR’s arguments were based on specific provisions of the Constitution:

Section 35(1) of the Constitution ensures everyone arrested for having allegedly committed an offence must appear before a court within 48 hours of arrest;

Section 35 (2) of the Constitution guarantees the right to appear in person before a court to challenge their detention. Since Section 34 only provides for a warrant to be issued by an immigration officer and not a court, we contended that the section is unconstitutional; 

Importantly, Section 12(1) of the Constitution prohibits arbitrary detention without just cause or to be held without trial, a prohibition stemming from the abusive use of detention under apartheid. 

“In our experience, many detainees are held without having their rights explained to them or being able to exercise these rights,” said LHR’s Wayne Ncube. “This application is intended to ensure that there is sufficient oversight by courts when people are arrested for deportation. 

LHR’s counsel, Adv Steven Budlender, argued that the case focused on dealing with detention for the purposes of deportation. According to the Immigration Act, a suspected undocumented foreigner can be detained for up to 30 days without a court warrant. After this period, a court order must be sought for a further 90 days. As things stand, detainees are not brought in person before a court and everything is done on paper.  

At the core of LHR’s argument are the benefits of having detainees appear before a court in person. For example, this gives the magistrate the opportunity to assess the justification for detention individually and a chance to explain the rights of the individual. It also gives the detainee a chance to explain if and why their detention is unlawful.  By allowing those arrested for the purposes of deportation to appear in person ensures effective judicial oversight and control over those who are detained. 

Home Affairs has opposed the application and argued that those detained for the purposes of deportation did not need to appear in person, claiming that doing so would mean an extra 500 court appearances per day. The Department has also argued that there are sufficient protections under the Immigration Act and other pieces of legislation to prevent unlawful detentions.   

Judgment has been reserved.