[Press Release] Constitutional Court Unanimously Upholds the Rights of All Detainees to Access to Courts

29 June 2017  

The Constitutional Court handed down a historic decision today in the matter of Lawyers for Human Rights v. Minister of Home Affairs and others; the Court unanimously found that sections 34(1)(b) and (d) of the Immigration Act are inconsistent with the Constitution and therefore invalid. The Court ruled that the rights guaranteed in section 12 and 35 of the South African Constitution—the right to challenge in court a detention within 48 hours of arrest and the right to be protected against arbitrary detention without trial—apply to foreign nationals as well as South African citizens.

The Court suspended the finding of invalidity for 24 months to allow Parliament to issue new legislation to correct the defects of section 34. In the interim, the Court’s ruling mandates that all illegal foreigners detained under section 34(1) of the Immigration Act must be brought before a court in person within 48 hours of arrest. Furthermore, the Court mandated that all those currently detained under the Immigration Act must be brought before a court within 48 hours from today’s 10AM ruling or on such later date as may be determined by a court.

Today’s ruling has affirmed that all persons living in South Africa are 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 has in the past fallen beyond the reach of judicial oversight resulting in widespread rights violations.

LHR would like to extend its gratitude to Legal Aid South Africa, which served as an invaluable partner in this case; without Legal Aid’s financial support, we would not have been able to wage this successful battle against state injustice.

We would also like to thank PASSOP | People Against Suffering Oppression and Poverty for being the friends of the court on this case.

For more information please contact Carol Mohlala, Media and Communications Manager on 079 238 9826