PRESS STATEMENT | Judgment expected today in Con Court on rights of immigration detainees

Date: 30/10/2023


Today at 10.30am, judgment will be handed down at the Constitutional Court in the matter of Ex Parte Minister of Home Affairs and Another in re Minister of Home Affairs v Lawyers for Human Rights (CCT 38/16).

On 29 June 2017, the Constitutional Court delivered a unanimous judgment in favour of LHR declaring sections 34(1)(b) and (d) of the Immigration Act 13 of 2002 (the Act) inconsistent with the Constitution and invalid in that they did not adequately protect the rights of persons detained for purposes of deportation under the Act. The Court suspended the declaration of invalidity for 24 months so that Parliament could remedy the constitutional defects. The period of suspension expired on 29 June 2019 and to date, Parliament has failed to correct these defects in the law.

More than three years later – on 22 July 2022 – the Minister of Home Affairs and the Director General of Home Affairs (collectively “Home Affairs”) approached the Constitutional Court for direct access. In its application, Home Affairs argues that the failure to correct the defects in the law has led to some judicial officers taking the view that sections 34(1)(b) and (d) are no longer part of the Act at all leading to inconsistencies in the application of section 34 by judicial officers. Home Affairs is requesting an order for the “revival” of the Court’s order for a further period of two years to allow Parliament to correct the defects in the law as ordered in the 2017 Judgment.

LHR was admitted as an Intervening Party and sought to be of assistance to the Constitutional Court in demonstrating how the Court can deal with Parliament’s failure to pass corrective legislation and to request clarity from the Court on the legal position and the rights of persons detained under section 34 of the Act. The matter was heard on 25 May 2023. Following hearing of the matter, the Chief Justice issued directions directing the parties to file affidavits stating why the Minister and Director-General should not be held personally liable for the failure to pass corrective legislation.

Nabeelah Mia, Head of the Penal Reform Programme states that “we hope that the outcome of this judgment will bring certainty to the rights of immigration detainees whose rights have been continuously violated due to the failure by Parliament to pass legislation as ordered by the Constitutional Court.

For further information, please contact:

Nabeelah Mia

Email: nabeelah@lhr.org.za

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