ConCourt bid to confirm order outlawing 'unconstitutional' migrant detentions

07 November 2016 - 21:51 By Ernest Mabuza
Image: Gallo Images/Thinkstock

Lawyers for Human Rights will appear in the Constitutional Court on Tuesday to ask the court to confirm the unconstitutionality of the provisions of the Immigration Act relating to detention.

The Act provides that someone found to be an “illegal foreigner” without documentation may be detained for 30 days by an immigration 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.

Last year‚ Lawyers for Human Rights‚ acting on behalf of people detained in terms of section 34(1) of the Act‚ brought an application against the Minister of Home Affairs alleging that the procedures and safeguards governing the detention of those suspected of being illegal foreigners were unconstitutional and invalid.

The high court in Pretoria found in February this year that section 34(1) was unconstitutional as it did not provide for court oversight of detention as required by the Constitution. The court’s finding was sent to the Constitutional Court for confirmation.

The Constitutional Court must confirm any order of invalidity made by a high court before that order has any force.

Lawyers for Human Rights has presented evidence collected over its 10 years of monitoring immigration detention 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.

- TMG Digital