Counsel for the minister of home affairs Aaron Motsoaledi faced questions at the Constitutional Court on Thursday about a “pathetic dereliction of duty”.
Nearly three years after parliament was supposed to amend legislation on the detention and deportation of illegal foreigners, there has yet to be an amendment bill introduced in parliament. On Thursday the minister’s legal team was at the Constitutional Court asking it to “revive” a court order it gave in 2017.
At the hearing, the justices of the highest court grilled the minister’s counsel, Mike Bofilatos SC, on why the minister had allowed the court’s order to lapse. The court had given parliament until June 29 2019 to amend the legislation. It had not done so. And the minister had not come back to court to ask for an extension, instead doing nothing for nearly three years.
Chief Justice Raymond Zondo said he did not see anywhere on the court papers where the minister was apologising for this. Bofilatos responded that it was clear from the papers that the minister was “seeking an indulgence” from the court. “And you can only compliment him for having come to court,” said Bofilatos.
“I have been around for a long time. I don’t think I’ve seen anything like this,” said Zondo. It was “such an important order”, said Zondo. Yet it was allowed to lapse with the court only approached three years later, he said. He asked why should the court not view the conduct of the minister “as a pathetic dereliction of duty”.
Justice Steven Majiedt grilled Bofilatos about the reasons proffered for the failure to amend the legislation or, at least, come back to court to apply for an extension before the order lapsed.
In court papers, Livhuwani Makhode, director-general of the department of home affairs, had blamed the delay on MPs being too busy with election work ahead of the 2019 elections, then on the Covid-19 pandemic, “when normal parliamentary activity was brought to a virtual halt”. The fire in parliament in January 2022 furthered the delay, he said.
But Majiedt said that, between the time the MPs decided to stop with the legislative process to start campaigning for re-election, the department had nine months to come back to court to apply for an extension — yet it did not. He questioned the minister’s blaming on the pandemic and the fire in parliament, which came “long after” the court order had already lapsed.
The 2017 court order concerned the constitutionality of section 34 of the Immigration Act, which provided for the detention of people who had been found to be in the country illegally. Before the court’s order, if a person was found to be illegally in the country, they could be detained for 30 days and deported with no involvement of a judge or magistrate. If the 30 days needed to be extended, it would require the approval of a magistrate — but this was a mechanical affair that did not even require the foreign national to appear in court in person.
The Constitutional Court found parts of section 34 to be unconstitutional and struck them down because they allowed for the 30-day detention without automatic judicial oversight. The court also found that it was unconstitutional that the 30-day period could be extended by a further 90 days without a requirement that the detained foreigner appear in court in person.
The ConCourt suspended its order for two years to allow parliament time to fix the legislation. It ordered that, in the meantime, anyone detained under section 34 had to be brought before a magistrate within 48 hours.
The minister had apparently only come back to court because confusion caused by the delay and the court’s 2017 order had led some magistrates to refuse to conduct section 34 inquiries. They said that since parliament had not fixed the legislation, and the interim arrangement put in place by the ConCourt had lapsed, section 34 now no longer provided for inquiries by magistrates.
This has affected the ability of the home affairs department to deport illegal foreigners, said Makhode in his application to the court. “The magistrates’ interpretation effectively nullifies one of the primary purposes of the Immigration Act, namely, the deportation of illegal foreigners. The adverse effects hereof on the sovereignty of the country, speak for themselves,” said Makhode.
The department then had to go to the high court asking for an order that kept the interim regime in place while they approached the Constitutional Court.
In its court papers, the department asked the ConCourt for another two years’ grace for parliament. But Lawyers For Human Rights, which initially brought the case to court, said the ConCourt had repeatedly said in earlier judgments that it does not have the power to extend a suspension period once the period has already expired.
Counsel for Lawyers for Human Rights, Steven Budlender SC, argued that the magistrates’ interpretation of the 2017 judgment could not be correct. This would have meant that if parliament did not enact the legislation, it would have left the applicants, who had won their case, worse off than before, he said.
Though Budlender and Bofilatos disagreed on the legal, technical ways of getting there, they both sought an order that would clarify that section 34 would continue to apply, with the additional safeguards that the ConCourt had put in place in the interim. So, detained illegal foreigners would need to be brought before a magistrate within 48 hours. Any extension would still need court approval. Where the 30-day period was being extended, this would require an in-person appearance before a court.
Judgment was reserved.
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