Detaining Illegal Foreigners in South Africa: Legal Principles and Case Law

Introduction to Legal Principles

In South Africa, the Immigration Act, 13 of 2002, and the Refugees Act, 130 of 1998, form the core of immigration and asylum law. The Immigration Act provides a framework for handling legal and illegal migration, including deportation and detention procedures. The Refugees Act protects individuals fleeing persecution, ensuring they have access to basic rights such as healthcare and education.

Key Legal Principles

• Immigration Act:
  • Detention and Deportation: Sections 34 and 41 allow immigration officers to arrest and detain individuals suspected of being illegal foreigners. Detention is initially for up to 30 days, extendable to 90 days.
  • Judicial Oversight: Recent case law emphasizes that all detentions must be subject to judicial oversight to ensure compliance with administrative justice principles.
• Refugees Act:
  • Asylum Process: Protects individuals at risk of persecution, providing temporary permits while their applications are processed.
  • Rights and Protections: Guarantees refugees access to healthcare, education, and employment, and includes the principle of non-refoulement.

Case Law: Detaining Illegal Foreigners

Facts and Court Decisions

1. Mogul v Minister of Home Affairs [2008] JOL 22229 (T)

1. • Facts: The court considered the detention of illegal foreigners, emphasizing the need for proper legal procedures to avoid releasing individuals who might exploit a liberal approach.
   • Decision: Highlighted the importance of following legal principles and documentation in detention cases.

2. Ulde v Minister of Home Affairs and others [2009] ZASCA 34 

1. • Facts: The appellant was detained after being released on bail for immigration-related offenses.
   • Decision: The Supreme Court of Appeal ruled that detention must be guided by principles of administrative justice and that a blanket policy to detain all illegal foreigners is unlawful. The court emphasized that decisions should favour liberty and consider relevant factors like bail orders.

3. Eveleth v Minister of Home Affairs [TPD case no: 23226/02

1. • Facts: The case involved the detention of an individual under immigration laws.
   • Decision: The court stressed that officials must meticulously follow the law when exercising drastic powers, ensuring compliance with administrative justice requirements.

Recent Developments

• Ashebo v Minister of Home Affairs and Others (2023): The Constitutional Court emphasized that asylum applicants must justify their entry or delayed application, highlighting the need for ‘good cause’ in such situations.
• Lembore and Others v Minister of Home Affairs and Others (2024): The court clarified that detention under the Immigration Act remains lawful until an applicant demonstrates valid reasons for their illegal entry or delayed asylum claim.

Conclusion

The detention of illegal foreigners in South Africa is governed by strict legal principles, with recent court cases emphasizing the importance of judicial oversight and adherence to administrative justice. While the Immigration Act provides powers for detention and deportation, these must be exercised in accordance with the law to ensure fairness and respect for individual rights.