Detaining Illegal Foreigners

The powers given to immigration officers to arrest and detain “illegal foreigners” in terms of the Immigration Act have been described by the Courts as drastic and draconian. Whilst the legality of those powers of arrest and detention will hopefully continue to enjoy legal scrutiny, two recent decisions of the South African courts warrant brief consideration.


Source: Chris Watters, Attorney Bedfordview
The powers of the Department of Home Affairs’ immigration officers to arrest and detain are contained in sections 34(1) and 41(1) of the Immigration Act. In summary, section 41(1) permits an immigration officer to take a person into custody if on reasonable grounds the immigration officer is not satisfied that the person is not entitled to be in the Republic. The purpose of the detention is to verify the person’s identity and immigration status and cannot be for longer than 48 hours. In terms of section 34(1) an immigration officer may arrest and detain an illegal foreigner for a period of up to 30 days, without a warrant, for purposes of deporting him or her. That period can be extended for up to another 90 days. Section 34 also sets out a number of limitations and checking mechanisms on the arrest and detention powers.
In Mogul v Minister of Home Affairs [2008] JOL 22229 (T), Mavundla J remarked that “to merely have illegal refugees released simply because it is alleged [writer’s underlining] that their further detention is unlawful, will result in a situation where the number of refugees roaming the streets of the Republic ever increasing to unacceptable and uncontrollable proportions. . . . The courts must be careful in dealing with these matters of illegal foreigners; a too liberal approach might result in foreigners taking advantage of such a liberal approach by the courts to free them purely because they have been in detention for more than a number of days. [writer’s underlining]”. These observations may have been misunderstood in immigration and Department circles, it is submitted. It is, with respect, obviously a call that papers in such matters be drawn properly, that they contain the appropriate averments duly supported by documentation, where possible, and that the principles of legality and the requirements of section 34, be observed when considering a detention, submissions, from whichever side of the fence they come from, must be grounded in law and fact and not in emotional appeals to the Bench.
In a similar vein, in the recent judgment of the House of Lords in Secretary of State for the Home Department v AF and another [2009] UKHL 28 (10 June 2009), that Court considered the legality of “control orders” or house arrest issued in respect of persons suspected of so-called ‘terrorist activities.’ In supporting the striking down of the control orders, Lord Scott commented that ‘[t]he duty of the courts . . . is not, directly at least, a duty to protect the lives of citizens. It is a duty to apply the law. Where the relevant law is, as here, statutory, the courts’ duty is to construe the statute and faithfully to apply it so construed.” Having regard to the principles of the separation of powers within the state, and however uncomfortable it might make us feel as lawyers, that duty – to save lives – is a duty that more directly, lies elsewhere within the state. Nevertheless, it is a brave statement in the context of the UK today.
In moving the Mogul position a step forward, the Department’s detention powers were also considered recently by the Supreme Court of Appeal in the matter of Ulde v Minister of Home Affairs and others [2009] ZASCA 34 (31 March 2009).   The appellant had been criminally charged for immigration-related offences and had been subsequently released on bail. The Department had thereafter detained him, the legality of which detention had been challenged.
In what is a very important decision for immigration law enforcement in South Africa, Cachalia JA held that “[b]earing in mind that we are dealing with the deprivation of a person’s liberty (albeit of an illegal foreigner’s), the immigration officer must still construe the exercise of his discretion in favorem libertatis when deciding whether or not to arrest or detain a person under s 34(1) – and be guided by certain minimum standards [of administrative justice] in making the decision.”
The Court found that there was merit in the submission that the appellant had been detained pursuant to a “blanket policy to detain all persons found to be illegal foreigners.” Cachalia JA concluded that “ . . . once the [Department] had elected to charge the appellant, and the magistrate then decided to release him on bail, this should have been taken into account as a relevant and material factor in any further decision to detain him. . . .   The magistrate’s order could not simply be ignored – which is what happened. The appellant was therefore detained for unacceptable reasons – thus rendering his detention unlawful.”
It is to be hoped that this judicial recognition, by no less than the Supreme Court of Appeal, of the existence of such a blanket policy will be factored into the Department’s ongoing transformation and the ongoing implementation of its law enforcement strategy.
The last word, for now, can be drawn from an unreported judgment of Van der Westhuizen J, as he then was, in Eveleth v Minister of Home Affairs [TPD case no: 23226/02, 29 August 2002]: “ … the South African public, and I presume the courts and certainly myself, have tremendous respect and appreciation for the difficult task of . . . the Department of Home Affairs. … However . . . especially when officials have important but drastic powers, they have to meticulously follow the letter and the spirit of the law. Otherwise much of their efforts which may be good work, may come to nothing and may be nullified by the courts inter alia in view of the requirements of administrative justice.”

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