Lawyers for Human Rights v Minister of Home Affairs and others, CCT 38/16: Judgment declaring parts of S 34 of the Immigration Act invalid and inconsistent with the Constitution Date: 24 April 2018

Summary of CC Judgment On 29 June 2017 – the Constitutional Court (“CC”) declared section 34(1)(b) and (d) of the Immigration Act, 2002 (Act No. 13 of 2002) (“the Act”) inconsistent with sections 12(1) and 35(2)(d) of the Constitution and therefore invalid in that these sections of the Act: do not allow for automatic judicial intervention; and do not allow a detained illegal foreigner to challenge the lawfulness of his detention in person in court within 48 hours. - The declaration of invalidity was suspended for 24 months from date of order to enable Parliament to correct the defect (deadline for correction is 28 June 2019).

Content of section 34 of the Act S 34 deals with the deportation and detention of illegal foreigners. S 34 empowers an immigration officer to deport an illegal foreigner. It also authorises, without the need for a warrant, the arrest and detention of such foreigners for purposes of deporting them. In particular sections 34(1)(b) and (d) state the following: “ 34(1) Without the need for a warrant, an immigration officer may arrest an illegal foreigner or cause him or her to be arrested, and shall, irrespective of whether such foreigner is arrested, deport him or her or cause him or her to be deported and may, pending his or her deportation, detain him or her or cause him or her to be detained in a manner and at a place determined by the Director-General, provided that the foreigner concerned- (a) …

Content of section 34 cont (b) may at any time request any officer attending to him or her that his or her detention for the purpose of deportation be confirmed by warrant of a Court, which, if not issued within 48 hours of such request, shall cause the immediate release of such foreigner; (c) … (d) may not be held in detention for longer than 30 calendar days without a warrant of a Court which on good and reasonable grounds may extend such detention for an adequate period not exceeding 90 calendar days; and (e) ….

High Court In HC the applicants (Lawyers for Human Rights) argued that section 34(1)(b) and (d) of the Act provided inadequate protection of foreigners’ rights. Applicants contended that the sections were inconsistent with sections 12(1), 35(1)(d) and 35(2)(d) of the Constitution in that: 1. they omitted to provide for AUTOMATIC JUDICIAL OVERSIGHT before the expiry of 30 days (ie. the section permitted detention for 30 days without automatic judicial intervention); and 2. it did not permit a detainee to appear IN PERSON before a court and challenge the lawfulness of the detention (ie. permitted extension of detention period without detainee appearing in person).

Constitutional provisions S 12(1) – Everyone has the right to freedom and security of the person, which includes the right- not to be deprived of freedom arbitrarily or without just cause; not to be detained without trial; to be free from all forms of violence from either public or private sources; not to be tortured in any way; and not to be treated or punished in a cruel, inhuman or degrading way.

Constitutional provisions cont S 35(1)(d) - Everyone who is arrested for allegedly committing an offence has the right to be brought before a court as soon as reasonably possible, but not later than – (a) 48 hours after the arrest; or (b) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day. S 35(2)(d) – Everyone who is detained, including every sentenced prisoner, has the right to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released.

High Court’s finding Wrt S 35(1)(d) of the Constitution – the HC held that this section does NOT cover foreigners detained for the purposes of deportation. It applies where a person has been arrested for committing an offence and the purpose of the arrest was to bring him or her to trial. However, the HC held that sections 34(1)(b) and (d) of the Act were inconsistent with S 35(2)(d) of the Constitution to the extent that: It did not allow a detained foreigner to challenge the lawfulness of the detention in court or have the detention confirmed by a warrant of court; and It did not permit a detainee to appear in person in court when the request for extending the detention is considered.

High Court’s finding cont The HC concluded that sections 34(1)(b) and (d) of the Act unreasonably and unjustifiably limited the rights guaranteed by section 35(2)(d) of the Constitution. Accordingly the HC declared section 34(1)(b) and (d) of the Act to be inconsistent with the Constitution and invalid. Matter went to CC for confirmation of the HC’s order declaring the provisions invalid.

Constitutional Court’s finding At the onset, the CC considered the question as to whether illegal foreigners arrested under S 34 of the Act enjoy the constitutional protection afforded in S12 and S 35 of the Constitution. The CC relied on previous authority of the court which stated that “there is no reason why “everyone” in sections 12(2) and 35(2) should not be given its ordinary meaning. When the Constitution intends to confine rights to citizens it says so. All people in this category are beneficiaries of section 12 and 35(2).” Hence it concluded that the protections granted in sections 12 and 35(2)(d) of the Constitution extend to illegal foreigners.

CC findings cont The CC considered whether S 34(1)(b) and (d) of the Act limit the constitutional rights in S 12(1) and S 35(2)(d) And, if they do, considered whether the limitation was reasonable and justifiable in terms of S 36 of the Constitution. In considering the above, the CC examined the scope and content of the constitutional rights and interpreted the meaning of sections 34(1)(b) and (d).

CC findings cont S 12(1): Right to freedom and security of the person Safeguards individual physical freedom against any form of detention. Incorporates substantive and procedural aspects which must both be met: 1. substantive aspect: requires that a detention of an individual be done for constitutionally accepted reasons only and outlaws arbitrary detentions. There must be a rational connection between the detention and an objectively determinable and legitimate government purpose.

CC findings cont 2. Procedural aspect: is implicit in s 12(1)(b) which guarantees protection against detention without trial and the role played by courts. -The CC noted that judicial control or oversight ensures that appropriate procedural safeguards are followed. - Also noted that even during a state of emergency, the Constitution regards judicial oversight to be crucial to detention of individuals – hence there can be no justification for not applying those guidelines and allowing judicial review during normal and peaceful times. The CC concluded that it is apparent from the Constitution and jurisprudence that AUTOMATIC JUDICIAL CONTROL OR REVIEW forms an integral part of the safeguards guaranteed against detention without trial.

CC findings cont S 35(2)(d) of Constitution: detained and sentenced persons CC held that the whole of s 35(2) – dealing with detained and sentenced persons – applies to illegal foreigners detained in terms of 34(1) of the Act. S 35(2) confers on detained foreigners a number of rights (ie. right to be informed of the reason for detention to right to be visited by family members, medical practitioner, etc). S 35(2) also confers specific rights designed to protect the procedural aspect of the right to physical freedom (ie. right to choose and consult with a legal practitioner, etc). Most importantly, CC held that section 35(2) provides that a detainee is entitled to challenge the lawfulness of his or her detention IN PERSON before a court and to be released if unlawful.

CC findings cont S 34(1)(b) of the Act: CC held that this section does NOT require an AUTOMATIC JUDICIAL review of a detention before 30 days expire – it merely grants the detainee the right to REQUEST an immigration officer to cause the detention to be confirmed by a warrant of a court. Also does NOT allow the detainee to make any representations to the court, either orally or in writing. Does not permit the detainee to appear IN PERSON in court.

CC findings cont S 34(1)(d) of the Act: CC noted that this section permits an extension of a detention beyond 30 days, as it empowers a court to extend a detention for an adequate period but not exceeding 90 days on “good and reasonable” grounds. “good and reasonable” grounds is not defined and what this entails is left in the discretion of the court.

CC Findings cont Does not permit the detainee to make any representations to court on whether the grounds advanced by an immigration officer meet the standard of “good and reasonable”. No duty on Court considering the application to give detainee a hearing. CC held that section 34(1)(d) denies a detainee the right to challenge the lawfulness of his or her detention IN PERSON before a court.

CC Findings cont CC thus held that sections 34(1)(b) and (d) limit the constitutional rights enshrined in S 12(1) and 35(2) of the Constitution. CC held that a limitation of these rights like physical freedom could not be justified on the basis that there would be increased costs. The mere increase in cost alone cannot be justification for denying detainees the right to challenge the lawfulness of their detention.

CC Order 1. Order issued by HC set aside. 2. S 34(1)(b) and (d) of the Immigration Act, 2002, is declared inconsistent with sections 12(1) and 35(2)(d) of the Constitution and therefore invalid. 3. Declaration of invalidity is suspended for 24 months from date of order to enable Parliament to correct the defect (deadline for correction is 28 June 2019).

CC Order cont 4. Pending legislation to be enacted within 24 months or upon expiry of this period, any illegal foreigner detained under s 34(1) of the Immigration Act shall be brought before a court in person within 48 hours from the time of arrest or not later than the first court day after the expiry of the 48 hours, if 48 hours expired outside ordinary court days. 5. Illegal foreigners who are in detention at the time this order is issued shall be brought before a court within 48 hours from the date of this order or on such later date as may be determined by a court.

CC Order cont 6. In the event of Parliament failing to pass corrective legislation within 24 months, the declaration of invalidity shall operate prospectively. 7. The Minister of Home Affairs and the DG shall, within 60 days from the date of this order, file on affidavit a report confirming compliance with para 5 at the High Court, Gauteng Division. 8. The High Court may determine any dispute arising from that report. 9. Appeal against HC order by Dept is dismissed.

Committee Bill process Should the Committee decide to correct the defect in the Act by way of introducing a Committee Bill, then: Committee must request/seek the permission of the House to introduce the Bill (NA Rule 268 (1)(a) and 273 (1)) – this would entail tabling a memorandum in the Assembly which must: (a) set out the particulars of the proposed legislation; (b) state whether the proposed legislation will have financial implications for the state, and if so, give an account of those implications; and (c) set out the views of the executive on the objects of the proposed legislation.

Committee Bill process cont 2. If the Assembly gives permission, the Committee must prepare a draft Bill and a memorandum setting out the objects of the Bill (NA Rule 274(1)). 3. Before introducing the draft Bill, the Committee must publish the draft Bill for comment (NA Rule 275) – must give interested persons at least 3 weeks to make their submissions. The Committee, may in view of any comments received, adjust the draft Bill before its introduction. 4. The Draft Bill, once the Committee agrees on its final content, can then be sent to the Speaker for introduction.

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