It has long been assumed that an illegal foreigner must be detained and upon detention such person does not have the same rights of a person detain pursuant to the Criminal Procedure Act. This meant that many illegal foreigners have had to endure lengthy detentions without being brought before a court. Several horror stories have been recounted of people being detained at the whim of an Immigration Officer and kept in detention for many days and some instances months before being deported. I have always held the belief that Immigration Officers are perhaps more powerful than the police. A police officer can never hope to detain a person for more than 48 hours and get away with it. Yet an immigration officer does so and often without a second thought to whether the detention is justified or the wellbeing and rights of the person. There are series of judgements that have been handed down over the years on this topic but none so pivotal as the Judgment of the Constitutional Court handed down on the 29th of June 2017.  We analyse this decision and its impact but also shed some light into the rights of a detained illegal foreigner.

Section 34 of The immigration Act provides an Immigration Officer with sweeping powers to detain and deport an Illegal foreigner. The section provides that, without the need for a warrant, an immigration officer may arrest an illegal foreigner or cause him or her to be detained, deport and that pending the deportation, may, detain the illegal foreigner. The section then goes on to provide important safeguard provisions. These are;

provided that the foreigner concerned— 

(a) shall be notified in writing of the decision to deport him or her and of his or her right to appeal such decision in terms of this Act; 

(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) shall be informed upon arrest or immediately thereafter of the rights set out in the preceding two paragraphs, when possible, practicable and available in a language that he or she understands; 

(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) shall be held in detention in compliance with minimum prescribed standards protecting his or her dignity and relevant human rights.” 

The problem with this section has always been that it does not give the detained person an automatic right to be brought before the courts within 48 hours. What has been the practice is that an Immigration Officer would detain a person and just leave him or her in custody of SA Police Service but SAPS would have to wait for the official to return and take the detainee to court. Also, the section places an obligation on the Immigration Officer to notify the illegal foreigner of his right to have the detention confirmed by a warrant of the court within 48 hours. However, as many would testify they have never notified of this right and where compliance with 34(1)(b) was occasioned it was only the immigration officer who would appear and present his version of the case and a Magistrate would simply endorse the detention without hearing the other side of the story.

On the 29th of June 2017, the Constitutional Court unanimously ruled that section 34(1)(b) and 34(1)(d) were inconsistent with the Constitution because they violated persons’ rights to freedom and security of the person and the Rights of all detained persons to challenge the lawfulness of the detention in person before a court and if the detention is unlawful, to be released.  These rights are found in section 12 and 35 of the Constitution respectively.  Justice Jafta aptly began his judgment with following paragraphs;


[1]” Personal freedom was one of the rights routinely violated during the apartheid era. Arrest and detention without trial were commonly used to suppress opposition to the laws and policies of the government of that time.1 Many detainees were arrested in the dead of the night and whisked away to undisclosed locations where they were detained for indefinite periods. While in detention, sometimes in solitary confinement, they would be deprived of any contact with the outside world. No contact was permitted with their families, doctors, lawyers and even pastors.”

 [2] “In most cases those detentions were beyond the reach of judicial oversight.3 As a result detainees were at the mercy of their captors who would subject them to interrogations accompanied by torture and other forms of violence for purposes of extracting information on matters relating to state security. “

 [3] “To outlaw abuse of power and deprivation of personal freedom, the framers of our Constitution included section 12 in the Bill of Rights that guaranteed everyone physical freedom and protection against detention without trial. “

Central to its reasoning was that administrative detentions under the immigration Act were remnants of the system of apartheid where detainees were kept in custody for long periods and without any judicial oversight. The court found that the rights under section 12 and 35 required a more vigorous protection under these circumstances as this is where the most violations to human rights are conducted.  The court thus declared these sections invalid and gave parliament 24 months to correct the defect. The court also ordered that any illegal foreigner detained under section 34(1) must be brought before a court in person within 48 hours from the time of arrest and all illegal foreigners who are currently in detention be brought to court within 48 hours of the court order. The Minister of Home Affairs has also been given 60 days to ensure that all detained illegal foreigners are brought before a court and provide a report to the Constitutional Court.

It is central to this issue to understand what makes any detention in this context unlawful.  Firstly, it must be established firmly that a person is indeed an illegal foreigner. The term is a technical term with a specific definition provided for the in the Immigration Act.  A foreigner in the Republic in contravention of this Act.  This means that before an immigration officer detains a person he or she must have conducted a thorough investigation and have conclusive proof that this person is indeed an illegal foreigner.  However once established it is still not acceptable to detain a person simply because they are an illegal foreigner.

There is no duty or obligation to detain anyone under the Immigration Act. The Act in section 34 provides that the Immigration officer may detain an illegal foreigner.  This means that before deciding to detain a person an Immigration officer must apply his or her mind to the question is it necessary to detain? A similar exercise unfolds in a bail application where the arrested person is given an opportunity to provide evidence to prove that he or she is likely to stand trial and thus the interests of Justice warrant that the person be released on bail. In Ulde v The Minister of Home Affairs, the Supreme court of Appeal held that an immigration officer faced with this question must exercise his or her discretion in favour of liberty failing to do so would render the detention unlawful for want of the exercise of a proper discretion. The exercise of the discretion is an objective exercise and it is not acceptable that an immigration officer draws sweeping conclusions such as arguing that the person will flee if released.

Justice Jafta in handing down the Judgment of the Con Court stated similarly;

 “[33] The substantive aspect requires that a detention of an individual be done for constitutionally acceptable reasons only. This right outlaws arbitrary detentions. There must be a rational connection between the detention and an objectively determinable and legitimate governmental purpose. Absence of that connection would mean that the substantive aspect of the right is breached. A breach of this aspect of the right may also occur where a rational connection exists but the purpose or cause for the detention is not just. 

 [34] The procedural aspect of the right is implicit in section 12(1)(b) which guarantees protection against detention without trial which was commonplace under the apartheid government. Then, arbitrary administrative detention was used to suppress dissent and serious violation of human rights occurred during the detention in respect of which judicial oversight was excluded. 

 [35] Implicit in the procedural aspect of the right is the role played by courts. Judicial control or oversight ensures that appropriate procedural safeguards are followed. That is why even where there is a derogation from the right during a state of emergency, section 37 of the Constitution requires that a court must review the detention as soon as reasonably possible but not later than 10 days from the date the person was detained “

The decision of the Con Court is a welcome intervention in this the last bastion of apartheid era practices. It sheds the light of the constitution onto an area where many human rights violations have been the order of the day. It places the rights of all detained persons firmly in the minds of the powers that be, regardless of their race, nationality or status in the country and ensures that indeed South Africa is a constitutional democracy.

For assistance with your immigration matter you can contact us at our our offices and speak to one of our specialists.

Munyaradzi Nkomo

Lead immigration specialist at Strategies Migration Services SA


Cell: +2774 337 0269

tel : +2711 064 4875