In the past week several media outlets ran with headlines that suggested that the Minister of Home Affairs had authorised law enforcement officers to conduct spot checks to ascertain a persons nationality. The news came with major concerns and widespread condemnation and culminated in a statement issued by the Minister clarifying what he had stated.  Correctly citing section 41 of the Immigration Act 13 of 2002 (“Immigration Act”), he confirmed the provision that grants immigration officers and police officers powers to ascertain the nationality of an individual and where necessary take the person into custody in terms of section 34 of the Immigration Act. However, there is more that determines whether the detention of an illegal foreigner is permitted that should inform the conduct of law enforcement officers.

There is no duty to detain in our law and the courts have ruled that any arrest is manifestly unlawful as it violates the rights of a person in terms in section 12 of the Constitution of the Republic of South Africa (“Constitution”). In terms of section 12 everyone has a right to freedom and security, including the right no to be deprived of freedom arbitrarily and without just cause. Furthermore section 35 provides for the rights of an arrested person to appear before court and be released on bail if the interest of justice allows for that release. In instances where these two rights have been brought before the superior courts, the decisions have predominantly been made in favour of liberty.

Section 60 of the Criminal Procedure Act 56 of 1955 (“CPA”) governs how bail should be considered in criminal proceedings. It requires judicial officers to conduct a risk assessment of the impending decision to release a person on bail, including the seriousness of the offence, whether the person will abscond, re-offend or interfere with witnesses. This risk of absconding is one that tends to be over emphasised by the authorities when dealing with foreigners, illegal or otherwise.

There seems to be a misconception that every foreigner will abscond. Such sweeping assumptions are not only untrue, but render the continued detention arbitrary.  There is nothing in our law that says being a foreign national automatically makes someone a “flight risk”. On the contrary, our courts have found just the opposite. In S v Hudson and in S v Price, the courts held that foreign nationals do not bear an increased onus of proof in relation to bail applications than South African citizens. Therefore, there is no increased burden to prove that the person is not a flight risk.

In line with section 34 of the Immigration Act, detentions are administrative pursuant to deportation proceedings. The question of detentions in the context of administrative immigration detentions has been exhausted by the courts. In Ulde v The Minister of Home Affairs, the Supreme Court of Appeal held that the powers that immigration officers have is discretionary, hence the use of the word “may detain”  at every instance within the in Immigration Act. The court further held that a proper exercise of that discretion would be conducted in favour of liberty and the officer would have to provide a compelling reason for detaining someone under the Immigration Act. It is not enough to claim that an individual will escape if they are released; a fact based and objective assessment of that specific individual must be conducted to support the decision to detain.

The Constitutional Court affirmed this position in Lawyers For Human Rights V Minister Of Home Affairs And Others.  In deciding that section 34 was unconstitutional, the court stated “[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.“

While it is correct that the police and immigration officers have the power to detain someone pursuant to an identity verification in terms of section 41 of the Immigration Act, that power is discretionary which means the officers must first attempt to secure the persons cooperation before detaining them.  Certainly if the person has a verifiable address that person is not a risk.

The Immigration Act provides for a notice to appear, which can be issued to a person to secure their attendance pursuant to any investigation. Such methods ought to be employed before detention is used as means of enforcement.  When dealing with an illegal foreigner during bail proceedings, it is also important to conduct  a similar inquiry in terms of section 60 of the CPA. To hold the view that because one is a foreigner and is therefore an automatic flight risk would mean the law does not apply equally to all persons and in turn violates the equality clause of the Constitution. There is no obligation or duty to detain a person whether administratively or pursuant to criminal proceedings on the sole basis that he or she is a foreigner, illegal or otherwise.

Author: Munyaradzi Nkomo