New Immigration Act 'invalid'

2003-03-03 18:48

Pretoria - The provisions of the Aliens Control Act and the new Immigration Act, which is to replace it later this month, are inconsistent with the Constitution and therefore invalid, the Pretoria High Court heard on Monday.

Advocate Anton Katz, appearing for Lawyers for Human Rights and land activist Ann Eveleth, argued before judge Ben du Plessis that the court should set aside sections 34(1), 24(2), 34(8) and 34(9) of the Immigration Act.

He said the provisions of the Immigration Act relating to the detention of foreign nationals provided no guidance of whatever nature to immigration officials or for that matter to other persons authorised to arrest and detain foreign nationals.

The provisions of the Act were unreasonably broad, he said.

LHR national director Dr Vinodh Jaichand said in court papers Home Affairs officials used the Aliens Control Act on a daily basis to secure the arrest and indefinite detention without a warrant and without a trial of persons they sought to remove from South Africa.

He said the Act and the new legislation passed by Parliament in May 2002 gave no guidelines about when, why and for how long a foreign national could be detained.

Fundamental rights

The legislation violated fundamental rights such as the right not to be detained without a trial and access to courts.

There was no reasonable justification offered for the deprivation or limitation of these rights, he said.

Home Affairs assistant director Willem Voster in answering papers stressed that the State had an obligation, in the interests of its citizens, to control entry into the country by foreign nationals.

A number of factors, like poverty, political instability and wars caused countless foreign nationals to descend on South Africa without first obtaining the necessary permits. A vast majority of these people did not enter the Republic through ports of entry. This made detection by the state extremely difficult.

Illegal foreign nationals

He said there were an estimated 4.2 million illegal foreign nationals in South Africa, but only 300 immigration officers. It was extremely expensive to remove a foreign national.

The removal of 126 Nigerian nationals cost the state R1.2m in 2000 and it cost about R10 000 to remove a prohibited person to China, with the costs of escorting the person doubling or tripling the amount.

The last five years about 170 000 to 180 000 prohibited persons had been removed, but the number remained stable because of a lack of human and financial resources, Voster added.

Home Affairs Minister Mangosuthu Buthelezi said the new Immigration Act was passed by Parliament to bring the field of international migration control into compliance with the Constitution and to reflect the highest international standards of human rights protection.

The application continues.

- SAPA