Immigration: 2 sections invalid

2003-04-22 19:53

Pretoria - In the latest court ruling against Home Affairs Minister Mangosuthu Buthelezi, the Pretoria High Court on Tuesday, declared two sections of the new Immigration Act unconstitutional and invalid.

Judge Ben du Plessis ruled that section 34(8) of the Immigration Act of 2002, did not provide for procedural protection of persons held on a ship and was therefore unconstitutional, but suspended the order for a year.

He further ruled that the wording of section 34(2), dealing with persons held on a ship, was unconstitutional.

The judge, however, refused an application by Lawyers for Human Rights to declare sections 34(1), 34(1)(d) and 34(9) of the Act unconstitutional as well.

The sections deal with among other things the arrest and deportation of illegal foreigners without a warrant and their detention without a trial.

The deportation of illegal foreigners was a legitimate governmental object internationally recognised, the Judge said.

The arrest of foreigners for the purpose of deportation was a just cause for the deprivation of freedom by means of arrest.

It was also a rational way of attaining the legitimate governmental object of deporting illegal foreigners.

The Act did not provide in section 34(1) for the arrest of persons other than those who were in fact illegal foreigners.

The possibility of the section rendering lawful the deprivation of the freedom of other persons did not arise.

"I conclude that the power to arrest in terms of section 34(1) of the Act does not limit the substantive aspect of the right to personal freedom," the Judge said.

He said illegal foreigners who were detained had the right to request at any time that their detention be confirmed by a warrant of a court.

They could also not be detained without a court order for longer than 30 days.

Act not complied with

To complaints that the circumstances under which illegal foreigners were detained were not in accordance with their basic human rights, Du Plessis said this was not because the Act allowed it, but because the Act was not complied with.

The judge found that LHR had the legal standing to bring the application as it genuinely acted in the public interest.

The very reason for its existence is a concern for human rights. In view of the difficulties facing foreigners, particularly illegal foreigners, whose rights may be infringed, it is in the public interest that an organisation such as LHR acts as public conscience to protect the rights of foreigners, he said.

Concerning section 34(8), the Judge said the powers given to immigration officers in the sub-section were arbitrary.

Persons who were not illegal foreigners but have been notified that they were or whom an immigration officer had declared to be illegal, could be detained on ships under this section even in cases where there was not even a reasonable suspicion that they were illegal foreigners.

The Cape High Court in March declared regulations accompanying the Act invalid and unconstitutional because Buthelezi did not follow essential notice and comment procedures before gazetting the regulations.

Although Buthelezi was refused leave to appeal against the ruling and the court ordered that previous legislation should remain in place.

The Department of Home Affairs will seek leave to appeal the ruling in the Constitutional Court next month.

- SAPA