Several arguments were advanced in the SCA. However, the primary issue was whether the Director-General had ‘determined’ the places at which the appellants had been detained in compliance with section 34(1) of the IA of the Act.
The respondent argued that there was no particular form which the ‘determination’ had to take. Provided that the facilities in question were under state control, the lack of a formal determination did not render their use unlawful.
The SCA interpreted section 34(1) of the IA of the Act in its context and with reference to the applicable international law framework. The SCA noted that international best practice requires that illegal foreign nationals are kept apart from the general prison population. The SCA held that the ‘determination’ contemplated in the provision is a formal identification of places that are run in accordance with international norms and which are appropriate for the detention of illegal foreigners pending deportation.
Appeal; asylum seekers; expired asylum seeker permits; arrest and detention; illegal foreigners; deportation; detention
The Minister of Home Affairs (the respondent) claimed that the appellants were all illegal foreigners who had been arrested by immigration officers in the employ of the respondent and were each detained for various periods at various facilities.
The appellants had instituted an action in the High Court to have their arrests and detentions declared unlawful and for consequential damages. Their claims were dismissed on the basis that the arrests and the detentions were lawful. Aggrieved by the decision, they appealed to the Supreme Court of Appeal (SCA).
The SCA upheld the appeal and overturned the decision of the High Court, which dismissed the claims of the appellants for damages with costs. Consequently, it declared that the detention of each of the appellants was unlawful and awarded them damages.
The wording of section 34(1) of the IA in its context and with reference to the applicable international law framework: the ‘determination’ contemplated is a formal identification of places that are run in accordance with international norms, and which are appropriate for the detention of illegal foreigners pending deportation.