The Supreme Court of Appeal (SCA) held that the Immigration Act 13 of 2002 and the Regulations promulgated thereunder required a warrant to be issued by an immigration officer for the detention of an illegal foreigner as also for his removal from that place of detention. As neither the appellant's detention nor his removal from detention for deportation was effected pursuant to a warrant, both his detention and deportation were held to be unlawful.
The SCA rejected two further arguments by the appellant's legal representatives. The first was that the deportation was a disguised extradition; and the second that the deportation was a ‘crime against humanity’ because it amounted to an ‘enforced disappearance’ under the Rome Statute of the International Criminal Court. In both instances the SCA found that the evidence that was placed before the court did not support those contentions. Nevertheless because the detention and deportation were held to have been unlawful, the Minister of Home Affairs was ordered to pay the costs incurred by the appellant and his attorneys of the legal proceedings both in the high court and in the SCA.
Immigration law; illegal foreigner; deportation; detention and arrest of illegal foreigner; fraudulent documents; warrant required
The appellant had entered South Africa and obtained documents authorizing his stay in the country fraudulently. As an illegal foreigner he was therefore liable to arrest. An immigration official supported by armed police arrested him at Estcourt. He was then driven to the Cullinan Police Station where he was detained. He was later removed from detention and deported to Pakistan. The High Court held that his arrest, detention and deportation had been carried out lawfully.
The appeal succeeds. The appellant's detention and deportation were held to have been unlawful, and the first respondent was ordered to pay the costs.
The Immigration Act required a warrant to be issued by an immigration officer for the detention of an illegal foreigner, as also for his removal from that place of detention. As neither the appellant's detention nor his removal from detention for deportation was effected pursuant to a warrant, both his detention and deportation were held to be unlawful.