In a unanimous judgment, the court found that section 34(1) made it clear that the Director-General (DG) was required to apply his or her mind to what places are appropriate for the detention of illegal foreigners. Since the DG had not made such a determination, the respondents were detained unlawfully and eligible for damages. However, the Court did not interfere with the amounts for damages awarded by the Supreme Court of Appeal.
Asylum seekers, expired asylum seeker permits, arrest and detention, illegal foreigners, deportation, detention
The respondents, who were all foreign nationals, were arrested and detained for deportation after their temporary asylum-seeker permits expired and their applications for asylum were unsuccessful. Pending deportation, they were detained in various facilities. They remained at these places of detention for different
periods, ranging from 4 days to 35 days, before they were released.
This matter interpreted section 34(1) of the Immigration Act 13 of 2002 (the Act) which provides that illegal foreigners must be detained in places determined by the Director-General of Home Affairs (Director-General).
The High Court found that places used for the detention of illegal foreign nationals did not have to be determined by the Director-General and that all prisons and police detention facilities could lawfully be used for this purpose. The Supreme Court found the contrary and held that the detention was unlawful. Consequently, it awarded damages ranging from R3 000 to R25 000 per individual depending on the duration of their detention.
The interpretation of section 34(1) of the Act was further considered in the Constitutional Court.
In a cross-appeal, the respondents challenged the amounts of damages awarded by the Supreme Court of Appeal.
The appeal against the judgment of the Supreme Court of Appeal was dismissed, with costs. The cross-appeal was also dismissed.
Section 34(1) makes it clear that the Director-General is required to apply his or her mind to what places are appropriate for the detention of illegal foreigners.