The issues for determination by the court were: whether an illegal immigrant, had standing to bring proceedings in public interest, before a court challenging a cluster of provisions which dealt with the detention and deportation of illegal foreigners; whether the rights contained in s 12 (right to freedom and security of a person) and section 35(2) of the South African Constitution were applicable to foreign nationals who were physically in South Africa but who had not been granted permission to enter and had therefore not entered the country formally; and whether s 34(8) of the Immigration Act offended the rule of law in that it allowed arbitrary detention at the instance of an immigration officer and was thus unconstitutional.
The court noted that the Constitution provided that rights contained in the Bill of Rights were guaranteed to foreign nationals as well as citizens unless the contrary emerged from the Constitution. Foreign nationals would have standing where rights were threatened or infringed. In the circumstances, the 2nd applicant had standing to launch the proceedings.
The court held that an immigration officer could give reasons for the determination only if there were reasons for that determination. There could be no adequate reason for the determination unless there were factors sufficient for the immigration officer to reasonably suspect that the person who had just arrived at the port of entry was an illegal foreigner. Interpreted that way, the section required, at the very least, that there had to be reason to suspect that the person concerned was an illegal foreigner. Any other interpretation would be inconsistent with the very purpose of the legislation. Section 34(8) of the Immigration Act had been found to be inconsistent with the Constitution in a very limited way. There was no justification for striking down the whole section. The least invasive course was to read in the following sentence at the end of section 34(8) of the Immigration Act:
“A person detained in terms of this section may not be held in detention for longer than 30 calendar days without an order of a court which may extend the detention for an additional period not exceeding 90 calendar days on reasonable grounds.”
Immigration law; asylum seekers; illegal immigrants; rights of illegal immigrants; right to freedom and security of the person; enforcement of Constitutional rights
The applicants sought a confirmation of a High Court order declaring certain provisions of the Immigration Act unconstitutional. The applicants contended that s 34(8) of the Immigration Act offended the rule of law in that it allowed arbitrary detention at the instance of an immigration officer. The respondent opposed the application contending that South Africa’s Bill of Rights did not accord protection to foreign nationals at ports of entry who had not yet been allowed formally to enter the country.
Section 34(8) of Act 13 of 2002 was declared inconsistent with the Constitution because it did not allow the protection afforded to a detainee in terms of s 34(1)(d) to a person detained on a ship in terms of subsection (8). The following sentence to be read in at the end of s 34(8) of Act 13 of 2002: “A person detained in terms of this section may not be held in detention for longer than 30 calendar days without an order of a court which may extend the detention for an additional period not exceeding 90 calendar days on reasonable grounds.”
The universality of human rights means that human rights applied to each and every individual irrespective of whether they were foreign nationals or citizens.