Lawyers for Human Rights v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Citation: 2017 (5) SA 480 (CC)

Lawyers for Human Rights v Minister of Home Affairs and Others
2017 (5) SA 480 (CC)

2017 (5) SA p480

Citation	2017 (5) SA 480 (CC)
Case No	CCT 38/16; [2017] ZACC 22
Court	Constitutional Court
Judge	Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
Heard	June 29, 2017
Judgment	June 29, 2017
Counsel	S Budlender (with N Ferreira and J Bhima) for the applicant.; P Kennedy SC (with L Mboweni) for the first and second respondents.; S Margardie (with S Sephton) for the amicus curiae.

Flynote : Sleutelwoorde

Immigration B — Illegal foreigner — Detention — Provisions concerning confirmation, duration and extension of detention declared invalid — Constitution, ss C 12(1)(b) and 35(2)(d); Immigration Act 13 of 2002, ss 34(1)(b) and 34(1)(d).

Headnote : Kopnota

Applicant asked the Constitutional Court to confirm a High Court declaration that ss 34(1)(b) and (d) of the Immigration Act 13 of 2002 were invalid because they were inconsistent with s 35(2)(d) of the Constitution. First and D second respondents opposed confirmation and appealed the High Court's order.

The issues were:

•

Whether ss 12(1) and 35(2) of the Constitution applied to illegal foreigners detained under s 34(1) of the Immigration Act. Held, that they did. (See [12], [24], [26] – [27] and [42].)

•

Whether E ss 34(1)(b) and (d) limited the rights in ss 12(1)(b) and 35(2)(d) of the Constitution. (Section 34(1)(b) provides that a detained illegal foreigner may request that his detention be confirmed by warrant of a court; s 34(1)(d) that an illegal foreigner may be detained for 30 days without a warrant, and that a court may, if there are grounds, extend the F detention for up to 90 days. Section 12(1)(b) of the Constitution affords the right not to be detained without trial; and s 35(2)(b) the right of a detained person to challenge the lawfulness of his detention in court, in person. The full texts of these sections are in [29], [41] and [46].) Held, that they did. (See [16], [28] and [58].)

•

Whether the limitations were justifiable. Held, that they were not (see [63]).

Ordered, G inter alia, that:

•

Sections 34(1)(a) and (b) were inconsistent with the Constitution and invalid.

•

The declaration of invalidity was suspended for 24 months, to allow Parliament to correct the sections' defects.

•

Pending corrective legislation, any illegal foreigner arrested and detained H was to be brought before a court within 48 hours of his arrest.

•

Illegal foreigners in detention at the date of the order were to be brought before a court within 48 hours of the order.

Appeal dismissed (see [73]).

Cases cited

Bernstein I and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449; [1996] ZACC 2): referred to

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 039 (Pty) Ltd and Another 2012 (2) SA 104 (CC) (2012 (2) BCLR 150; [2011] ZACC 33): referred to

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another J v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837; [2000] ZACC 8): dictum in para [62] applied

2017 (5) SA p481

A De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) (1998 (7) BCLR 779; [1998] ZACC 6): referred to

Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC) (2004 (7) BCLR 775; [2004] ZACC 12): dictum in para [27] applied B

Lawyers for Human Rights v Minister of Home Affairs and Others 2016 (4) SA 207 (GP): confirmed

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39; [1999] ZACC 17): dictum in para [65] confirmed C

Nel v Le Roux NO and Others 1996 (3) SA 562 (CC) (1996 (1) SACR 572; 1996 (4) BCLR 592; [1996] ZACC 6): referred to.

Legislation cited

The Constitution, 1996, ss 12(1)(b) and 35(2)(d): see Juta's Statutes of South Africa 2016/17 vol 5 at 1-27 and 1-30 D

The Immigration Act 13 of 2002, ss 34(1)(b) and 34(1)(d): see Juta's Statutes of South Africa 2016/17 vol 7 at 4-51.

Case Information

S Budlender (with N Ferreira and J Bhima) for the applicant.

P Kennedy SC (with L Mboweni) for the first and second respondents. E

S Margardie (with S Sephton) for the amicus curiae.

An appeal from the Gauteng Division, Pretoria.

Order

1.

The order issued by the High Court of South Africa, Gauteng F Division, Pretoria, is set aside.

2.

Section 34(1)(b) and (d) of the Immigration Act 13 of 2002 is declared to be inconsistent with ss 12(1) and 35(2)(d) of the Constitution and therefore invalid.

3.

The declaration of invalidity is suspended for 24 months from the date of this order to enable Parliament to correct the defect. G

4.

Pending legislation to be enacted within 24 months or upon the expiry of this period, any illegal foreigner detained under s 34(1) of the Immigration Act shall be brought before a court in person within 48 hours from the time of arrest or not later than the first court day after the expiry of the 48 hours, if 48 hours expired outside ordinary H court days.

5.

Illegal foreigners who are in detention at the time this order is issued shall be brought before a court within 48 hours from the date of this order or on such later date as may be determined by a court. I

6.

In the event of Parliament failing to pass corrective legislation within 24 months, the declaration of invalidity shall operate prospectively.

7.

The Minister of Home Affairs and the Director-General: Department of Home Affairs shall, within 60 days from the date of this order, file on affidavit a report confirming compliance with para 5, at the High Court of South Africa, Gauteng Division, Pretoria. J

2017 (5) SA p482

8.

A The High Court of South Africa, Gauteng Division, Pretoria, may determine any dispute arising from that report.

9.

The appeal is dismissed.

10.

The Minister of Home Affairs and the Director-General: Department of Home Affairs must pay costs of the appeal and the B confirmation application, including costs of two counsel.

Judgment

Jafta J (Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J concurring):

Introduction C

[1] Personal freedom was one of the rights routinely violated during the apartheid era. Arrest and detention without trial were commonly used to suppress opposition to the laws and policies of the government of that time. [1] Many detainees were arrested in the dead of night and whisked D away to undisclosed locations where they were detained for indefinite periods. While in detention, sometimes in solitary confinement, they would be deprived of any contact with the outside world. No contact was permitted with their families, doctors, lawyers and even pastors. [2]

[2] In most cases those detentions were beyond the reach of judicial E oversight. [3] As a result detainees were at the mercy of their captors who would subject them to interrogations accompanied by torture and other forms of violence for purposes of extracting information on matters relating to state security.

[3] To outlaw abuse of power and deprivation of personal freedom, the F framers of our Constitution included s 12 in the Bill of Rights that guaranteed everyone physical freedom and protection against detention without trial. The link between the arbitrary deprivation of personal liberty under apartheid and s 12 of the Constitution was pointed out in De Lange. [4] In that case Didcott J said:

'Those words, the words detained without trial, ought not in my G opinion to be construed separately. They comprise a single and composite phrase which expresses a single and composite notion and must

2017 (5) SA p483

Jafta J

therefore be read as a whole. Both the usage of the phrase in this A country and the provenance here of the notion are unfortunately familiar to us all. Neither should be viewed apart from our ugly history of political repression. For detention without trial was a powerful instrument designed to suppress resistance to the programmes and policies of the former government. The process was an arbitrary one, set in motion by the police alone on grounds of their own, controlled B throughout by them, and hidden from the scrutiny of the courts, to which scant recourse could be had. And it was marked by sudden and secret arrests, indefinite incarceration, isolation from families, friends and lawyers, and protracted interrogations, accompanied often by violence. Detentions without trial of that nature, detentions which might be disfigured by those or comparable features, were surely the C sort that the framers of the Constitution had in mind when they wrote s 12(1)(b).' [5]

[4] This matter concerns the validity of legislation that authorises administrative detention without trial for purposes of deportation. The legislation was impugned on the ground that it was not consistent D with the rights guaranteed by ss 12 and 35 of the Bill of Rights. The matter comes before this court as an appeal and an application for confirmation of the order of invalidity granted by the High Court of South Africa, Gauteng Division, Pretoria (High Court). [6] The Minister of Home Affairs and the Director-General: Department of Home Affairs (jointly the state) oppose the confirmation and seek to appeal against E that order. The other respondents did not take part in the proceedings. [7] People Against Suffering, Oppression and Poverty (PASSOP) was admitted as amicus curiae.

The scheme of s 34 of the Immigration Act F

[5] The provisions which were declared invalid by...