Human rights lawyers claimed victory following the Constitutional Court’s ground-breaking judgment ordering that all ‘illegal foreign’ nationals in detention at the time it handed down yesterday’s order against government be brought before a court within 48 hours, notes a Cape Times report. Previously the court was mandated to review a detention in instances where individuals were held for more than 30 days.

The court declared section 34(1)(b) and (d) of the Immigration Act inconsistent with sections 12(1) and 35(2)(d) of the Constitution and therefore invalid.

The invalidity was suspended for 24 months to enable Parliament to correct the defect. Lawyers for Human Rights (LHR) had brought an application to appeal a ruling by the Gauteng High Court (Pretoria), charging that that section 34 of the Immigration Act did not sufficiently protect the right of those detained for immigration irregularities to present their cases in court, and, as such, violates the Constitution.

‘This ruling will most importantly protect vulnerable individuals whose detention has in the past fallen beyond the reach of judicial oversight resulting in widespread rights violations,’ said LHR spokesperson Carol Mohlala. Judge Chris Jafta said the LHR painted an ‘unfortunate picture of a widespread disregard’ for statutory requirements, which leads to a violation of rights of vulnerable people. These lapses reveal shortcomings in the system enacted by the Immigration Act.

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Judgment