Home Affairs Officials Found Liable for Unlawful Detention, Ordered to Pay R1 Million

Image Source: A Home Affairs office in April 2022 in Johannesburg. (Photo: Gallo Images / Fani Mahuntsi)

Published by Everything ZA News

Mthatha, Eastern Cape — A Mthatha-based herbalist has successfully sued the Department of Home Affairs for damages after being unlawfully detained for a month, despite admitting to being in South Africa illegally. The Eastern Cape High Court has ordered the department to pay up to R1 million in damages, ruling that her rights as a detained person were violated by Home Affairs officials who failed to follow the law.

The woman, whose identity was not disclosed, was arrested on November 18, 2022, for failing to produce a permit or visa. She was brought before the Mthatha Magistrates’ Court on November 21, 2022, where she pleaded guilty to contravening the Immigration Act and was fined R1,000. However, instead of being deported promptly, she was detained at Mthatha Central Police Station from November 21 until her release on December 22, 2022, following legal intervention.

The plaintiff argued that her detention was unlawful, as she was not provided legal representation, was not brought before a court within 48 hours of her arrest, and was held in deplorable conditions. She alleged that the Home Affairs officials failed to follow proper procedures, including obtaining a court’s confirmation of her detention.

The Department of Home Affairs, in its defense, claimed they were within their rights to detain her, as she could not provide proof of lawful residence in South Africa. They argued that her detention was confirmed by a magistrate and that she was duly informed of her impending deportation.

However, Judge Lindiwe Risi criticized the department’s handling of the case, pointing out that the officials appeared unaware of the requirements under Section 34 of the Immigration Act. This section empowers immigration officers to arrest and detain illegal foreigners pending deportation, but with strict conditions, including the need for judicial oversight within 48 hours.

“It is rather confounding that the Department of Home Affairs pleaded ignorance of the provisions of section 34 of the Immigration Act,” Judge Risi stated in her ruling on July 30, 2024. She emphasized that bringing an arrested person to court is not a mere formality but a crucial step to ensure their rights are protected.

The case highlighted significant lapses by Home Affairs officials, including their failure to present the detained woman before a court within the required timeframe, and the fact that her detention was extended without proper legal procedures.

The ruling also referred to a 2017 Constitutional Court decision that declared parts of the Immigration Act unconstitutional due to the potential for illegal detentions without judicial oversight. Despite a 2019 deadline for Parliament to amend the law, the necessary changes were not made, prompting the Department of Home Affairs to seek further extensions from the Constitutional Court.

Judge Risi’s ruling sends a clear message about the importance of adhering to legal procedures and protecting the rights of individuals, even those in the country unlawfully. The case serves as a reminder that the rule of law must be upheld, and the rights of all individuals, regardless of their legal status, must be respected.