News / Africa
3 Zimbabwean illegals in SA turns to the court
11 Aug 2015 at 07:26hrs | Views
A Western Cape Cape High Court judge is facing a legal challenge after three illegal immigrants arrested during a national clampdown - Operation Fiela - turned to the courts to test the lawfulness of their detention.
IOL news reported that Judge Dennis Davis found himself on the verge of "pulling out his hair" on Friday when he was faced with arguments for and against the release of the three Zimbabweans.
Judge Davis is expected to conduct an inspection-in-loco at the Milnerton police station today to ascertain the conditions under which the illegal immigrants are being kept before he makes a formal judgment on the matter.
Judge Davis will weigh up competing arguments - the rights of illegal immigrants in terms of the Immigration Act versus the Department of Home Affairs' (DHA) obligation to enforce the law.
It was argued in court that the Milnerton police station does not fit the criteria to be considered a detention facility for illegal immigrants.
Judge Davis is to investigate whether the station "allows for exercise, adequate ventilation and provides sufficient nutrition".
The Zimbabweans - Lloyd Muchatisi, arrested on July 2, and Febbie Chidhakwa and Patience Mupanduki, arrested on July 16, brought the urgent application before the court. They were arrested during a joint operation by police and the Department of Home Affairs.
They are arguing that they were arrested unlawfully without warrants of arrest, and want to be released or have their incarceration confirmed by a court.
They say that the conditions in which they are being held are not acceptable in terms of the law and that signatures on warning letters received, were forged.
Advocate Fungai Mgcini Kuzinya, representing the three Zimbabweans, said he was not attacking the constitutionality of the Immigration Act, which says illegal immigrants can be held for 30 days.
However, he argued that after his clients were arrested and read their constitutional rights, they should have been brought before a court within 48 hours in terms of the law.
"The applicants were arrested in terms of the Immigration Act, but informed of their rights in terms of the constitution," Kuzinya said.
He also raised questions about the warning letters issued and the signatures on the letters. "The differences are glaring. It does not take an expert to notice that," Kuzinya said.
Kuzinya argued that there had been non-compliance, and therefore his clients were being illegally held and should be released.
He said the conditions in which they were held were not in compliance with minimum prescribed standards protecting their dignity and human rights in terms of the Immigration Act.
Advocate Lee Anne de laHunt, an amicus curie (friend of the court) from Lawyers for Human Rights, noted that the Department of Home Affairs had admitted that the Milnerton police station was not within the control of the director general.
De laHunt said the detention of the trio at the Milnerton police station was "unlawful", because the station does not meet the prescribed criteria for a detention centre.
She said the only "proper detention facility" for illegal immigrants was Lindela in Krugersdorp.
Advocate Hayley Slingers, for the Department of Home Affairs, said the illegal immigrants requested to be held at Milnerton. The alternative was to house them in Pollsmoor Prison's awaiting trial section.
Judge Davis interjected, saying Pollsmoor would definitely not meet the prescribed requirements.
"But what's the solution? Do you release illegal immigrants who admit they are illegal?" argued Slingers.
She said the only solution was Pollsmoor to which Judge Davis replied: "Well I can't put them in Pollsmoor, it's illegal."
Slingers argued: "They are here illegally and they intend to stay illegally - they've been working here illegally."
Judge Davis replied: "They're human beings and must be treated as human beings."
Judge Davis ordered that the three be held at the Milnerton police station - on condition that the station meets the minimum requirements in terms of the Immigration Act, until the three are transported to the Lindela detention facility.
IOL news reported that Judge Dennis Davis found himself on the verge of "pulling out his hair" on Friday when he was faced with arguments for and against the release of the three Zimbabweans.
Judge Davis is expected to conduct an inspection-in-loco at the Milnerton police station today to ascertain the conditions under which the illegal immigrants are being kept before he makes a formal judgment on the matter.
Judge Davis will weigh up competing arguments - the rights of illegal immigrants in terms of the Immigration Act versus the Department of Home Affairs' (DHA) obligation to enforce the law.
It was argued in court that the Milnerton police station does not fit the criteria to be considered a detention facility for illegal immigrants.
Judge Davis is to investigate whether the station "allows for exercise, adequate ventilation and provides sufficient nutrition".
The Zimbabweans - Lloyd Muchatisi, arrested on July 2, and Febbie Chidhakwa and Patience Mupanduki, arrested on July 16, brought the urgent application before the court. They were arrested during a joint operation by police and the Department of Home Affairs.
They are arguing that they were arrested unlawfully without warrants of arrest, and want to be released or have their incarceration confirmed by a court.
They say that the conditions in which they are being held are not acceptable in terms of the law and that signatures on warning letters received, were forged.
Advocate Fungai Mgcini Kuzinya, representing the three Zimbabweans, said he was not attacking the constitutionality of the Immigration Act, which says illegal immigrants can be held for 30 days.
However, he argued that after his clients were arrested and read their constitutional rights, they should have been brought before a court within 48 hours in terms of the law.
"The applicants were arrested in terms of the Immigration Act, but informed of their rights in terms of the constitution," Kuzinya said.
He also raised questions about the warning letters issued and the signatures on the letters. "The differences are glaring. It does not take an expert to notice that," Kuzinya said.
Kuzinya argued that there had been non-compliance, and therefore his clients were being illegally held and should be released.
He said the conditions in which they were held were not in compliance with minimum prescribed standards protecting their dignity and human rights in terms of the Immigration Act.
Advocate Lee Anne de laHunt, an amicus curie (friend of the court) from Lawyers for Human Rights, noted that the Department of Home Affairs had admitted that the Milnerton police station was not within the control of the director general.
De laHunt said the detention of the trio at the Milnerton police station was "unlawful", because the station does not meet the prescribed criteria for a detention centre.
She said the only "proper detention facility" for illegal immigrants was Lindela in Krugersdorp.
Advocate Hayley Slingers, for the Department of Home Affairs, said the illegal immigrants requested to be held at Milnerton. The alternative was to house them in Pollsmoor Prison's awaiting trial section.
Judge Davis interjected, saying Pollsmoor would definitely not meet the prescribed requirements.
"But what's the solution? Do you release illegal immigrants who admit they are illegal?" argued Slingers.
She said the only solution was Pollsmoor to which Judge Davis replied: "Well I can't put them in Pollsmoor, it's illegal."
Slingers argued: "They are here illegally and they intend to stay illegally - they've been working here illegally."
Judge Davis replied: "They're human beings and must be treated as human beings."
Judge Davis ordered that the three be held at the Milnerton police station - on condition that the station meets the minimum requirements in terms of the Immigration Act, until the three are transported to the Lindela detention facility.
Source - IOL
