SA's Home Affairs may have to pay Zimbabwean R1 million

The Department of Home Affairs will likely have to pay damages to the tune of R1 million to an illegal immigrant after the Eastern Cape High Court ruled that she was unlawfully detained for a month.

The woman, whose name is withheld, was arrested on November 18, 2022 while hiding in a room where she conducted business as a herbalist. She was taken to the Mthatha Magistrate's Court on November 21 where she pleaded guilty of contravening the immigration Act.

During her court appearance, she paid a R1,000 fine and she was subsequently detained at the Mthatha Central police station pending her deportation. She was released on December 2022.

Aggrieved by her arrest and detention, she sued Home Affairs for R1 million in damages regarding her arrest and incarceration.

In her application, she argued that her arrest was unlawful because she was arrested without a warrant and was not informed of the reasons for her arrest, nor was she informed of the reasons of her subsequent detention.

Even though she pleaded guilty for being in the country illegally, she said she was refused the right to challenge the lawfulness of her arrest in person or through an attorney, and the immigration officers failed to bring her to court within 48 hours from her arrest.

She further added that she was detained in deplorable conditions and she was not informed of the reasons for her detention.

In court, it was heard that the herbalist entered the country in 2002 while fleeing from the political unrest in her country of origin.

She said she told officials who arrested her that she made an application for asylum in January 2020, however, no further details were obtained of the status of her application.

In response, Home Affairs said its members were entitled to arrest the woman, as she failed to identify herself as envisaged in Section 41 of the Immigration Act as a foreigner who is lawfully in the country.

It was further added that her detention was authorised by the court and she was duly informed of the decision to deport her, as well as the reasons for her continued detention.

Looking at the evidence, Judge Lindiwe Risi said that in 2017, the Constitutional Court declared parts of the Immigration Act unconstitutional and suspended the order of invalidity for 24 months, pending Parliament enacting corrective legislation to cure the defect.

Pending the new Act, the court said any illegal foreigner detained 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 court days.

This meant that at the expiry of the 24-month period in June 2019, the constitutional invalidity took effect – the impugned provisions could not be applied.

However, when Parliament failed to meet the deadline to enact corrective legislation, the Minister of Home Affairs, in 2023, approached the Constitutional Court for the revival of the order it made in 2017. Parliament was given another 12 months to fix the law.

Judge Risi said the court will rely on the 2017 decision made by the Constitutional Court regarding the arrest and detention of illegal foreigners.

Therefore, the judge added that detention of an illegal foreigner cannot exceed 48 hours from the time of arrest.

"Additionally, any period of detention longer than 30 days will be subjected to judicial oversight whereupon the court will exercise its discretion in determining whether the period of detention must be extended or not," she said.

The judge said that even though the department was right for arresting the woman, she was uneasy with the legality of how the officials conducted her detention pending the deportation.

"This court had before it, fundamentally contradictory evidence of the two witnesses of the defendant (Home Affairs) on the substantial issues regarding the lawfulness of the plaintiff's detention until she was released.

"… I see no reason why judgment should not be entered in favour of the plaintiff (woman) on the question of the lawfulness of her detention for the already mentioned period," said the judge.

Regarding how much the woman should get, judge Risi stayed the matter until further notice.