Brief Summary

Immigration Law — Detention of foreign nationals — Application for release of detainees from Lindela Repatriation Centre — Detainees, four Thai women, detained for over two months pending deportation for immigration violations — Allegations of trafficking in persons raised — Court's concern regarding validity of affidavits deposed to by detainees due to language barriers and procedural irregularities — Holding that despite concerns, the detainees require protection as potential victims of trafficking and should be processed under the Prevention of Combatting of Trafficking in Persons Act 7 of 2013.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings took the form of an urgent application heard in the urgent motion court in the Gauteng Local Division, Johannesburg. The application sought the release of four foreign national women detained at the Lindela Repatriation Centre pending deportation, together with related protective relief.

The parties were four female citizens of the Kingdom of Thailand as applicants (identified in the report as SL, TH, CD and CK), and the Minister of Home Affairs as first respondent, the Minister of Police as second respondent, and the Bosasa Group of Companies t/a Lindela Repatriation Facility as third respondent. The Commission for Gender Equality participated as amicus curiae after being invited by the court and admitted by agreement between the applicants’ representatives and the first respondent.

The matter carried an unusual procedural feature. Although the application was framed as one brought by the detainees, the court expressed serious reservations about whether the detainees had properly deposed to the founding and supporting affidavits, including whether they understood the contents and whether the affidavits were properly commissioned. Notwithstanding those concerns, the court granted an interim order directing the release of the detainees from Lindela and their placement at a home of safety, and directing the first and second respondents to deal with them under the Prevention and Combating of Trafficking in Persons Act 7 of 2013. The interim order was to operate pending the delivery of reasons, which were later furnished in this judgment.

The general subject-matter of the dispute concerned the lawfulness and appropriateness of the detainees’ continued immigration detention pending deportation, and—centrally—the proper legal response where there are reasonable grounds to suspect that detained foreign nationals may be victims of human trafficking, particularly for purposes of sexual exploitation.

2. Material Facts

The material facts accepted and relied upon by the court began with the identity and detention status of the applicants. The detainees were four Thai women detained at Lindela pending deportation. They were detained for contravening section 41(1)(c) of the Immigration Act 13 of 2002. They had been arrested on 20 November 2015, detained at the Johannesburg Police Station until 3 December 2015, and then transferred to Lindela. By the time the application was heard in late January 2016, they had been detained for more than two months following arrest.

A further set of facts, important to the court’s assessment of the application’s procedural integrity, related to the affidavits. The court treated it as common cause that all four applicants were Thai-speaking and had at best a poor command of English, while their affidavits were in English. The court found there was no evidence explaining how translation was performed, no evidence of the language in which the oath was administered, and several features (including ink and handwriting anomalies and the place stated for commissioning) that led the court to conclude it was not satisfied that the oath had been administered properly, that the applicants signed in the commissioner’s presence, or that they had personal knowledge of the affidavits’ contents.

On the substantive events surrounding the arrest, the first respondent’s version (which was supported in material respects by the amicus report) was that the detainees were arrested during a duly authorised raid on a Johannesburg hotel. The raid was conducted by members of the first and second respondents and was precipitated by information that the hotel was operating as a brothel and used as a distribution centre for trafficking and smuggling of human beings into South Africa. The detainees were part of a broader group of approximately forty Thai women arrested during the raid.

Following arrest, the first respondent stated that the detainees were interviewed on 24 November 2015 by an immigration officer using a Thai interpreter, and were issued with notices pertaining to detention and deportation. The detainees disputed having been served with these notices. The first respondent also asserted (in relation to immigration status) that three of the detainees’ visas had expired and that the fourth detainee (SL) had invalidated her visa by engaging in remunerated work. The first respondent’s position was that the detainees were correctly arrested and detained for immigration violations with a view to deportation.

The court treated as significant the first respondent’s contention that there was a strong likelihood that the detainees were victims of trafficking in persons for sexual exploitation. The first respondent relied, among other factors, on the detainees’ alleged decision not to pursue internal review/appeal remedies against deportation and to agree to deportation, which the first respondent described as suspicious in context.

The court further relied on the absence of any explanation from the first respondent for the delay in deportation, despite detention exceeding 30 days. The court also relied on the fact that, notwithstanding the trafficking indicators described in the raid intelligence and some confirmatory aspects mentioned by detainees, the raid strategy as described to the court reflected that the authorities appeared to have applied only the Immigration Act to the detainees, with no demonstrated further investigation placed before the court to confirm or exclude trafficking, coercion, or related offences, and no demonstrated application of the trafficking-specific statutory framework.

The amicus, after interviewing the detainees with the assistance of a Thai translator and considering the circumstances, supported the view that the detainees were possible victims of trafficking and recommended that they be processed under the Prevention and Combating of Trafficking in Persons Act 7 of 2013. This report was accepted by all counsel, including counsel briefed by the attorney purporting to represent the detainees.

3. Legal Issues

The court was required to determine, in substance, two interconnected legal questions.

The first was whether it was appropriate to grant relief on an urgent basis directing the detainees’ release from Lindela, given the court’s concerns about whether the application was properly before it due to apparent deficiencies in the commissioning and translation of the detainees’ affidavits. This aspect primarily concerned an evaluation of procedural and evidentiary sufficiency, with consequent implications for whether the court should act on the detainees’ papers as representing their version and instructions.

The second and central question was what legal framework should govern the state’s response to the detainees’ circumstances, on the premise (raised by the first respondent and supported by the amicus) that there were reasonable grounds to suspect trafficking in persons for sexual exploitation. This involved the application of law to fact: specifically, whether the first and second respondents were required to invoke and implement the protective measures under the Prevention and Combating of Trafficking in Persons Act 7 of 2013, rather than proceeding solely under immigration enforcement mechanisms, and how constitutional duties to protect fundamental rights informed that analysis.

A further embedded question was the extent to which continued detention and immediate deportation, without trafficking assessment and protective measures, could undermine the detainees’ constitutional rights and compromise their safety, particularly where trafficking networks may operate transnationally.

4. Court’s Reasoning

The court began by addressing the integrity of the application papers. It identified multiple features that undermined confidence that the affidavits were properly deposed to by Thai-speaking detainees, including the lack of evidence about translation, uncertainty about the language of the oath, and anomalies in the commissioning details. The court declined an attempt to introduce evidence from the detainees’ instructing attorney to cure these defects, holding that evidence about matters within the knowledge of the commissioner of oaths would constitute inadmissible hearsay. The court ultimately stated that it was not satisfied that the application was indeed brought by the detainees in a procedurally reliable manner.

Despite this conclusion, the court proceeded to consider whether relief should nonetheless be granted. It identified two overriding concerns that, in its view, justified further relief in the interests of justice and on grounds of public interest. The first was the detainees’ prolonged detention pending deportation, which exceeded 30 days, coupled with the absence of any explanation from the first respondent for the delay in effecting deportation. The second was the likelihood, raised by the first respondent and supported by the amicus, that the detainees might be victims of trafficking, which would trigger a protective statutory and constitutional response.

The court then set out the broader legal context of trafficking in persons. It noted the international framework under the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, and described trafficking as a complex phenomenon typically perpetrated by organised syndicates across borders, requiring coordinated responses by multiple agencies. Against that background, the court explained that South Africa enacted the Prevention and Combating of Trafficking in Persons Act 7 of 2013, which commenced on 9 August 2015, to implement South Africa’s international obligations and to provide offences, penalties, and protective measures for victims, administered through a coordinated interdepartmental approach.

The court reasoned that trafficking infringes constitutionally entrenched rights, including human dignity, equality, freedom and security of the person, and the right not to be subjected to slavery, servitude or forced labour. In applying constitutional principle, the court relied on authority recognising a positive constitutional duty on the state and its organs not to act in a way that infringes entrenched rights and to protect vulnerable persons. On this basis, it concluded that government bears a positive duty to protect suspected victims of trafficking.

Turning to the statutory scheme, the court highlighted provisions requiring that reasonable suspicions of trafficking be reported and investigated, and that suspected victims may be placed into protective custody and temporary safe care, and that foreign victims be informed of the possibility of applying for a visitor’s visa for a recovery and reflection period. The court also described the role of the provincial Department of Social Development in assessing victim status and issuing a letter of recognition, which then interacts with prosecutorial decisions (including protections against prosecution without appropriate authorisation and mechanisms enabling withdrawal of prosecution where offences were committed as a direct result of trafficking status).

In applying these principles to the facts, the court accepted that the raid intelligence and circumstances raised at least a suspicion of trafficking. It reinforced that suspicion is a preliminary investigative state, relying on the definition quoted in Powell NO v Van der Merwe NO and Others as a conjectural state where proof is lacking and investigation should follow to reach prima facie proof. The court found it problematic that, despite the raid being aimed at addressing trafficking and smuggling indicators, there was no proper demonstration that the authorities had invoked the trafficking statute in respect of the detainees, or that meaningful further investigation had been undertaken after arrest. The rapid move towards deportation and the absence of evidence of follow-up investigation supported an inference that trafficking-related investigative and protective steps were not pursued.

The court also accepted the amicus explanation of the vulnerability of trafficking victims, including capture-bonding dynamics and fear, which may lead victims to deny exploitation, resist protection, or appear to “consent” to deportation. The court reasoned that decision-making by suspected victims cannot be assessed solely by what they say in interviews, particularly where language barriers and interpretive reliability issues may exist. It concluded that an appropriate response requires triangulated investigation supported by statutory mechanisms, including safe accommodation and assessment by Social Development on the basis of information gathered by police investigations.

From these considerations, the court concluded that failure by the first and second respondents to deal with the detainees under the trafficking statute, in light of the informant information and confirmatory elements, constituted a failure to fulfil constitutional duties and denied the detainees the protections afforded by the Prevention and Combating of Trafficking in Persons Act 7 of 2013. It reasoned that processing the detainees under that Act was the appropriate legal response; only if they were found not to be victims should ordinary immigration enforcement then proceed.

5. Outcome and Relief

The court declared the matter urgent and dispensed with the ordinary time periods and forms of service to hear it as such.

It granted alternative relief in the interests of justice, ordering that the detainees be released from Lindela upon receipt of the order and be escorted immediately by the first respondent (alternatively the second respondent) to a designated place of safety contemplated in section 19(1)(b) of the Prevention and Combating of Trafficking in Persons Act 7 of 2013, and be handed into the care of the persons in charge of that facility. It ordered that the name and address of the facility remain confidential and that the detainees’ names not be publicised.

It further directed the first or second respondent to liaise with the director of the facility to obtain the address, and to ensure medical treatment where required, including transport to an appropriate medical facility and return thereafter to the place of safety.

The court ordered that the relevant provisions of the Prevention and Combating of Trafficking in Persons Act 7 of 2013 be invoked and given effect by the first and second respondents, the Department of Social Development, and any other relevant state department. It also ordered that once the detainees are issued with the letter of recognition contemplated in section 19(10), the first respondent must return their passports.

The court provided for conditional consequences should Social Development find that the detainees are not victims of trafficking. In that event, the detainees were ordered to remain at the place of safety or another accredited organisation until their status is regularised and they have lawful entitlement to remain further; alternatively, if they did not procure lawful entitlement to remain, the first respondent would be entitled to deal with them under the Immigration Act or other applicable legislation.

The court directed that ancillary issues be dealt with on the ordinary roll, while allowing the parties to approach the court for further relief on reasonable notice and with appropriate additional papers if necessary.

The court also ordered the first and second respondents to immediately deal, under the Prevention and Combating of Trafficking in Persons Act 7 of 2013, with any persons arrested in the same raid on 20 November 2015 at the hotel where the detainees were apprehended.

An order as to costs was reserved for later determination.

Finally, the court ordered the Registrar to serve the judgment and order on specified officials and departments, including units within the Directorate for Priority Crime Investigation, the station commander of Johannesburg Central Police Station, the Gauteng Department of Social Development, and the Department of Justice and Constitutional Development.

Cases Cited

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) [2001] ZACC 22; 2001 (4) SA 938 (CC).

Woji v Minister of Police 2015 (1) SACR 409 (SCA).

Powell NO v Van der Merwe NO and Others 2005 (5) SA 62 (SCA).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 9, 10, 12 and 13 as referenced in the judgment).

Immigration Act 13 of 2002 (including section 41(1)(c) as stated in the judgment, and other provisions referenced in the notices described in the footnote).

Prevention and Combating of Trafficking in Persons Act 7 of 2013 (including sections 19 and 22 as referenced in the judgment).

Criminal Law Amendment (Sexual Offences and Related Matters) Act 32 of 2007 (referred to in the judgment as potentially applicable in relation to the raid context).

United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 2000; entered into force 25 December 2003).

Rules of Court Cited

No specific uniform rule of court was cited by number in the judgment. The court dealt with urgency by dispensing with the usual forms and time periods in terms of its urgent motion court powers as reflected in the order.

Held

The court held that, although it was not satisfied on the papers that the application was properly brought by the detainees due to serious concerns regarding the commissioning and translation of their affidavits, relief was nonetheless warranted in the interests of justice because the detainees had been detained for an extended period without an explained delay in deportation and because there were reasonable grounds to suspect that they might be victims of trafficking in persons.

It held that the first and second respondents’ failure to deal with the detainees under the Prevention and Combating of Trafficking in Persons Act 7 of 2013, given the trafficking-related intelligence and circumstances, amounted to a failure to fulfil the state’s positive constitutional duty to protect entrenched rights and denied the detainees the statutory protections intended for suspected trafficking victims.

It therefore ordered their release from Lindela, placement in confidential safe care, and implementation of the trafficking statutory process, with conditional directions for subsequent immigration processing if they were found not to be trafficking victims.

LEGAL PRINCIPLES

The judgment applied the principle that trafficking in persons implicates and threatens foundational constitutional rights, including dignity and freedom and security of the person, and that the state bears a positive constitutional duty to protect persons whose rights are threatened, particularly in contexts of vulnerability. The court treated this duty as relevant to how state actors must respond when faced with reasonable indications of trafficking, rather than defaulting to immigration enforcement alone.

The judgment applied the statutory principle that where there are reasonable grounds to suspect that a person is a victim of trafficking, the appropriate legal response is to engage the protective and investigative machinery created by the Prevention and Combating of Trafficking in Persons Act 7 of 2013, including safe care, assessment by Social Development, and coordinated interdepartmental action. Immigration consequences were treated as secondary and contingent, to be pursued after trafficking assessment where appropriate.

The court also applied the investigative principle (drawing from authority on the meaning of “suspicion”) that suspicion is an initial investigatory state that triggers further inquiry rather than concluding the matter. In this framework, a mere denial by suspected victims, or apparent consent to deportation, was not treated as determinative given the recognised vulnerabilities of trafficking victims and the need for a structured, corroborative assessment process.

Finally, the judgment reflected a supervisory principle that, where state agencies undertake operations aimed at addressing trafficking indicators, failure to deploy the trafficking statute (especially where it has commenced and is intended precisely for such circumstances) can undermine victims’ protection and frustrate the statutory scheme, warranting remedial court intervention to ensure lawful, rights-consistent administration.

SL and Others v Minister of Home Affairs and Others (2016/ 01352) [2016] ZAGPJHC 47 (26 February 2016)