Brief Summary

Constitutional Law — Immigration — Constitutionality of Immigration Act provisions — Applicants, Lawyers for Human Rights and Ann Francis Eveleth, challenged the constitutionality of certain provisions of the Immigration Act concerning the detention and deportation of illegal foreigners — The government opposed the application and appealed against the High Court's declaration of unconstitutionality — The Constitutional Court held that the provisions in question were unconstitutional as they violated the rights of illegal foreigners to fair administrative action and due process, thereby confirming the High Court's order.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned constitutional confirmation proceedings in the Constitutional Court under section 172(2)(a) of the Constitution of the Republic of South Africa, 1996, together with an appeal by the government against the High Court’s findings. The case arose from a challenge to the constitutionality of provisions of the Immigration Act 13 of 2002 governing the detention and removal of “illegal foreigners”, particularly those detained at ports of entry (including on board the conveyance by which they arrived).

The first applicant was Lawyers for Human Rights, a non-governmental organisation asserting public-interest standing. The second applicant was Ann Francis Eveleth, a foreign national whose earlier detention occurred under the repealed Aliens Control Act 96 of 1991, but who remained involved in the litigation. The first and second respondents were the Minister of Home Affairs and the Director-General: Department of Home Affairs (referred to collectively in the judgment as the government).

The proceedings originated in the Pretoria High Court, where the applicants attacked the constitutionality of provisions in both the Aliens Control Act and the (then not-yet-commenced) Immigration Act. By the time of argument, the Aliens Control Act had been repealed and the Immigration Act had come into force, with the result that the challenge narrowed to the Immigration Act. The High Court declared section 34(8) unconstitutional and also declared certain words in section 34(2) unconstitutional, suspended invalidity for one year, and awarded costs against the government. Because a High Court order declaring legislation invalid requires confirmation by the Constitutional Court, the applicants sought confirmation; the government opposed confirmation and pursued an appeal.

The general subject-matter of the dispute was the constitutional permissibility of the statutory scheme permitting detention of foreign nationals at ports of entry, including detention “on a ship” (a term defined broadly to include various conveyances), and the extent to which constitutional safeguards against arbitrary detention and procedural protections for detainees applied to such persons.

2. Material Facts

The court treated as common cause that the impugned provisions formed part of section 34 of the Immigration Act 13 of 2002, which regulates the arrest, detention and deportation of persons classified as “illegal foreigners”. The Act distinguishes between “foreigners” and “illegal foreigners”, with an illegal foreigner being a foreigner in the Republic in contravention of the Act (including a prohibited person).

The court outlined the scheme of section 34(1) as applying primarily to illegal foreigners already “inside the country” (in the sense of being beyond the restricted port-of-entry area), empowering immigration officers to arrest or cause arrest without a warrant and to detain pending deportation, while providing a set of safeguards. These include written notification of the deportation decision and appeal rights, the ability to request a court warrant within 48 hours, limits on detention beyond 30 days without a court order (extendable up to 90 days), and compliance with minimum prescribed standards protecting dignity and human rights.

The court contrasted this with section 34(8), which applies to persons at a port of entry who have been notified (or in respect of whom a declaration has been made to the master of the ship) that they are illegal foreigners. Under that provision, the master must detain the person on the ship and remove the person from the Republic unless informed that the person is not an illegal foreigner. The immigration officer may alternatively cause the person to be detained elsewhere than on the ship (in a state facility).

It was also material to the court’s approach that section 34(2) imposes a general 48-hour limit on detention under the Act in specified circumstances, but that this protection did not apply to detention “on a ship” under section 34(8). Additionally, section 8 of the Act sets out a procedure requiring notification of adverse determinations and reasons (“related motivation”), an opportunity to make representations, and internal appeals, although the Act also provides that a refusal of entry at a port of entry is final for purposes of deportation, subject to appeal mechanisms.

The court accepted the contextual factual considerations relevant to standing and the public-interest enquiry, including that persons detained at ports of entry may be vulnerable, may lack resources and support systems, may have limited knowledge of South African legal processes, and may be removed from South Africa quickly because the conveyance often departs within a short time. This made the prospect of those persons themselves mounting constitutional challenges remote, potentially leaving unconstitutional detention practices untested.

3. Legal Issues

The court was required to determine, first, whether the first applicant had standing, particularly public-interest standing under section 38(d) of the Constitution, and whether it was necessary to decide the second applicant’s standing given the posture of the matter as confirmation proceedings.

Secondly, the court had to decide whether the relevant provisions of the Immigration Act implicated constitutional rights of foreign nationals at ports of entry, including those physically within South African territorial boundaries but not yet formally admitted, and in particular whether rights in section 12 (freedom and security of the person, including the right not to be deprived of freedom arbitrarily or without just cause and not to be detained without trial) and section 35(2) (rights of detained persons) applied to such persons.

Thirdly, the court had to address the proper interpretation and constitutional validity of section 34(8) and the extent to which it permitted detention on a ship. This included whether the High Court’s interpretation—under which detention could be triggered by a mere assertion by an immigration officer—was correct, and whether an interpretation consistent with the Constitution was reasonably available.

Fourthly, the court had to conduct a limitations analysis under section 36 of the Constitution, assessing whether any limitation of constitutional rights was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

Finally, the court had to determine the appropriate remedy, including whether the provision should be struck down, whether invalidity should be limited, and whether a reading-in was warranted, as well as the effect of any remedy on the validity of section 34(2).

These issues involved questions of law (constitutional interpretation, statutory interpretation, and the application of section 36), as well as the application of law to a defined statutory scheme regulating detention, and evaluative judgment in selecting an appropriate remedy consistent with constitutional requirements.

4. Court’s Reasoning

The court held that section 38 of the Constitution requires a broad approach to standing and that public-interest standing in section 38(d) is expressly recognised. It endorsed the approach articulated by O’Regan J in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others for determining whether a litigant is genuinely acting in the public interest, while noting that the enquiry includes both the litigant’s genuineness and whether it is objectively in the public interest for the proceedings to be brought. The court emphasised factors such as the vulnerability of affected persons, the nature and importance of the rights implicated, and the practical likelihood that the affected class would be able to litigate before removal occurred.

On that basis, the court reasoned that it was objectively in the public interest to test the constitutionality of port-of-entry detention provisions. It accepted that the first applicant’s objectives aligned with enforcing human rights and that, in the circumstances described, constitutional scrutiny would likely not occur without public-interest litigation. The court therefore held that the first applicant had standing, and it considered it unnecessary to determine the second applicant’s standing.

On the applicability of the Bill of Rights, the government argued that persons at ports of entry not formally admitted were not “in our country” for purposes of section 7(1) of the Constitution. The court rejected the need to resolve a broad general question about which constitutional rights apply to such persons, but held that the only relevant enquiry was whether the rights in sections 12 and 35(2) apply to foreign nationals physically within South Africa’s territorial boundaries but not formally admitted. The court reasoned that these rights are integral to constitutional values of dignity, equality and freedom. It concluded that denying those protections merely because formal entry had not occurred would negate foundational constitutional values, and it accepted that “everyone” in sections 12 and 35(2) should be given its ordinary meaning, noting that the Constitution expressly restricts certain rights to citizens when it intends to do so.

The High Court had interpreted section 34(8) as allowing detention and removal based solely on the immigration officer’s statement that the person is an illegal foreigner, irrespective of justification. The Constitutional Court rejected that interpretation. It reasoned that because a determination that a person is an illegal foreigner adversely affects the person, section 8 of the Act obliges the Department (and thus the immigration officer) to inform the person of the determination and reasons. The court held that an officer can provide reasons only if there are reasons for the determination, and that there can be no adequate reasons unless there are factors sufficient to reasonably suspect that the person is an illegal foreigner. The court invoked the interpretive principle that where a reasonable interpretation exists that preserves constitutionality without unduly straining language, it should be adopted, and further that an interpretation leading to limited rather than wholesale invalidity should be preferred.

Having construed section 34(8) as requiring at least reasonable suspicion by an immigration officer, the court held that detention under section 34(8) was not arbitrary in the sense advanced by the applicants on the High Court’s interpretation. However, the court accepted that section 34(8) limits the right to freedom and the right not to be detained without trial, and therefore undertook the section 36 proportionality analysis. It emphasised the historic and constitutional significance of freedom from detention without trial, while also recognising the legitimate governmental purpose of immigration control and preventing unlawful entry.

A central part of the reasoning concerned whether safeguards in section 34(1) apply to detention on a ship under section 34(8), and whether section 35(2) protections apply. The court held that section 34(1) is designed for detention in a state-controlled facility and cannot sensibly be applied to ship detentions in important respects. It reasoned, for example, that section 34(1)(b) assumes the presence of an “officer attending” the detainee, which would not necessarily exist on a ship, and that the prescribed minimum standards in section 34(1)(e) also suggest a state facility rather than shipboard detention. It concluded that section 34(1) applies to detention in a state facility (including where the immigration officer exercises the choice under the latter part of section 34(8) to cause detention elsewhere), but does not apply to detention on a ship.

By contrast, the court held that section 35(2) of the Constitution applies to “everyone who is detained”, and that its protections extend to illegal foreigners. It considered that the availability of constitutional detainee safeguards avoids detention in intolerable or inhumane circumstances, and it reasoned that if shipboard conditions make compliance with section 35(2) impossible, the immigration officer would be obliged to use the statutory option to cause detention in a state facility.

The court nonetheless identified a constitutional deficiency: there was no obligation on the state to seek a court order to confirm detention when detention on a ship extends beyond 30 days, equivalent to the safeguard in section 34(1)(d). The court considered it significant that ships would rarely remain for longer than 30 days, and treated this as weighing against the government because the burden of requiring a court order in such rare cases would be limited. It found that no legitimate governmental purpose was served by excluding this safeguard for shipboard detainees and held that, to that extent, the limitation of rights was not justified under section 36.

As to remedy, the court characterised the inconsistency as limited and held that striking down the whole of section 34(8) was not justified. It adopted what it described as the least invasive course by reading in a sentence at the end of section 34(8) to provide that a person detained under that section may not be held for longer than 30 days without a court order (with possible extension up to 90 days on reasonable grounds). It then reassessed section 34(2) in light of that remedy and held that the fact that shipboard detainees are not released within 48 hours is reasonable and justifiable, given that such persons have not formally entered South Africa, have no right to do so, and that the ship’s departure time is not under South African authorities’ control, with the additional safeguard that detention beyond 30 days requires a court order as a result of the reading-in.

The court ultimately upheld the government’s appeal, set aside the High Court’s order, and substituted it with a narrower declaration of invalidity limited to the absence of a 30-day court oversight safeguard for ship detentions under section 34(8), together with the reading-in remedy.

A separate judgment by Madala J (with Moseneke J concurring) disagreed with the majority’s conclusions. That judgment would have upheld the constitutionality of section 34(8) and the relevant part of section 34(2), reasoning that the Constitution applies but that the statutory and constitutional safeguards were sufficient. However, the order of the court was that contained in the judgment of Yacoob J.

5. Outcome and Relief

The Constitutional Court upheld the appeal. It set aside the High Court’s order and replaced it with an order declaring section 34(8) of the Immigration Act 13 of 2002 inconsistent with the Constitution only to the extent that it failed to provide shipboard detainees the protection equivalent to section 34(1)(d), namely that detention beyond 30 days requires a court order (with a possible extension up to 90 days).

The court granted a reading-in remedy by adding a sentence to the end of section 34(8) providing that a person detained in terms of that section may not be held in detention for longer than 30 calendar days without an order of court, which may extend detention for an additional period not exceeding 90 calendar days on reasonable grounds.

The High Court’s broader declaration of invalidity (including in relation to section 34(2)) was not confirmed except to the limited extent reflected in the substituted order. The court made no order as to costs, both in relation to the appeal and overall.

Cases Cited

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC).

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC).

De Beer NO v North-Central Local Council and South-Central Local Council and Others (Umhlatuzana Civic Association Intervening) [2001] ZACC 9; 2002 (1) SA 429 (CC); 2001 (11) BCLR 1109 (CC).

S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).

S v Manamela and Another (Director-General of Justice Intervening) [2000] ZACC 5; 2000 (3) SA 1 (CC); 2000 (5) BCLR 491 (CC).

Prince v President, Cape Law Society, and Others [2002] ZACC 1; 2002 (2) SA 794 (CC); 2002 (3) BCLR 231 (CC).

De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others [2003] ZACC 19; 2003 (12) BCLR 1333 (CC).

De Lange v Smuts NO and Others [1998] ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC).

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC).

Patel and Another v Minister of Home Affairs and Another 2000 (2) SA 343 (D&CLD).

Larbi-Odam and Others v Member of the Executive Council for Education (North-West Province) and Another 1998 (1) SA 745 (CC); 1997 (12) BCLR 1655 (CC).

Wood and Others v Ondangwa Tribal Authority and Another 1975 (2) SA 294 (A).

BEF (Pty) Ltd v Cape Town Municipality and Others 1983 (2) SA 387 (CPD).

Roodepoort-Maraisburg Town Council v Eastern Properties (Proprietary), Limited 1933 AD 87.

Ngxuza and Others v Permanent Secretary, Department of Welfare, Eastern Cape and Another 2001 (2) SA 609 (ECD).

Tettey and Another v Minister of Home Affairs and Another 1999 (3) SA 715 (D&CLD).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 1, 7(1), 12, 35(2), 36, 38, 172(2)).

Immigration Act 13 of 2002 (sections 1, 3, 8, 10, 29, 34(1), 34(2), 34(8), 34(9), 37).

Aliens Control Act 96 of 1991.

South African Citizenship Act 88 of 1995 (section 5).

Defence Act 42 of 2002 (section 20).

Statistics and Identification Act 68 of 1997 (section 6).

Diplomatic Immunities and Privileges Act 37 of 2001.

Rules of Court Cited

No specific rules of court were cited by name in the judgment.

Held

The Constitutional Court held that Lawyers for Human Rights had public-interest standing under section 38(d) to challenge the constitutionality of the impugned provisions, given the public importance of the issue and the practical obstacles facing affected detainees at ports of entry in bringing litigation themselves.

The court held that foreign nationals physically within South Africa’s territorial boundaries, even if not formally admitted at a port of entry, are protected by the rights in sections 12 and 35(2) of the Constitution, with “everyone” in those provisions bearing its ordinary meaning.

It held that section 34(8) should be interpreted as requiring that an immigration officer have reason to suspect that a person is an illegal foreigner before the detention-and-removal consequences under that provision may be triggered, rejecting the High Court’s interpretation that a mere assertion sufficed.

The court held that detention on a ship under section 34(8) is constitutionally permissible in principle, but that the provision was unconstitutional to the limited extent that it failed to provide a safeguard requiring a court order for detention exceeding 30 days (with possible extension to 90 days), analogous to the safeguard in section 34(1)(d).

The court granted a reading-in remedy adding the 30-day court oversight requirement to section 34(8), upheld the government’s appeal, refused broader confirmation of the High Court’s order, and made no order as to costs.

LEGAL PRINCIPLES

The judgment applied the principle that standing under section 38 of the Constitution is broader than at common law, and that public-interest standing requires an enquiry into whether the litigant is genuinely acting in the public interest and whether it is objectively in the public interest for the litigation to be brought, having regard to factors including the availability of other effective means to raise the issue, the general and prospective nature of the relief, the range of persons affected, and the vulnerability of those persons.

It applied the constitutional interpretive principle that where legislation is reasonably capable of a construction that is consistent with the Constitution without unduly straining the language, that construction should be adopted, including where it results in only limited constitutional inconsistency rather than wholesale invalidity.

It applied the principle that rights in sections 12 and 35(2), framed as rights of “everyone”, extend to people within South Africa’s territorial boundaries, and are not confined to citizens unless the Constitution expressly so provides.

It applied the section 36 proportionality analysis for limitations of rights, requiring that a limitation be reasonable and justifiable in an open and democratic society based on dignity, equality and freedom, taking into account the nature of the right, the importance of the purpose of the limitation, the extent of the limitation, the relationship between means and purpose, and less restrictive means.

It applied remedial principles under constitutional review by selecting a reading-in as the least invasive remedy where a statutory provision was unconstitutional only in a discrete respect and could be cured by adding a narrowly tailored safeguard, rather than striking down the provision in its entirety.

Lawyers for Human Rights and Other v Minister of Home Affairs and other (CCT 18/03) [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004)