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[2017] ZACC 22
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Lawyers for Human Rights v Minister of Home Affairs and Others (CCT38/16) [2017] ZACC 22; 2017 (10) BCLR 1242 (CC); 2017 (5) SA 480 (CC) (29 June 2017)
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Heads of arguments
CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 38/16
In the matter between:
LAWYERS FOR HUMAN
RIGHTS
Applicant
and
MINISTER OF HOME
AFFAIRS
First Respondent
DIRECTOR-GENERAL,
DEPARTMENT OF HOME
AFFAIRS
Second Respondent
MINISTER OF
POLICE
Third Respondent
MINISTER OF JUSTICE
AND CONSTITUTIONAL
DEVELOPMENT
Fourth Respondent
BOSASA (PTY) LIMITED t/a
LEADING PROSPECTS
TRADING
Fifth Respondent
and
PEOPLE AGAINST SUFFERING,
OPPRESSION AND
POVERTY
Amicus Curiae
Neutral citation:
Lawyers for Human Rights v Minister of Home Affairs and Others
[2017] ZACC 22
Coram:
Mogoeng CJ, Nkabinde
ADCJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
Judgments:
JAFTA J (unanimous)
Heard on:
14 March 2017
Decided on:
29 June 2017
Summary:
Section 34(1)(b)
and (d) of the
Immigration Act 13 of 2002
—
inconsistent with sections 12(1) and 35(2)(d) of the Constitution —
invalid
ORDER
On appeal from the High Court of South
Africa, Gauteng Division, Pretoria:
1.
The order issued by the High Court of South Africa, Gauteng Division,
Pretoria
is set aside.
2.
Section 34(1)(b)
and (d) of the
Immigration Act 13 of 2002
is
declared to be inconsistent with sections 12(1) and 35(2)(d) of the
Constitution and therefore invalid.
3.
The declaration of invalidity is suspended for 24 months from the
date of this
order to enable Parliament to correct the defect.
4.
Pending legislation to be enacted within 24 months or upon the expiry
of this
period, any illegal foreigner detained under
section 34(1)
of
the
Immigration Act 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.
5.
Illegal foreigners who are in detention at the time this order is
issued shall
be brought before a court within 48 hours from the date
of this order or on such later date as may be determined by a court.
6.
In the event of Parliament failing to pass corrective legislation
within 24 months,
the declaration of invalidity shall operate
prospectively.
7.
The Minister of Home Affairs and the Director-General: Department of
Home Affairs
shall, within 60 days from the date of this order, file
on affidavit a report confirming compliance with paragraph 5, at the
High Court
of South Africa, Gauteng Division, Pretoria.
8.
The High Court of South Africa, Gauteng Division, Pretoria may
determine any
dispute arising from that report.
9.
The appeal is dismissed.
10.
The Minister of Home Affairs and the Director-General: Department of
Home Affairs must pay
costs of the appeal and the confirmation
application, including costs of two counsel.
JUDGMENT
JAFTA J (Mogoeng CJ, Nkabinde ADCJ,
Cameron J, Froneman J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo
AJ, Pretorius AJ, and Zondo
J concurring):
Introduction
[1] Personal freedom was one of the
rights routinely violated during the apartheid era. Arrest and
detention without trial
were commonly used to suppress opposition to
the laws and policies of the government of that time.
[1]
Many detainees were arrested in the dead of the night and whisked
away to undisclosed locations where they were detained
for indefinite
periods. While in detention, sometimes in solitary confinement,
they would be deprived of any contact with
the outside world.
No contact was permitted with their families, doctors, lawyers and
even pastors.
[2]
[2] In most cases those detentions were
beyond the reach of judicial oversight.
[3]
As a result detainees were at the mercy of their captors who would
subject them to interrogations accompanied by torture
and other forms
of violence for purposes of extracting information on matters
relating to state security.
[3] To outlaw abuse of power and
deprivation of personal freedom, the framers of our
Constitution included section 12 in
the Bill of Rights that
guaranteed everyone physical freedom and protection against detention
without trial. The link between
the arbitrary deprivation of
personal liberty under apartheid and section 12 of the Constitution
was pointed out in
De Lange
.
[4]
In that case Didcott J said:
“
Those
words, the words ‘detained without trial’, ought not in
my opinion to be construed separately. They
comprise a
single and composite phrase which expresses a single and composite
notion and must therefore be read as a whole.
Both the usage of
the phrase in this country and the provenance here of the notion are
unfortunately familiar to us all.
Neither should be viewed
apart from our ugly history of political repression. For
detention without trial was a powerful
instrument designed to
suppress resistance to the programmes and policies of the former
government. The process was an arbitrary
one, set in motion by
the police alone on grounds of their own, controlled throughout by
them, and hidden from the scrutiny of
the courts, to which scant
recourse could be had. And it was marked by sudden and secret
arrests, indefinite incarceration,
isolation from families, friends
and lawyers, and protracted interrogations, accompanied often by
violence. Detentions without
trial of that nature, detentions
which might be disfigured by those or comparable features, were
surely the sort that the framers
of the Constitution had in mind when
they wrote section 12(1)(b).
”
[5]
[4] This matter concerns the validity of
legislation that authorises administrative detention without trial
for purposes of deportation.
The legislation was impugned on
the ground that it was not consistent with the rights guaranteed by
sections 12 and 35 of the Bill
of Rights. The matter comes
before this Court as an appeal and an application for confirmation of
the order of invalidity
granted by the High Court of South Africa,
Gauteng Division, Pretoria (High Court).
[6]
The Minister of Home Affairs and the Director-General: Department of
Home Affairs (jointly the State) oppose the confirmation
and seek to
appeal against that order. The other respondents did not take
part in the proceedings.
[7]
People Against Suffering, Oppression and Poverty (PASSOP) was
admitted as amicus curiae.
The scheme of
section 34
of the
Immigration Act
[5
] The provisions which were declared
invalid by the High Court form part of
section 34
of the
Immigration
Act.
[8
]
This section empowers an immigration officer to deport an “illegal
foreigner” (the term the statute uses) who
is within the
boundaries of South Africa. In addition, the section authorises
the arrest and detention of such foreigners
for purposes of deporting
them. A foreigner arrested in terms of this section may be
detained at a place designated for this
purpose by the
Director General.
[6] Upon arrest, or soon thereafter, a
detainee must be informed in writing of the decision to deport him or
her and of his or her
right to appeal against such decision in terms
of the
Immigration Act. Once
detained, he or she may, through
an immigration officer, ask that the detention be confirmed by a
warrant of a court which must
be issued within 48 hours from the
time when the request is made. If the warrant is not issued
within that period, the
foreigner must be released immediately from
detention.
[7] The arrested foreigner must be
informed of all these rights in a language that he or she
understands unless this is not
practicable. The detention must
be for a period of no longer than 30 calendar days unless extended on
good and reasonable
grounds by a court for a further period not
exceeding 90 calendar days. In total, an illegal foreigner
detained under
section 34
cannot be held in custody for more than 120
calendar days. Such detention must comply with minimum
prescribed standards protecting
the foreigner’s dignity and
other relevant human rights.
[8] If a foreigner is detained elsewhere
than on a ship and for purposes other than his or her deportation, he
or she must be brought
before a court within 48 hours from his or her
arrest. But if the period expires on a non-court day, it is
extended to 4:00 pm
on the next court day.
Litigation background
[9] Lawyers for Human Rights (applicant)
is a non-governmental organisation whose objectives are to “promote,
uphold, foster,
strengthen and enforce all human rights in South
Africa”. The applicant seeks to achieve these objectives
by invoking
the Constitution and the law. It offers legal
assistance free of charge to indigent and vulnerable people whose
constitutional
rights are violated. It litigates on behalf of
arrested and detained foreigners who are facing deportation. To
this
end, the applicant has instituted no fewer than 115 cases
against the State since 2009.
[10] Based on the familiarity with
conditions under which illegal foreigners are detained before
deportation, the applicant decided
to impugn certain provisions of
section 34 in terms of which the detentions are effected. These
conditions included a failure
to inform foreigners of the rights the
section requires them to be notified of, the inability to exercise
these rights owing to
lack of resources and legal assistance and the
detentions for periods in excess of 120 calendar days in
contravention of the
Immigration Act. In
some instances these
periods stretched up to six months or longer.
[11] The applicant’s papers paint
an unfortunate picture of a widespread disregard for statutory
requirements which leads
to a violation of rights of vulnerable
people. These lapses reveal shortcomings in the system enacted
by the
Immigration Act. A
system that was designed to promote
their “dignity and relevant human rights”. The
applicant sought to address
the failures in the system by attacking
the constitutionality of provisions which provided inadequate
protection of foreigners’
rights.
[12] In its attack the applicant singled
out
section 34(1)(b)
and (d) of the
Immigration Act. It
contended that, by omitting to provide for automatic judicial
oversight before the expiry of 30 calendar days, that section
was inconsistent with sections 12(1), 35(1)(d) and 35(2)(d) of
the Constitution. The challenge against section 34(1)(d)
was based on the contention that it did not permit a detainee to
appear in person before a court and impugn the lawfulness of his
or
her detention.
[13] The applicant sought from the High
Court an order declaring that
section 34(1)(b)
and (d) of the
Immigration Act is
inconsistent with the Constitution and invalid.
The invalidity was said to be to the extent that these provisions
permitted
detention of foreigners for a period of 30 days without
automatic judicial intervention and an extension of the initial
period
of detention without the detainee appearing in person before
the court that grants the extension.
[14] The State filed papers in
opposition of the claim. It disputed the contention that the
impugned provisions were inconsistent
with the sections of the
Constitution on which the applicant relied. In the alternative,
it denied that foreigners arrested
and detained in terms of section
34 enjoy the constitutional rights which the applicant claimed were
infringed.
[15] With regard to section 35(1)(d) of
the Constitution
[9]
,
the High Court upheld the State’s submission that this section
does not cover foreigners detained for purposes of deportation.
The High Court accepted the State’s contention that section
35(1)(d) of the Constitution applies where a person has been
arrested
for committing an offence and the purpose of the arrest was to bring
him or her to trial.
[16] But the High Court held that
section 34(1)(b) was inconsistent with section 35(2)(d) of the
Constitution to the extent
that it did not allow a detained foreigner
to challenge the lawfulness of his or her detention in court or have
the detention confirmed
by a warrant of court.
[10]
With regard to section 34(1)(d), that Court held that it too was not
in line with section 35(2)(d) because it did not permit
a detainee to
appear in person before a court when the request for extending the
detention is considered. An appearance in
open court, it was
held, “bestows legitimacy on the detention and provided a
certain measure of security and comfort to the
detainee”.
The High Court considered it unnecessary to determine the alternative
claim based on the violation of the
right not to be detained without
trial, entrenched in section 12(1)(b) of the Constitution.
[17] Having concluded that there was a
limitation of the rights guaranteed by section 35(2)(d) of the
Constitution, the High Court
proceeded to consider whether the State
had justified the limitation. The Court evaluated the State’s
evidence on justification
and held that it fell short of the required
standard. Put differently, the evidence failed to show that the
limitation in
question was reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom.
[18] Accordingly, the High Court
declared the impugned provisions to be inconsistent with the
Constitution and invalid. In
order to cure the defect, that
Court opted for a different formulation of section 34(1)(b).
This was suggested by the applicant.
In endorsing the
reformulation the Court said:
“In my view,
the suggestion supra will prevent an unduly strained application of
the severance and reading-in techniques.
The gist of the
section is saved through a reshuffling of words in order to ensure
compliance with the Constitution.”
[11]
[19] It is apparent from this statement
that the High Court did not apply the remedies of severance and
reading-in to craft section
34(1)(b) so that it is in line with the
Constitution. Nor did it follow guidelines laid down by this
Court on the application
of those remedies.
[12]
On the contrary, the High Court held that severance and reading-in
will not result in a just and equitable relief.
[20] The High Court held:
“The present
wording of section 34(1)(b) does provide that the detention of a
detainee may be confirmed by a warrant of court.
To tailor the
section to comply with the constitutional rights of detainees, is,
however, not a simple matter of severance
and reading-in as envisaged
in
Shinga v The State,
supra. In order to retain the
clear intention of the Legislator and still comply with the
requirement that the remedy provided
herein must be just and
equitable, the applicant proposed that the section provides as
follows:
‘(b)
must be brought before a court in person within 48 hours of his or
her detention, in order
for the Court to determine whether to confirm
the detention, failing which the foreigner shall immediately be
released.’”
[13]
[21] The reformulated provision with
which the High Court replaced the original section 34(1)(b)
[14]
is wholly different from the original one. Regarding
section 34(1)(d), the High Court severed the words “a
warrant
of court which” from the provision and read-in the
words “appearing in court in person, which court”.
This
meant that this provision would read thus:
“(d)
may not be held in detention for longer than 30 calendar days without
appearing in court
in person, which court on good and reasonable
grounds may extend such detention for an adequate period not
exceeding 90 calendar
days.”
[22] Here, unlike in section 34(1)(b),
the High Court applied the severance and reading-in remedies to cure
the defect.
In this Court
[23] As mentioned the applicant seeks
confirmation of the High Court’s order declaring the impugned
provisions to be invalid.
The State opposes this relief and
appeals against the declaration of invalidity. For this Court
to confirm the order in question
it must be satisfied that the
declaration of invalidity was rightly made. This requires us to
consider whether the impugned
provisions limit the rights on which
the applicant relied. And if they do, the next issue would be
whether the limitation
is justified in terms of section 36 of the
Constitution.
[15]
[24] But before we consider these
issues, we must determine one antecedent question. This is
whether illegal foreigners arrested
under section 34 of the statute
enjoy the rights invoked in challenging the validity of the impugned
provisions. This is
so because these provisions apply to
illegal foreigners only. If the guaranteed rights do not afford
them protection, then
an attack based on these rights may not be
successful.
[25] Whilst the High Court held that the
rights in section 35(1)(d) of the Constitution do not apply to
persons arrested for the
purpose of deportation in terms of
section
34
of the
Immigration Act, it
concluded that those people enjoy the
protection and rights entrenched in section 35(2)(d) of the
Constitution. This conclusion
is supported by authority of this
Court.
[26] In
Lawyers for Human Rights
this
Court held that the denial of rights in sections 12 and 35(2) of
the Constitution to people inside this country would
constitute a
negation of the values of human dignity, equality and freedom on
which our Constitution was founded. In that
case Yacoob J said:
“Once it is
accepted, as it must be, that persons within our territorial
boundaries have the protection of our courts, there
is no reason why
‘everyone’ in sections 12(2) and 35(2) should not be
given its ordinary meaning. When the Constitution
intends to
confine rights to citizens it says so. All people in this
category are beneficiaries of section 12 and section
35(2).”
[16]
[27] In light of this conclusion and the
view I take of the matter on the challenge based on sections 12 and
35(2)(d) of the Constitution,
it is not necessary to determine
whether the High Court was correct in holding that section 35(1)(d)
of the Bill of Rights
does not apply to foreign nationals
arrested for the purpose of deportation under
section 34(1)
of the
Immigration Act.
>
Issues
[28] The enquiry on whether the impugned
provisions are inconsistent with sections 12(1) and 35(2)(d) of
the Constitution must,
I think, begin with a determination of the
content and scope of the rights guaranteed. Once this is
established, the interpretation
of the impugned provision would
follow: it is the meaning of those provisions which will help us
determine whether the provisions
concerned are constitutionally
compliant. If the impugned provisions limit guaranteed rights,
then a justification analysis
would be undertaken before confirming
the High Court’s declaration of invalidity.
Meaning of section 12(1) of the Bill
of Rights
[29] Section 12(1) provides:
“Everyone has
the right to freedom and security of the person, which includes the
right—
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
not to be detained without trial;
(c)
to be free from all forms of violence from either public or private
sources;
(d)
not to be tortured in any way; and
(e)
not to be treated or punished in a cruel, inhuman or degrading way.”
[30] Happily this provision has already
been interpreted by this Court.
[17]
In
De Lange
Ackermann J observed:
“
When
formulating in section 12(1) the ‘right to freedom and security
of the person’ and including therein (in paragraphs
(a) and (b)
respectively) the right ‘not to be deprived of freedom
arbitrarily or without just cause’ and ‘not
to be
detained without trial’ the Constitutional Assembly chose to do
so in broad and unqualified terms. It did not,
in the
description or definition of these rights, exclude from the ambit of
their protection specific cases of detention, as was
done in article
5.1 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms
.”
[18]
[31] What is apparent from this
statement is that the rights entrenched by section 12(1)
safeguard individual physical freedom
against any form of detention.
In the context of section 12(1) the word “detention”
carries a wide meaning so
as to afford individuals maximum
protection. Indeed in
De Lange
this Court said:
“Although
administrative detention without trial for purposes of political
control (or for that matter completely arbitrary
detention without
trial) might very well be the most serious infringement of section
12(1)(b), the protection afforded by the right
guaranteed thereunder
goes considerably further. In its ordinary grammatical sense
‘detention’ is a word of wide
meaning and relates to
‘keeping in custody or confinement; arrest. Used
spec
of the confinement of a political offender . . . bodily restraint.’
In legal use its meaning is determined by the context
and can
relate to a variety of physical restraints. In fact section
66(3) of the Insolvency Act itself describes the committal
to prison
as being ‘detained’. The context in which it is
used in section 12(1)(b) does not require it to be
given a strained
or limited meaning. It applies to the restriction of physical
movement.”
[19]
[32] But, more importantly, the right to
freedom and security of the person enshrined in section 12(1) has
been taken as incorporating
two aspects, the substantive and
procedural aspects. The purposes served by these aspects differ
and yet the purpose of each
must be met. In
De Lange
it
was pronounced:
“The
substantive and the procedural aspects of the protection of freedom
are different, serve different purposes and have
to be satisfied
conjunctively. The substantive aspect ensures that a
deprivation of liberty cannot take place without satisfactory
or
adequate reasons for doing so. In the first place it may not
occur ‘arbitrarily’; there must in other words
be a
rational connection between the deprivation and some objectively
determinable purpose. If such rational connection does
not
exist the substantive aspect of the protection of freedom has by that
fact alone been denied. But even if such rational
connection
exists, it is by itself insufficient; the purpose, reason or ‘cause’
for the deprivation must be a ‘just’
one.”
[20]
[33] The substantive aspect requires
that a detention of an individual be done for constitutionally
acceptable reasons only.
This right outlaws arbitrary
detentions. There must be a rational connection between the
detention and an objectively determinable
and legitimate governmental
purpose. Absence of that connection would mean that the
substantive aspect of the right is breached.
A breach of this
aspect of the right may also occur where a rational connection exists
but the purpose or cause for the detention
is not just.
[34] The procedural aspect of the right
is implicit in section 12(1)(b) which guarantees protection against
detention without trial
which was commonplace under the apartheid
government. Then, arbitrary administrative detention was used
to suppress dissent
and serious violation of human rights occurred
during the detention in respect of which judicial oversight was
excluded.
In
De Lange
the Court affirmed that section
12(1)(b) must be interpreted against this historical background:
“When viewed
against its historical background, the first and most egregious form
of deprivation of physical liberty which
springs to mind when
considering the construction of the expression ‘detained
without trial’ in section 12(1)(b) is
the notorious
administrative detention without trial for purposes of political
control. This took place during the previous
constitutional
dispensation under various statutory provisions which were
effectively insulated against meaningful judicial control.
Effective
judicial control was excluded prior to the commencement of the
detention and throughout its duration. During
such detention,
and facilitated by this exclusion of judicial control, the grossest
violations of the life and the bodily, mental
and spiritual integrity
of detainees occurred. This manifestation of detention without trial
was a virtual negation of the rule
of law and had serious negative
consequences for the credibility and status of the judiciary in this
country.”
[21]
[35] Implicit in the procedural aspect
of the right is the role played by courts. Judicial control or
oversight ensures that
appropriate procedural safeguards are
followed. That is why even where there is a derogation from the
right during a state
of emergency, section 37 of the Constitution
requires that a court must review the detention as soon as reasonably
possible but
not later than 10 days from the date the person was
detained.
[36] Section 37(6) of the Bill of Rights
provides:
“
Whenever
anyone is detained without trial in consequence of a derogation of
rights resulting from a declaration of a state of emergency,
the
following conditions must be observed:
. . .
(e)
A court must review the detention as soon as reasonably possible, but
no later than
10 days after the date the person was detained, and the
court must release the detainee unless it is necessary to continue
the
detention to restore peace and order.
(f)
A detainee who is not released in terms of a review under paragraph
(e), or who is
not released in terms of a review under this
paragraph, may apply to a court for a further review of the detention
at any time
after 10 days have passed since the previous review, and
the court must release the detainee unless it is still necessary to
continue
the detention to restore peace and order.
(g)
The detainee must be allowed to appear in person before any court
considering the
detention, to be represented by a legal practitioner
at those hearings, and to make representations against continued
detention.
(h)
The state must present written reasons to the court to justify the
continued detention
of the detainee, and must give a copy of those
reasons to the detainee at least two days before the court reviews
the detention.”
[37] This provision reveals that the
Constitution regards judicial oversight to be crucial to detention of
individuals, even during
a state of emergency. It lays down
procedural safeguards which must be followed in times of
extraordinary circumstances justifying
the declaration of a state of
emergency. There can be no justification for not applying those
guidelines and allowing judicial
review during normal and peaceful
times.
[38] With regard to the right not to be
detained without trial under the interim Constitution this Court
said:
“The section
11(1) right relied upon by the applicants is the ‘right not to
be detained without trial’.
The mischief at which this
particular right is aimed is the deprivation of a person’s
physical liberty without appropriate
procedural safeguards. In
its most extreme form, the mischief exhibits itself in the detention
of a person pursuant to the
exercise by an administrative official of
a subjective discretion without any, or grossly, inadequate,
procedural safeguards.”
[22]
[39] It is precisely against this “most
extreme form” of the mischief that the Constitution seeks to
protect individuals
by proclaiming conditions under which detentions
may be conducted in this country. At the centre of these
conditions is judicial
control or oversight which must be triggered
as soon as reasonably possible from the first day of detention.
In
De Lange
this Court proclaimed:
“History
nevertheless emphasises how important the right not to be detained
without trial is and how important proper judicial
control is in
order to prevent the abuses which must almost unsuitably flow from
such judicially uncontrolled detention.”
[23]
[40] It is apparent from the Bill of
Rights in our Constitution and the jurisprudence of this Court on the
matter that automatic
judicial control or review forms an integral
part of safeguards guaranteed against detention without trial.
Interpretation of section 35(2)(d) of
the Bill of Rights
[41] Section 35(2) of the Constitution
provides:
“Everyone who
is detained, including every sentenced prisoner, has the right—
(a)
to be informed promptly of the reason for being detained;
(b)
to choose, and to consult with, a legal practitioner, and to be
informed of this right
promptly;
(c)
to have a legal practitioner assigned to the detained person by the
state and at state
expense, if substantial injustice would otherwise
result, and to be informed of this right promptly;
(d)
to challenge the lawfulness of the detention in person before a court
and, if the
detention is unlawful, to be released;
(e)
to conditions of detention that are consistent with human dignity,
including at least
exercise and the provision, at state expense, of
adequate accommodation, nutrition, reading material and medical
treatment;
and
(f)
to communicate with, and be visited by, that person’s
(i) spouse or
partner;
(ii) next of kin;
(iii) chosen religious
counsellor; and
(iv) chosen medical
practitioner.”
[42] In plain language this section
applies to illegal foreigners detained in terms of
section 34(1)
of
the
Immigration Act. It
confers on the detained foreigners a
number of rights. These rights range from the right to be
informed of the reason for
detention to the right to be detained
under conditions that are consistent with human dignity and provision
at State expense of
adequate accommodation, nutrition, reading
material and medical treatment. In addition, the detainees are
entitled to be
visited by their spouses or partners, next of kin, and
chosen religious counsellor or medical practitioner.
[43] Over and above those rights the
section also confers specific rights designed to protect the
procedural aspect of the right
to physical freedom. In this
regard the section guarantees a detainee the right to choose and
consult with a legal practitioner
of his or her choice. If the
detainee cannot afford the fees of a legal practitioner, one must be
assigned to them at State
expense if substantial injustice would
otherwise result. Most importantly
section 35(2)
of the Bill of
Rights provides that a detainee is entitled to challenge the
lawfulness of his or her detention in person before
a court and to be
released immediately if the court finds that the detention is
unlawful.
[44] To afford maximum protection, this
section too is couched in broad terms and its scope extends to every
detention, including
the detention of sentenced persons.
[45] It is now convenient to construe
the impugned provisions with a view to determine if they conform to
the rights set out above.
Meaning of
section 34(1)
of the
Immigration Act
[46]
Section 34(1)
provides:
“Without the
need for a warrant, an immigration officer may arrest an illegal
foreigner or cause him or her to be arrested,
and shall, irrespective
of whether such foreigner is arrested, deport him or her or cause him
or her to be deported and may, pending
his or her deportation, detain
him or her or cause him or her to be detained in a manner and at a
place determined by the Director-General,
provided that the foreigner
concerned—
(a)
shall be notified in writing of the decision to deport him or her and
of his or her
right to appeal such decision in terms of this Act;
(b)
may at any time request any officer attending to him or her that his
or her detention
for the purpose of deportation be confirmed by
warrant of a Court, which, if not issued within 48 hours of such
request, shall
cause the immediate release of such foreigner;
(c)
shall be informed upon arrest or immediately thereafter of the rights
set out in the
preceding two paragraphs, when possible, practicable
and available in a language that he or she understands;
(d)
may not be held in detention for longer than 30 calendar days without
a warrant of
a Court which on good and reasonable grounds may extend
such detention for an adequate period not exceeding 90 calendar days,
and
(e)
shall be held in detention in compliance with minimum prescribed
standards protecting
his or her dignity and relevant human rights.”
[47] This provision grants drastic
powers to an administrative official, the immigration officer.
It empowers the officer
to deport an illegal foreigner without the
need for a warrant authorised by a court. To ameliorate the
harshness of the exercise
of this power, the provision requires the
immigration officer to give the affected foreigner a written notice
of the decision to
deport and his or her right to appeal against the
decision.
[48] Notably, the very same provision
authorises an immigration officer to arrest and detain an illegal
foreigner, pending his or
her deportation. The exercise of this
power is not subject to any objectively determinable conditions.
Nor does the
section lay down any guidance for its exercise.
There can be no doubt that in present form
section 34(1)
offends
against the rule of law by failing to guide immigration officers as
to when they may arrest and detain illegal foreigners
before
deporting them. More so because this power may be exercised
without the need for a warrant of a court. The detention
is
quintessentially administrative in nature.
[49] In
Dawood
this Court struck
down a statutory provision that conferred wide discretionary powers
on immigration officers without any guidelines.
There O’Regan J
said:
“We must not
lose sight of the fact that rights enshrined in the Bill of Rights
must be protected and may not be unjustifiably
infringed. It is
for the Legislature to ensure that, when necessary, guidance is
provided as to when limitation of rights
will be justifiable. It
is therefore not ordinarily sufficient for the Legislature merely to
say that discretionary powers
that may be exercised in a manner that
could limit rights should be read in a manner consistent with the
Constitution in the light
of the constitutional obligations placed on
such officials to respect the Constitution. Such an approach
would often not
promote the spirit, purport and objects of the Bill
of Rights. Guidance will often be required to ensure that the
Constitution
takes root in the daily practice of governance. Where
necessary, such guidance must be given. Guidance could be
provided
either in the legislation itself or, where appropriate, by a
legislative requirement that delegated legislation be properly
enacted
by a competent authority.
Such guidance is
demonstrably absent in this case. It is important that
discretion be conferred upon immigration officials
to make decisions
concerning temporary permits. Discretion of this kind, though
subject to review, is an important part of
the statutory framework
under consideration. However, no attempt has been made by the
Legislature to give guidance to decision-makers
in relation to their
power to refuse to extend or grant temporary permits in a manner that
would protect the constitutional rights
of spouses and family
members.”
[24]
[50] Circumstances in the present matter
are similar, if not identical, to those found in
Dawood
.
Whether an illegal foreigner is arrested and detained depends
entirely on the whims of the immigration officer. But
here the
exercise of the discretionary power results in more serious
consequences of arrest and detention.
[51] Moreover, section 34(1) does not
require that a detainee be informed of the rights enumerated in
section 35(2) of the Constitution,
apart from being told of the
reason for detention. It will be recalled that section 35(2)
demands that a detainee be informed
of his or her right to legal
representation by a lawyer of his or her own choice and to be
assigned one at State expense if substantial
injustice would
otherwise result.
[52] But significantly, section 34(1)(b)
does not require an automatic judicial review of a detention before
30 calendar days expire.
It merely grants a detainee the right
to request an immigration officer to cause the detention to be
confirmed by a warrant of
a court. Such warrant may be obtained
only during the currency of the detention and at the instance of the
immigration officer.
The nature and scope of the information to
be placed before the court is to be determined by the immigration
officer. The
provision does not allow the detainee to make any
representations to the court, either orally or in writing. Nor
does it
permit him or her to appear in person.
[53] It is highly unlikely that an
immigration officer who wishes that the detention be confirmed would
place before the court information
adverse to that objective.
If information of this kind is omitted, the detainee would not know
and would have no recourse.
The court too would be
disadvantaged from making a proper decision by the absence of such
information.
[54] Another flaw in section 34(1)(b) is
that it allows a detention to continue for at least 48 hours before
the detainee may be
released in circumstances where an immigration
officer fails to ask for confirmation. This may occur even
where the failure
is occasioned by the absence of valid grounds.
Section 34(1)(d)
[55]
Section 34(1)(d)
of the
Immigration
Act permits
an extension of a detention beyond 30 days. It
empowers a court to extend a detention for an adequate period but not
exceeding
90 calendar days. The applicant for the extension
must establish good and reasonable grounds for the extension.
What
are good and reasonable grounds in a given case is left entirely
in the discretion of the court before which the application is
made.
The phrase “good and reasonable grounds” is not defined.
However, it must mean reasonable grounds
which justify an extension
for a particular period.
[56]
Section 34(1)(d)
too does not
permit the detainee to make any representations to the court on
whether the grounds advanced by an immigration officer
meet the
standard of good and reasonable grounds. The court considering
the application is under no duty to offer the detainee
a hearing.
Contrary to section 35(2)(d) of the Constitution, section 34(1)(d)
denies a detainee the right to challenge the
lawfulness of his or her
detention in person before a court.
[57] Indeed the State in its
supplementary submissions on the postponed date of argument conceded
that the impugned provisions do
not afford a detainee the right to
appear in person before a court and accepts that a detainee must be
entitled to appear in person
and make oral representations to the
court. To this end, the State undertakes to ensure that if a
detainee wishes to appear
in person he or she will be afforded the
opportunity to do so. This undertaking, however, does not cure
the defect in the
provisions.
[58] Accordingly, I am satisfied that
the impugned provisions limit the constitutional rights enshrined in
sections 12(1) and 35(2)
of the Constitution.
Justification
[59] In an attempt to justify the
limitation, the State raised the issue of increased costs which will
result from judicial reviews
involving appearances in court.
The State averred that in the 2013/2014 financial year 131 907
foreign nationals were
deported from this country. Based on
this figure, the State contended that 500 foreigners would
appear in court daily,
countrywide. It claimed that apart from
the increased costs in the running of courts, the 500 daily
appearances would create
logistical obstacles. With regard to
financial resources, the State alleged that there will be a need to
employ a “massive
number of additional magistrates who will be
required to consider these warrant confirmations”.
[60] The High Court rightly gave these
reasons short shrift. The Court reasoned that the Minister of
Justice, who was cited
as a respondent, did not oppose the relief
claimed by the applicant. Instead, he had filed a notice to
abide the decision
of the Court.
[61] A limitation of rights like
physical freedom cannot be justified on the basis of general facts
and estimates to the effect
that there will be an increase in costs.
The mere increase in costs alone cannot be justification for denying
detainees the
right to challenge the lawfulness of their detention.
Moreover, section 34(1) requires that the arrested foreigners be
informed
of the right to challenge the decision to deport them on
appeal and ask that their detention be confirmed by warrant of a
court.
If each foreigner decides to exercise these rights, an
increase in costs would be unavoidable. Therefore, the State
must
have budgeted for these costs which are necessitated by the
implementation of the
Immigration Act.
[62
] Dealing with a plea of lack of
resources in
Blue Moonlight Properties
this Court stated:
“The City
provided information relating specifically to its housing budget, but
did not provide information relating to its
budget situation in
general. We do not know exactly what the City’s overall
financial position is. This Court’s
determination of the
reasonableness of measures within available resources cannot be
restricted by budgetary and other decisions
that may well have
resulted from a mistaken understanding of constitutional or statutory
obligations. In other words, it
is not good enough for the City
to state that it has not budgeted for something, if it should indeed
have planned and budgeted
for it in the fulfilment of its
obligations.”
[25]
[63] I find that the reasons advanced by
the State here are woefully short of justifying the limitation
created by the impugned
provisions. Consequently, those
provisions are inconsistent with the Constitution.
Remedy
[64] Here the High Court held that
severance and the reading-in would be inappropriate because their
application would be unduly
strained. But the Court proceeded
to replace the entire section 34(1)(b) with a differently worded
provision. The Court
reasoned that “the gist of the
section is saved through a reshuffling of the words in order to
ensure compliance with the
Constitution”. This was indeed
a new remedy that was granted by the High Court.
[65] In so doing the High Court
overlooked the principle laid down by this Court.
[26]
In
Dawood
O’Regan J said:
“In
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
this Court held that it could introduce words
into a legislative provision if such an order were appropriate.
In deciding
whether such an order were appropriate, the Court held
that there were two primary considerations - the need to afford
appropriate
relief to successful litigants, on the one hand, and the
need to respect the separation of powers, and, in particular, the
role
of the Legislature as the institution constitutionally entrusted
with the task of enacting legislation, on the other.”
[27]
[66] Having decided that severance and
the reading-in were not appropriate, it was not open to the High
Court to effectively amend
section 34(1)(b) by replacing the invalid
provision with the one drafted by the Court. What was done does
not accord with
the principle of separation of powers. It is
the domain of Parliament to amend legislation and not the courts.
[67] I agree that the remedies of
severance and reading-in are not appropriate here. It will be
recalled that the defect is
not restricted to the omission of
judicial review and a personal appearance before the court. The
problem with
section 34(1)
of the
Immigration Act is
way much wider.
In the first place the section confers broad discretionary powers
without any guidance on how the powers
to arrest and detain illegal
foreigners must be exercised.
[68] A similar situation arose in
Dawood
and this Court held that it would be inappropriate to seek to
remedy the problem. Parliament was considered to be best placed
to do so. The Court stated:
“It would be
inappropriate for this Court to seek to remedy the inconsistency in
the legislation under review. The task
of determining what
guidance should be given to the decision-makers, and in particular,
the circumstances in which a permit may
justifiably be refused is
primarily a task for the Legislature and should be undertaken by it.
There is a range of possibilities
that the Legislature may adopt to
cure the unconstitutionality.”
[28]
[69] Moreover, even where a defect is
cured by a reading-in, Parliament retains the power to amend the
provision.
[29]
Since the reading-in here will not address the absence of guidelines,
the reading-in may not be employed. Therefore
a suspension of
the declaration of invalidity appears to be appropriate. This
would enable Parliament to correct the defects.
[70] However, in line with the principle
that a successful litigant must be afforded appropriate relief, the
suspension must be
accompanied by conditions which would protect the
detainees’ rights in the interim. In this regard I intend
granting
an order with terms similar to the one issued in
Dawood
.
[30]
[71] The confirmation of the order of
invalidity granted by the High Court effectively means that the
appeal by the State must be
dismissed. Both in the appeal and
its opposition to confirmation, the State relied on the same
submissions.
Costs
[72] The application for confirmation
has been successful and the appeal by the State was not. It
follows that the State must
pay costs, including costs consequent
upon the employment of two counsel.
Order
[73] The following order is made:
1.
The order issued by the High Court of South Africa, Gauteng Division,
Pretoria
is set aside.
2.
Section 34(1)(b)
and (d) of the
Immigration Act 13 of 2002
is
declared to be inconsistent with sections 12(1) and 35(2)(d) of the
Constitution and therefore invalid.
3.
The declaration of invalidity is suspended for 24 months from the
date of this
order to enable Parliament to correct the defect.
4.
Pending legislation to be enacted within 24 months or upon the expiry
of this
period, any illegal foreigner detained under
section 34(1)
of
the
Immigration Act 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.
5.
Illegal foreigners who are in detention at the time this order is
issued shall
be brought before a court within 48 hours from the date
of this order or on such later date as may be determined by a court.
6.
In the event of Parliament failing to pass corrective legislation
within 24 months,
the declaration of invalidity shall operate
prospectively.
7.
The Minister of Home Affairs and the Director-General: Department of
Home Affairs
shall, within 60 days from the date of this order, file
on affidavit a report confirming compliance with paragraph 5, at the
High Court
of South Africa, Gauteng Division, Pretoria.
8.
The High Court of South Africa, Gauteng Division, Pretoria may
determine any
dispute arising from that report.
9.
The appeal is dismissed.
10.
The Minister of Home Affairs and the Director-General: Department of
Home Affairs must pay
costs of the appeal and the confirmation
application, including costs of two counsel.
For the
Applicant:
S Budlender, N Ferreira and J Bhima instructed by Lawyers for Human
Rights
For the First and Second Respondents:
P M Kennedy SC and L Mboweni instructed by the State Attorney,
Pretoria
For the Amicus
Curiae:
S Margardie and S Sephton instructed by the Legal Resources Centre
[1]
Section 17(1) of the General Law Amendment Act 37 of 1963 (Amendment
Act).
[2]
Section 17(2) of the Amendment Act provides:
“No person
shall, except with the consent of the Minister of Justice or a
commissioned officer as aforesaid, have access
to any person
detained under sub-section (1): Provided that not less than once
during each week such person shall be visited
in private by the
magistrate or an additional or assistant magistrate of the district
in which he is detained.”
[3]
Section 17(3) of the Amendment Act provides:
“No court
shall have jurisdiction to order the release from custody of any
person so detained, but the said Minister may
at any time direct
that any such person be released from custody.”
[4]
De Lange v Smuts NO
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998
(7) BCLR 779
(CC).
[5]
Id at para 115.
[6]
Section 172 (2)(a) of the Constitution provides:
“The Supreme
Court of Appeal, a High Court or a court of similar status may make
an order concerning the constitutional
validity of an Act of
Parliament, a provincial Act or any conduct of the President, but an
order of constitutional invalidity
has no force unless it is
confirmed by the Constitutional Court.”
[7]
The third respondent is the Minister of Police; the fourth
respondent is the Minister of Justice and Constitutional Development
and the fifth respondent is Bosasa (Pty) Limited t/a Leading
Prospects Trading.
[8]
13 of 2002.
[9]
Section 35(1) provides:
“Everyone
who is arrested for allegedly committing an offence has a right—
. . .
(d)
to be brought before a court as soon as reasonably possible but
not
later than—
(i)
48 hours after the arrest.”
[10]
Lawyers for Human Rights v Minister of Home Affairs
[2016]
ZAGPPHC 45;
2016 (4) SA 207
(GP) (High Court judgment) at para
16.
[11]
Id at para 40.
[12]
National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR
39
(CC) at paras 64-76 and
Lawyers for Human Rights v Minister of
Home Affairs
[2004] ZACC 12
;
2004 (4) SA 125
(CC);
2004 (7) BCLR
775
(CC) at para 45.
[13]
High Court judgment above n 10 at para 39.
[14]
The full text of section 34 is quoted in [46] below.
[15]
Section 36(1) of the Constitution provides:
“The rights
in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including—
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.”
[16]
Lawyers for Human Rights
above n 12 at para 27.
[17]
Its equivalent under the interim Constitution was construed in
Bernstein v Bester
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996
(4) BCLR 449
(CC);and
Nel v Le Roux NO
[1996] ZACC 6; 1996
(3) SA 562 (CC); 1996 (4) BCLR 592 (CC).
[18]
De Lange
above n 4 at para 45.
[19]
Id at para 28.
[20]
Id at para 23.
[21]
Id at para 26.
[22]
Nel
above n 17 at para 14.
[23]
De Lange
above n 4 at para 27.
[24]
Dawood v Minister of Home Affairs; Shalabi v Minister of Home
Affairs; Thomas v Minister of Home Affairs
[2000] ZACC 8
;
2000
(3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at paras 54-5.
[25]
City of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd
[2011] ZACC 33
;
2012 (2) SA 104
(CC);
2012 (2) BCLR 150
(CC) (
Blue Moonlight Properties
) at para
74.
[26]
National Coalition for Gay and Lesbian Equality
above n 12
.
[27]
Dawood
above n 24 at para 62.
[28]
Id at para 63.
[29]
National Coalition for Gay and Lesbian Equality
above n 12 at
para 76.
[30]
Dawood
above n 24 at para 70.