Detention of Illegal Foreigners Pending Deportation: The Minister of Home Affairs v Rahim and Others (Constitutional Court)

By Nikki Gerneke, Head of Immigration Law at Shepstone & Wylie Attorneys 

Hot off the press is the Constitutional Court judgment of Minister of Home Affairs v Abdul Rahim and Others of 18 February 2016. The respondents are all foreigners who had had their applications for asylum under section 21 of the Refugees Act rejected.  Having failed to depart the country, the respondents were arrested and detained, pending their deportation, purportedly under the authority conferred upon immigration officers by section 34(1) of the Immigration Act (the Act), which provides that an “illegal foreigner”, subject to various conditions, can be arrested by an immigration officer and detained, pending deportation – “in a manner and at the place … determined by the Director-General [of the Department of Home Affairs].”

Following their arrest, the respondents were all detained for various periods, ranging from 4 to 35 days, in various facilities, and were later released. In all cases the respondents were detained in prison or at a police station, either for the full period of detention or for part of the time in prison and part of the time at a police station. The arrests and detentions were said to be unlawful for various reasons. Before the court in this instance only one reason was pursued – were the places at which the Respondents detained places determined for detention by the Director-General under the Immigration Act?

The Supreme Court of Appeal concluded that the Director-General was required, by section 34(1) of the Act, pertinently to apply his mind to the place/s for the detention of illegal foreigners pending deportation. Absent evidence that any such determination had been made, it found the detention of the respondents to have been unlawful.  

This court agreed with the Supreme Court of Appeal. It held that although they are foreigners, and in this country illegally, persons in that category nonetheless enjoy the protection of the Constitution, at least so far as the principle of legality and their right to respect for their dignity, is concerned. They may be detained, anywhere, provided however that the place of detention is under the authority and control of the State.

For more information on the above please contact

Nikki Gerneke

Head of Immigration Law

Corporate & Commercial Department

Shepstone & Wylie Attorneys  

+27 71 148 7724