Johannesburg – Home Affairs Minister Dr. Aaron Motsoaledi on Monday issued a directive to guide immigration officers regarding the arrest, and detention of foreign nationals in South Africa illegally.
The directive also contains the amended forms to be used during the entire process.
The move will guide immigration officers to comply with the order of the Constitutional Court, which specifies that:
Subject to and pending the enactment of legislation outlined in paragraph 2, as from the date of this order, and pending remedial legislation to be enacted and brought into force within 12 months from the date of this order, the following provisions, supplementary to those contained in paragraph 4 of this Court’s order of 29 June 2017, shall apply:
(a) An immigration officer considering the arrest and detention of an illegal foreigner in terms of section 34 (1) of the Immigration Act 13 of 2002 (Act) must consider whether the interests of justice permit release of such person subject to reasonable conditions, and must not cause the person to be detained if the officer concludes that the interests of justice permit the release of such person subject to reasonable conditions.
(b) A person detained in terms of section 34 (1) of the Act shall be brought before a court 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.
(c) The Court before whom a person is brought in terms of paragraph (b) above must consider whether the interests of justice permit the release of such person subject to reasonable conditions and must, if it so concludes, order the person to be released subject to reasonable conditions.
(d) If the Court concludes that the interests of justice do not permit the release of such person, the Court may authorise the further detention of the A, person for a period not exceeding 30 calendar days.
(e) If the Court has ordered the further detention of a person in terms of paragraph (d) above, the said person must again be brought before the Court before the expiry of the period of detention authorised by the Court must again consider whether the interests of justice permit the release of such person subject to reasonable conditions and must, if it so concludes, order the person to be released subject to reasonable conditions.
(f) If the Court contemplated in paragraph (e) above concludes that the interests of justice do not permit the release of such person, the Court may authorise the person’s detention for an adequate period not exceeding a further 90 calendar days.
(g) A person brought a Court in terms of paragraph (b) or (e) must be given an opportunity to make representations to the Court”
Minister Motsoaledi also prescribed specific forms to be used pending the enactment of remedial legislation referred to in the order of the Constitutional Court.
He said the order is for 12 months, starting from 30 October 2023 and ending 30 October 2024 during which the following must be effected:
- All immigration officers and/or other relevant officials shall use forms 28, 29, 30, 31, and 32 as prescribed in this directive in effecting the arrest, detention, and release of any illegal foreigner affected by the order of the Constitutional Court.
- All immigration officers and/or other relevant officials shall fully comply with the order of the Constitutional Court.
The directive was Gazetted on Monday.
Meanwhile, Minister Motsoaledi said he has applied for leave to appeal to the Constitutional Court against the order of the Supreme Court of Appeal (SCA) in the matter “Minister of Home Affairs v Helen Suzman Foundation”, dismissing leave to appeal to the SCA.
The minister said he has taken this step to exhaust all legal avenues available to him.
“This is so because of the public importance of the matter,” Minister Motsoaledi said.
